Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1957, No. 777, in case of Commonwealth of Pennsylvania v. Eugene Floyd.
Gilbert B. Abramson, for appellant.
James Shellenberger and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Dissenting Opinion by Mr. Chief Justice Jones.
Eugene Floyd, appellant, was convicted of first degree murder in 1958. Post-trial motions were timely filed, but later withdrawn. Appellant was sentenced to
life imprisonment. In 1965, appellant filed a petition for a writ of habeas corpus challenging the voluntariness of his confession. Relief was denied and this Court affirmed. Commonwealth ex rel. Floyd v. Rundle, 424 Pa. 645, 227 A.2d 497 (1967).
In 1968, appellant filed a PCHA petition alleging that he had been denied his right to appeal the judgment of sentence. Appellant asserted that he withdrew his post-trial motions because he feared the imposition of the death penalty in the event of a retrial. Relief was denied and this appeal followed.
A failure to pursue post-trial motions motivated by fear of the death penalty does not constitute a knowing and voluntary waiver. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969). Even though other factors may have been present, if fear of the death penalty "was a factor" in appellant's decision to withdraw his post-trial motions he is entitled to relief. Commonwealth v. Falcone, 440 Pa. 61, 269 A.2d 669 (1970).
The evidence before the PCHA court supports only one conclusion; that the failure of appellant to appeal was motivated by a fear of the death penalty on retrial. On the day appointed for argument of post-trial motions, the following colloquy took place: ". . . The Court: Now, is the motion still before me or withdrawn? Montemuro [Defense Co-Counsel]: I might say, Your Honor, that on Friday we had a conference at Moyamensing Prison with the prisoner and with his mother, and at that time we advised him of his rights and just what risks were inherent in pursuing the motion for a new trial. We further advised him, however, that any decision he made had to be his own, and at that time he advised us that he wished to withdraw motion for new trial and accept imposition of sentence by the Court. The Court: All right. Is that correct, Mr. Floyd? Floyd [Appellant]: Yes, sir. The Court: All
right. Then I shall impose upon you a sentence in Eastern Penitentiary for the balance of your natural life. I think you may have been well advised to do what you did because information has come to me that the jury stood eleven to one for the death penalty. . . ." (Emphasis supplied.) At the PCHA hearing the court asked and defense co-counsel William O'Brien answered as follows: ". . . The Court: If he says it was discussed with him, but that he didn't want to appeal because he was told he might get the chair on a new trial, would that be correct? The Witness. That would be correct, sir. . . ." The testimony of the appellant at the PCHA hearing corroborates the testimony of his attorney. ". . . By The Court: Q. This is after the jury verdict? A. Yes, sir. Q. What did they say? A. Well, he told me that I could appeal my case to the Supreme Court. Q. Who told you that? A. Mr. Montemuro, and that he couldn't see me not getting a new trial. But, in the event that I did get a new trial, I could get life or the chair. By Mr. Stern: Q. In other words, is it a fair statement to say that your attorney told you that you could appeal, but that if you did appeal, there was a possibility that you would get, get the chair? A. Yes, sir. . . . By The Court: Q. Did he withdraw the motions after you were ...