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November 17, 1967

UNITED STATES of America ex rel. Levi JONES, Institutional Number, H-6447,
Joseph R. BRIERLEY, Superintendent, Eastern State Correctional Institution, Philadelphia, Pennsylvania

The opinion of the court was delivered by: LORD, III

 Relator is presently serving a 5-10 year sentence for his participation in a robbery in Delaware County on March 12, 1963. He was convicted of this offense by the Delaware County court on June 23, 1964. At the same trial he was also convicted for his part in a burglary on March 31, 1963 and was given a sentence of the same duration to be served consecutive to his robbery sentence. Relator now seeks a writ of habeas corpus. *fn1"

 Since two of the claims depend solely on the "historic facts," it was mandatory that we grant a hearing in light of the less than full hearing that relator was given in his proceedings in the State courts. *fn2"

 Relator first alleges that he was not informed of his right to appeal or of his right to have counsel on appeal and therefore failed to perfect a timely appeal from his State court conviction. At the outset of the hearing the respondent admitted this to be true and conceded, as he must, *fn3" that the relator should be allowed to file a timely appeal nunc pro tunc. We, however, proceeded with our inquiry into the other allegations since the State courts had already passed on these questions in the relator's collateral proceedings there.


 Relator was arrested on October 21, 1963 at about 10:00 a.m. by three Philadelphia detectives while he was at his construction job in Delaware County. This arrest was not for the crimes resulting in the Delaware County convictions now under attack; it was for a series of crimes committed in Philadelphia County. After short stops at the Delaware County police station, and at relator's apartment where, pursuant to his request, he was given the opportunity to change his clothes, the relator was driven to the station house at 55th & Pine Streets in Philadelphia. It is not exactly clear as to what transpired during this ride but, as best we can discern, it appears that one of the Philadelphia detectives outlined to relator their case against him. *fn4" They arrived at the station house about noon and, before any questioning, relator was given lunch and permitted to speak with his wife who had received the note relator had left for her at their appartment. During part of this period relator was handcuffed to the window sill. The reason for this appears to be solely precautionary in that the station house did not have adequate facilities available for detainment.

 At approximately 1:00 p.m. the detectives confronted relator with the confessions of one Frank Demanskis and one Robert Ray which admitted their complicity in the Philadelphia crimes and also implicated relator. These confessions also implicated relator in the two Delaware County crimes. Relator had previously been advised orally of his right to remain silent but not of his right to counsel. There is no showing, however, that he ever requested counsel.

 The next day relator, after being brought before a magistrate, was transferred to Holmesburg County Prison. He arrived shortly before lunch and after lunch was met by three Delaware County police officers to whom he dictated two confessions, one for the March 12 crime and the other for the March 31 crime. This process lasted about one hour. It is unclear whether, at this time, the relator was informed of any of his constitutional rights.

 During this entire period there is no showing that relator in any way suffered from ill health, fatigue or any other factor that would affect his normal mental process. Nor is there any showing that his ordinary mental prowess is in any way less than average.

 The charges arising from the two Delaware County crimes were consolidated into one trial which commenced on June 22, 1964. At that trial one of the Philadelphia detectives testified as to that part of the confession pertaining to the Delaware County crimes. *fn6" Also admitted into evidence were the two signed confessions that had been dictated to the Delaware County police officers at Holmesburg on October 22. *fn7"

 Relator's trial began on June 22, 1964. Hence, Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), which applies only to cases "in which trial began after June 22, 1964," is not applicable. *fn8" Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) is not retroactive. Nonetheless, the "case law on coerced confessions is [still] available," Johnson v. State of New Jersey, 384 U.S. 719, 730, 86 S. Ct. 1772, 1779, 16 L. Ed. 2d 882 (1966). We have found as a fact that the Philadelphia police warned relator of his right to remain silent and that anything he said could be used against him. And though the Delaware County detectives may have given no such warnings, we find no evidence of involuntariness from this fact or from any of the other circumstances.

 Here, it could not conceivably be said that relator was questioned extensively. He was with the police but twice, and on both occasions for relatively short periods of time. There is no showing that any physical or mental pressure was used to extract the confessions, nor is there any showing that the relator is of such intelligence that he would not have been able to comprehend the circumstances. *fn9" In short, we find a total absence of factors that ...

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