Appeal from order of Court of Common Pleas of Dauphin County, June T., 1965, No. 1740, in case of Commonwealth ex rel. Andrew Lee Saddler v. James F. Maroney, Superintendent.
Andrew Lee Saddler, appellant, in propria persona.
Clarence C. Morrison, Assistant District Attorney, and LeRoy S. Zimmerman, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the consideration or decision of this case.
Appellant, Andrew Lee Saddler, appeals from the denial of his petition for writ of habeas corpus. Appellant, while represented by counsel retained by his
foster mother, pleaded guilty to the charge of murder and was adjudged guilty of murder in the first degree and sentenced, on March 15, 1957, to a term of life imprisonment. No appeal was taken from the judgment of sentence.
Appellant, in his habeas corpus petition, raises 3 points on which he seeks to attack his conviction. He first avers that although the police, during their investigation and before they received any statement, advised him that he had a right to consult an attorney, they did not specifically advise him that the court would appoint counsel if he could not afford to retain private counsel, and he was not aware he had such a right. Secondly, appellant contends that neither the court nor his counsel advised him that he had a right to trial by jury, and, as he was not aware of such a right, he could not have effectively waived it. He further contends that no counsel advised him in the taking of an appeal, and he did not know of his right to appeal after his plea of guilty.
We held in Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), that the rule in Escobedo v. Illinois, 378 U.S. 478 (1964), should not be applied retrospectively to convictions finally sustained prior to announcement of that rule on June 22, 1964.*fn* That should be controlling on appellant's first contention that the police failed to advise him that he had a right to court-appointed counsel if he was not able to afford it. It should be noted, however, that although the police did not specifically advise him of this right, the statements given by him were entirely voluntary, and each contained the following paragraph: "I, Andrew Lee Saddler, age 21, living at 1531 N. 6th St., Harrisburg, Pa., being advised that I need not make any statement about any crime with which I may be charged
unless I desire to do so, do hereby make this following voluntary statement of my own free will, and I have read or had read to me my statement before signing my name hereto. I have also been advised that I have the right to consult an attorney before I make this statement."
The examination of the record has failed to disclose any challenges to the voluntariness of the confession involved, but rather, that it was entirely voluntary, and at the time it was presented in court, appellant was represented by private counsel to conduct his defense. Furthermore, "Having made a choice not to attack the voluntariness of the confession at trial, the defendant may not now, long after the final stage of the direct litigation has passed, claim and exercise the option of having all that followed that decision set aside and ...