Appeal from order of Court of Oyer and Terminer and General Jail Delivery of Montgomery County, Nov. T., 1960, No. 181, in case of Commonwealth of Pennsylvania v. George M. Snyder.
George M. Snyder, appellant, in propria persona.
Richard A. Devlin and Henry T. Crocker, Assistant District Attorneys, and Richard S. Lowe, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.
George M. Snyder was convicted in 1961 of voluntary manslaughter and sentenced to a term of 6 to 12 years. After new trial motions asserting several evidentiary errors were denied, Snyder appealed to this Court which affirmed his conviction. Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962). On May 23, 1966 appellant filed a petition under the Post Conviction Hearing Act. The court below appointed counsel,
denied Snyder's request for a hearing and after argument dismissed the petition.
In this appeal from dismissal of the post conviction petition, Snyder alleges -- in a pro se petition and brief notable for both their length and sophistication -- that four coerced "confessions" were introduced at his trial, that the Commonwealth employed perjured testimony, that false statements by the trial judge in both his charge and opinion obstructed appellant's right to appeal, that the lower court's dismissal without a hearing of the post conviction petition was a denial of due process and an unconstitutional suspension of the writ of habeas corpus, and that appellant's sentence exceeds the statutory maximum. We shall treat each of these contentions seriatim.
The Coerced Confession Claim
Snyder insists that four coerced "confessions" were admitted into evidence at his trial: (1) an oral statement, the notes of which were read at trial; (2) a written, signed statement (Commonwealth's Exhibit 35); (3) testimony as to a re-enactment of the crime performed by appellant and several police officers; and (4) appellant's own trial testimony. Since we have decided that these coerced confession allegations cannot be raised for the first time collaterally, we will not question appellant's classification of the latter two events as "confessions."
The record, combined with an affidavit filed by appellant's trial counsel, supports Snyder's assertion that the first two of the four confessions were obtained under circumstances violative of the rules announced in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964). However, the United States Supreme Court decided in Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966) that both the Miranda
and Escobedo decisions would be denied retroactive application -- the Miranda rules would be applied only to persons whose trials had not begun as of June 13, 1966 and the Escobedo decision to trials commenced after June 22, 1964. See Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97 (1966). Trial in the instant case commenced more than three years before June 22, 1964 so that appellant cannot avail himself of these two landmark decisions, at least to the extent that they hold that failure to give an accused opportunity to consult with counsel or absence of police attempts to advise the accused of his constitutional rights per se constitute a due process deprivation.
The non-retroactivity announced in Johnson was to an uncertain extent mitigated by the Supreme Court's pronouncement that police failure to comply with the doctrines of Escobedo and Miranda could form the basis of a claim that the accused's confession was involuntary: "Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the non-retroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim." 384 U.S. at 730, 86 S. Ct. at 1779. See Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966). Based primarily upon this statement, appellant contends that he is entitled to a hearing on his involuntariness allegations under the doctrine of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964). We disagree and hold that appellant has waived*fn1 any coerced confession
claim and has deliberately bypassed state procedures available to litigate this allegation.
Beginning with Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965), as amplified by Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A.2d 730 (1966), this Court has consistently held that failure to raise at trial the issue of voluntariness precludes later, collateral attempts challenging the voluntariness of the accused's confession. We need not detail here, as we did in Fox and Mullenaux, the reasons supporting our insistence upon a contemporaneous objection to the admission of an allegedly involuntary confession other than to note our continuing judgment that a requirement of contemporaneous objection*fn2 is vital to the orderly administration of criminal trials and clearly serves a legitimate state interest. The record in the instant case is barren of any conduct by either counsel or appellant indicating that the voluntariness of the confessions was challenged.*fn3
Implicit in our decision in Fox, as demonstrated by our reliance upon Henry v. Mississippi, 379 U.S. 443, 85 S. Ct. 564 (1965), was a realization that, although we might find that the accused's failure to object constituted a waiver of his federal claim,*fn4 in any collateral federal proceeding the federal court would examine whether the habeas applicant had deliberately bypassed state procedures. See Fay v. Noia, 372 U.S. 391, 439-40, 83 S. Ct. 822, 849 (1963). Henry was convicted partially on the basis of evidence allegedly seized in violation of the Fourth Amendment; his counsel failed to object when the evidence was admitted, though he did assert this alleged constitutional error as the basis for his directed verdict motion. Finding that the state had not yet had an opportunity to establish the presence of a waiver, the Supreme Court remanded the case to the state courts with full recognition that "petitioner might still pursue vindication of his federal claim in a federal habeas corpus proceeding in which the procedural default will not alone preclude consideration of his claim, at least unless it is shown that petitioner deliberately bypassed the orderly procedure of the state courts." Henry v. Mississippi, supra at 452,
S. Ct. at 570. The clear import of Henry is that, where the state courts make no attempt to resolve the deliberate bypass issue, a federal court ...