Appeals from order of Superior Court, April T., 1962, Nos. 258 and 259, affirming orders of Court of Common Pleas of Allegheny County, July T., 1962, Nos. 2841 and 2894, in case of Commonwealth ex rel. Frank Gaito v. James F. Maroney, Superintendent.
Stanley J. Reisman, with him Zigmund L. Dermer, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Louis Abromson, Assistant District Attorney, and Robert W. Duggan, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.
Appellant filed a petition for a writ of habeas corpus which was dismissed without hearing. The Superior Court affirmed the Order dismissing petition, and we allowed an allocatur. The Order must be reversed.
Frank Gaito and Joseph Gaito, brothers, were tried and convicted by a jury of (1) burglary, and (2) assault with intent to kill. On July 12, 1960, substantial prison sentences were imposed on both brothers.
The judgments were affirmed by the Superior Court in Commonwealth v. Gaito, 195 Pa. Superior Ct. 356, 172 A.2d 184. This Court denied an allocatur. The United States Supreme Court denied certiorari, 368 U.S. 998. As a result of the above mentioned convictions, Gaito was recommitted to prison for violation of parole to serve the balance of previously imposed sentences. The prior sentences have not yet expired and consequently Gaito has not commenced to serve the sentences imposed for his aforesaid crimes of burglary and assault with intent to kill. Cf. Ex Parte Cleio Hull, 312 U.S. 546.
Gaito's petition for a writ of habeas corpus alleges, inter alia, that his oral confession of (1) burglary, and (2) assault with intent to kill was erroneously admitted at the trial of his case. The pertinent facts may be thus summarized:
Several burglaries had been committed in Dormont Borough, Allegheny County, Pennsylvania. On the occasion involved, an off-duty policeman was hiding in his darkened home anticipating a visit by the burglars. They arrived. Shots were exchanged. The policeman and one of the burglars suffered shotgun wounds. The burglars escaped.
Several hours later, Frank Gaito was found outside the Mercy Hospital in a critical condition, suffering from a bullet wound in the abdomen. He was operated
on almost immediately. About four hours after the operation was completed, Gaito was questioned by an assistant district attorney, who testified at Gaito's trial that Gaito orally admitted participating in the burglary. Gaito testified that he had no recollection of anything that happened for about twenty-four hours after the operation. The hospital records show that at the time of the questioning, Gaito was under the ...