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decided: January 19, 1973.


Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1964, No. 111, in case of Commonwealth of Pennsylvania v. George Schmidt.


Richard C. Montgomery, Michael C. McLean, Allan McClain, and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.

Carol Mary Los and Robert L. Campbell, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice O'Brien join in this opinion.

Author: Pomeroy; Roberts

[ 452 Pa. Page 187]

At the conclusion of a jury trial on February 13, 1965, appellant, who had been represented by two court-appointed counsel, was found guilty of murder in the first degree and was sentenced to life imprisonment. Post-trial motions were denied by the lower court en banc and a direct appeal to this Court, filed on April 29, 1966, resulted in affirmance of the judgment of sentence. Commonwealth v. Schmidt, 423 Pa. 432, 224 A.2d 625 (1966).*fn1

Subsequently, appellant filed a petition under the Post Conviction Hearing Act (PCHA),*fn2 alleging five separate errors, none of which had been previously presented on the earlier direct appeal.*fn3 At a hearing on

[ 452 Pa. Page 188]

    this petition, appellant himself testified to the effect that his failure to raise any of the newly presented issues on his earlier direct appeal should not operate as a "waiver" of his right to do so now in view of his age at the time of trial and his lack of knowledge of the law.*fn4 The Commonwealth called as a witness one of appellant's two trial counsel and sought to elicit from him the reasons he might have had for not raising the issues now presented. On the basis of the testimony at this hearing and on the record made at trial, the hearing judge concluded that the errors alleged in the petition were without merit, were "waived" under section 4 of the PCHA, or both, and hence dismissed the petition. We are here presented with an appeal from that order of dismissal.

To facilitate understanding of the discussion to follow, it will be necessary to set forth a brief account of the crime, the events leading to trial, and the testimony at trial.*fn5 On June 10, 1964, in the early morning hours of darkness, the Caecilia Mannerchor Club on the North Side of Pittsburgh was burglarized. A Joseph Meier, resident of the Club's second floor, surprised the felons and was struck a fatal blow. The crime was similar in nature to three other burglaries which had been perpetrated within a ten day period immediately preceding June 10 and which occurred within a narrow geographical area of the North Side; in all four, entry was accomplished through a broken

[ 452 Pa. Page 189]

    window and in all four the object was to remove the coin boxes of automatic vending machines. On June 12, 1964, police arrested the appellant George Schmidt and two of his friends, Kenneth Baurle and William Thorton. Although appellant for several days denied any connection with the Caecilia Mannerchor Club burglary and murder, he did admit that the three earlier crimes were of his doing. His friends, however, admitted participation in all four, and placed the Meier murder weapon in Schmidt's hands. When faced with the willingness of Baurle and Thorton to detail the events of June 10, Schmidt in turn confessed that he had in fact so acted, and joined in a tape-recorded session in which all three admitted burglarizing the Mannerchor Club. Schmidt's statement was then reduced to writing and signed. The appellant and Kenneth Baurle were indicted for murder, and Thorton was indicted on the charge of accessory before and after the fact of murder.

Prior to trial, appellant's court-appointed counsel moved to suppress the confession given by Schmidt on the ground that it was involuntary in the light of the circumstances under which it was obtained and on the ground that it was obtained in violation of the decision of the United States Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977 (1964). That motion was denied after a lengthy hearing to be discussed later in this opinion. Schmidt then pleaded not guilty and was tried by a jury.

At trial the Commonwealth introduced evidence to establish the occurrence of the murder, introduced evidence to prove the three burglaries which occurred in the ten-day period prior to June 10, 1964, and then linked Schmidt to all four crimes by use of his tape-recorded confession and by use of physical evidence seized from his room and shown to be fruits of the earlier,

[ 452 Pa. Page 190]

    non-fatal crimes. Appellant testified on his own behalf and attempted to repudiate his confession only to the extent that it related to the Mannerchor Club burglary. He affirmed his participation in the earlier crimes, but asserted that his confession with regard to the fatal burglary was involuntarily extracted by police threats to prosecute his mother, by physical abuse administered by interrogating officers, by relentless questioning and by misrepresentation of the law. As its verdict shows, the jury did not accept this account of coercion. By our earlier decision we affirmed the lower court's finding that the confession was not involuntary.

In the PCHA petition, Schmidt alleged that the following errors were committed before or at trial and require that his conviction be reversed:

(1) That his confession was a "fruit" of an illegal arrest.

(2) That evidence of "unrelated" crimes had been introduced at trial.

(3) That the physical evidence which linked Schmidt to the three earlier burglaries was seized in violation of his Fourth Amendment rights.

(4) That there was no certification hearing in Juvenile Court prior to Schmidt's being bound over for trial in a court of general criminal jurisdiction.

(5) That a "tacit admission" was introduced at trial in violation of Schmidt's Fifth Amendment rights.

We will discuss these allegations in the above order.

I. The Illegal Arrest

Schmidt, Baurle and Thorton were arrested on a warrant issued by a Pittsburgh police magistrate. The warrant recited that appellant was wanted on a charge of "suspicion of Felony, Murder and Burglary"; it contained no information whereby the issuing magistrate

[ 452 Pa. Page 191]

    might have concluded that probable cause existed. Seizing upon the inadequacies of this document, appellant urges that his arrest was illegal and that the confession which followed the arrest was within the scope of the "taint", Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441 (1963); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). It follows, appellant argues, that the confession must be suppressed, notwithstanding that its voluntariness has already been established by litigation in this Court.*fn6

As the Commonwealth points out, this argument was available to appellant prior to trial, was not raised in a pretrial motion as required by the applicable Pennsylvania Rule of Criminal Procedure,*fn7 and was not raised on direct appeal. It therefore concludes that the argument is "waived" within the meaning of section 4 of the PCHA. Appellant does not contest the premises of the Commonwealth's argument, but disputes the conclusion that the alleged error was "waived".

(a) Applicability of the PCHA to this Question

There is at the outset a question of whether section 4(b) of the Post Conviction Hearing Act, 19 P.S. § 1180-4(b), wherein is found the waiver concept which the Commonwealth here advances, applies to Schmidt's failure

[ 452 Pa. Page 192]

    to raise by pretrial motion in 1965 the question of the legality of his arrest.

By its own terms, the Post Conviction Hearing Act "establishes a post-conviction procedure for providing relief from convictions obtained and sentences imposed without due process of law." It "encompass[es] all common law and statutory procedures for the same purpose that exist when this statute takes effect, including habeas corpus and coram nobis." 19 P.S. § 1180-2 (Supp. 1972-73) (emphasis added). To be eligible for post-conviction relief, a person who, like Schmidt, is "incarcerated in the Commonwealth of Pennsylvania under a sentence of . . . imprisonment . . . .", 19 P.S. § 1180-3(b) (Supp. 1972-73), "must" initiate a proceeding ...

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