test of voluntariness under all the facts and circumstances, the written confession was voluntarily given.
After a full, fair and adequate hearing at which all the facts have been brought out, the determination of the state courts that the written confession was voluntary is presumptively correct. Townsend v. Sain, supra; United States ex rel. Boyd v. Botula, 269 F. Supp. 916 (W.D.Pa.1967); 28 U.S.C. § 2254, as amended, Public Law 89-711, November 2, 1966, 80 Stat. 1105.
Relator relies on Haynes v. State of Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963); Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961); Spano v. People of State of New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); and United States ex rel. Cuevas v. Rundle, 258 F. Supp. 647 (E.D.Pa.1966). The unusual and unique facts in those cases, however, distinguish them from the facts found in the instant case.
Even if the confession were held to be invountary, we think the right to question its constitutional infirmity was waived by Kern and his counsel (Tr., pp. 125, 131-132, 141-142). It appears they intentionally relinquished any claim of coerced confession. Cf. Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). His counsel knew that timely objection to the admission of the confession is required by Pennsylvania procedure. "This procedure * * * is vital to the orderly administration of a criminal trial and clearly serves a legitimate state interest." Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 313, 207 A.2d 810, 812 (1965).
An objection gives the court the opportunity to conduct the trial without using the tainted confession. Since the enforcement of the procedural rule serves a legitimate state interest, the knowing failure to object waived Kern's right to raise the unconstitutional infirmity of his confession. Henry v. State of Mississippi, 379 U.S. 443, 448, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); United States ex rel. Gockley v. Myers, 378 F.2d 398 (3d Cir. 1967).
Right to Appeal
In his petition in this federal court, relator for the first time alleged that his counsel did not inform him of his right to appeal and that he lacked knowledge thereof. (See federal petition, pp. 9-10.) After Kern was sentenced to life imprisonment, his mother, being dissatisfied, informed his counsel that she was going to obtain other counsel to take an appeal (Tr., pp. 149, 170). For some reason, an appeal was not taken, and considerable doubt exists that in the circumstances of this case it would have met with success. Cf. Commonwealth ex rel. Booker v. Duggan, 424 Pa. 394, 403, 227 A.2d 168, 174 (1967).
Moreover, this ground raised in support of the writ was not presented to or passed upon by the state courts. Thus, as to this ground the relator has not exhausted his state remedies, and it may not be considered initially by this federal court. United States ex rel. Anderson v. Cavell, 148 F. Supp. 681, 685 (W.D.Pa.1957), aff'd 249 F.2d 656 (3d Cir. 1957); United States ex rel. Ackerman v. Johnston, 139 F. Supp. 890 (W.D.Pa.1955), aff'd 235 F.2d 958 (3d Cir. 1956).
This court hereby expresses its appreciation for the considerable time and effort expended by Roger Curran, Esq., in preparation for and participation in the evidentiary hearing and oral arguments, as well as for the excellent briefs presented in willing response to the request for gratuitous service in behalf of the relator.