*1 Appellant, v. ex rel. Simon, Commonwealth Maroney. Before J., 1961. C. September 28, Bell,
Argued Eagen and JJ. Mushanno, Jones, Cohen, Alpern, for appellant. Martin Lubow, Assistant District Strauss, Samuel Attorney, C. appellee. Edward District Boyle, Attorney, Opinion December Mr. Justice Musmanno, 1961:
(cid:127) During community month May, 1942, *2 sud- Pittsburgh known terrorized by as Overbrook was den appearances rapid disappearances and equally women person wearing sprang upon a blue hood who intent. and and libidinous girls with obvious larcenous On police eighteen-year June seized an 2, 1942, youth who answered to description given to be victims of the hooded assailant. It turned out telltale this The John case. appellant Simon, person. investigation, hóód found on his Police was specifically plus pointed quite victims investigation by the Overbrook to him as person responsible pre- for a taken before a magistrate crimes. He was to brought was liminary hearing eventually and for trial. were: he indicted specific
The was charges which Williams, of Marian Robbery robbery Evelyn Davis, Do- rape statutory of Janet statutory rape Major, assault I. and Kathryn Fisher, lores Klein, robbery Gus- on Louise rape intent to commit and battery with key. Ter- and Oyer in the Court of June 18, 1942,
On County, Delivery Allegheny and Jail miner General Mrs. charges except robbery to all he pleaded guilty and withdrawn accordingly was charge This Fisher. sen- presiding judge non The prossed. indictment term of from aggregate for an prison to tenced 40 years. 20 to cor- for a of habeas writ petition filed a
In 1952 he be- due process had been denied that he averring pus proceedings attorney an without cause was full hearing, 1942. After a 18, on June in court developed At that it discharged. petition con- Major had not been of Janet rape asserted changed to accordingly charge summated. indict- attempted rape the sentence on the covering ment was reduced from years. 3-6 to years 2%-5
On March of ha- another for writ 10, 1960, petition beas corpus was filed in Common Pleas the Court of of Allegheny and, A rule to County. show cause issued after the taking testimony presentation and the dis- in all arguments, lasting three the rule was days, charged petition petitioner dismissed. The appealed then Superior Court affirmed the which decision of the court pleas. granted of common We allocatur.
There question ap- one be decided peal. Was the petitioner denied due because process he had no represent him in lawyer court on June 1942?
Article Section 9 of the I, Pennsylvania Constitu- *3 tion guarantees to accused every to right counsel. In capital provision cases this is Whether mandatory. the defendant desires or does not represent- desire to be ed an provided must be in murder counsel, attorney cases. noncapital where However, are charges involved, the defendant himself determines whether he to wishes proceed without of a lawyer’s advice benefit assistance.
The Commonwealth has indicated that Simon since did not request counsel the time of his hearing no right constitutional denied court, him. It is true that decisions of this and of the Court Superior this but such a support position, support- view is not particular able if the facts any case reveal surrounding circumstances the trial or were of a fair such that the fundamentals trial were vitiated of counsel. For because of absence if de- instance, fendant deaf or or blind, were otherwise so disabled not adequately that he could understand or follow it would be a sheer proceedings, of law mockery to that he had had assume a fair justice trial for ask did not absence of even though counsel, one. achieve to
Constitutional intended are guarantees fences academic justice human and not to erect merely inequities keep flagrant which not out may may Thus, no civilized would condone. government which says Constitution it that since the may argued him- heard by that the accused “hath a to be right re- his the Commonwealth is not self and counsel,” dic- counsel where the circumstances quired supply defendant if the need an even attorney, tate not ask for does one. case.
And that issue in this brings us the crucial using The defendant was not a normal wholly person, (be normal not in sense criminological the word non- argued cause it could be criminal every A from a mental of view. normal) point strictly shortly made of defendant study behavior clinic him moron high grade after his arrest revealed to be a quotient an of 59. Counsel for intelligence therefore, since argues appeal defendant ab and of young the defendant low mentality process constituted a denial of due counsel sence release from In this entitles custody. which case of ex he cites the Commonwealth rel. connection Pa. Superior v. Ct. Burke, 366, Swieczkowski Court said: lack of educa Superior “Youth, where pro with the intricacies criminal inexperience tion, *4 conduct on the of improper part the court cedure, and the of complicated nature the prosecuting officials, in some constitute charged may, combination, offense of unfairness’ which ab renders ‘ingredient process.” a denial of due sentencing counsel sence in enumerated that do not case hypotheses But in the case at bar. There were no “intri- concatenate no “improper conduct on procedure,” of criminal cacies court or prosecuting of the officials,” part nothing complicated about the charges robbery rape. We dismiss without comment statement defendant’s counsel at the oral argument (coun- that he did not sel) rape know meaning robbery and until he came to subjects those in school! law
In Federal criminal courts, employment counsel defendants is imperative. virtue of the By Sixth Amendment to the United States Constitution, “counsel must be furnished to an defendant indigent n prosecuted in federal in every whatever case, the circumstances.” (Foster v. 332 U. Illinois, 134.) S. Supreme Court However, held United States in that in “Prosecutions case, State courts are not fixed subject requirement.” this But there modification, “process of in law order to be ‘due’ does that a State require give opportu- defendant ample an nity meet accusation.” What is the criterion for determination of “due- ness” of law? process Justice de- Frankfurter clared that because of if, absence of “an counsel, gredient unfairness actively operated process resulted in his confinement,” [the defendant’s] there; then has been lack of due process.
The touchstone, therefore, the case at apply bar of “ingredient is the rule Su- unfairness.” preme Court said the Foster case that fact the mere record did not show that the defendant had been offered the benefit of counsel did not of itself prove process: absence of due “We thus have in effect the bald claim that, merely because the record does an offer of disclose counsel to a plea defendant upon a the court guilty, although plea before accepting him of his of Trial’ duly ‘rights advised and of the con- of such a he is sequences plea, ‘deprived of rights es- to a fair under sential the Federal Constitu- such a claim.” reject tion.’ . . . We *5 Was there of unfairness” in the any “ingredient disposition of John 1942? case on June Simon’s Although 18-year- the behavior report clinic showed old defendant to have had of nine age only a mental imputed at the of time the commission of the offenses this did not himself him, mean that in conducting and of he mental exigencies life had only stated physical equipment child. As nine-year-old that Simon’s by lower court: “while tests showed that mental age was about nine we understand years, and a person chronological age eighteen with a from one mental age person of nine is a far different fund both nine. The physically aged and mentally years and knowledge experiences acquired during of such a increases and capabilities understanding (Clini- child. person far of a nine old beyond year that 810).” Dr. P. page cal Arthur Psychiatry Noyes, Si- that shows transcript place. The taking mon was aware what entirely have you to him was: “Mr. put Simon, first question another of robbery, pleas charge signed guilty indict- one of robbery, a third charge charge robbery, statu- indictment of a second of statutory rape, ment battery assault and bill for and a tory rape, have you understand what rape. commit Do you tent to had five.” I His was: reply “Yes, signed?” then informed attorney district The assistant rapes, two robberies and with three charged that age under girl with a had relations . . . you “that do that.” tried to you one where of sixteen me accused one that lady “There is replied: Simon questioning her.” The I robbed never her robbing Mari- out. “Q. leave that we will then, Well, continued: Yes. her? A. robbed that right you O.K. is on Davis is — A. No, lady? robbed that you Fisher, Q. And Catherine Q. You want I never robbed. one is the robbed you Evalyn Williams, then. well very aside, laid Q. her? A. Yes. Janet Major raped her? You know you Q. her? That Do- is correct about her? A. And Yes. *6 lores that is correct Kline, is young lady here, Q. Guskey that right? A. Yes. And Louise this is here. Do you recall her? A. Yes.” “Q.
He questioned was you? further: How old are Q. A. With Eighteen. my whom do live? A. With you Q. mother. Is your father A. I do not know. living? I Q. have not him ten seen years ago. many years How did to you go school? A. I I was have been since going Q. Q. six. What did school attend? A. you Luckey. Q. Where is that? A. get West End. far did you How Q. school? A. A special did grade you class. What Q. to? A. That go special is the class. You work- were for the P. A. ing W. before into trouble? you got this Q. A. A.? Yes. Where were P. you on the W. working Q. A. In McKees Rocks. Do have you brothers any Q. A. sisters? Yes. How A. many? Three brothers and Q. one sister. Are older than A. Two they you? young- Q. er. What does mother I your do A. living? Q. working was the W. P. A. and I fired. Why got did do these all of dur- you charged which are things, the month of A. I ing May? needed some Well, money Q. mother I because was You my thought working. mean tried to attack these and took you people you moth- you some because were money frightened your not home on bringing money er for A. Yes. Payday? Q. attack girls? did these A. I Why you didn’t realize Q. I How doing. many was times have been you what Q. Court? A. About in Juvenile three or four. Why Court? taken Juvenile A. For you stealing. were Q. did kind of take? A. things you Bicycles What and Q. like that. Can read all you right? A. No. things Q. else that anything you there want Is tell us? Q. You can sign your can’t name, you? A. No. A. Yes.” transcript which nothing There is suggests cognizant was not the defendant what tak- was
5'69 place in court. violence ing Some of of his the victims in court were and manner in which he described the treated habeas them. The judge who presided when corpus presided the same who judge reading the defendant pleaded “After guilty. He said: the transcript generally here opinion the writer of this defendant remembers the case, and is satisfied he understood only knew in a courtroom but what was that he was involved charges pleading to them.” guilty committed explanation defendant’s why even
the robberies a mind of reasoning, reveals capable if the honesty reasoning ignores elements from integrity. He related discharged how he had been *7 know his he job, that did not want his mother in order this. Since he would to display money have to carry appearance gainfully out the he was still that to get he resorted and employed, stealing to robbing he as money pass wages. which could off questions Simon had no in answering trouble knowledge had to him. He had put already some juvenile in he had been previously courtrooms since ha- theAt and therefore attorneys. court knew about answered and corpus questioned he was beas “Q. hearing you your at the time of as follows: John, at the A. mean for a did You you? asked lawyer, never Q. A. I didn’t.” in one? 1942. Yes, No, first corpus the habeas it at In was established addition, in Alle- in criminal court procedure hearing that for announcement in provided County gheny arraignment for court came into they as prisoners all ask would an attorney not have if did they descrip- The supplied. attorney an would one, dis- the assistant was given by procedure of this tion in and his on duty had been who attorney trict the defend- Moreover, not controverted. was testimony fellow-prisoners his one admitted himself ant an appoint attorney told him the court would had attorney. an represent request but he did not him, Simon found a fact lower court attorney for an aware of his to ask thoroughly right court did not finding and we conclude that in that abuse its discretion. thoroughly
Simon conscious of and had a He committed. formed on the he had memory crimes club told the he had police prepared how led he which he had victims, struck down one of his pocket- police spot placed to the he had where from book he up had stolen. He described how he made his overalls the hood he committed which he wore as behavior depredations. appeared When he before the ac- clinic he related detail the manner in which he complished his offenses. At the hearing numerous Al- court signed pleas guilty. he voluntarily though illiterate he knew to write some words how pocketbook wrote a word on particularly filthy had taken from robbed. one the women he had in the opinion McNaugher his able
Judge Director present below stated: “Dr. E. H. Davis, of the reports of the Behavior after Clinic, reading well as examinations made at of sentence as the time consulting those 1959 and 1960 Dr. James Baker, Institution psychiatrist State Correctional *8 the before just examined the defendant Pittsburgh, under- of capable and testified Simon was in of the that he was a the nature courtroom, standing they he when pleading to which was charges guilty the to him and that had explained they were, were capable physician doing felt he was not of examining would have been that he be com- so the recommendation institution and his of proper plea guilty mitted to a or coun- not have been with without accepted, would sel.”
A transcript corpus review the habeas the which a hearing, covers 339 fails to disclose pages, re- scintilla of evidence which would the suggest motest manner that ever the defendant was at time any treated Nor does the record unfairly. suggest any on the ability part the defendant to understand of questions series him in cross- long put to direct and examination. replied understanding He only but often with shrewdness and cunning.
For arrested he stated that when he was instance, beat had police a boil he him, punched broke him, on his hand and in other him in order maltreated ways to force him to a confession. No one can read the sign Si- transcript of the record without concluding story mon’s was manufactured in the laboratory and desperation workshop embellished self- In confes- the first no written gain. there was place, In spuriousness in the case. sion the second place, of the fact itself in beating story vividly proclaims that Simon waited eighteen before years making charge police description brutality. only could of the to have give police supposed who were beaten that one a fat “big guy” repels other hat.” Common “wore straw sense fundamental that one hurt logic rejects proposition manner defendant police stated by not at tell first happened once what had at the would to do so. Not did Simon say nothing opportunity appeared when he in court alleged beating about atmosphere and cloistered but even the privacy no alleged clinic he made reference the behavior misconduct. police exam- given thorough physical he was
Moreover, ré- clinic examination would have ination at the which there were supposed marks beating, vealed at- mistreatment. Even the signs any no marks at the cor- represented Simon who habeas torney *9 to pus nothing testified that Simon had said him. police about the beating threatening any sug- record this case is not bare of it re- defendant but gestion toward the unfairness on the an the court veals, active solicitude contrary, by and all solu- accomplish proper a agencies involved tion legal sociological problems raised evidence.
The hearing H. judge Judge William Mc- Naugher (currently Allegheny President Judge County 16-Judge Court Common a veteran Pleas), with profound impec- courts juristic ability, cable temperament even and conscientious impartiality, application to duty. Before sentencing defendant, he conferred with Judge juvenile Schramm had who had the defendant in that court several times appearance prior his criminal court. In addition, McNaugher Judge made use of the facilities of the behavior clinic which is staffed by psy- psychiátrists, chologists trained social are investigators who charged task facts in evaluating the background of defendants referred to them. clinic, This after psychiatric, physical and social psychological, McNaugher study of John submitted Simon, Judge 25-page report which it recommended: “Inasmuch we feel that he is a potentially dangerous individual and will repeat similar offenses in the we would future, recommend prolonged or indefinite institutionalization such as the School for Delinquents Defective at Hunt- If ingdon. admission there is not possible at this time, would suggest we incarceration until he ac- can be cepted.”
Simon could not be admitted to Huntingdon at time because was beyond then maximum ad- mittance of 18. Since the age report stated he was not he could psychotic not be committed to a mental insti- tution, under Thus, the physical necessities of the *10 the case, hearing judge had no choice but to commit the defendant to the penitentiary.
The American Civil Liberties Union has filed a brief this case the of amicus curiae. In that capacity brief it makes the bold assertion con- that “improper duct on the of part the court or officials” prosecuting are “present factors case.” goes It further and says that these disputed factors “are not Com- the by monwealth.”
This averment finds no confirmation in record. the In the exact fact, opposite is true. The Commonwealth much very disputes that there con- “improper was any duct on the of part the officials.” prosecuting
Having made the unsupported just statements dicated the American Civil Liberties brief then Union’s asserts that of “rationale Herman Uveges and requires cases granting the writ.” The cases of v. Uveges 335 U. S. Pa., Penn 437, ex sylvania rel. Herman v. 350 U. S. Claudy, do require granting the writ cover since they situations from wholly different the one involved in the before A appeal us. case cited authority as binding must be so similar to the one it if controversy were likened to the map placed and were country map over the of the controverted the borders of case, controverted case out would so coincide with the configuration line and of the cited case that the two could maps, generally interchangeable. speaking, illustration in this Using appeal we find that placed if case were over the Uveges in the facts comparison reveal case, Simon would two entirely In pe- different countries. case the relator Uveges corpus titioned for writ habeas and was denied a In the case petitioner Simon hearing. received not hearings but two the identical issue. one At in this case the could Commonwealth second res pleaded judicata out an but, have excess con- sideration do In the did not so. defendant, “ ‘ Uveges petitioner frightened alleged case the consequences trial, threats dire if he stand dared pleaded guilty relator of an assist- under the direction understanding attorney, ant district with the that a Huntingdon Reformatory im- sentence would be ” posed.’ In the Simon case there were no threats of dire cir- cumstances if the defendant nor stood trial, plead guilty no defendant directed to and there was promise imposed. as to the sentence which would be already hearing, Simon did, the second stated, speak police charge abuse he did such not even *11 petition abuse in his for the writ. Uveges allega-
In the case there was an “undenied right tion” the that defendant was “never of advised his proof In to counsel.” the Simon that case there was right the defendant was informed of his to counsel. Uveges Supreme In the the case Court stated that regarding members its entertained two neces- views the sity noncapital in counsel cases: “Some members of the Court think that where are serious offenses charged, failure of a court to offer counsel state deprives rights criminal trials an accused of under the Fourteenth . . think that Amendment . us Others of subject capital punishment a crime when to is not depends case each its own facts . . . Where volved, gravity the of and the crime other factors—such as the age and education of the the conduct of the defendant, complicated prosecuting or the and the officials, charged possible nature of offense and the defenses proceedings criminal thereto —render without counsel apt injustice fundamentally result in so to as to be un- group latter that holds the accused fair, must have legal under the Amendment assistance whether he pleads guilty or to stand elects whether trial, he re- (Emphasis supplied.) quests or not.” counsel The controlling of direction phraseology is that where factors enumerated pro- “render criminal without ceedings injustice counsel so to apt result as to be coun- fundamentally unfair,” furnishing sel imperative. But we have seen this case not did proceedings injustice not result not slightest there was approximation to what might considered unfair.” “fundamentally The Herman also case is removed authori- distantly from tatively case. Simon relator charged There, “that his pleas were and coercion guilty result threats state and . officers . . no stage that at proceedings was he either advised his right the benefit of given counsel.” A refused. pointed The Court out asserted that relator “a trooper grabbed state threat- neck and by the ened choke him if did and confess there were threats against safety his wife daughter. Petitioner confessed finally after 72 of inter- hours mittent questioning and was taken to justice ... he was taken peace before the Court Common some charged Pleas 30 offenses. The assistant demanded prosecuting attorney petitioner sign plea charges. all the guilty When petitioner asked he was the assistant what signing, attorney prosecuting *12 ‘Sign your said name and it.’ forget Petitioner was not of the seriousness of informed the prose- the charges by the did cutor or he not judge; that plea know his could result in a maximum sentence of guilty some 315 did not nor he know was he informed years; that he . have counsel. . . The could District did not Attorney petitioner that had been told in deny the courtroom forget to name and your but denied ‘Sign it,’ ‘that were made by the statements the Assistant At- District in pleas order to obtain to torney charges ” volved.’ superfluity
It would be in the extreme to state possibly the situation in the Herman be case cannot similarized to the in facts the case at bar. guilt proved beyond every
John Simon’s has been peradventure open guilt of doubt. He admitted his committing he magistrates, admitted it court, before he admitted it when examined at he the behavior clinic, told his mother of some of his when he arrived crimes, penitentiary he related what had He he done. applications four made com- the Pardon Board for mutation of sentence and each acknowl- instance he edged guilt. petition his Indeed in his for the writ corpus allege habeas he does not even innocence. His goes says proceedings counsel further and that in these question guilt of innocence or is irrelevant. corpus empha- hearings It is true that habeas placed jurisdiction sis is of the tribunal and the pe- proceedings regularity of the which resulted in the particular titioner’s circumstances detention, endeavoring are ascertain case where we any element of unfairness has entered whether into question credibility entire transaction, an issue. becomes Since he admits the crimes defendant may (in the inference ab- attributed to arise him, contrary) any to the evidence he did sence plea believed counsel because he that with a ask for strengthen guilt did not need counsel. This would position Commonwealth Simon knew reflectively, counsel but decided to that, he could have dispense counsel. slightest suggestion, there is the where course,
Of possi- the thinnest shadow of intimation, the merest charged person bility with crime is innocent, that a technicality every in the law is his command have been introduced into technicalities So-called use. they purpose, though system legal even for a our they capable still remain as bulwarks may misuse *13 for safety the accused who is entitled at all times to the presumption of innocence until proved legally guilty.
After said having it must also be said much, that where there exists not even the shadow a shadow of doubt that the defendant’s legal protect- rights were ed and the evidence excludes the of inno- possibility cence as as the center absolutely of the earth excludes the light the it sun, would be stultification of reason
and a mockery law release a proved criminal on the assertion empty that he may not have known he was entitled to counsel.
Where the intellect satisfied the reason informed, and the judgment content rights defendant’s have been infringed and the disposition final squares case conscience, morality most scrupulous dictates of it would be justice, turning into sport law to release a confessed and convicted criminal the abstract theoretical argument since he did not have a lawyer at his it side, must assumed dogmatically that he was deprived unfairly of something.
We have considered all other matters raised by appellant counsel and are satisfied that disposed lower court of those matters For properly. there is instance, nothing the record to justify appellant’s “public claim that hysteria” influenced the There was no public case. hysteria. As stated “there was hearing judge, considerable publicity, from expected would be type crimes and num- in the ber committed same geographical area within police a short period, such investigation were conducted in plea hearing a routine manner.” complains that he appellant four detained formal charges before were days as stated filed, but, below, “Considering in the court the number and na- the offenses involved, intervening ture period, *14 in spent justi- was completing necessary investigations, fied.” “The McNaugheb said:
We who agree Judge more or total of not than twenty sentences less than basis merited on the forty years fully ac- took the atrocious it also crimes committed, count of the of the Behavior Clinic that he findings potential was a menace society. Furthermore, conducted Peniten- by latest examinations, recently and the Behavior as well tiary Clinic, authorities undergone indicate that previous prisoner has ones, years if for eighteen little the better any change been imposed. the sentences were Had there since an- marked the Pardon Board at one improvement, for separate applications clemency four other commutation.” been led to might grant have if and the parole have no doubt that when au- We re- appellant be thorities are convinced may action proper safety society himself, leased with for There is no justification, be taken. however, will any there alleged on basis any that release in the which re- proceedings of unfairness” “ingredient incarceration. The order of the be- sulted his is affirmed. therefore, low, Opinion
Dissenting Mr. Justice Cohen: made, understandingly of counsel, a waiver Only behind philosophy counsel. The trial without justifies Four- of the process clause “that the due is this view requires Amendment Fifth or the Amendment teenth crimes, with serious persons charged all counsel order adequate defense, for their necessary when conduct their advised how may persons that such trials.” inex- lack of education, the youth, opinion,
In my conduct improper and the mentality low perience, part prosecuting officials here are such combination so toas unfair- supply the ingredients ness represent which a denial process. of due v. 335 U.
Uveges S. I dis Pa., authoritative. sent. Appeal.
Hildenbrand *15 C. J., 1961. Before November Argued Bell, Eagen JJ. and Alpern, Jones, Cohen,