decided: November 9, 1965.
COMMONWEALTH EX REL. KELLER, APPELLANT,
Appeal from order of Court of Common Pleas of Venango County, August T., 1964, No. 90, in case of Commonwealth ex rel. Douglas Wayne Keller v. James F. Maroney, Superintendent.
Douglas W. Keller, appellant, in propria persona.
Harry W. Gent, Jr., District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen dissents.
[ 419 Pa. Page 319]
On July 29, 1964, relator-defendant presented a petition for a writ of habeas corpus which, after hearing, was denied by the lower Court on February 23, 1965. On March 7, 1965, defendant presented a petition*fn* for
[ 419 Pa. Page 320]
a rehearing on his prior petition for a writ of habeas corpus. This petition was denied by the lower Court without a hearing or further testimony. From the Order denying his petition defendant took this appeal.
On May 29, 1961, defendant was convicted by a jury of murder in the second degree, and on June 9, 1961, the Court sentenced him to 10 to 20 years.
Prior to trial, and indeed, prior to his confession, defendant was represented by an attorney who advised him that he did not have to make any statement to the police, if he did not choose to do so. Nevertheless, a few hours after being so advised, defendant made a confession to the police in which he admitted that he killed Robert W. Mays, and gave his version of the killing. His confession was introduced in evidence at his trial,*fn** at which time he was represented by counsel and took the stand and testified in his own behalf. After sentence, defendant filed no post-sentence motions and took no appeal.
Defendant contends that he was denied his Constitutional right to counsel at the accusatorial stage of the proceedings, even though before he made his confession he had engaged, we repeat, a lawyer who advised him of his right to remain silent and to refuse to answer any questions. More specifically, he contends that under Escobedo v. Illinois, 378 U.S. 478 (1964), the confession that he gave to the police under the above mentioned circumstances should have been excluded at his trial. In the light of the aforesaid facts, there is no merit in any of petitioner's contentions.
Our conclusion is fortified by this Court's recent decision in Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (decided by this Court September 29, 1965), which held that Escobedo was not to be given retrospective effect in Pennsylvania. The term "retrospective"
[ 419 Pa. Page 321]
as defined in Linkletter v. Walker, 381 U.S. 618, 622 (1965), is coupled with finality and ". . . applies to state court convictions which had become final**fn** before rendition of . . . [the opinion of the Supreme Court]. . . . By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in . . . [Escobedo]." In view of Linkletter v. Walker, it is clear that Escobedo is inapplicable since the conviction in this case had become final three years prior to the decision in Escobedo and the time for appeal in the instant case had long since expired.