and it was pointed out that the jury has always been permitted under Pennsylvania Law to exercise its prerogative of mercy. We see nothing in the Federal Constitution which prevents the jury under State law from exercising such prerogative. Certainly, if this were not the law, many people charged with first degree murder in Pennsylvania would long since have gone to the electric chair or to life imprisonment had the jury not extended mercy and found them guilty of second degree murder. We do not see that petitioner had any complaint on this score under the Federal Constitution.
Three: Competency of Stanyard to Testify. Petitioner contended that Stanyard, who was the main witness against him, was a sociopathic or psychopathic liar and that the court should have declared him incompetent to testify for this reason. The lower court thoroughly reviewed all the testimony with respect to Stanyard's competency in this respect and the Supreme Court held that the matter of competency is in the first instance for the trial judge and after his determination of competency the matter is properly left for the jury to determine whether the witness is telling the truth or not. Again, we see no violation of the Federal Constitution in the Pennsylvania procedure with respect to this matter.
Four: Line-Up Identification. Stanyard at first failed to identify petitioner when shown him through a window in the county jail. This case was tried before the decisions in Gilbert v. Calif., 384 U.S. 985, 86 S. Ct. 1902, 16 L. Ed. 2d 1003 (1967) and United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), decided by the United States Supreme Court on June 12, 1967. These cases required defendant to have counsel present when required to stand in a lineup. In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), it was ruled that the requirement of presence of counsel at a lineup applies only to confrontations after June 12, 1967. Confrontations here occurred on April 27 and April 29, 1967, and, therefore, the rules of Gilbert and Wade do not apply. Stanyard and petitioner were together for some hours on April 26, 1967, prior to the first robbery committed by Stanyard, that of the Spur Gas Station at 16th and Parade Streets, Erie. Stanyard's identification consequently was not based solely upon lineup confrontations, but also on an independent source, viz.: his prior opportunity to observe the petitioner. See Vance v. North Carolina, 432 F.2d 984 (4th Cir. 1970); United States v. Levi, 405 F.2d 380 (4th Cir. 1968); Ackerman v. Scafati, 328 F. Supp. 386 (D.C. Mass. 1971); Denny v. Anderson, 329 F. Supp. 945 (D.C. Del. 1971). The failure of Stanyard to identify Collins when he first viewed him through the window in the Erie County jail certainly cast doubts on his credibility, but that would be for the jury.
Five: Use of Wrongfully Obtained Statement as Harmless Error. We accept the determination of the Supreme Court of Pennsylvania that the so-called waiver signed by petitioner before questioning about his participation in the crime was ineffective under Miranda v. Ariz., 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and should have been suppressed by the lower court.
We disagree, however, with the Supreme Court's conclusion that this was harmless error.
The statement was quite damaging to appellant in that he admitted he had picked up Stanyard that evening and drove him to 18th and Parade Streets, Erie, Pennsylvania. This placed petitioner within two short blocks of the Spur Gas Station at 16th and Parade Streets which was Stanyard's first holdup of the evening before continuing his nefarious travels to Steve's Dinor, at 16th and State Streets, four blocks further on, the scene of the murder.
The Pennsylvania Supreme Court, however, held that the admission of the illegally obtained statement was harmless error because petitioner thereafter at trial took the stand in his own behalf and testified to the same movement with Stanyard.
Petitioner's counsel, Robert H. Chase, Esq., testified at the hearing in this case:
N.T. 39 "A. Oh, that is true. There was a statement did get suppressed, another statement he refused to suppress. That is correct, and this revolved around the manner in which his constitutional rights were given to him by the police, in relation to the first statement and in relation to the second statement.
Q. And was this first statement -- that was the recollection of it that was introduced into evidence as part of the prosecution's case at trial?