Appeal from order of Court of Common Pleas of Berks County, Aug. T., 1965, No. 44, in case of Commonwealth ex rel. Albert S. Norman v. Lewis E. Stitzel, Warden.
Emmanuel H. Dimitriou, for appellant.
Ralph J. Althouse, Jr., Assistant District Attorney, with him W. Richard Eshelman, District Attorney, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
On June 15, 1962, Albert Norman was convicted by a jury in Berks County of murder in the second degree. No post trial motions were filed, and on July 5, 1962, a sentence of imprisonment for a term of ten to twenty years was imposed. No appeal was filed from the judgment. Throughout the trial and sentence proceedings, Norman was represented by counsel retained by his family.
On June 9, 1965, an action in habeas corpus was instituted which the trial court dismissed after hearing. An appeal from that order is now before us.
At trial a recorded statement, given by Norman to investigating officers following his arrest, was admitted in evidence over counsel's objection. It is now contended that this statement was not voluntarily given and its use in evidence was further constitutionally impermissible, because during the questioning Norman's requests for the assistance of counsel were refused and ignored.*fn1
Our examination of the record leaves no doubt but that the statement involved was given freely and voluntarily. The killing occurred on April 15, 1962, between 12:30 and 1:00 o'clock in the afternoon.*fn2 Norman was
taken into custody shortly thereafter and immediately admitted to the arresting officers that he did the shooting. About 3 p.m., he was taken to a hospital for a physical and alcoholic examination. En route to the hospital, he told the accompanying officers that he had shot the victim two or three times. He was first formally questioned beginning at 4:15 p.m. Without hesitation he detailed his version of the entire occurrence to the captain of detectives. The district attorney was then notified, and upon his arrival at police headquarters in city hall about 6 p.m. Norman's answers to questions were stenographically reported, then type-written, and each page signed by Norman.
It is not disputed that before the questioning began, Norman was warned that he did not have to say anything, and whatever he did say would be used against him in court. During his trial testimony Norman did not say that he requested the assistance of counsel during the police questioning. However, in the habeas corpus hearing he insisted such a request had been made several times, and that the requests were completely ignored; or that he was told he did not need a lawyer. The hearing court refused to believe his present testimony in this respect and concluded it was pure afterthought. We agree with this conclusion.
Since this case was tried prior to the announcement of Miranda v. Arizona, 384 U.S. 436 (1966), and Escobedo v. Illinois, 378 U.S. 478 (1964), these decisions do not apply (Johnson v. New Jersey, 384 U.S. 719 (1966)), and the absence of counsel during the police interrogation did not ipso facto render the statement inadmissible as evidence at trial. See Commonwealth ex ...