The opinion of the court was delivered by: WEINER
Relator, Charles Patrick, has filed the present petition for a writ of habeas corpus seeking relief from a 1960 conviction for first degree murder arising from the deaths of Lula Mae Overton and her ten year-old daughter, Gloria Louise Overton. Patrick was tried in the Philadelphia Court of Quarter Sessions on the two bills of indictment, May Sessions, 1960, Nos. 698, 699, was found guilty by a jury on both counts, and was sentenced to life imprisonment on No. 698 and to death on No. 699. A direct appeal was then taken to the Pennsylvania Supreme Court which remanded the matter for a hearing to determine the voluntariness of defendant's confession pursuant to the United States Supreme Court's decision in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1963). Commonwealth v. Patrick, 416 Pa. 437, 206 A. 2d 295 (1965). On remand, the Jackson-Denno hearing was conducted and the original trial judge concluded that the confession was voluntary and admissible. On September 27, 1966 the Pennsylvania Supreme Court affirmed this decision. On November 3, 1966, the State Supreme Court granted a rehearing to consider additional claims of the defendant relating to the voluntariness of his confession and rejected these contentions. Commonwealth v. Patrick, 424 Pa. 380, 227 A. 2d 849 (1967).
The instant petition for a writ of habeas corpus was filed with this Court on June 14, 1967 and an evidentiary hearing was held before the late Judge Harold K. Wood on September 28, 1967. Subsequently, an amended petition for a writ of habeas corpus was filed on behalf of the relator, followed by an amended answer and a second amended petition. Due to the fact that a number of issues raised by the petitions were directly related to the anticipated ruling of the United States Supreme Court on the constitutionality of capital punishment, Judge Wood indicated that no further action would be taken pending that decision. The matter was transferred to this Court for all further proceedings in November of 1972.
Relator alleges two grounds in support of his petition: (1) that, consistent with the decision of the Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), this Court should vacate his sentence of death and impose a sentence of life imprisonment; and (2) that the trial court's instructions to the jury concerning the voluntariness of the relator's confession and the standards applied by the trial court in determining voluntariness at the Jackson-Denno hearing were in violation of his rights under the Fifth and Fourteenth Amendments.
The Commonwealth has requested this Court to delay its decision upon relator's request for vacation of his death sentence pending action by the Third Circuit Court of Appeals on the petition of the Commonwealth in the case of United States ex rel. Phelan v. Brierly, C.A. No. 18,880 (3d Cir., filed August 14, 1972). The Commonwealth there requested the Circuit Court to remand the matter to the District Court so that an evidentiary hearing could be held and the Commonwealth given an opportunity to present evidence on the application of the death penalty in Pennsylvania in order to establish that capital punishment as applied in this State is not violative of the Supreme Court's decision in Furman v. Georgia, supra.
Relator opposes this request and asks this Court for an immediate vacation of the death sentence.
We are not inclined to grant a stay in this case as is urged by the Commonwealth. As is pointed out by the brief of relator in opposition, the District Attorney of Philadelphia has similarly argued the constitutionality of the imposition of the death penalty in Pennsylvania before both the United States Supreme Court and the Pennsylvania Supreme Court. In both instances, the Commonwealth's arguments were rejected. In the face of such explicit denials of that very argument which is now made by the District Attorney, we fail to see any necessity for unduly delaying relator's right to have his proper sentence determined by the appropriate tribunal.
Exhaustion is not in itself a limitation upon the power of the federal courts to act, see, e.g., Giles v. Maryland, 386 U.S. 66, 81, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967). It is, in fact, the voluntary recognition by these courts that the States should be permitted a full opportunity to administer their criminal justice systems before federal intervention to protect federal rights takes place. See Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1962); Johnson v. Hoy, 227 U.S. 245, 33 S. Ct. 240, 57 L. Ed. 497 (1912). These considerations of comity, as was noted by Mr. Justice Brennan in Fay v. Noia, supra, 372 U.S. at 418, 83 S. Ct. at 838, envisage "only the postponement, not the relinquishment, of federal habeas corpus jurisdiction."
Exhaustion thus does not define power, but is a concept relating to the "appropriate exercise of power." Bowen v. Johnston, 306 U.S. 19, 27, 59 S. Ct. 442, 83 L. Ed. 455 (1939). Clearly this Court has the power to vacate the death sentence imposed upon relator by the state court, as is evident from the numerous rulings of the United States Supreme Court and lower federal courts vacating similar sentences. E.g., Phelan v. Brierley, 408 U.S. 939, 92 S. Ct. 2875, 33 L. Ed. 2d 762 (1972); Scoleri v. Pennsylvania, 408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747 (1972); Newman v. Wainwright, 464 F.2d 615 (5th Cir. 1972); Sims v. Eyman, (9th Cir. No. 22,242, August 23, 1972); Boulden v. Capps, (M.D. Ala. No. 2303-N, July 21, 1972); Morford v. Hocker, (D. Nev. No. R-2174, September 7, 1972).
But we cannot discern any compelling reason to act in this matter until the state courts have had the opportunity to correct the sentence. Indeed, the Pennsylvania Supreme Court has implemented the Furman decision and vacated death sentences on five occasions, Commonwealth v. Ross, Pa., 449 Pa. 103, 296 A. 2d 629 (1972); Commonwealth v. Lopinson, Pa., 449 Pa. 33, 296 A. 2d 524 (1972); Commonwealth v. Sharpe, Pa., 449 Pa. 35, 296 A. 2d 519 (1972); Commonwealth v. Bradley, Pa., 449 Pa. 19, 295 A. 2d 842 (1972); Commonwealth v. Scoleri, Pa. (Nos. 252, 274-276, January Term, 1967, August 23, 1972). We are certain that the lower state courts will follow this lead with great dispatch.
The state courts are undoubtedly the appropriate tribunal to grant relief to relator in this instance. If such relief is not forth-coming, the avenues to the federal court are still open. But until this Court is shown that state process is ineffective to protect the rights at issue, we must insist that the state judiciary be first afforded the ...