decided: April 23, 1969.
Appeal from order of Superior Court, March T., 1968, No. 80, affirming judgment of sentence of Court of Quarter Sessions of York County, in case of Commonwealth v. Clarence Edward Poteet.
Clarence Edward Poteet, appellant, in propria persona.
John T. Miller, First Assistant District Attorney, and John F. Rauhauser, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration or decision of this case.
[ 434 Pa. Page 231]
Appellant and his co-defendant Troup were jointly tried and convicted of robbery in 1963. At the trial, a confession of Troup which inculpated appellant was admitted into evidence. No appeal was taken, but in 1966, after appellant claimed that he had been denied his appeal rights, an appeal was granted. The Superior Court affirmed appellant's conviction in a per curiam order, Judge Hoffman dissenting in an opinion in which Judge Spaulding joined, and we granted allocatur.
Subsequent to the Superior Court's decision, the Supreme Court of the United States decided Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), which held that the admission into evidence of a co-defendant's inculpating statement deprived a defendant of his right of confrontation if the co-defendant did not take the stand and could thus not be cross-examined. Bruton, which overruled Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294 (1957),*fn* a case in which the foregoing procedure had been held proper if accompanied by a proper jury instruction, was made fully retroactive by Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921 (1968).
The case is squarely controlled by Bruton and Roberts. Thus appellant is entitled to a trial at which the statement of his co-defendant cannot be introduced into evidence unless appellant has the opportunity to cross-examine his co-defendant.
The order of the Superior Court is reversed, the judgment of the Court of Quarter Sessions of York
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County is vacated, and the case is remanded for proceedings consistent with this opinion.*fn**
Order of Superior Court reversed, judgment of lower court vacated and case remanded.