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COMMONWEALTH EX REL. JOHNSON v. RUNDLE (10/09/70)

decided: October 9, 1970.

COMMONWEALTH EX REL. JOHNSON, APPELLANT,
v.
RUNDLE



Appeals from orders of Court of Common Pleas of Philadelphia County, May T., 1965, No. 905, March T., 1965, No. 5415, and order of Court of Oyer and Terminer of Philadelphia County, Jan. T., 1946, No. 517, in cases of Commonwealth ex rel. Robert Johnson v. Alfred T. Rundle, Superintendent, and Commonwealth v. Robert Johnson.

COUNSEL

Leon H. Kline, for appellant.

Samuel T. Swansen, Assistant District Attorney, with him James D. Crawford, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 440 Pa. Page 487]

In 1946 appellant pleaded guilty to murder generally. Following a degree of guilt hearing, he was found guilty of murder in the first degree and sentenced to death, a sentence which was later commuted to life imprisonment. No appeal was taken. In 1965 appellant filed a habeas corpus petition, in which he alleged that his confession was elicited at a critical stage in the proceedings, but without the presence of counsel, and hence its admission into evidence at the degree of guilt hearing constituted error. The hearing court found against appellant, the petition was dismissed, and an appeal taken.

In 1968 appellant filed a PCHA petition, alleging that the confession was obtained unconstitutionally through physical force, that this confession primarily motivated his guilty plea, and hence the plea was invalid, and that he was denied his right of appeal. Again the hearing court found against appellant, and an appeal was taken. Both cases being on appeal at the same time, we had them consolidated and argued together.

Appellant's initial contention is that his confession was elicited at a time when counsel's presence was constitutionally required. The evidence shows that immediately after appellant had his preliminary hearing the police kept him in their custody and interrogated him, securing his confession, rather than returning him to the city prison to which the magistrate had committed him. Since this interrogation occurred after the preliminary hearing, petitioner urges that it therefore constituted a critical stage in the proceedings, and that the

[ 440 Pa. Page 488]

Sixth Amendment required the presence of counsel. See Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964); Commonwealth v. Dickerson, 428 Pa. 564, 565, 237 A.2d 229, 230 (1968) (dissenting opinion); cf. Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). But see Commonwealth ex rel. Mount v. Rundle, 425 Pa. 312, 319-20, 228 A.2d 640, 644-45 (1967).

Appellant's contention has now been answered by the Third Circuit in United States ex rel. Dickerson v. Rundle, 430 F. 2d 462 (3d Cir. 1970) (en banc) (Hastie, C. J., Freedman and Adams, JJ., dissenting). There the majority of the court held that a defendant, interrogated after his preliminary hearing, and pursuant to an ex parte bring-up order, "stood in the same legal shoes as did the defendant in Massiah," id. at 467, and hence his interrogation did constitute a critical stage requiring counsel. Massiah's protection, however, is not to be retroactively applied, so that Dickerson's confession was therefore properly utilized. See United States ex rel. Allison v. New Jersey, 418 F. 2d 332 (3d Cir. 1969).

Although appellant in the instant case did not even have the protection of an ex parte bring-up order, the principles enunciated by the majority of the Third Circuit in Dickerson are still applicable. Appellant's interrogation held after his preliminary hearing was a critical stage, but the confession cannot be attacked because it was obtained before the United States Supreme Court's decision in Massiah. Hence appellant's claim for relief on this ground must be rejected.

Appellant's next claim centers around his contention that his confession was physically coerced. Appellant testified at the PCHA hearing that the police secured his confession by beating him with a rubber hose; his mother testified that when she ...


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