*1 336 evidentiary hearing. Counsel and for an
counsel appointed, hearing was denied. and relief held, Superior faced Court and we are now affirmed, petition petitioner’s pro Com In se for allocatur. with A. 777 monwealth Pa. 2d Hickox, petition pro (1969) response for allocatur, in to a se pro petitioner appointed for we directed that counsel 318(c) provisions Rule ceed accordance with the Pennsylvania That of Criminal Procedure. of the Rules Hearing pre-dated Post Conviction Rule, which (1965) January P. L. A.ct Act, 25, 1966, ap applicable only seq., §1180-1 to direct P.S. et peals. Hear §12 Conviction We hold Post appointment requiring ing 19 P.S. §1180-12, Act, places ob certain circumstances, of counsel under represent peti appointed ligation on counsel so to pro throughout Hearing the Post tioner Conviction petitioner’s right ceedings. coun We conclude that Hearing just matter Post Conviction sel ap right to counsel on a defendant’s direct broad as peal. appointed in counsel connection
Petitioner’s Superior Court from the dismissal his petition Hearing Act is directed Post Conviction his expressed proceed the views in accordance with herein. Littlejohn, Appellant.
Commonwealth Appellant. v. Archambault, Commonwealth *3 Submitted November 1968. Before C. Bell, J., O’Beien and JJ. Jones, Cohen, Eagen, Bobeets, *4 M. for Sagot, appellant. Leonard Littlejohn, Assistant Dildme, Melvin and Herman I. Defender, for Defender, Archambault, appellant. Pollock, Roger Benjamin H. F. Cowand James D. Levintow, Attorneys, Crawford, Assistant District Richard A. Sprague, Attorney, First Arlen Assistant District Specter, ap- Attorney, District Commonwealth, pellee. January 24, 1969:
Opinion Me. Justice Roberts, present squarely Because both of these cases same issue for our we have consolidated determination, purpose opinion. appellant them for the of In No. 445, serving Leonard life sentence who is a Arehambault, following degree conviction for filed a first murder, petition Hearing Act al- a under Conviction the Post intelligently leging knowingly that he did not appeal. hearing right his A was held waive direct appellant’s re- at that he which trial counsel testified appellant’s appellant had told membered that he trial, ap- possibility through securing of relief there was no appellant possibility peal, he and that warned present receiving penalty, of the death rather than his granted imprisonment, of life should sentence he hearing judge chose believe this ac- new trial. appellant’s contrary notwithstanding recollec- count, appellant knowingly vol- had and found tion, appeal. untarily of waived his Littlejohn, appellant, John al- In No. who was currently murder and is first so convicted sought through serving relief a life the Post sentence, alleged Hearing Act. He that his withdraw- Conviction prelude (an for a new trial essential of a motion al involuntary appeal) because trial counsel told suggestion judge) (at the trial that if he him obtaining a new trial district were successful attorney be free to ask . . the same would previously . . the the event . sentence he did your The court after a hear- full below, conviction.” ground petition, fail- ing, that the dismissed voluntary. for a new trial motion to make ure *5 Both of these cases thus involve a failure to follow post-conviction procedure alleged some an because of receiving fear of the death sentence if successful ob taining a trial. In order new to determine whether necessary there is merit in this it is for us contention, placed to decide if it lawful for a defendant to be jeopardy in such of a death sentence a second trial, guilty once he has been found of murder in first degree imprisonment.1 Having to sentenced life carefully problem, considered this difficult it is our provisions preclude view that three constitutional seeking Commonwealth from the death under such circumstances.
Due Process agreed All having appellants, that been convict- ed right had an murder, absolute to this February Court. Act of P. L. 15, 1870, 19 P.S. 15, §1, §1186. argues the Commonwealth However, it is perfectly proper to establish aas condition to exercis- ing implied right, agreement pos- to waive all advantages part sible which are of the first conviction. require But it especially imagination does not vivid appreciate posture the unfortunate in which defend- placed by prisoner ants are this condition. The must right decide whether to abandon his constitutional prison a fair trial and serve out his term under an in- unchallenged valid or sentence, exercise his statu- tory right in order to achieve his constitu- tional to a fair at the trial, risk that his second 1 This is a different issue from the one where defendant convicted of a included offense or a lesser lesser attorney and on a second trial same crime the district insists on higher prosecution years sixty for the crime. For at least has in this disallowed Commonwealth. See been Commonwealth v. Dei (1908). trick, Pa. Atl. 275 pen might imposition trial in the result *6 price alty.. This from an makes of an erro judgment neous in a first murder the risk case judg of a man’s life. “The law should and in our not, place incredi ment does the defendant an such not, dilemma.” v. United 355 U.S. States, Green ble 184, truly Ct. 221 This to 78 S. choice can be said (1-957). “grisly.” Fay v. be Ct. 822 Noia, U.S. S. 372 391, 83. hardship judgment, price, in our a “Such a (1963). shocking public policy cannot so acute so that our .tolerate, it.” State v. 46 N.J. 216 A. 2d 301, Wolf, F. Patton v. North Carolina, See 381 (1966); (4th 2d Cir. 1967). think that this choice not shocks
Further, we justice, but the conscience and our sense of offends rises to condition. In United also an unconstitutional States 390 U.S. Ct. 88 S. (1968), Jackson, Supreme the' Court of United States held invalid provision pro Kidnapping in the Federal a Act which jury if he vided: a chose be tried defendant to a subject right penalty; death if he his to the waived jury gained immunity from to a trial he death sen tence. The Court held that “whatever said of be they objectives Congress’ passing provision], such a [in pursued by needlessly be chill the cannot means rights.” Supreme exercise constitutional basic explained'that‘“[t] he of such Court inevitable effect provision, discourage to assertion of the course, plead right guilty not Amendment to Fifth to deter right of the Sixth Amendment exercise to demand provision purpose jury no trial. If the had other or rights the assertion of than chill constitutional effect by penalizing who choose to exercise those then it them, patently unconstitutional.” would judgment compels language.in virtually our This jeopardy ap- immunity penalty death from pellants price in these cases. exacted for Here, appellants’ attempt right their ensure constitutional statutory right to a fair trial and their they risk that on the second trial would receive penalty. appellants presented Thus were the same choice were the defendants under the Fed- Kidnapping group eral Act. If either exer- chose to right (to cise its constitutional fair secure a trial jury trial) penalty was the added risk procedure might penalty. result in the death There- fore we believe it is clear risk that the of the death is an unconstitutional condition to the appeal; unless Commonwealth is able to advance *7 legitimate “purpose a or United States v. Jack- effect,” supra, privilege asking for son, the of death the penalty pro- on such a retrial, course of action must be hibited. See Another Look at Unconstitu- Comment, (1968); tional Conditions, U. Pa. L. Rev. 144 AEA Sentencing Standards, Alternatives and Procedures (Tent. §3.8 1967); Alstyne, Draft Dec. Van In Gide- on’s Wake: Harsher Penalties and the “Successful” Appellant, (1965); Criminal 74 Yale L.J. 606 Note, Unconstitutional 73 Harv. L. Conditions, Rev. 1595 (1960). no
However, rationale has been advanced justify imposi- Commonwealth here which would penalty tion of the needlessly in a “manner that penalizes right.” the assertion of a constitutional Unit- ed States 309 U.S. at Jackson, 88 S. Ct. at 1217. possible might reasons the Commonwealth power impose penalty (1) want the death are (2) because the first sentence was too lenient appeals to deter the number of degree desire from first imprisonment life convictions. The former reason is impermissible constitutionally as a violation of the protection equal of clause the fourteenth amendment. See con- equally discussion The latter p. infra. con- infirm. If the Commonwealth is stitutionally it number as should cerned, minimizing he, be of there must frivolous and unmeritorious appeals, a more rational method of those which determining ap- of accomplish goal deterring unwarranted. To adds peals merely fear of the death through wheth- another risk to the choice to bring any appeal, matter objectives er frivolous or not. Pragmatic —no produce here, well motivated —which injustices how they violate constitutional prevail not when standards of fairness.
Nor
hear the Commonwealth contend
would we
appeals
discouraged
should
because
meritorious
appeal procedure places
the additional
which the
stress
First
it is doubtful
judicial process.
from first
convic
appeals
number of
murder
burden.
once
heavy
Second,
tions constitutes
appellate
review should be
granted,
in no
discriminates
in a manner which
way
allowed
face
death sen
possibility
who
those
against
Illi
if their
is successful. Cf.
tence
Griffin
Ct.
(1956).
76 S.
Finally,
Equal Protection It is our of clause equal protection view the fourteenth Common- prohibits amendment also wealth from imposing threat of the on those who have been mur- convicted of first der and imprisonment. sentenced to life It is definite- not ly permissible to take a small from the class group of all those who have been imprison- sentenced to life ment and declare em- or those who collateral relief ploy will be for review. “eligible” this The reasons are quite clear: no reason to as- there is sume that the original more sentences this group in need of review than the entire sentences of the class of sentenced prisoners. In other instead words, choosing group sentence review the basis some factor which bears a connection rational purpose com- review, system employs irrational pletely standard for those whose choosing sentences be changed. pointed out
Further, see above, pp. 343-44, supra, if the Commonwealth’s purpose is to eliminate frivo- lous appeals, employing the deterrent of an increased sentence represent does not a rational standard. This classification is over-inclusive since meritorious many appeals are also deterred. The device of the threat of the death penalty does not bear any reasonable rela- tion to the frivolousness merits of appeal. See Patton v. North 381 F. 2d at Carolina, (4th 642-43 Cir. xlBA 1967) ; Standards, Sentencing Alternatives Van Procedures §3.8, Alstyne, supra, Yale L.J. at 683. to deter 621-22, Therefore, appeals on this basis protection must violative of guaranteed In equal protection clause. order to be classi- valid, upon fication “must rest always some which difference and just a reasonable bears relation to the in re- act *9 346
spect to
classification
can
which the
is
proposed,
never be made
such
arbitrarily,
and without
basis.”
any
Ct.
McLaughlin
379
85 S.
Florida,
U.S. 184, 190,
Milk
Bat
283, 288
Control Commission v.
(1964). See
413 Pa.
Thus we
from
conviction for
barred
prosecutor
seeking
per
especially
thoughts
Mr. Justice Frankfurter
ap
deny
right
that a
either
fact
State
“[N]
tinent:
appropriate
right
altogether
peal
of a State to
nor
make
lay
classification,
.
of a State
down
. . nor the
conditions
appeals,
appropriate
for criminal
sanctions differentia
it deems
policy
relation to a rational
that have
of crimi
no
tions
State
imposition
of conditions that offend
or authorizes
nal
'
society.”
presuppositions
Illinois,
deepest
our
Griffin
(concurring opinion).
21-22,
at 592
76 S. Ct.
at
U.S.
*10
aof
convicted
the
crime once a defendant
is
higher
same
offense or a lesser
lesser included
should
prosecution
is there
reason
the
crime,
any
why
in
punishment
for
to
the
prosecute
higher
allowed
severity,
punishments
varying
of
crime which has
received the
once a defendant has been convicted
agree
punishment?
less severe
We are inclined
is
distinction
Mr.
that
such
any
Justice
Frankfurter
any
practical
mere
fiction.
“As a
matter
legal
to dis-
scarcely possible
basis of human
it is
values,
in which
is convicted
a case
the defendant
tinguish
from
in
he is convicted
offense
one which
greater
of which
that
has the same name as
an offense that
significantly
but carries a
he was
convicted
previously
im-
than
death rather
different punishment, namely
at 213,
U.S.
v. United
prisonment.”
States,
Green
be that
opinion).
It
(dissenting
349 his the inaccurate advice concerning possibility must death on a second we receiving penalty trial, vacate court’s order. See Commonwealth hearing ex rel. 2d 883 Light Pa. 220 A. Cavell, wheth it is not on this record (1966). clear However, due appellant’s prosecute appeal er failure to would be lawyer’s procedure to his advice such a fruitless or because in fear of receiving he was at a second trial. Therefore, disposition is remand appropriate the case If issue. should hearing hearing judge find that decision of fear appellant’s motivated out appellant of the death then should he allow penalty, see prosecute Douglas his as in any denial, Commonwealth Pa. A. 2d 646 Ezell, if then a and know (1968); not, finding voluntary would justified, waiver his ing order denying Douglas appro and an relief would be priate. Term,
No. 372, ,January dif slightly case is Factually appellant Littlejohn’s mo post-trial reason ferent. Both sides agree *12 at the fear that was because of tions were withdrawn pen receive appellant trial might a second fear appeal A not to because such decision alty. volun a matter of be a law, knowing cannot, appel to appeal. Therefore, of the right waiver tary appeal. However, entitled Littlejohn is lant raise which briefs before us issues the record and since on a direct and since be raised could has considered hearing already judge post-conviction treat the matter before us as shall claims, we these on the appellant’s contentions and decide direct v. 433 249 Gist, 101, Pa. Commonwealth See merits. (1969). A. 2d 351
350
Appellant’s that certain statements first claim is in trial taken from him 1959 and introduced at his of the 1961 because should have been held inadmissible warnings. give How- failure him the constitutional place long Escobedo these events took before ever, (1964) Mi- Ct. 378 U.S. 84 S. 1758 Illinois, 478, (1966); randa v. 86 Ct. 1602 384 U.S. S. Arizona, 436, applies retroactively John- 1961 trial, since neither to a (1966), Jersey, son v. New 384 U.S. 86 S. Ct. 719, merit. this contention is without through During the trial evidence was introduced between each female of intimacies two witnesses appel- prior appellant, death of one to the them and Appellant urges after. that such the other wife, lant’s prejudicial have been that it should evidence was so quite Pennsylvania the law excluded. However, of the settled that ‘where the victim clear: “It is well spouse tending to evidence is the accused, crime upon part the accused of affection want show ques- is admissible on the infatuation with another, ” Westwood, motive.’ Commonwealth tion of (1936). A. Since this 304, Pa. complained encompasses testimony clearly rule appellant’s argu- supportable basis to no there is here, ment.
Appellant’s oc- event which claim involves an third jury being during escort- trial. As was curred during City a taxicab driver recess, Hall around ed sped guilty,” “Not from his car, them at shouted reported judge away. to the trial The incident both counsel in- about the conference held a who agreed the incident was not suffi- All cident. any justify prejudicial ciently but before mistrial, judge appellant ruling asked that made, final decision. final After the confer- in the included judge in- “if appellant to the it [the *13 stated ence, hag something I cident] been deemed ... detrimental, assured would like to have a trial.” But counsel new appellant “adversely the affected he had not been counsel- mutual incident.” The result was a defense objection proceed with client decision to make no and the trial. post-conviction hearing stated
At counsel the trial prejudicial thought that he never of the remark as that a to assume his client’s interest. It is difficult urging guilty the under remark a not verdict couhl might prejudicial; it in fact instant circumstances be helpful. any on this In the statement have been event, justify grant In trial. not of a new record does opinion eminently fair in an our the trial court acted problem. handling and Both counsel in manner appellant joined mis- for a in not to move the decision complaints precludes any further trial decision ; this the incident. about appellant alleges error
Finally, that there was charge How- evidence. on circumstantial the court’s language charge language tracked the ever, Pa. 45, Chester, in Commonwealth of this Court (1963) Commonwealth, : “The A. 2d proof ele- of these to direct not restricted however, contrary, circumstantial evidence but, ments, arising, long the inferences so suffice alone beyond question prove a reason- fact in therefrom present controlling and rule This is doubt.” able change substantial Commonwealth in this justify position conclusion that would our pre- charge judge’s incorrect. No reasons trial support result; therefore we conclude such sented charge correct. denying is vacated, order judgment sentence affirmed. allowed concur Mr. Justice Eagkn Justice Mr. Cohen result. in the *14 Dissenting Opinion
Concurring and Mr. Chief Justice Bell:
I Court’s decision in Commonwealth concur I from decision and dissent the Court’s Littlejohn. in Commonwealth v. which com- Opinion Archambault, law established pletely changes very long well if Justice Roberts Pennsylvania. Furthermore, trial then defendant who obtains new right, every re- after a crime any every cannot, conviction or greater at his new receive trial, higher conviction at his first imposed trial; sentence than was at even if the evidence re-trial would be so was differ- at first from and than the evidence stronger ent his more trial and severe sentence. warranted Mastrangelo Appellant, Buckley et al., et al.,
Appellant.