Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965).
Subsequent to the decision in Jackson v. Denno, supra, which overruled Stein, the Pennsylvania Supreme Court announced its adherence to the new principle. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965); Commonwealth ex rel. Butler v. Rundle, supra; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 288 (1965); Commonwealth ex rel. Isenberg v. Maroney, 416 Pa. 430, 206 A.2d 379 (1965); Commonwealth ex rel. Gaito v. Maroney, 416 Pa. 199, 204 A.2d 758 (1964). Moreover, it was announced that in Pennsylvania the Jackson rule would be applied retroactively. Commonwealth ex rel. Butler v. Maroney, supra.
From the foregoing it is readily apparent that the relief once denied him under the old decisions is now fully available to the relator in the state courts under the most recent decisions. Indeed, the Supreme Court of Pennsylvania, in denying allocatur for reasons of late filing, indicated that its disposition did not preclude relator from " filing a new petition in the Court of Common Pleas of Westmoreland County setting forth applicable grounds for a hearing or writ, including the allegation that a hearing is required to determine the voluntariness of the 1960 confession."
Upon consideration of the records, it is my opinion that relator's contention is well founded, and that he is entitled to a hearing to determine the voluntariness of his confession. However, the Commonwealth is entitled to make this determination of voluntariness vel non before this federal court acts on a petition for a writ of habeas corpus. Jackson v. Denno, supra, 378 U.S. p. 393, 84 S. Ct. p. 1789.
The Commonwealth should have an opportunity to hold a reasonably prompt hearing, consistent with the requirements of due process, in the presence of relator and after the appointment of counsel, in order to determine the voluntariness of the confession introduced into evidence at his trial of February 14, 1961. Commonwealth ex rel. Gaito v. Maroney, supra. In the alternative the Commonwealth may elect to give relator a new trial. Jackson v. Denno, supra, 378 U.S. p. 395, 84 S. Ct. p. 1790.
Pending the Commonwealth's action, the petition for the writ of habeas corpus filed in this court will be stayed for a period of ninety (90) days. If, within that time, or any extension granted for good cause, a hearing is held or relator is retried, the petition will be denied. If the Commonwealth does not afford the relator a hearing or does not retry him within the ninety day period, or any extension thereof, the writ will be granted and the relator released. Boles v. Stevenson, 379 U.S. 43, 85 S. Ct. 174, 13 L. Ed. 2d 109 (1964).
An appropriate order will be entered.