Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1957, No. 777, in case of Commonwealth v. John Joyner.
Sanford Kahn, for appellant.
James D. Crawford, Deputy District Attorney, with him Jeffrey A. Brodkin, 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, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the decision of this case.
This is an appeal from the order of the Court of Common Pleas, Trial Division, Criminal Section, of
Philadelphia, denying appellant's motion for new trial nunc pro tunc. Appellant was tried on an indictment charging murder before the Honorable Vincent A. Carroll and a jury on March 6-8, 1958. He was found guilty of murder in the first degree, and on March 14, 1958, was sentenced to life imprisonment.
During the course of the trial, Joyner's confession to the police was admitted into evidence over objection. Appellant filed a petition for writ of habeas corpus in 1965, alleging that his confession was involuntary. Pursuant to the dictates of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), a hearing was held. The petition was denied and appellant appealed pro se to this court. We affirmed. Com. ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A.2d 434 (1968).
Appellant subsequently, on December 9, 1968, filed a petition under the Post Conviction Hearing Act and was granted leave to file post-trial motions nunc pro tunc.*fn1 These motions were denied on July 3, 1969, by Judge Meade; the instant appeal followed.
Since the judgment of sentence is now on direct appeal, appellant may, of course, raise trial errors. Boiled down to their essentials, the errors alleged deal with the charge of the trial court relative to the voluntariness of appellant's confession. Appellant urges that the trial court removed the issue of voluntariness from the jury and virtually compelled a finding adverse to him on that issue.
In Pennsylvania, we follow what is referred to as the Massachusetts rule, which requires the submission of the issue of voluntariness to the jury, even though there has been a Jackson-Denno finding by the trial judge of voluntariness. Appellant's trial antedated Jackson v. Denno, supra, but, as indicated above, such a hearing was held as a result of appellant's 1965 habeas corpus petition. Even prior to Jackson v. Denno, however, the trial judge determined if there existed sufficient evidence of voluntariness to submit the issue of voluntariness to the jury, and that body decided the question. The trial judge in the instant case apparently ...