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November 28, 1967

UNITED STATES of America ex rel. Edwin W. GOCKLEY
David N. MYERS, Superintendent

The opinion of the court was delivered by: LUONGO

 Edwin W. Gockley was convicted of murder in the second degree and sentenced by the state court to not less than 10 nor more than 20 years imprisonment. The Pennsylvania Supreme Court affirmed the conviction. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963). After exhausting state remedies, Gockley filed the instant habeas corpus petition on August 7, 1964, in which he charged that his constitutional rights had been violated by the use, at his trial, of evidence obtained by an illegal search and seizure, and by the admission of involuntary statements obtained from him by the police.

 On October 12, 1964, the petition was denied without hearing. As to the search and seizure charge, this court held that the record amply supported the state court's finding that relator had consented to the search conducted by the police. As for the statements, relator's pro se allegations were interpreted as complaining of the state court's use of inconsistent statements as evidence of guilt. So interpreted, it was held that the petition presented a question of state law and did not raise a constitutional issue for habeas corpus, citing United States ex rel. Saunders v. Myers, 276 F.2d 790 (3d Cir. 1960). United States ex rel. Gockley v. Myers, October 12, 1964 (unreported). On appeal, the disposition of the search and seizure question was upheld, but the judgment denying the writ was vacated on the ground that the petition had clearly raised the issue of the use of involuntary statements. The matter was remanded to this court to determine whether there had been an effective waiver by Gockley of any right to have the statements excluded and, if there was no waiver, "to consider and decide whether due process of law was denied by the use of this evidence against the accused." United States ex rel. Gockley v. Myers, 378 F.2d 398, 401 (3d Cir. 1967).

 The mandated evidentiary hearing has been held. From that hearing and from the state court records, these facts emerge:

 In the spring of 1961, Gockley became the principal figure in an investigation of the disappearance of two persons, Mabel Klein and Clement Smith. The police questioned Gockley periodically over a span of several months and, on November 17, 1961, at approximately 6:00 p.m. arrested him. The police questioned him for several hours that evening, and for two hours in the morning and two hours more in the evening of November 18, 1961. On the morning of the 19th, Gockley made a statement to the District Attorney of Berks County implicating himself in the death of Clement Smith. After checking out the details of the statement, the police concluded that Gockley had not been completely truthful. On December 9, 1961, almost three weeks after Gockley made his initial statement, the police confronted him with the discrepancies revealed by their investigation whereupon Gockley made another statement inconsistent in some material respects with the one made on November 19th. During all the period from November 17 to December 9, Gockley was in custody. He wasn't represented by nor had he communicated with counsel. On December 12, 1961, the Berks County court appointed Messrs. Binder and Havelow to represent Gockley.

 At the trial, in response to a specific question by the court, counsel (Binder) stated that he had no objection to the introduction of the statement of November 19, 1961. Objection was made to the statement and to the jury's being permitted to consider the inconsistent statements as evidence of guilt.

 Waiver of the right to exclude involuntary statements.

 The Commonwealth contends that Gockley's failure to object to the admissibility of the statements on the grounds of involuntariness constituted an effective waiver of the right to mount a collateral attack on the use of his statements. There are two parts to the Commonwealth's waiver argument. The first part is based on the state contemporaneous objection requirement. Because of several recent Pennsylvania decisions, we need not decide whether Gockley's procedural default precludes him from asserting his federal constitutional claim. In Commonwealth v. Snyder, 427 Pa. 83, 88, 233 A.2d 530, 533 (1967), the Pennsylvania Supreme Court stated in footnote 2:

"To meet our contemporaneous objection requirement it is not necessary that the objection be made immediately before the attempted admission of the challenged confession. For example, in Jackson v. Denno, supra [378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908] the trial court was informed that the voluntariness of the confession was in issue through attack upon the confession during cross-examination. As indicated in [Commonwealth ex rel.] Fox [v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965)], a request of any kind which serves to alert the trial judge to an issue of voluntariness is sufficient."

 Although there was a failure to object to the admission of Gockley's statements on the ground that they were involuntary, counsel nevertheless attacked their voluntariness. Gockley took the stand and related the alleged abuses upon which his present claim of involuntariness is based. Counsel elicited considerable testimony relevant to voluntariness through cross-examination of the Commonwealth's witnesses. One of the points for charge submitted by counsel requested instructions on voluntariness. All this was sufficient to place voluntariness in issue and to satisfy the state contemporaneous objection requirement.

 The second part of the waiver question is whether the failure to object was deliberate. When the failure to interpose a constitutional objection reflects a conscious desire to deliberately by-pass state procedures and remedies, an accused will be deemed to have waived the constitutional objection. Henry v. State of Mississippi, 379 U.S. 443, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); Fay v. Noia, 372 U.S. 391, 438-441, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); Budd v. Rundle, 267 F. Supp. 49 (E.D.Pa.1967); United States ex rel. Stamm v. Rundle, 270 F. Supp. 819 (E.D.Pa.1967). The Court of Appeals, in reversing the denial of Gockley's petition, noted the possibility that the failure to object might have been motivated by sound trial strategy, stating at page 401 of 378 F.2d:

"The statement, though incriminating, also contained matter calculated to support a claim of self defense or at least to negate malice aforethought. Indeed, if this was the strategy of the defense, it was successful. For a trial which might well have resulted in a first degree verdict and a capital sentence eventuated in a second degree verdict and a ten to twenty year sentence."

 From Mr. Binder's testimony at the hearing before me, however, it is clear that counsel considered the statements and the fruits thereof prejudicial and would have preferred to have them excluded. But for the admission of the statements, counsel would have advised Gockley not to take the witness stand. Although, from the testimony before me, it appears highly unlikely that Gockley would have followed counsel's advice not to testify, I cannot speculate as to what Gockley might have done if counsel had succeeded in keeping out the incriminating ...

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