Opinion
Submitted April 23, 1965.
October 13, 1965.
Criminal law — Constitutional law — 6th and 14th Amendments — Lack of counsel — Police interrogation — Failure to warn accused — Rule of Escobedo v. Illinois — Retroactive effect — Criminal prosecutions — Preliminary hearing.
1. While the request for the assistance of counsel by a suspect during an accusatory investigation is not a conclusive factor in determining the admissibility of a confession under the rule stated in Escobedo v. Illinois, 378 U.S. 478, such rule should not be applied retrospectively to convictions finally sustained prior to the announcement of the rule on June 22, 1964. [301-2]
2. In the absence of unusual circumstances which transform the preliminary hearing into a critical stage of the proceedings against the accused, lack of counsel at such hearing does not constitute a deprivation of due process. [302]
Criminal law — Practice — Criminal procedure — Trial — Confession — Voluntariness — Lack of challenge — Waiver.
3. When a defendant in a criminal trial permits his confession to be introduced in evidence without raising any issue concerning its voluntariness, that issue is waived and need not be passed upon in a subsequent habeas corpus proceeding. [302]
Mr. Justice COHEN dissented.
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 215, Jan. T., 1965, from order of Court of Common Pleas No. 4 of Philadelphia County, June T., 1964, No. 3834, in case of Commonwealth ex rel. Joseph Knowles v. Alfred T. Rundle, Superintendent. Order affirmed.
Habeas corpus.
Petition dismissed, order by GUERIN, J. Relator appealed.
Joseph Knowles, appellant, in propria persona.
Gordon Gelfond and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
In 1946, appellant-petitioner was convicted of murder in the first degree by a three-judge court following a hearing on a plea of guilty to the general charge of murder. He challenged this conviction by a petition for a writ of habeas corpus which was dismissed without hearing.
At the plea proceedings, at which time petitioner was represented by counsel, a confession made by petitioner was introduced without objection. Petitioner presently contends that the confession was obtained in violation of the rule enunciated in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964), and his conviction, therefore, constitutionally tainted. He further alleges the inadmissibility of the confession on the separate ground that it was involuntary. Finally, petitioner alleges a pretrial deprivation of the right to counsel on the basis of the decision in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050 (1963).
This Court having concluded in Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), that the mandate of Escobedo is not to be given retrospective application, Negri is here controlling and bars petitioner's reliance on Escobedo.
With regard to petitioner's challenge on the basis of White, the record fails to disclose the occurrence of anything at the preliminary hearing which affected the subsequent proceedings so as to transform that hearing into a critical stage for which counsel was required. Cf. Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965).
In the plea proceedings, defense counsel did not object to the admission of the confession. Moreover, petitioner took the stand and testified to substantially the same facts recited in the confession. These factors bring the instant case within the rulings of this Court in Commonwealth ex rel. Sanders v. Maroney, 417 Pa. 380, 207 A.2d 789 (1965); Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965), and preclude the issuance of the writ on the ground asserted. See also Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564 (1965); United States ex rel. Reid v. Richmond, 295 F.2d 83 (2d Cir.), cert. denied, 368 U.S. 948, 82 S.Ct. 390 (1961).
Order affirmed.
Mr. Justice COHEN dissents.