The opinion of the court was delivered by: FOLLMER
Petitioner filed a petition for writ of habeas corpus in the Court of Common Pleas of Dauphin County, Pennsylvania, on the same grounds raised herein. That petition was denied by Order dated September 27, 1965. Commonwealth ex rel. Chase v. Myers, 84 Dauph. 198 (1965). The Pennsylvania Supreme Court affirmed the denial of the petition on September 27, 1966, in a per curiam opinion. Thus petitioner has exhausted his available state remedies.
In the instant case, Rule to Show Cause was granted, Answers were received from the respondent and the District Attorney of Dauphin County, and this Court has had the benefit of the records of the original criminal proceedings and the state habeas corpus proceedings.
The petitioner first claims that he was denied the right to consult with an attorney before he was interrogated. This contention, standing alone, is not sufficient. The rules laid down in Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have been held not to apply retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Thus, this argument is not sufficient to render any confession taken as inadmissible in that the trial and sentencing occurred in 1958.
Petitioner also claims he was told: "that he was not seeing any-one (sic) until he gave a statement and if he did not try to help himself he would get the 'electric chair.'" (Petition, p. 4). An examination of the record shows that the confession was admitted in evidence not only without objection, but with express agreement of petitioner's counsel. (N.T. p. 472). Also, it should be noted, that when the statement was first marked for identification, the Court granted a twenty minute recess to allow petitioner's counsel time to examine it. (N.T. p. 458). In fact, the statement was used by petitioner's counsel, in cross-examining one of the prosecution's witnesses, prior to the time the statement was admitted. (N.T. p. 469). Moreover, at the beginning of the statement, petitioner stated that no promises or threats had been made, that he understood that the statement could be used against him and that it was being made voluntarily and of his own free will. (N.T. p. 474). The voluntariness of the statement was again affirmed at the end of the statement. (N.T. p. 491). Finally, petitioner testified as to the very same facts related in the now contested statement when he took the stand. The record completely controverts petitioner's allegation. Moreover, if there is a grain of truth in petitioner's allegation it clearly appears from the above facts, that any failure to object was trial tactics, knowingly pursued by petitioner and his counsel, and that petitioner has waived any rights he may have had.
The second ground raised by petitioner relates to the introduction of a prior conviction for attempted burglary. After the defendant took the stand, the Commonwealth, in rebuttal, introduced the testimony of two additional witnesses. Upon the request of defendant's counsel, the Commonwealth stated that: "The purpose of the rebuttal by the Commonwealth at this time is to attack the defendant's credibility." (N.T. p. 628). The witnesses then stated the defendant had been convicted of attempted burglary.
It would appear that this would end the matter. However, the trial court failed to charge the jury as to the limited purpose for which the testimony of the prior conviction was introduced, after such a request by the Commonwealth. (N.T. pp. 701, 703-704). However, the record shows that shortly after the jury retired the defendant's attorneys, the Assistant District Attorney and the trial judge met in chambers. The court offered to recall the jury for further limiting instructions as to the testimony of the prior conviction as previously requested by the Commonwealth. At this point, the following was stated:
"MR. LOCK: [First Assistant District Attorney] I make no request that the Jury be returned for further instruction as per my previous request before the retirement of the jury on the point mentioned by the Court.
THE COURT: Mr. Cooper, do you desire the Jury to be recalled for further instruction on the point mentioned by the Court?
MR. COOPER: [Attorney for defendant] It is not the desire of counsel for the defendant to have the Jury recalled at this time for further instruction in accordance with Mr. Lock's previous request at the close of His Honor's Charge.
MR. CALDWELL: [Attorney for defendant] I concur with Mr. Cooper that the Jury be not recalled for further ...