*1 449 paper; nomination the contents of knowledge stat- correctly are residences respective their (4) named county reside the all therein; (5) they ed the date set signed that each affidavit; (6) in the the af- to the best opposite name; (7) that, qualified are signers knowledge fiant’s and belief, electoral district, or of the electors the State, art. IX, P. L. 1333, be.” Act of June may case (d). 25 P.S. §951, amended, §2911 case, of this hold under the circumstances We that, suf- Herman before testimony Judge Mosier’s sworn 951 even of Section requirements fices meet In his affidavit. circulator’s never a though signed personal had demonstrated that he Mosier testimony, who required information of one all knowledge Labor Socialist petition. nomination See: a circulates 831 Frank (1938); Case, 78, 83, 84, (1953); 98 A. Superior Ct. Petition, R. 388 Dauphin Cty. In Re: Petition DiMarcella, to hold that We are loathe of the Court of Common Pleas is lost to run for Judge failed to petition sign one of his circulators open affidavit but nevertheless testified required to all a circulator required court as facts public An office know. individual’s seek not be defeated such technicalities. should Order reversed. dissents.
Mr. Roberts Justice Appellant. Stewart, wealth Common *2 May 26, 1969. Submitted Before C. Bell, J., Jones, Roberts and O’Brien, JJ. Cohen, Eagen, Pomeroy, Norman M. for Yoffe, appellant.
Jerome T. Foerster, Assistant District Attorney, and S. LeRoy Zimmerman, District for Com- Attorney, monwealth, appellee.
Opinion by Mr. Justice
October
1969:
9,
Roberts,
On March 18, 1961, appellant was convicted of first
degree murder and sentenced to life imprisonment;
no
appeal was taken. On October 28,
petitioned
he
1966,
for a
pursuant
hearing,
the Post Conviction Hear
ing
that he
Act, claiming
was not advised of his right
appeal,
mandated by
v.
Douglas
372
California,
U.S.
Littlejohn, 24, where a defendant was to life originally sentenced precluded the from Commonwealth was imprisonment, the death if a new trial seeking granted. The could not Commonwealth threaten constitutionally punishment a defendant on more harsh retrial “with than that of Ms original conviction,” Littlejohn, supra A. 2d at nor could it for a single at out, those who succeed possible greater only punishment, trial on id. at in a new 250 A. 2d getting appeal, a decision not to based on 815. Therefore, at could of what not eonstitu fear a knowing as a matter be tionally do, “cannot, law, of the Id. at appeal.” waiver voluntary right in appellant 2d at 817. Hence, because case did not exercise his right appeal stant to have of fear of death he cannot be said penalty, must be rights appeal per waived his and an Commonwealth ex rel. Stevens v. Myers, mitted. See A. 2d 613 (1965). neither conducted Although hearing PCHA because was de with mind, cided both on the record after evidence hearings, us to conclude that hearings requires appel these fear appeal lant decided not to of the death At PCHA second penalty.* hearing, record of which will be referred to as “R2,” appellant, the Commonwealth stated: cross-examination “Mr. Bolton original said lawyers] [one he didn’t feel take a chance to would pursue this further. He life all over any said, placing my . . . This mind.” again sticks R2 jeopardy. my at 28.
* proper It for us to examine the records of both PCHA hearings appeal. hearing on this The first PCHA was concerned against defendant decided whether because of fear or because he did not know of his hearing Thus this contains a full record on the lawyers why appellant’s original defense felt an only question The the second PCHA be ill-advised. remand, pursuant to our knew of his *4 counsel; hence, no reason for counsel free there was to re- lawyers original question appellant’s as to their reasons for not yet appealing, particularly had not been decided. since judicial economy, light for and in all fairness to In of the need appellant, there is little reason to both ground cover the same which will for another remand hearing. first PCHA Cf. covered (1969) (con Willman, n. n. curring opinion). and dissenting
The record of the first PCHA hearing (Rl), was concerned with the reason for con- not appealing, sistently affirms the fact that appellant’s trial lawyers were afraid he death re- get upon penalty and this trial, their reason advising appellant appeal. Mr. Bolton testified that he knew “we had a serious on very case our as far as hands, penalty Rl at concerned,” that he and ex- co-counsel erted a tremendous effort to convince the jury not impose the death see Rl at and that he penalty, 28-31, advised against “I appealing because that the De- felt fendant would be a terrible taking chance could well get on penalty the second time Rl at around,” 31.
Mr. trial Fearen, in co-counsel, testifying reply the Comonwealth’s question as to what transpired in the conference with appellant after the verdict, stated: explained to him then as we had “[W]e before that penalty it stood was life imprisonment, that if we took action to any attempt disturb success that action would mean putting life the line again a subsequent trial. . . . Mr. Bolton made it clear to him that the decision [of to appeal] was his, ours, because it was life that could be put if jeopardy again took we action to any attempt to disturb this penalty.” Rl at 42. Further quotation of like appears statements throughout the record. must
Thus, we conclude that appellant failed to appeal his conviction because he feared the imposition of the death retrial. Since Littlejohn, supra, requires under these circumstances appel- permitted lant be an appeal as though timely filed, reverse and remand this record to the court below directions the court shall appoint counsel purpose filing arguing post-trial mo- tions and, necessary, prosecuting *5 4M of Terminer of and order of the Court Oyer
(cid:127)The re- the record is and is- reversed Dauphin County manded -with instructions. dissents.
Mr. Chief Justice Bell Pomeeoy: Dissenting Opinion Me. Justice . murder of degree convicted first was Appellant 1961. to, on March 18, life imprisonment sentenced v. Littlejohn, in Commonwealth This Court’s decision January 24, filed on was sub decides opinion necessarily The majority 1969. other- in effect; silentio is retroactive that sponte Court sua be it not proper wise, search, to determine in the case at bar to the record his conviction appeal failure the death fear that he would receive caused by if his successful. appeal proved on retrial penalty did not address Court my view, .In The Court there the matter retroactivity. itself to held, because of such “A decision not appeal that the death receiving fear retrial] [fear be a knowing volun- law, as a matter cannot, to appeal.” newly- This right tary waiver .the I enunciated rule law, agree, n stated be applied a mandate should retro- actively. “if states
The majority did stant case exercise - he cannot be said have fear of. clear, If in it- fact were Douglas rights.” waived no there would issue, be Douglas,right” v. retroactivity. California, toas 373 U.S. denied, reh. set (1963) 353 (1963), U.S. to the assistance indigent forth an defendant’s of a prosecution first granted- counsel free
45'5 and that applied decision is retroac right,* tively. Daegele (1963) 375 U.S. See, e.g., Kansas, and Commonwealth ex rel. Stevens v. Myers, *6 But I do Douglas not understand or the appli cases which follow it to retroactive require cation of all newly might enunciated of which rules law to particular have influenced a defendant’s decision as should be I taken. Specifically, do support those regard cases as the majority’s present conclusion that cannot be deemed to have if he “Douglas rights” waived failed prosecute appeal because of fear of the death penalty. of the Indeed, view Court’s treatment of this case I do not see that appellant’s putative waiver is at That rights question issue. was pre sented by this but the Court here holds that it need not reach issue.
The issue Littlejohn’s has not been retroactivity parties raised present to the by proceeding, this has not Court had the benefit of briefs or the argument counsel point. this The Court may have come result On this issue. I this have no I disposed but am present opinion, reach so important a question concerning the rule law announces until properly raised and Court. presented Because the rec- ord of the first PCHA hearing indicates problem addressed is relevant this case, I would set the case down reargument limited to Littlejohn’s retroactivity. * Appellant’s right present guaranteed in the ease is Pennsylvania V, state law. Constitution of See Article V, (Article Pennsylvania Section Section Constitution 1968) February ; Act of 15, §1, P. L. 19 P.S. §1186.