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decided: April 16, 1968.


Appeal from order of Court of Oyer and Terminer of Delaware County, June T., 1954, No. 472, in case of Commonwealth of Pennsylvania v. Rayford G. Stevens.


Rayford G. Stevens, appellant, in propria persona.

Ralph B. D'Iorio and Vram S. Nedurian, Assistant District Attorneys, John R. Graham, First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Roberts

[ 429 Pa. Page 594]

In Commonwealth ex rel. Berkery v. Myers, 429 Pa. 378, 383 n.2, 239 A.2d 805, 807 n.2 (1968) we specifically reserved the question of the extent to which two recent opinions of the Third Circuit Court of Appeals would require this Court, under the doctrine of

[ 429 Pa. Page 595]

    if he failed to reply, this failure would result in the use at trial of the statements of his four alleged confederates. Other than one brief comment, Stevens made no reply.

At trial, the Commonwealth's case consisted of medical testimony establishing the cause of death, an employee of the deceased who testified only that Stevens was in the store at the time of the shooting*fn1 and the tacit admissions which, in varying degrees, implicated Stevens.*fn2 Stevens, on the other hand, reiterated the version contained in his statement, denying any complicity in the offense.

The two Third Circuit opinions, both authored by Judge Hastie, indicate that not all tacit admissions can be retroactively attacked but make no attempt to isolate those which are constitutionally infirm other than stating that their use must be fundamentally unfair. See United States ex rel. Staino v. Brierly, 387 F. 2d 597 (3d Cir. 1967); United States ex rel. Smith v. Brierly, 384 F. 2d 992 (3d Cir. 1967). However, the Court of Appeals did stress two factors in both opinions -- the fact that the tacit admissions were vital to the prosecution case*fn3 and the presence of a warning of the right to remain silent given prior to the reading

[ 429 Pa. Page 597]

    of the statements*fn4 -- as indicia of when use of a tacit admission is fundamentally unfair. Both of these factors are here present. Of the two decisions, Staino is factually almost identical to the circumstances under which Stevens' tacit admissions were obtained. Staino was twice confronted by statements of alleged coconspirators and each time was warned of his right to remain silent, a procedure which the Third Circuit characterized as "an indefensible sort of entrapment." 387 F. 2d at 600. Furthermore, that court found significant the fact that Staino's coconspirators did not testify at trial (nor did any of Stevens' accomplices); this, said the court, created many of the risks inherent when a defendant is denied the right to confront his accusers. Additionally, the use of the four tacit admissions obtained from Stevens contains an element of unfairness found in neither Smith nor Staino for it is arguable that in fact appellant did not admit the veracity of these statements. Having just made a statement in which all complicity in the crime had been denied, Stevens may well have believed that this alone operated as a denial of his confederates' statements and that no action on his part was necessary.

Finding no material difference between the present case and those which confronted the Third Circuit,*fn5 we conclude that the Court of Appeals would hold that

[ 429 Pa. Page 598]

Stevens' tacit admissions were obtained and used under circumstances which are fundamentally unfair. A denial by this Court of appellant's petition would cause disrespect for the law, create confusion and congestion in our trial courts and impair the finality of our judgments. These very factors caused us in Commonwealth v. Negri, supra, and Commonwealth ex rel. Berkery v. Myers, supra, to adopt a conclusion of the Third Circuit which was at variance with the one advocated by this Court in its prior decisions. They are equally applicable here and we thus conclude that introduction at Stevens' trial of the tacit admissions is a defect which can be successfully attacked in a collateral proceeding and which requires a new trial.


The Commonwealth contends, however, that any claim based upon the evidentiary use at Stevens' trial of his tacit admissions has been waived and that appellant is therefore precluded from obtaining collateral relief on this basis. See Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 4, 19 P.S. § 1180-4 (Supp. 1967). We must begin with the proposition articulated in Commonwealth v. Snyder, 427 Pa. 83, 88-94, 233 A.2d 530, 533-36 (1967) that the content of our state doctrine of waiver is identical to that employed by the federal courts under Fay v. Noia, 372 U.S. 391, 439-40, 83 S. Ct. 822, 849 (1963) and Henry v. Mississippi, 379 U.S. 443, 452, 85 S. Ct. 564, 570 (1965), i.e., the prisoner's non-action must be a deliberate bypass of state procedures available to litigate the prisoner's claim.*fn6 The Commonwealth's

[ 429 Pa. Page 599]

    position is simply that Stevens' prior attempts at collateral relief*fn7 constituted an available state procedure to litigate the constitutional validity of his tacit admissions and that his failure to do so in those proceedings constitutes a waiver of his present claim. However, this position ignores what we believe to be the dispositive consideration -- at the time each of Stevens' prior collateral actions was filed he could have had no knowledge of the retroactively applicable decisions of the Third Circuit,*fn8 decisions which, under Commonwealth v. Negri, we will follow.

Both our own cases and those of the Supreme Court of the United States establish the doctrine that failure to assert a now retroactively applicable constitutional infirmity not available to the prisoner as a basis for collateral attack at the time his prior attempts were filed does not operate as a waiver. See Commonwealth ex rel. Berkery v. Myers, 429 Pa. 378, 239 A.2d 805 (1968); cf. Commonwealth v. Jefferson, 423 Pa. 541,

[ 429 Pa. Page 600226]

A.2d 765 (1967). Perhaps the clearest statement of this view is contained in O'Connor v. Ohio, 385 U.S. 92, 87 S. Ct. 252 (1966). At O'Connor's trial a violation of Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965) occurred. Furthermore, since O'Connor's conviction had not been finalized at the time of the Griffin decision, Griffin was retroactively applicable to O'Connor's trial. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 409 n.3, 86 S. Ct. 459, 461 n.3 (1966). However, the Ohio Supreme Court withheld relief based on its belief that O'Connor's failure to assert the Griffin error during his direct appeal worked a waiver of his right to later assert this defect. The Supreme Court of the United States disagreed and granted the writ, stating (385 U.S. at 93, 87 S. Ct. at 253-54): "We hold that in these circumstances the failure to object in the state courts cannot bar the petitioner from asserting this federal right. . . . Defendants can no more be charged with anticipating the Griffin decision than can the States. . . . [O'Connor's] failure to object to a practice which Ohio had long allowed cannot strip him of his right to attack the practice following its invalidation by this Court."

Nor does our decision in Commonwealth ex rel. Stevens v. Myers, 424 Pa. 377, 227 A.2d 649 (1967) that appellant has waived his right of direct appeal insulate his conviction from attack. Although that waiver would assuredly preclude any attack based upon grounds available in 1954 as well as decisions of prospective application vis-a-vis 1954 trials, it is no bar to grounds which did not become available until after appellant's 1967 post-conviction petition was adjudicated.*fn9 We have no alternative but to award Stevens a new trial.

[ 429 Pa. Page 601]

The order of the Court of Oyer and Terminer of Delaware County is reversed, the sentence is vacated and a new trial is granted.


Order reversed.

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