The opinion of the court was delivered by: LORD, III
On November 30, 1962 relator was convicted in Lackawanna County of rape and was sentenced to six to twelve years in prison. He has sought habeas corpus unsuccessfully in the state courts. Commonwealth ex rel. Singer v. Myers, 206 Pa.Super. 559, 213 A.2d 685 (1965). Relator contends here, as he did in the state courts, that an involuntary confession was improperly admitted at his trial. We held a plenary hearing. From our hearing and from the state record we find the following facts:
John Ward Singer, relator, is 39 years old. He left school before finishing the ninth grade. On October 19, 1962 relator awoke at 9:00 a.m. He had no dinner that day, but did have three or four shots of whiskey and two or three glasses of beer. Later in the evening, he and two acquaintances (his two co-defendants) picked up Joan Meka, the woman he was convicted of raping. At the site of the alleged rape, a fight ensued, during which Singer was beaten and clubbed into unconsciousness by the co-defendants. Regaining consciousness, Singer walked down the mountain where the fight had occurred and then, having walked about a mile after reaching the highway, he finally was able to "thumb a lift" to a friend's home where he washed. By then it was between 12:00 midnight and 1:00 a.m. of Saturday morning, October 20, 1962. Relator went home and fell asleep about 2:30 a.m. only to be awakened by a roomful of state troopers at about 4:30 a.m.
Singer was interrogated from 4:30 a.m. During the interrogation Singer was tired, his face looked like a beefsteak, bruised and red, well battered. He could not hear out of his left ear as a result of the clubbing. His request to be taken to a doctor was refused with the assurance that he could see a doctor when he went to the county jail. The police kept questioning Singer until 12:00 or 1:00 p.m. on October 20, 1962. By that time Singer had been subjected to an extensive period of interrogation in the early morning which was followed by a trip to the mountain to point out various locations, breakfast and another period of questioning. At 1:00 p.m. the police started to prepare a statement. Several of the statements were discarded until Singer finally signed at about 2:00 p.m. October 20, 1962, nine and one-half hours after interrogation began and twenty-nine hours since he had had a full night's sleep.
After being picked up at his house, the first time Singer had contact with anyone other than police officers and Joan Meka was 3:00 p.m. October 20, 1962 when he was finally taken to the Justice of the Peace.
Singer testified at the hearing:
"Well, I - like I say, I wore out. I was - I knew I had no other help.
"I knew they would keep questioning me until they got it the way they wanted it anyhow. They wouldn't let me call a lawyer or nothing."
The trial transcript reveals that when the statement was sought to be used, relator's counsel objected:
"MR. VOSBURG: If the court please, we object to the admission of this in evidence. It is not sworn to. It's an ex parte statement induced by the police from the defendant-Singer, and it is objected to for that reason."
The Court of Common Pleas of Lackawanna County concluded that "the voluntariness of the confession was neither controverted nor at issue in the trial" and therefore denied relator a hearing. This denial was affirmed by the Superior Court per Curiam, with two judges dissenting. However, the failure to comply with state procedural requirements does not necessarily preclude federal review of federally guaranteed rights. Since we are here called upon to implement a federal right, "the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question." Henry v. State of Mississippi, 379 U.S. 443, 447, 85 S. Ct. 564, 567, 13 L. Ed. 2d 408 (1965). And a state procedural default will not alone preclude consideration of the claim, "at least unless it is shown that the petitioner deliberately bypassed the orderly procedure of the state courts," ibid., page 452, 85 S. Ct. page 570. In Brookhart v. Janis, 384 U.S. 1, at page 4, 86 S. Ct. 1245, at page 1247, 16 L. Ed. 2d 314 (1966), Mr. Justice Black said:
"The question of a waiver of a federally quaranteed constitutional right is, of course, a federal question controlled by federal law. There is a presumption against the waiver of constitutional rights, see, e.g., Glasser v. United States, 315 U.S. 60, 70-71, 62 S. Ct. 457, [464-465,] 86 L. Ed. 680, 699, and for a waiver to be effective it must be clearly established that there was 'an intentional relinquishment or ...