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March 26, 1965

UNITED STATES of America ex rel. George Lee RIVERS
David N. MYERS, Superintendent, State Correctional Institution at Graterford

The opinion of the court was delivered by: DUSEN

After the above proceedings in the Federal Courts, relator sought a writ of habeas corpus in the Pennsylvania Courts in March 1963. This application was denied by Opinion dated April 19, 1963, of the Common Pleas Court No. 3 of Philadelphia County (March Term 1963, No. 1827), *fn1" aff'd 414 Pa. 439, 200 A.2d 303 (May 1964); cert. den. 379 U.S. 866, 85 S. Ct. 135, 13 L. Ed. 2d 69 (Oct. 1964).

 Hearings were held before the undersigned on November 10, 1964, December 14-15, 1964, and January 8, 1965. Very helpful and able briefs were filed by counsel in February 1965 (see Documents 15-17).

 On March 26, 1957, Jacob Viner was fatally shot in his North Philadelphia pharmacy during the course of a robbery and in the presence of his wife. The following afternoon, the police arrested three persons, Williams, age 20; Cater, age 19; and the relator, Rivers, age 18, who was born on March 9, 1939.

 Rivers was arrested about 5 P.M. on March 27, 1957, and taken to Room 117 City Hall, which was then the Homicide Division Headquarters. He was questioned by the police until after midnight, at which time he was taken, without a hearing, to a cell block. During this period, Mr. Rivers signed a written statement (R-7) confessing his part in the crime. The actual dictating of the statement, according to the police, took over three hours and started at 9:30 P.M. When giving this statement and the statement taken the next day, there is no evidence that relator was advised of his constitutional right to remain silent and not to answer any questions. *fn2"

 The following morning, March 28, 1957, the relator was given a preliminary hearing, but instead of being sent to the County Prison, he was returned to the Homicide Headquarters. The preliminary hearing ended with Mr. Rivers being held for a further hearing on April 4, 1957, at the request of the Commonwealth.

 During the questioning, which took place on March 28, 1957, the relator signed another written statement (R-8), the dictation of which began at 2:10 P.M. and ended at 4:55 P.M. The reason given by the police for the second statement was that they were not satisfied with the allegations in the first one concerning the division of the money on the street, rather than in a house, which might result in the criminal liability of persons in addition to Williams, Cater and Rivers (p. 88a of R-5 and testimony of Sergeant Mercer in this proceeding).

 The testimony of the police indicated that Mr. Rivers was permitted to make a phone call, but chose not to do so. The police did, however, call his mother, who was permitted to see him on March 28, 1957 (p. 80a of R-5).

 Police Officer Mercer, who had questioned Rivers on March 27, also testified that he (Rivers) had difficulty reading and had difficulty with words of more than one syllable. (At subsequent hearings, Dr. Mallin's report was supported by the psychiatric reports of Drs. Torney, Silas Warner and Jonas Robitscher. *fn3" See Appendix A, p. 48. It was also brought out at a later hearing that the highest, regular grade achieved by Rivers in school was 2B and he had attended special schools for sub-normal students for several years. See Appendix A, page 47.

 The court, on June 17, 1957, adjudged the three defendants guilty of first degree murder and imposed the death penalty. The Pennsylvania Supreme Court, however, on reviewing the proceeding, vacated the sentence (of Cater and Rivers) and remanded it back to trial court for re-sentence as certain evidence had been misapplied. See Commonwealth v. Cater, 396 Pa. 172, 152 A.2d 259 (1958).

 Another hearing was held on September 18, 1959, after which the finding of first degree murder was affirmed and the death penalty was again imposed.

 Based on the above factual situation, paragraph 23 of the Petition reads as follows:

 '23. It is further averred that the confessions which were extracted from this uneducated, 18 year old mentally defective and mentally ill boy, were involuntary because:

 'a) he was denied counsel to assist him during the stages of the police investigation of the murder for which he was one of the principal suspects;

 'b) he was held incommunicado by the police for more than 24 hours during which time two confessions were extracted from him, and

 'c) he was not informed of his constitutional right to remain silent during the police interrogations nor advised of his right to contact an attorney.'

 This record *fn4" requires the conclusion that, in taking these statements on March 27 (R-7) and March 28 (R-8) and receiving them in evidence at the judicial proceedings in June 1957 and September 1959, relator was denied the assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments under the decision of the Supreme Court of the United States in Escobedo v. State of Illinois, 378 U.S. 478, 490-491, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (opinion of 6/22/64). In that case, the court used this language at pp. 490-491, 84 S. Ct. at p. 1765:

 'We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied 'the Assistance of Counsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon the States by the Fourteenth Amendment,' Gideon v. Wainwright, 372 U.S. (335), at 342 (83 S. Ct. 792, at 795, 9 L. Ed. 2d 799) and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.'

 Under the reasoning of the Escobedo case, supra, the activities of the police officers had become accusatory *fn5" (since they had 'begun to focus on * * * (3) particular suspect(s) * * *,') rather than investigatory, by 9:30 P.M. on March 27, when the first formal statement of relator was taken, in view of these events:

 A. In the early afternoon of March 27, Mrs. Ethel Robinson called the police to notify them that one (Cater) of the three boys believed to have participated in the robbery-homicide was in her luncheonette (pp. 11a and 14a of R-5). Cater was arrested by Officer Thomas at about 2 P.M. on that day (p. 39a of R-5).

 B. Relator was arrested at between 5:00 and 5:30 P.M. on March 27 at his home (R-12). He arrived at the homicide unit on the first floor of City Hall at 6 P.M. on that date (R-12). From 6:10 P.M. until 9:30 P.M. on March 27, he was interrogated by Sergeant Mercer and Detective Shanahan (R-12). Rivers was the last of the three co-defendants arrested.

 C. Cater made a formal statement to representatives of the Philadelphia Police Department on March 27 at 8:50 P.M., describing Williams and relator as the primary instigators in the robbery-homicide in which they had all participated.

 It is interesting to note that relator's able counsel, who served him well until April 1963, when he was called to testify, anticipated the holding in the Escobedo case, supra, by arguing in the state courts in June 1957 that relator's second statement had been secured in violation of his constitutional rights (pp. 113a-114a of R-5). Even if the undersigned is incorrect in believing that both statements will be inadmissible in the additional judicial proceeding which will be necessary to determine the degree of murder and the sentence, the second statement may not be so used under the facts of this case as related above.

 This additional proceeding is necessary because both statements (or at least the second statement) were the basis of the finding of first degree murder and the sentence of death imposed in June 1957 and again in the fall of 1959.

 'The statements of Rivers alone leave us in no doubt that Rivers met Cater during the morning preceding the Killing; that Rivers needed money and had in mind to perpetrate a hold-up; that Rivers saw Cater take the gun from the dresser drawer, and that when they reached the drugstore Rivers stated that here was some quick money. Rivers also shared in the quick money. It was he who agreed to be the lookout man and who opened the door of the drugstore because his fingerprints were not on record.' (Emphasis supplied.)

 It is noted that the italicized language from the court's opinion is based on these words, which appear only in the second statement given by relator at 2:10 P.M. on March 28, more than 20 hours after he had been taken into custody and almost four hours after he had been given a hearing before a magistrate (9:30 A.M. on March 28): *fn6"

 'I had it in my mind then to pull a holdup.' (p. 2 of R-8)

 There was no mention of any previous thoughts of a 'holdup' in the statement given on the night of March 27 (R-7).

 The additional information referred to in Appendix C, which was not available in the fall of 1962, makes it quite possible that a sentence of death would not be imposed at this time.

 The fact that relator did not request counsel does not make the principle of Escobedo inapplicable, for as the California court said in People v. Dorado, Cal., 40 Cal.Rptr. 264, 394 P.2d 952 (1964), 'The defendant who does not realize his rights under the law and who therefore does not request counsel is the very defendant who most needs counsel.' On the facts in this record, particularly the mental deficiency of relator, a demand for counsel by a defendant of the age and mental capacity of relator is not essential to require the application of the principle of Escobedo v. State of Illinois, supra.

 Respondent's contention that the inclusion of an argument based on the Escobedo case, supra, at page 18 of relator's Petition For A Writ of Certiorari and the subsequent denial of that petition by the Supreme Court of the United States precludes the consideration of that argument in this proceeding must be rejected. See Brown v. Allen, 344 U.S. 443, 488-497, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Sunal v. Large, 332 U.S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982 (1947).

 Relator also contends that his constitutional rights were denied (a) by entry of his guilty plea at a time when he was incompetent, unable to understand 'the peril of his position' and unable to assist counsel in his defense, and (b) by being subjected to a judicial proceeding to determine the degree of homicide and his sentence at a time when he was unable to communicate effectively with ...

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