Commonwealth v. Floyd
304 A.2d 131
Pa.
1973
Check Treatment

*1 Floyd, Appellant. January C. J., Before 1973. Submitted Jones, Nix Mander- Pomeroy, Roberts, Eagen, O’Brien, JJ. INO, appellant. Abramson, B.

Gilbert Shellenberger Milton M. Assistant Stein, James Sprague, Attorneys, First Richard A. Assist- District Attorney, Specter, Arlen District At- ant District appellee. torney, Commonwealth, May 1973: Manderino, Mr. Justice Floyd, appellant, Eugene first de- convicted timely Post-trial motions were gree in 1958. murder Appellant was sentenced to later withdrawn. but filed, imprisonment. petition life filed a corpus challenging for a writ of habeas the voluntaré ness his confession. Belief denied and this Court Rundle, affirmed. Commonwealth ex v. *2 rel. (1967). 2d 497 petition alleging filed a HAPC judg- appeal that he had been denied his to Appellant ment of sentence. asserted that he withdrew post-trial imposition his motions because he feared the of the death in the event of a retrial. Belief was denied and this followed. pursue post-trial by

A failure to motions motivated does not constitute a and waiver. Commonwealth v. (1989). though

433 Pa. A. 2d 811 336, 250 Even may pen factors been if fear of have the death alty “was a factor” in decision to withdraw his he entitled relief. Common (1970). wealth v. Falcone, 440 Pa. 269 A. 2d 669 supports only The evidence before the PCIIA court one that the failure of conclusion; was motivated a fear of the death on retrial. day appointed argument On the of mo- following colloquy place: took tions, “. . . The Court: is the motion Now, still before or me with- [Defense drawn? Montemuro Co-Counsel]: say, Friday Your we Honor, had a conference Moyamensing prisoner at Prison with the and with his rights and at that time we advised mother, just pursumg risks what were inherent the mo- a new trial. further We advised him, however, he made had to be his own, us that he that time he advised wished to withdraw accept imposition for new trial and motion of sentence right. All The Court : Is the Court. that correct, Mr. [Appellant]: Floyd? sir. The All Court: impose a sentence right. Then shall Penitentiary natural balance for the Eastern you may to do well advised have teen I think life. come to me has teeause what information .” . . jury to one eleven stood hearing the court supplied.) (Emphasis the PCHA At O’Brien answered co-counselWilliam ashed and defense If he “. . . as follows: might get on a new the chair told he be correct, That would that be correct? Witness. testimony appellant at the PCHA of the . . .” The attorney. testimony corroborates This is verdict? “. . . The Court they say? Well, sir. What Supreme Court. me that that he A. Mr. Montemuro, that? Who told *3 getting in a the event me not new trial. couldn’t see get get chair. I could life or the I did a new trial, that fair : In other is it a statement By words, Stern attorney you you say could that you appeal, possi- a if there was get bility you get, sir. . . . the chair? Q: By : Did he withdraw the motions you

you told him to don’t know? were convicted told him to the motions? You withdraw. Why tell him A. Yes. Mr. Stern: get A. Because he told me could withdraw motions? Q. You in the event that the electric chair. a trial that the electric received new sir. . . .” chair? in uncontradicted this case that the fear of the

It is significant penalty in a factor death Ap- the decision of decision and also counsel. pellant entitled to relief in therefore, accordance with is, Littlejohn, supra in and Falcone, this Court’s supra.

Order matter remanded to the trial reversed and the file court to allow the opportunity post-trial motions.

Dissenting Jones Mr. Chief Justice This case a of whether waiver presents if post-trial motions is it is motivated both the belief in the futility raising substantive issues and the fear of the imposi- involved tion of the in death a new trial event granted. The has decided that majority “though factors may have been if fear of the death ‘was a factor’ in decision to with- draw his post-trial motions he is entitled to relief.” disagree.

This issue was confronted 250 A. 2d (1969) is not clear on this record whether appellant’s “[I]t an prosecute was due to his lawyer’s advice that such a would be fruitless or be procedure cause receiving a second trial. the only Therefore, appropriate disposi tion is to remand the on this hearing issue. If the find hearing judge should that appellant’s deci sion was motivated out of fear of the death penalty, then he should allow prosecute IIA record this PC indi- cates that the decision not to present post-trial motions *4 was based to some extent upon appellant’s counsel’s belief that there was no sound basis for either post- trial

“Q. Michael (by Mather, Assistant District Attor- for Commonwealth) the Do ney you recall discussing filing with [appellant] post-trial motions his case the convicted him? A. (by William J. counsel): I do remember, O’Brien, say. although vaguely, If rather must I with chair the he was told O’Brien): (Mr. on a correct? A. new would be That be correct, would any Mather): (by

“Q. there were Did feel any good grounds post- good grounds legal good posi- trial motions? Did had feel partieulmdy, I didn’t No, issue? presented the other testi- we had the alibi and mony, only doubt in mind toas well, confes- what our success would sion. wasn’t too sure of with that.” be voluntarily waived

Whether must whether the rest resolution of press motions was motivated judge appar- ently supported and is record, determined, prime not the motivation motions. appears It rather that counsel advised post-trial motions and an would be fruit- accordingly. less acted hearing judge not the order of the disturb Accordingly, I dissent. below. Agency, rel. Camelot

Commonwealth ex Detective Specter. Petitioner v. Inc.,