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decided: March 15, 1968.


Appeal from order of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, Dec. T., 1963, No. 723, in case of Commonwealth of Pennsylvania v. Bernard Cheeks.


Edward K. Nichols, Jr., for appellant.

Benjamin H. Levintow and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones concurs in the result. Mr. Justice Cohen took no part in the consideration or decision of this case.

Author: Roberts

[ 429 Pa. Page 91]

In 1964 appellant, charged with the felony-murder of one Joe Howell, pleaded not guilty and faced a trial before judge and jury which resulted in a first degree murder conviction with a life sentence. Cheeks then appealed to this Court alleging (1) that inadmissible hearsay evidence had been used against him; (2) that his confession was inadmissible under Escobedo ; (3) that the same confession, if not tainted solely by Escobedo, was at least involuntary under Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966); and (4) that the Commonwealth had failed to prove that appellant's act was the cause of death. Cheeks' appeal was argued before this Court on January 13, 1966. On September 27, 1966 this Court, in an opinion written by Mr. Justice Eagen, affirmed the conviction. Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966).

[ 429 Pa. Page 92]

Appellant then filed a petition for reargument in which he alleged, for the first time, that the use at trial of three confessions of appellant's three accomplices, each implicating Cheeks, violated appellant's Sixth Amendment right of confrontation made applicable to the states by Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065 (1965), and Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074 (1965). Although these cases were decided April 5, 1965, more than nine months before oral argument, appellant's reargument petition urged that he should not be barred from raising the Pointer claim in a second oral argument because the actual trial of the case predated both Pointer and Douglas and furthermore because Cheeks' initial appeal had been perfected and the briefs printed also prior to Pointer and Douglas. No reason was offered, however, for counsel's failure to raise the Sixth Amendment claim for the first time at oral argument, or for his failure to request leave to file a supplemental brief at that time. The petition for reargument was denied by this Court, per curiam, on November 7, 1966.

Cheeks next sought federal habeas corpus relief. He was rebuffed there also. In an opinion written by Judge John Lord, Jr., the federal district court denied Cheeks' petition, without a hearing, on the ground that he had not yet exhausted his available state remedies. See United States ex rel. Cheeks v. Prasse, 261 F. Supp. 760 (E.D. Pa. 1966). It was held that Cheeks' Pointer claim had not been finally litigated by virtue of the denied reargument petition, the federal court believing that such a disposition was not equivalent to a decision on the merits. Having been thus invited by the federal court to seek state collateral relief, Cheeks filed a petition under the Post Conviction Hearing Act which was in turn denied without an evidentiary hearing by Judge Reed of Philadelphia County Court of Oyer and Terminer. In a brief opinion Judge

[ 429 Pa. Page 93]

Reed concluded (1) that the Pointer claim had been finally litigated when reargument was denied; (2) that, in any event, by failing to raise the Pointer claim at his first oral argument before the Supreme Court, Cheeks had waived the right to test this claim collaterally; and (3) that, even on the merits, the alleged Pointer violation could not be established. It is from this adjudication that Cheeks has taken the present appeal.

Before reaching the merits of appellant's Pointer claim, it is first necessary to decide whether Cheeks had, in fact, lost the right to raise the claim in a Post Conviction Hearing Act proceeding because of some prior conduct by either himself or counsel. Section 4 of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 4, 19 P.S. § 1180-4 (Supp. 1966)*fn1 establishes two grounds upon which collateral relief may be denied without reaching the ...

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