*1 provides: (d) the Amendment of Section application Orphans’ of the surviv- the Court “. . . conveyor’s year spouse ing [one made within the time may, extend there is no [if death] will], jurisdiction having making court the The election .... the conveyor’s determine estate shall of the deceased spouse property rights surviving included in conveyance.” in agreement insurance trust
Henderson’s unfunded conveyance (Hender- February dated 3, 1952, though, (part of) son) his assets even the decedent of amendments mentioned hereinabove because made in 1956 and Estates Act which were spouse acquired rights thereunder. surviving no his jurisdiction Orphans’ the “deceased has conveyor’s is not from While matter free estate”. appear Legislature that the intended it would doubt, Orphans’ ju- cases give such as Court in this, rights surviving to determine risdiction conveyance, namely, spouse in Henderson’s his deed February as amended trust dated proceeds policy life insurance conveyance. in Henderson’s included party pay each their re- affirmed, The Decree spective costs. Appellant, rel. Norman, ex
Banmiller. *2 Argued November Before C. J., Jones, JJ. Bell, Cohen Musmanno, Jones, Bok, Christopher Lewis Tanner Fdley, him with F. appellant. Fdley, Lightfoot & and Moore, Moore, Attorney, District Assistant Lee Charles Durham, District At- Assistant him Juanita Kidd Stout, District At- torney, Lafferty, First Assistant James N. ap- Attorney, for torney, District and Victor E. Blanc, pellee. April 1959: Opinion Mr. -Justice Bell, eight May,
Petitioner convicted in charging bills of indictment armed robberies, July years. sentenced On occurring degree murder of first convicted during robbery he shot in which on March *3 sentenced and hilled Herman and was Weintraub, imprisonment. life applied February a writ for
Petitioner on 10, 1958, alleg- corpus of habeas from his conviction murder (1) (2) ing that his confession and coerced; was permeated trial errors that col- his trial so ivas lectively fundamental error these errors constituted process amounting to a denial due law. denying the filed an answer Commonwealth peti- particularly (a) averring alleged, facts ques- (b) voluntary, tioner’s confession was voluntary co- the confession or tion of whether (c) jury, submitted erced, hearing testimony voluminous after there- found that the confession not coerced. The lower on, petition for a cor- Court dismissed writ habeas any pus hearing argument, hearing after but without evidence. rel. ex Ashmon v. Commonwealth Banmiller, speaking Pa. 137 A. 2d
891 Court, (page 144) through Justice Chief “The : Jones, remedy trial for error motion for trial fol- new
235 if as as appeal. an well lowed, We, necessary, by ha Superior baire a recognized Court, frequently beas corpus petition is not available the correction for errors have been reviewed could ap corrected on it is a substitute an appeal; or peal for writ of or a new error for motion for trial: Pa. Commonwealth ex Marelia rel. 366 Burke, v. 75 A. Ket ter 2d ex 124, 126, 593; Commonwealth rel. 163; v. 181 Pa. Day, Superior 124 A. 2d Ct. 271, 273, ex rel. Jones Superior v. 181 Pa. Day, Ct. A. 2d rel. 896; Ruger Commonwealth ex v. 176 Pa. Day, Superior 818; Ct. 108 A. 2d 479, 482, Commonwealth ex Supe rel. Cobb 176 Pa. v. Burke, rior Ct. 107 A. 2d ex rel. 60, 63, 207; Commonwealth Sharpe v. 174 Pa. Superior Burke, Ct. 350, 354, A. 2d 397.” where the record a trial or sen
However,
shows
tence which
sowas
as to amount
unfair
fundamentally
to a denial of due
or that some basic funda
process,
mental error was
which deprived defend
committed
ant
one
of his constitutional
relief
rights,
may
sought
habeas corpus:
Commonwealth ex rel. Gar
rison v.
378 Pa.
106 A.
Burke,
2d
344, 347,
587; Com
monwealth
Elliott
ex rel.
v.
Baldi,
A. 2d 122; Pennsylvania ex rel. Herman v.
Claudy,
U. S.
Palmer
118;
Under
both
aforesaid
there is
tests,
applicant’s petition.
no merit in the
principal
question
petitioner
real
corpus
raising
proceeding,
now
habeas
viz.,
voluntariness or
of his
coercion
raised
confession,
by
passed upon by
jury adversely
him and was
to
hearing conflicting
him after
evidence.
“When
by
facts admitted
state
Ashcraft
show coercion,
v.
327 U. S.
conviction
Tennessee,
will
set
process.
aside as violative of due
Florida,
Chambers v.
This Court
ex
(page
rel.
371 Pa.
v.
89 A.
Geiger
2d 495
Burke,
232)
present petition
attempt
reopen
: “The
is an
to
question
the same
against
of fact which was resolved
by
jury
relator
sought
at his
evidence
trial,
support
to
petition
be introduced in
is similar
presented
kind
at the trial. We have re
peatedly
corpus
held
the writ of habeas
cannot
be used to re-examine matters of
passed
fact that were
jury
at the trial: Commonwealth ex rel.
Carey Montgomery County
Keeper,
Prison
If law Avere there no otherwise, Avouldbe finali- ty any person conviction or sentence because the repeated who was convicted and sentenced could file petitions corpus for a raising, writ habeas in almost language, very identical issues or matters of fact against previously were decided him the by this Court and demand and redemand and/or right present testimony reredemand the to substan-
237 allegations. orderly tiate Ms administration impartial protection speedy Society, law, finality require validity Justice for that the all, a to an issue or of sentence should not repeated judicially attack after has once set- been tled. hearing necessary
Was a to in order determine petition by by factual issues raised and denied question answer? The to answer is since “no”, alleged by the facts are refuted or were record, petitioner adversely by jury. to found Elliott Pa. Commonwealth ex rel. v. Baldi, 494-495) (pages : 96 A. 2d 489, 122, petition application “Where the or or where itself, together, record it is or fail both based, clearly entitling make out a case a relator to the by corpus, hearing relief habeas afforded is nec- essary [citing cases].” Cf. also Brown v. Allen, S.U. alleged
Petitioner also as error the failure of provide Judge sufficiently him with astute Pennsylvania provides counsel. The Constitution of prosecutions §9: in Article all “In criminal ac I, right by cused hath to be heard coun himself his capital sel . . .”. ain case if an Moreover, accused financially any unwilling or for reason or unable, engage required ap unable to the Court is counsel, point expense County: counsel at the Common Thompson, wealth v. 367 Pa. 79 A. 2d Com 102, 401; monwealth ex rel. McGlinn v. 24 A. Smith, 41, Act 2d of March 1; P. L. as 22, amended April Act of P. L. 19 PS 784. also: See Powell Mayo, v. 287 U. S. House 45; Alabama, S. 42. U. the fact that a after
However,
conviction,
criminal,
wisely
that his trial
believes
was not
his
conducted
aof writ
the issuance
furnishes no ground
counsel,
*6
con-
criminal
no
corpus.
otherwise,
habeas
Were
had
the defendant
final as
as
long
viction would be
in the light
counsel who,
to engage
financial means
new
he
out errors which
point
could
hindsight,
astutely
the in-
trial counsel.
In
believes were committed by
not de-
to this
and
it is
Court
represented
stant case
represented
that
and was
engaged
petitioner
nied,
member
Bar.
a reputable
experienced
and
by
Peti
consideration.
remains for
One other point
receiving
trial
erred
alleges
tioner
rec
criminal
prior
defendant’s
concerning
testimony
his punish
of determining
for
purpose
ord solely
con
his prior
criminal
ment. Petitioner’s
record,
i.e.,
confes
before and after
murder,
victions
before
made
him
admissions
sions
which were
ad
was properly
his
murder
indictment,
to
the sole purpose
enabling
missible for
Pe
v.
defendant’s sentence: Commonwealth
determine
v.
A.
288;
341 Pa.
19
2d
Commonwealth
209,
trillo,
v.
Pa.
123 A. 2d
Commonwealth
675;
386
62,
Cannon,
Pa.
A. 2d 207;
389
133
Commonwealth
382,
Thompson,
Pa.
112 A. 2d
Commonwealth
362;
v.
381
113,
LaRue,
2d
Pa.
98 A.
Commonwealth
733;
v.
374
594,
Lowry,
A. 2d 915;
v.
371 Pa.
88
Commonwealth
Turner,
417,
Pa.
A. 2d 353;
v.
361
65
Commonwealth
391,
Simmons,
A. 2d 649. See also: Com
362 Pa.
66
v. DePofi,
Pa.
66 A. 2d
362
259, 281, 282,
monwealth v. Darcy,
over
stated
not
We have
we will
repeatedly
permit
on this point
decisions
rule our
is
as
if the
we
law
do,
believing,
such testimony,
be made
the Legis
change
to
be changed
Pa.
389
v.
lature:
Thompson,
Commonwealth
v.
239
Lowry, 374
112
v.
A. 2d
Commonwealth
362;
113, 120,
Simmons,
2d
733;
Pa.
98 A.
Commonwealth
v. De
65 A. 2d
353;
Dissenting Opinion Mb. Justice Musmanno: Opinion says Majority this have The case: “We repeatedly overrule our stated we will not testimony, point permit decisions on such changed believing, that if the to be as we law do, change Legislature.” But made should be repetition are no reason, and vehemence substitutes for justice fairness.
The defendant a murder oc- was accused of April curred on March 1949. He on was arrested brought to trial on June At the charge of murder the Commonwealth was permitted to that the show defendant committed rob- April beries on March March 1949. All these robberies occurred no and had murder, after the possible connection murder. defendant denied he had committed lie
murder. asserted confession which was against wrung him him introduced had been from through every physical coercion and violence. Under simple justice, rule of the evidence in the murder case have been confined of the mur- *8 Displaying jury der. to the the indictments returned against charges robbery the defendant on bound against charge to influence them him on the of mur- der. genius procedure
The of our criminal whole proposition on the fundamental based that irrelevant subjects not be to allowed confuse the main objection jury. frequently issue a before No is more proposed query in trials than the one that used our the prosecuting presenting attorney, is irrelevant. No in any given his evidence in is allowed to raise a case, target re- guilt. shotgun He firing the of at in the bull’s- precision hit a rifle must to stricted specific eye the de- crime the with which of truth on charged. fendant stands the the case before us for consideration,
But in scatter-gun employed Attorney a District Trial point the help in some not but hit vulnerable could It jury’s case. would the defendant’s deliberations on impossible to overcome almost for defendant be impression conveyed if the defend- to the of a murder ant several robberies after committed man to of a he kind he had be which was accused, too. It is because commit murder who would charg- recognized this in human nature, weakness general specific ing of a a fault because fault, keep procedure out many to rules in have so we reject incompetent testimony, ir- hearsay, and exclude evidence. relevant rules, ironclad in the of these a face
How can Court, way associated crimes no admit evidence of in standing particular the defendant is crime on which also this Court and now trial? Trial Court said, intro- says, robberies was that the evidence that the defendant was vicious to show duced likely It person to commit murder. therefore bad guilty of murder that if introduced to show put he was so vicious to because death should be robberies! also committed that he bad Pa. the case Commonwealth In Thompson, history pages I traced from day, persists to this made Court, error trial the asserting that murder Commonwealth purpose independent speak crimes may defend- penalty on the inflicted augmenting the allowed that case ant. alleged commission years that nine show *9 aof convicted of feloni- murder defendant had been battery years ous assault and seven before brought army, a in he had while been before trial, disciplined. court martial trial and Opinion Dissenting my I that case: “Now said in in open apparently flood- this has thrown gates all an trivial as as serious offenses of well past, possible it accused’s is for an innocent man sent to the electric chair not on evidence mur- peccadillos der because of the suit of but prosecution per- forces him No other State wear. tragic performance. Nothing mits so bizarre a in logic history nothing Aris- since in all the Justinian, nothing nothing in in mathematics of totle, Euclid, justify the science of Newton and Einstein so un- can procedure.” unjust, so so unreasonable American, Thompson The this case decision of Court in the insupportable enough allowing in- evidence of dependent past. offenses this committed in But insupportable logic. is more decision even law proof This decision allows of offenses committed happening of the event which futuro, is, after every is the of the trial. This contradicts rule ignores competency, relevancy, every standard safeguards it strikes down centuries-old in be- erected always of the have half accused. We looked hor- post punish ror ex facto laws. To an man for part act crimi- when which, committed, flagrantly unjust, goes nal but this decision code, permits punishment further. This decision a crime not even at the time the of- which was committed fense for accused arrested. This is ex post reverse! factoism in Opinion says Majority arbitrarily not overrule
Court will decisions of this Court *10 the that deci- prior the but it not does say subject, Opinion the sions correct. In Majority were fact, of in the case writer himself said including that 374 Pa. “many Judges, Lowry, of that a record the of this writer believe opinion, the crimes not be admissible even under prior the as per- the in penalty theory aiding jury fixing The the Act of P. L. 759.” mitted May 14, 1925, by in the Opinion in his present Dissenting Chief Justice, case of 362 Pa. Commonwealth v. DePofi, a criminal said: “The previous thing [introduction out no doubt worked has, actually could, record] in It is practice beyond not way. truly shocking a trial for the that range possibility where, the the defendant’s doubtful under murder, guilt a con- the be tilted in favor of balance evidence, may the im- because of the subconscious effect of viction the minds the the evidence pression made on jury by the criminal defendant’s record.” ap- I the other this tribunal doubt Justices of not like, the which Justice does plaud practice Bell which Justice Jones has which Chief condemned, The I but still on uncorrected. abhor, goes Why? be can Opinion says correction only Majority but not the Legisla- made it was by Legislature, made the error. error perpetrated ture which In Justice von Mosch- Court. Chief by very led this in the case of Common- astray ziskee wealth v. when Parker, power Act of the same exercised juries 1925 gave of convicted past record judges considering by criminals. The Act of said: per- 1925 merely “Every the first de- of the crime of murder of son convicted to suffer in the manner shall be sentenced death gree imprisonment life, or provided law, undergo at of the discretion trying case, jury It noted its will verdict.”
shall fix penalty by investing about nothing the Act absolutely says judges exercised by the same authority juries Justice past. criminal’s Chief a defendant studying something into the Act read Moschzisker von Leg- contemplated was not which was there, most fundamen- and which contrary islature, one issue, trial to but concept tal of restricting innocence or defendant. guilt namely, had after Justice von Moschzisker Chief traditional from the led highway Court away Kep- Justice constitutional Chief practice, *11 into of irre- took the the deeper woods Court hart the procedure in sponsible illogical and by declaring, that case of v. Commonwealth Williams, to the record the consider defendant’s for the of purpose “aggravation determining penalty.” with-
Still Justice May, Chief later, Maxey, out or struck further into track- compass the direction, less forest there his of and erected camp confusion, case of Opinion his the Commonwealth DePofi, the Just two before deci- Pa. years DePofi the this noted shambles Legislature, having sion, made of the Act of de- Court had 1925, specifically the Act of that: clared L. July (P. 1239) the trial of no evi- person charged “In any crime, dence shall be admitted tends show has or has defendant been charged with, committed, of or has convicted other than the been any offense, shall or that one then be he has charged, wherewith or reputation.” of character are three (There been bad are not here.) involved exceptions which Maxey found no Justice difficulties in dis- Chief utterance this solemn of General of Assem- posing designed Pennsylvania, bly constitutional accused. rights safeguard He took his He down blunderbuss and blasted away. spoke the Act of He ambiguous. restrictive categorical conjunctions, conjunctions, semicolons the Act noth- but said imperatives, constitutional He found that about ing guarantees. the title to the Act of 1947 and that was “hybrid” admission of evidence to the germane was not of cross-examination. He reasons to load found many fire and re-fire blunderbuss until his re-load, Act of 1947 was in shreds. Opinion here Majority says Legisla-
ture pass an but have seen hap- we Act, what to the Act the pened pass on Legislature did this very It is not subject. Legislature should pass remedial it is this Court which should ren- legislation; der remedial decision. It Court which took the subject into the sylvan labyrinths of illogicality, it injustice; to this complexity, up is, therefore, back bring highway order, logic, This justice. Court should declare that the legal- istic safaris of von and Maxet Moschzisker, Kephart, private were but adventures their own. This Court should declare that the Act of 1925 meant no more *12 it than This said. Court should dismantle the grotesque superstructure which has been built on the foundation simple Act straightforward of 1925. It back to should their juries constitutional bring duties, chores suggest unmixed with those of which vengeance and retribution.
There is not a all single the word statute books shall Pennsylvania says juries sit as the Saint whole the Peter, reviewing accused, life of is to to decide whether he live or die. The purpose of the Act of 1925 was eliminate the arbi- simply death sentence first imposition trary degree murder to let convictions. Its purpose decide once it the defendant found whether, guilty first or death degree should be murder, penalty life imprisonment act mur- specific because of der of which he stood criminal courts convicted. The of the Commonwealth have not been vested with eternal powers of are to on fac- judgment. pass They tual questions from evidence presented and decide, one specific whether the accused guilty controversy, or innocent aof crime. from specific departure Any that procedure runs counter con- Anglo-Saxon trial cept of by jury. be at should done once to
Something repair compartments water-tight in the of evidence ship so far as the Act of which, were concerned, battered severely von Moschzisker, Kephabt, Maxey. appear would that no However, one desires to undertake I be- job. necessary carpentering lieve that there is an on this to re- obligation nounce bad decisions of the past. I believe that there devolves it a trial duty in murder cases bring back to what it was before the enumerated three emi- nent jurists confused the super- as a by acting Legislature.
During argument in the one Thompson appeal, of the Justices to order a in that new case would an incongruous decision other because defendants had been convicted introduction the same kind of record evidence. past In other words, the Court was arguing but consistency consistency, ais jewel it adheres to only when the directions aof reliable compass. No one be consistent try with the of a workings smashed I weather machine. do not believe that because Court has erred in the there is past virtue in the same repeating error. A sign post in the points direction should wrong *13 be turned around and not followed over a cliff.
I said in I Thompson today case and will say of error error finally does not piling corrects add And nntil np infallibility. the error of the past mis-interpreting, in mis-reading, the Act I shall continue of 192o mis-applying each time the comes dissent before us. Pennsylvania Labor Board Fortier, Relations
Appellant.