Appeal from order of Court of Oyer and Terminer of Cambria County, March T., 1960, No. 20, in case of Commonwealth of Pennsylvania v. Joseph Walter Vitzen.
Ettore S. Agolino, for appellant.
Robert J. Cassidy, First Assistant District Attorney, with him Ferdinand F. Bionaz, District Attorney, for Commonwealth, appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen concurs in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
On March 24, 1960, Joseph Walter Vitzen was convicted in Cambria County by a jury of murder in the
second degree. No post trial motions were filed, and on April 25, 1960, he was sentenced to imprisonment for a term of ten to twenty years under which he is still confined. No appeal was entered from the judgment. Throughout the trial and sentence proceedings, he was represented by self-retained counsel.
On August 2, 1966, Vitzen filed a petition for relief under the Post Conviction Hearing Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp. 1966), which the trial court denied after hearing. The correctness of that order is challenged by this appeal.
At trial, testimony of statements made by Vitzen to investigating officers following his arrest was introduced against him in evidence. In the instant proceeding, Vitzen maintains that this violated due process because the statements were made at a time when he was so intoxicated that it was impossible for them to have been intelligent and voluntary. It is also asserted that evidentiary use of the statements was further constitutionally proscribed, because at the pertinent time he was without the assistance of counsel, and not advised of his right to such assistance or warned of his right to remain silent.
Since the trial occurred prior to the announcement of the decisions in Escobedo v. Illinois, 378 U.S. 478 (1964) and Miranda v. Arizona, 384 U.S. 436 (1966), the absence of counsel and warnings as to constitutional rights during in-custody questioning, required by these pronouncements, did not, in itself, prohibit evidentiary use of the testimony here involved. See Commonwealth ex rel. Norman v. Stitzel, 425 Pa. 184, 228 A.2d 373 (1967); Commonwealth v. Schmidt, 423 Pa. 432, 224 A.2d 625 (1966); and Johnson v. New Jersey, 384 U.S. 719 (1966). They were factors, like all of the other attending circumstances, to be considered in the determination of the voluntariness question. See Davis v. North Carolina, 384 U.S. 737 (1966). And
since Vitzen was not afforded an independent hearing and determination of this question at trial, as required by Jackson v. Denno, 378 U.S. 368 (1964), a substantive test thereof was properly ...