decided: November 9, 1965.
COMMONWEALTH EX REL. FRAZIER, APPELLANT,
Appeal from order of Court of Common Pleas of Fayette County, No. 1427 Habeas Corpus Docket, in case of Commonwealth ex rel. Willie Frazier v. James F. Maroney, Superintendent. Order vacated and record remanded.
Willie Frazier, appellant, in propria persona.
William J. Franks, Assistant District Attorney, and John R. Hoye, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen dissents.
[ 419 Pa. Page 362]
In September, 1963, appellant was convicted in a trial by jury of voluntary manslaughter and sentenced to imprisonment for a term of 6 to 12 years. No post trial motions were filed and no appeal taken.
Subsequently, appellant filed a petition for a writ of habeas corpus alleging that his conviction was invalid on the ground that certain oral and written statements had been improperly admitted at trial. The petition was denied without hearing and this appeal followed.
At trial, the Commonwealth introduced, over objection of appellant's counsel, certain statements made by appellant which tended to disprove the defense there asserted. Counsel's objection to the introduction of the statements was grounded, inter alia, upon their alleged involuntary nature. The trial judge, overruling the objection, permitted the statements to be introduced and submitted the question of their voluntariness to the jury to resolve in accordance with the practice in this Commonwealth prior to the decision in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964).
This procedure was improper. See Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965); Commonwealth ex rel. Isenberg v. Maroney, 416 Pa. 430, 206 A.2d 379 (1965). Under the mandate of Jackson, supra, appellant was entitled to a hearing separate and apart from the proceedings before the trial jury on the issue of the voluntary nature of his statements. See Jackson v. Denno, supra; Commonwealth ex rel. Isenberg v. Maroney, supra. Since a hearing consistent with the requirements of due process was not held on the issue of the voluntariness of appellant's statements, the order of the court below dismissing the petition without a hearing must be vacated.
[ 419 Pa. Page 363]
Appellant also raises an issue under the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). However, appellant's conviction having become final before the decision was rendered in that case, he may not predicate a claim to relief thereon. Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965).*fn*
The order of the court below is vacated and the record remanded with directions to hold an evidentiary hearing in accordance with the requirements of due process. After said hearing, the court shall record its findings and conclusions and enter an order thereon consistent with the decisions of this Court pursuant to Jackson v. Denno, supra. See Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965).
Vacated and remanded.
Order vacated and record remanded.