Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1965, No. 1012, in case of Commonwealth ex rel. George A. Mount v. Alfred T. Rundle, Superintendent.
Stephen M. Feldman, with him Robert E. Lenton, for appellant.
Leslie J. Carson, Jr., Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, and Arlen Specter, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno and Mr. Justice Cohen dissent.
George Mount entered a plea of guilty to murder generally and, after a hearing, a three-judge court unanimously found him guilty of murder in the first degree*fn1 and, after a hearing under the so-called "Split Verdict Act" (Act of December 1, 1959, P. L. 1621, § 1, 18 P.S. § 4701), the court unanimously imposed upon Mount the sentence of death. On direct appeal to this
Court, we affirmed the judgment of sentence: Commonwealth v. Mount, 416 Pa. 343, 205 A.2d 924 (1965), cert. den., 381 U.S. 954, 85 S. Ct. 1815 (1965).
Six months later, Mount petitioned Court of Common Pleas No. 2 of Philadelphia County for the issuance of a writ of habeas corpus alleging that the judgment of sentence of death was illegal, void and in violation of his constitutional rights. That court dismissed, without hearing, Mount's petition and from that order Mount has appealed to this Court.
As pertinent to this appeal, the factual background may be briefly stated.*fn2 Frances Lieberman -- a 23 year old pregnant woman -- was found dead in her apartment in Philadelphia on August 29, 1963, her death being the result of thirteen stab wounds which, in the medical examiner's opinion, caused death within five minutes after infliction of the wounds. Four days later -- September 2, 1963 -- Mount was apprehended by the police and, on that same day, he made a written statement wherein, inter alia, he admitted stabbing the victim. The next day -- September 3, 1963 -- Mount was given a preliminary hearing at which he was held without bail for grand jury action. Three days subsequent to the preliminary hearing -- September 6, 1963 -- the police, having by that time been furnished with certain information, obtained from findings in the criminal laboratory, which led them to believe that Mount had sexually assaulted the victim, took a second written statement from Mount in which he said that, after stabbing the victim, he went into the living room, removed his clothes preparatory to having sexual intercourse with the victim, returned to where she was lying, picked up her legs and dropped them again because he could not go through with it. This second
statement further related that, thereafter, Mount went back into the living room, got dressed, took some money, took the knife out of the victim and left the premises.
On September 11, 1963, Mount was indicted for murder. He then requested the appointment of counsel and counsel were appointed.
On this appeal no challenge is made to the sufficiency of the evidence to justify the finding of murder in the first degree or to the voluntariness of the two confessions which Mount made. The challenge is to the sentence of death and two-fold in nature: (a) that the second confession -- obtained when Mount was without counsel, had not been warned of his right to remain silent and after the preliminary hearing -- should not have been admitted into evidence at his trial and, had it not been received in evidence, the court, in determining the appropriate sentence, could not have considered, as it did, the contents of that confession which evidenced an intent to sexually assault the victim; (b) that, even though the evidence other than that obtained through the use of the second confession might have justified the death penalty, the facts contained in the allegedly inadmissible confession did play a large factor in determining the appropriate penalty.
In passing upon the admissibility of the second confession, it must be borne in mind that the trial of Mount took place in January, 1964, almost six months prior to the ruling of the United States Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). By reason of Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966), the rulings of the United States Supreme Court in Escobedo and in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) are inapplicable to cases tried prior to ...