The opinion of the court was delivered by: HIGGINBOTHAM
The relator, Jose Angel Cuevas, has brought this petition seeking a writ of habeas corpus alleging violation of rights guaranteed under the Fourteenth Amendment to the United States Constitution. Jurisdiction is based on 28 U.S.C. § 2254. For reasons which follow it is my conclusion that the writ must be granted.
The relator contends that he is entitled to the writ because the police obtained from him a statement by deception and without first informing him of his rights to remain silent and to have the assistance of counsel. This statement was introduced at the trial where he entered a guilty plea to murder generally. The relator contends that these rights should have been accorded to him because of the ruling of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). The relator contends also, that he entered a plea of guilty as a direct consequence of the existence of that statement. Finally, the relator argues that he is entitled to a new trial because the Commonwealth suppressed evidence vital to his defense in violation of the rule of Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Commonwealth admits that the relator was not informed that he could remain silent if he chose, or that he could have the services of counsel. It argues, however, that the relator was not prejudiced by the use of the statement; and, more importantly, that by pleading guilty to murder generally he waived all but jurisdictional defects which existed in the pre-trial and trial stages of his conviction.
On October 8, 1962, the relator participated in a dice game with one Raphael Carrasquillo. He contends that he consented to play because Carrasquillo said that he would repay him a sum of money which he had previously borrowed, if he [Cuevas] entered the game. During the course of the game the relator lost fifty dollars to Carrasquillo. The relator testified that at this point he wanted to discontinue the game and that he demanded that Carrasquillo give him the money which was owed him. Carrasquillo refused. There are serious contradictions as to what followed, however, it is established that a fight ensued during which the relator shot and killed Carrasquillo. The relator claims that Carrasquillo attacked him with a knife; other witnesses denied this. In any event, after the shooting relator rushed from the Carrasquillo home and went to his own home. After telling his wife that he had shot someone he called the police.
The relator was taken to detective headquarters and questioned. Two and a half hours after his interrogation began the relator signed a statement admitting the shooting. At no time was he warned that he could remain silent or was entitled to consult with counsel.
At trial the relator pleaded guilty to murder generally and was found guilty of murder in the second degree. He was sentenced to a prison term of seven to eighteen years. No appeal from this conviction was taken. The relator then sought to obtain a writ of habeas corpus in the state courts but was unsuccessful. Commonwealth ex rel. Cuevas v. Rundle, 418 Pa. 373, 211 A.2d 485 (1965). Having exhausted his state remedies, he brought this action.
The relator contends that the writ should be granted because evidence vital to his defense was supressed by the prosecution. He relies on the ruling of the United States Supreme Court in Brady v. State of Maryland, supra, in which it was held that the failure of the prosecution to provide the defense with evidence favorable to it, in the state's possession, was a denial of due process. The relator relies on the testimony of Herminio Toledo given at the hearing before me that two detectives so intimidated Toledo that he did not come forward at the relator's trial to give testimony which was favorable to him.
The relator's allegations of suppression of evidence must rise or fall on Toledo's testimony. There were such serious discrepancies and internal contradictions in Toledo's testimony and such further contradictions between his testimony and Cuevas' that I find it impossible to accept Toledo's testimony as credible. I therefore reject all of relator's allegations which are bottomed on Toledo's testimony. Thus, I hold that the relator has failed to meet the test outlined in Brady v. State of Maryland, supra.
The relator next contends that the rule of Escobedo v. State of Illinois, supra, applies to him and thus compels his release. The relator's trial ended on May 29, 1964, and the Escobedo case was decided on June 22, 1964. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (June 20, 1966), the Supreme Court decided that the rationale of Escobedo was not to be applied retroactively, but was to be given prospective application only. In short, that it applies only to those trials which began after June 22, 1964. Thus I have no choice but to reject relator's arguments based on Escobedo. United States of of America ex rel. Dickerson v. Rundle, 363 F.2d 126 (3 Cir. 1966).
Despite its ruling that Escobedo was not to be applied retroactively, the Court did enunciate the standards by which cases like the instant action are to be guided.
At the same time, our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. See Fay v. Noia, 372 U.S. 391, [83 S. Ct. 822, 9 L. Ed. 2d 837] (1963). Prisoners may invoke a substantive test of voluntariness which, because of the persistence of abusive practices, has become increasingly meticulous through the years. See Reck v. Pate, 367 U.S. 433 [81 S. Ct. 1541, 6 L. Ed. 2d 948] (1961). That test now takes specific account of the failure to advise the accused of his privilege against self-incrimination or to allow him access to outside assistance. See Haynes v. State of Washington, 373 U.S. 503 [83 S. Ct. 1336, 10 L. Ed. 2d 513] (1963); Spano v. People of State of New York, 360 U.S. 315 [79 S. Ct. 1202, 3 L. Ed. 2d 1265] (1959). Prisoners are also entitled to present evidence anew on this aspect of the voluntariness of their confessions if a full and fair hearing has not already been afforded them. See Townsend v. Sain, 372 U.S. 293 [83 S. Ct. 745, 9 L. Ed. 2d 770] (1963). Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim. [ 86 S. Ct. at p. 1779].