The opinion of the court was delivered by: Buckwalter, District Judge.
The police arrived, pronounced the girl dead at the
scene and removed the body to the morgue. The body
was then examined by one Dr. Edward Campbell, Medical
Examiner and Forensic pathologist. The deceased's
blouse had been torn and the zipper of her dungarees
(men's style) was partially ripped off. The dungarees
were also torn at the inner seams of the thighs on
both sides of the crotch. The crotch seam of the
deceased's panties was likewise torn. The cause of
death was attributed to strangulation by ligature.
There were also bruises to the skin of the neck, a
broken bone on the right side of the neck and bruises
of the voice box. Tears were found in the child's
rectum and testing ascertained the presence of acid
phosphates in the vagina.
The clothing of the deceased was delivered to the
Police Department Laboratory where brushings and
microscopic examination disclosed particles of
leather, leather dust, glue, polish, dog hairs, fiber
and chips of paint adhering to the clothing. These
findings led to the issuance of three search warrants
for the person of and premises occupied by the
appellant, which premises were located at 1109 North
40 th Street and consisted of a shoe repair shop in
the ground floor and living quarters in the rear of
the shop. The execution of these warrants resulted in
obtaining, inter alia, paint scrapings from various
parts of the premises, specimens of leather, glue,
fibers, threads and hairs, clothing of appellant, bed
sheets, bedspreads and drapes. These specimens were
delivered to the Police Department Laboratory,
analyzed by Dr. Edward J. Burke, then the Laboratory
Director, and compared with items removed from the
deceased's clothing. The Commonwealth's entire case
rested upon the testimony of Dr. Burke with reference
to the similarity of the specimens.
Petitioner was convicted by a jury of first-degree murder of
Edith Connor. He was sentenced to life imprisonment by Judge
Joseph L. McGlynn, Jr. on April 23, 1971. The sentence was
affirmed by the Supreme Court of Pennsylvania, supra.
His subsequent pro se petition for post conviction relief on
a single technical ground that the indictment did not use the
words "kill and murder" was denied. Commonwealth v. Thomas,
268 Pa.Super. 566, 408 A.2d 1148 (1979).
In 1973, a federal petition for habeas corpus was dismissed
without prejudice for failure to exhaust state remedies (E.D.Pa.
C.A. No. 73-2711).
In 1993, petitioner filed an application with the Pennsylvania
Board of Pardons.*fn1
The four members of the Board of Pardons, Attorney General
Ernest Preate, Jr., Dr. Daniel J. Menniti, Warden Thomas Frame,
and Ronald J. Harper, Esq., who heard the case (then Lieutenant
Governor Mark Singel did not hear the oral presentation),
recommended unanimously that the life sentence of petitioner,
which was computed from October 15, 1964, the day after
petitioner's arrest, be commuted from life imprisonment to a
term of imprisonment of thirty-one (31) years, nine (9) months,
six (6) days to life expiring on July 21, 1996, and if he be
released on parole in accordance with law he shall remain on
parole the balance of his life unless returned to prison for
violation of his parole.
The Board of Pardons added the following:
Mr. Thomas has served over twenty-nine years of his
sentence. He has had only five misconducts since
1971. He has continued to maintain his innocence
throughout his incarceration. He earned a Bachelor of
Arts Degree from Villanova in 1992. He completed sex
therapy and continues involvement with Alcoholics
Anonymous. Since 1987, he has worked in the Weave
Shop and has displayed excellent work habits. The
Staff, Superintendent and Commissioner all support
commutation due to the applicant's maturity and
The members of the Board of Pardons were impressed by
the strong community support for this application.
Over two dozen individuals attended the clemency
hearing on behalf of Mr. Thomas. We are confident
that he will have the necessary support to guide him
from the structured environment of prison to
productive living in society. We suggest a two year
post-dated minimum sentence date of July 21, 1996.
This will enable him the opportunity to take full
advantage of pre-release programs offered by the
Department of Corrections. At the expiration of his
minimum sentence, he will have served nearly 32 years
On January 14, 1995, Governor Robert Casey granted commutation
Therefore, Know Ye, That in consideration of the
promises and by virtue of the authority vested in me
by the Constitution, I have commuted the sentence of
life imprisonment of the said Louis C. Mickens-Thomas
from life imprisonment to the minimum term of 31
years, 9 months, 6 days to life expiring on July 21,
1996, so that if he be released on parole in
accordance with law he shall remain on parole the
balance of his natural life unless returned to the
correctional institution for violation of parole and
that the sentence of imprisonment is hereby commuted
accordingly so that he may be eligible for
pre-release consideration at the discretion of the
Dept. of Corrections. Subsequent to the date of my
signature below a conviction of a new summary,
misdemeanor or felony offense may upon a hearing by
the Board of Pardons render my granting of this
clemency null and void.
As set forth above, petitioner did not become eligible for
parole until July 21, 1996. In July of 1995, after his
commutation but before the expiration of his prison term, an act
duly passed by the legislators and applicable to the
Pennsylvania Board of Probation and Parole (hereafter the Board)
provided in part as follows:
In no case shall the board act upon an application of
an inmate whose term of imprisonment was commuted
from life to life on parole or upon an inmate who was
serving a term of imprisonment for a crime of
violence or is an inmate serving a sentence under
42 Pa.C.S. § 9712 (relating to sentences for offenses
committed with firearms) unless the inmate has served
at least one year in a pre-release center.
The Department of Corrections did not approve petitioner for
pre-release (Letter of June 6, 1995 — P-21). On July 22, 1996,
petitioner filed an application for release but the Parole Board
notified him that it could not act upon his application since he
had not completed one year in pre-release, citing 61 P.S. §
331.34a (See Respondent Exhibit 9 at 217, Letter to Leonard
Sosnov, Esquire dated September 25, 1996).
On November 26, 1996, petitioner filed a petition for review
in the nature of an action in mandamus invoking the original
jurisdiction of the Commonwealth Court of Pennsylvania. See
Mickens-Thomas v. Cor., 699 A.2d 792 (1997). In that case, the
Pennsylvania Board of Probation and Parole conceded that 61 P.S.
§ 331.34a could not be applied retroactively to petitioner.
While petitioner was seeking an order compelling the Board to
parole him, the Commonwealth Court denied that relief. Instead,
it directed the Board by order dated 8/12/97 to "consider and
rule on Petitioner's application for parole within ten days of
the entry of this order and, in the event of denial of the
application, transmit a written statement of the reasons for the
denial to the Pennsylvania Board of Pardons for its
consideration of whether to accept the denial or immediately
release petitioner on parole." Petitioner's November 12, 1997
notice of appeal from this judgment was quashed by the
Pennsylvania Supreme Court on 1/15/98.
Pursuant to the directive of the Commonwealth Court, the Board
considered petitioner's application for parole on August 21,
1997 and denied it. The Board asked for an evaluation by mental
health staff experienced in dealing with sex offenders and
scheduled another review for March of 1998. Also pursuant to the
Commonwealth Court's order, the Board transmitted a written
statement of its reason as follows: "Assaultive instant offense.
Very high assaultive behavior potential. Victim injury.
Unfavorable recommendation from the District Attorney.
Conviction of prior assault offense." With regard to the latter,
stipulation number 2, see infra, reads: "In 1945, Mr. Thomas
was charged with rape when he was 17 years old. The rape charge
was dismissed and a wayward minor charge was substituted. A
wayward minor charge is not an adult conviction but a juvenile
adjudication, for which Mr. Thomas was placed on probation."
On September 18, 1997, the Pardon Board by a vote of 3-2
concurred in the Board's action denying parole. The Pardon Board
at this time was composed of Lieutenant Governor Mark Schweiker,
Attorney General Michael Fisher, Warden Richard Gigliotti, Dr.
Daniel Menniti and Thomas Harper, Esquire (See Stipulations,
On March 30, 1998, the Board again denied petitioner's request
for parole. The reasons given were: "Assaultive instant offense.
Very high assaultive behavior potential. Victim injury. Your
need for counseling and treatment." (Respondent's Exhibit 9 at
28). This action was taken even though petitioner was in full
compliance with the Board's stipulations from the August 1997
hearing and had "full staff support" of the Department of
A Review Summarization Report showed that petitioner had
complied with the Board's stipulation under the August 21, 1997
order. Petitioner remained free of misconducts, was recommended
for release by the Department of Corrections and was in ...