Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1964, Nos. 1105 to 1112, inclusive, in case of Commonwealth of Pennsylvania v. Edward Bennett.
David Kanner, with him Donald F. Copeland, and Kanner, Stein, Feinberg & Barol, for appellant.
James T. Owens, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Barbieri took no part in the consideration or decision of this case.
Appellant Edward Bennett stands convicted of second degree murder, robbery and conspiracy. In this appeal he advances two claims. First, he asserts that the Commonwealth violated a specific federal court mandate by failing to afford him a public Jackson v. Denno hearing*fn1 within the prescribed period of time. Second, he contends that an unconstitutionally obtained confession was erroneously admitted at his trial. Upon reviewing the record, we conclude that neither claim has merit.
The history and present procedural posture of this case are somewhat involved. Appellant was tried by jury in September of 1965 after a timely motion to suppress his confession had been denied. He was found guilty of the above mentioned crimes and sentenced to consecutive prison terms of from 10 to 20 and 1 to 2 years. On direct appeal, this Court affirmed the judgment of sentence by per curiam order with two Justices dissenting.*fn2 See Commonwealth v. Bennett, 424 Pa. 650, 227 A.2d 823, cert. denied 389 U.S. 863, 88 S. Ct. 122 (1967).
Appellant next sought a writ of habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The petition was denied and appellant then appealed to the Court of Appeals for the Third Circuit. Sitting en banc, that court held that the exclusion of spectators from the Jackson v. Denno hearing conducted pursuant to appellant's motion to suppress his confession violated his Sixth Amendment right to a "public trial". Accordingly, the Third Circuit vacated the judgment of the District Court with a direction to order the issuance of a writ of habeas corpus unless the Commonwealth granted appellant a new and public Jackson v. Denno hearing within a period of time to be set by the District Court. See United States ex rel. Bennett v. Rundle, 419 F. 2d 599 (1969).*fn3
The District Court thereafter ordered the Commonwealth to conduct the required hearing within 180 days. This was not done, and appellant filed a petition for release in the District Court. The Commonwealth for its part filed its own petition alleging that its dilatoriness had been due to clerical inadvertance and requested a further 30 days in which to comply with the federal mandate. This request was granted.
A public Jackson v. Denno hearing was scheduled in the Philadelphia Court of Common Pleas within the 30-day extension period. At that time appellant requested a continuance and the matter was rescheduled for November 12, 1970. On that date appellant moved for disqualification of the hearing judge. The motion was denied, and the requisite suppression hearing was finally held on November 25, 1970. Appellant's motion to suppress was denied on December 17, 1970, and this appeal followed.
Initially, we may dispose of appellant's complaint that the Commonwealth failed to abide by the federal district court's mandate to afford him a new and public Jackson v. Denno hearing within 180 days. Whether or not the Commonwealth violated the federal mandate is not a matter for this Court's consideration. Rather, principles of comity demand that such a claim may ...