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October 24, 1967

UNITED STATES of America ex rel. Frank Earl SENK, Petitioner,
H. E. RUSSELL, Superintendent, State Correctional Institution, Huntingdon, Pennsylvania, Respondent

The opinion of the court was delivered by: FOLLMER

 On April 5, 1962, petitioner, Frank Earl Senk, was convicted by a jury in Columbia County, Pennsylvania, of murder in the first degree. Sentence was fixed at death. On appeal the Pennsylvania Supreme Court affirmed the judgment. Com. v. Senk, 412 Pa. 184, 194 A.2d 221 (1963). Thereafter the United States Supreme Court granted certiorari, and on June 22, 1964, vacated the order of affirmance of the Pennsylvania Supreme Court and remanded the case to the latter court for further proceedings not inconsistent with its decision in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). See 378 U.S. 562, 84 S. Ct. 1913, 12 L. Ed. 2d 1039 (1964). On August 25, 1964, acting in accordance with the Supreme Court Mandate, the Pennsylvania Supreme Court remanded the record to the Columbia County Court with directions to hold a post trial hearing, consistent with the requirements of due process, to determine if in-custody incriminating statements, particularly a written confession made by Senk to investigating police officers and used against him at trial, were his voluntary acts. The trial court was further directed to file, at the conclusion of said hearing, a written report of its findings and conclusions to the Pennsylvania Supreme Court for its further consideration.

 After remand, counsel for Senk appeared before and advised the trial court that following full discussion with their client he had agreed and requested that any further hearing be waived, and that the issue of the voluntariness of the incriminating statements be determined on the existing record. *fn1" Counsel also requested the opportunity to file a written brief and present oral argument. The court approved and followed the procedure requested. Later, it filed an able and comprehensive report with the Pennsylvania Supreme Court detailing its findings as to the factual circumstances incident to the giving of the incriminating statements involved, and concluded that the evidence thereof was properly admitted at trial, and that the issue of voluntariness was for the jury to resolve. After a study of the report in conjunction with the trial record, the Pennsylvania Supreme Court approved and affirmed the factual findings and the pertinent conclusions set forth therein, holding further that they were amply substantiated by the record, and true and correct. Commonwealth v. Senk, 423 Pa. 129, 131, 223 A.2d 97 (1966).

 The Pennsylvania Supreme Court noted that the incriminating statements were made at a time when Senk was without the benefit of legal counsel, had not been offered such assistance, and before he was given adequate warning of his right to remain silent. The court concluded that the absence of effective warning of these constitutional rights did not per se render evidence of the incriminating statements inadmissible at the trial. 423 Pa. at 131-132, 223 A.2d at 99. The court further noted that this case was tried (verdict of guilty April 5, 1962) before the announcement of the United States Supreme Court ruling 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), and that neither case controls since they are not to be applied retroactively. Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). Certiorari was denied by the United States Supreme Court on May 15, 1967. 387 U.S. 914, 87 S. Ct. 1694, 18 L. Ed. 2d 638.

 On July 7, 1967, petitioner filed a petition for writ of habeas corpus in this court. On the same day the court issued a rule on the Superintendent of the State Correctional Institution, Huntingdon, Pennsylvania, to show cause why the writ should not be granted. The court also directed that in accordance with 28 U.S.C. ยง 2252 notice be served on the Attorney General of the Commonwealth of Pennsylvania and the District Attorney of Columbia County. A response was filed by the District Attorney of Columbia County, and this court has been furnished with the complete court records, all of which have been carefully and minutely studied.

 The allegations on which petitioner bases his contention that he is held in custody unlawfully are as follows: (a) petitioner was deprived of his right to counsel; (b) petitioner's rights against self-incrimination were violated; (c) there was introduced evidence concerning petitioner's refusal to comply with the request to take a polygraph examination or lie detector test; (d) the trial court refused petitioner's motion for a withdrawal of a juror following two separate statements by police officers in regard to petitioner's criminal record. *fn1"

 This case involves the sadistic murder of a thirteen year old girl on July 11, 1961, near Centralia, Pennsylvania. Petitioner, while in the company of his wife, was arrested January 18, 1962, in Russell, Warren County, Pennsylvania, at approximately 9:15 P.M. He was taken to the Warren Substation of the Pennsylvania State Police. His wife still accompanied him, but at approximately 1:30 A.M., after a conversation with petitioner, he told her to return to their motel, and endorsed a check for her. Petitioner was then immediately transferred to the Pennsylvania State Police Substation at Ridgway, and interrogated intermittently from approximately 4:30 A.M. to early evening. He was then taken to the Elk County jail for the night. On January 20, 1962, he was taken back to the Ridgway State Police Substation where he voluntarily submitted to the taking of a blood test but refused to submit to a polygraph test. He then asked to see a minister. A minister was called and conferred with him for about an hour. Petitioner later complained to an officer that he believed the minister was a State Policeman and was therefore given a telephone book and told he could call any minister he desired. He did call the same minister that had previously visited him. The minister returned and again spent an hour alone with him. He requested the minister to advise the officer in charge that he wanted to have his wife and mother brought to the substation. Arrangements were immediately made to have them transported to the substation. At approximately 1:00 A.M. on January 21, 1962, his wife and mother arrived at the substation and the minister returned for the third time. The minister and wife then were alone with petitioner for about fifteen minutes when the wife left the room and the mother joined petitioner and the minister. After a further conference with his wife and mother, petitioner said to the officer in charge, "Lieutenant, I had better tell you before I change my mind." Petitioner then related the details of the crime to the officer and told the officer that he would reduce the statement to writing. He was taken to another room for that purpose at about 2:00 A.M. on January 21. The statement was reduced to writing on a typewriter by one of the officers, a copy given to petitioner and read to him. Petitioner made several corrections and signed it. *fn2" He was then immediately transferred to the Columbia County jail at Bloomsburg, Pennsylvania. While there, petitioner for the first time requested the appointment of counsel, and accordingly, counsel was appointed by the court on January 22, 1962.

 On the fourth day of the trial, in chambers and out of the hearing of the jury, on proper motions made, the court decided to take testimony on the voluntariness of the confession. The jury was then excused, and for a little over three days the court heard testimony. The court then reconvened the jury, the confession was admitted, and the trial continued.

 In his charge to the jury, the court said, inter alia:

* * * so we now come to the very important question in this case, and that is the determination of the admissibility of alleged oral and written statements made by this defendant.
It is this aspect of the case that necessitated the taking of some testimony in the absence of the jury. Under certain recent rulings of our appellate courts, it is held that where the prosecution rests to a large degree on an alleged confession, the accused has the right to demand, if he chooses, that the Court hear the testimony relative to the manner in which the alleged confession was procured in the first instance with the jury absent, and if the indisputable evidence establishes that the confession was not voluntary or obtained by impermissible methods, then the Court, as a matter of law, must refuse to present the confession to the Jury.
The Court's action in not ruling out the alleged confession as a matter of law does not place a stamp of approval upon it; the only effect of our ruling is that the Court decided that the question of the voluntary nature of the confession and the propriety of the methods used to procure it was one of fact to be determined, under the instructions we shall give you, by the Jury and not by the Court.
Confessions properly procured are received against the part making them on the theory that they are declarations against interest, and therefore, they carry with them some guarantee of truth as a person would not ordinarily make a detrimental ...

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