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 DEATH PENALTY
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.
Insofar as the request of relator to have us vacate his death sentence, this Court is not disposed to pass on that question at this time. The relationship which exists between the state and federal judiciaries is one of mutual respect. Although at certain times it becomes necessary for a federal court to consider and to pass upon matters which are primarily within the sphere of the state courts, particularly in the habeas corpus area, it has long been recognized that those occasions should be limited by extreme necessity. As a result, an extensive body of law has been developed by the courts to govern this relationship and the resultant concept of exhaustion of state remedies has emerged.
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 opportunity to deal with a situation which is otherwise solely within its own judicial sphere.
CHARGE TO THE JURY ON THE VOLUNTARINESS OF RELATOR'S CONFESSION
Relator next contends that the trial court's enunciation of the substantive standards upon which the jury was to determine the voluntariness of the confession was constitutionally deficient. The trial court's charge to the jury on the confession read, in relevant part, as follows:
An important factor that you must consider is the question of the confession, which the Commonwealth has presented in this case. The law is zealous, as I have said, to preserve the rights of the accused, and if a confession is obtained by coercive measures, for example, such a confession would violate due process of law. If the accused is subjected to unusual treatment that might be cruel, long-drawn out, that also is a matter to be taken into consideration. There are others, but I don't think it is necessary for me to go into them at this time for the reason that the defendant says here, "I never made this statement, that is not my signature on the statement," and, therefore, we cannot very well determine whether there was coercive measures because he said, "I never made the statement." This is the important thing in this case, so far as the alleged confession is concerned. That becomes a matter of you passing upon the credibility of the witnesses with reference to the taking and making of this alleged confession.