Appeal from order of Superior Court, Oct. T., 1966, No. 900, affirming order of Court of Common Pleas of Schuylkill County, Jan. T., 1966, No. 364, in case of Commonwealth ex rel. John Berkery v. David N. Myers, Superintendent.
John Berkery, appellant, in propria persona.
William D. Hutchinson, Assistant District Attorney, and Richard B. Russell, District Attorney, for appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell and Mr. Justice Jones dissent. Mr. Justice Cohen took no part in the consideration or decision of this case.
Appellant John Berkery was tried jointly with Ralph Staino for a 1959 burglary; appellant received a sentence of 5 to 12 years while Staino was sentenced to a term of 4 to 9 years. A third individual allegedly involved in the robbery, Robert Poulson, was arrested, interrogated and his statement reduced to writing. Poulson's statement implicated both Berkery and Staino. When shown this statement, Staino made no reply (the statement was not shown to Berkery); however, Poulson's confession was admitted at the Berkery-Staino trial under the tacit admission doctrine, since rejected prospectively by this Court in Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967).
Berkery and Staino appealed their convictions and an affirmance resulted. See Commonwealth v. Staino, 204 Pa. Superior Ct. 319, 204 A.2d 664 (1964). This Court denied allocatur. Habeas corpus petitions were then brought by both men; in both petitions the admission of Poulson's confession was challenged. The Court of Common Pleas of Schuylkill County deferred action on Berkery's petition until Staino's was adjudicated. The Superior Court and this Court decided that Staino's tacit admission could not be successfully attacked and thus denied relief. See Commonwealth ex rel. Staino Page 381} v. Cavell, 207 Pa. Superior Ct. 274, 217 A.2d 824 (1966) (equally divided court); Commonwealth ex rel. Staino v. Cavell, 425 Pa. 365, 228 A.2d 647 (1967) (5-2 decision). Berkery's petition was then denied and that denial affirmed by the Superior Court. See Commonwealth ex rel. Berkery v. Myers, 209 Pa. Superior Ct. 529, 232 A.2d 57 (1967). Allocatur was granted by this Court.
After this Court's denial of relief, Staino sought habeas corpus in federal district court. He was successful and the Commonwealth unsuccessful in an appeal to the Third Circuit Court of Appeals. See United States ex rel. Staino v. Brierly, 387 F. 2d 597 (3d Cir. 1967), affirming 269 F. Supp. 753 (E.D. Pa. 1967). Although the Third Circuit's opinion does not retroactively invalidate the use of all tacit admissions,*fn1
it is clear that Staino's tacit admission, in the view of the Third Circuit, was unconstitutionally employed.
Since the Third Circuit has held that Staino's tacit admission could not be employed against him, we shall accept as a given that this admission was unconstitutionally procured despite this Court's prior decision to the contrary. We faced a strikingly similar problem in Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965). The Third Circuit in United States ex rel. Russo v. New Jersey, 351 F. 2d 429 (3d Cir. 1965), cert. denied, 384 U.S. 1012, 86 S. Ct. 1916 (1966) had adopted an interpretation of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964) which afforded greater protection to the accused than that accorded to him by our own cases interpreting Escobedo such as Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965). Concluding that we would thereafter follow the Third Circuit ...