Appeal from judgment of sentence of Court of Common Pleas of Blair County, Jan. T., 1956, No. 2, in case of Commonwealth of Pennsylvania v. Glenn A. Leamer.
T. Dean Lower, for appellant.
Amos Davis, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Justice Manderino.
Appellant was convicted in 1958 following a jury trial of the 1955 first degree murder of his 92-year-old grandfather, Samuel Jacob Leamer, and sentence was fixed at life imprisonment. After the jury returned its verdict, appellant's counsel made an oral motion for a new trial, which was withdrawn immediately prior to sentencing. In 1970, we reversed the dismissal of appellant's 1968 Post Conviction Hearing Act*fn1 petition and held, based upon our decision in Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969), that Leamer's waiver of the right to appeal, inherent in his withdrawal of the motion for a new trial, had not been voluntary because induced by a fear that on a retrial the death sentence might be imposed. Commonwealth v. Leamer, 440 Pa. 37, 269 A.2d 708 (1970). Post-trial motions were subsequently filed nunc pro tunc in the Court of Common Pleas of Blair County and were denied by a court en banc on September 17, 1971. This appeal followed.*fn2
The Commonwealth's case of first degree murder against appellant consisted primarily of a confession, the voluntariness of which is not here challenged, and corroborating evidence discovered pursuant to this statement. According to his confession, appellant, then 30 years of age, went to the home of his grandfather on the evening of September 2, 1955, with the avowed purpose of committing a robbery. Finding the victim at home, appellant lured him outside the house, ostensibly to look at an albino deer, and then fatally struck him over the head with a piece of pipe. A small amount of money and a flashlight were stolen from the house, and a watch was taken from the body of the deceased. Appellant then transported the body to and deposited it in a nearby water-filled quarry hole.
At trial appellant took the stand to refute the confession. He stated that he had gone to the elder Leamer's house to borrow five dollars to help pay the rent; that when his grandfather made disparaging remarks about appellant's wife and suggested that he, the
grandfather, might be better able to satisfy her amorous proclivities, a scuffle ensued in which the deceased accidentally struck his head on the stove; frightened, appellant then removed the body to the quarry hole.
Of the more than thirty alleged errors asserted in his new trial motion, appellant now presses only seven. For reasons which follow, we conclude that all are without merit and therefore affirm the 1958 judgment of sentence.
(1) Appellant first argues that he was unconstitutionally denied the right to counsel at his preliminary hearing in 1955. Although the United States Supreme Court held in 1970 that a preliminary hearing is a critical stage in a criminal proceeding, requiring the presence of counsel unless knowingly waived, Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387 (1970), that decision is not retroactive. Adams v. Illinois, 405 U.S. 278, 31 L. Ed. 2d 202 (1972). Commonwealth v. Thomas, 440 Pa. 213, 270 A.2d 211 (1970); Commonwealth v. James, ...