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June 21, 1973

Joseph BRIERLEY, Supt. and Commonwealth of Pennsylvania

Knox, District Judge.

The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 Petitioner, a state prisoner serving a life term for murder, files this petition for a writ of habeas corpus in this court. He has exhausted his state postconviction remedies. See Commonwealth v. Pavkovich, 444 Pa. 530, 283 A. 2d 295 (1971).

 The life term was imposed in February 1963 following a verdict of guilty of murder in the first degree for the killing of one John Cochran, in a tavern in Erie, Pennsylvania. The killing occurred October 24, 1962.

 The court has spent a large amount of time on this case. Following arguments as to whether an evidentiary hearing was required, the court ordered defendant brought from the Western Pennsylvania Correctional Institution at Pittsburgh where he is serving his sentence to Erie for an evidentiary hearing, at which witnesses on both sides were heard. Extensive briefs were filed followed by oral arguments from counsel. Decision has been delayed first to allow defendant to be examined by a psychiatrist of his own choosing who then reported at a hearing in court following which the state asked for a psychiatric examination of their own and this was also permitted, followed by another evidentiary hearing.

 Petitioner's reasons for granting the writ as stated by his counsel are as follows:

 (1) the confession was involuntary under the totality of the circumstances,

 (3) a member of the court en banc disposing of petitioner's post trial motions which were permitted to be filed and reviewed by the court 6 1/2 years after the original sentence in lieu of postconviction hearing remedies was the District Attorney who held that office at the time the original conviction was obtained. We will dispose of these contentions in that order.

 I. Involuntariness of the confession.

 The shooting of John Cochran by the petitioner occurred October 24, 1962. The confession which is the bone of contention in this case was obtained at approximately 4:00 a.m. on the morning of October 25, 1962. The trial took place in February, 1963, at which the confession was admitted in accordance with the desires of petitioner's counsel. This trial and the determinations of the admissibility of the confession occurred before the decisions of the U.S. Supreme Court in Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Regardless of this, the law is clear that the standards enunciated in Miranda and Escobedo are to be considered as significant in pre-1964 cases. In Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), the court said:

"Thus, while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim"

 See also Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966). The difficulty as pointed out in a prior memorandum with respect to this matter is that there never has been a hearing or factual determination of the voluntariness of this confession in a post-conviction proceeding by the Pennsylvania Courts. The Supreme Court proceeding has in Commonwealth v. Pavkovich, supra, stated it could find nothing wrong with the confession but there had never been a full hearing on the post-conviction hearing allegations with respect to this matter. See 28 U.S.C. § 2254 as to limits upon the right of review of this court where there has been a complete factual hearing and determination by the state court.

 Turning now to the factual circumstances under which the confession which was received in evidence was given, we find that on the day of the shooting, petitioner arose at 8:45 a.m., took two ten milligram librium capsules which a doctor had given him to tranquilize him. He had four or five vodka and orange drinks. He called the decedent, John Cochran, and said that he wanted to talk to him because he wanted to explain that he had not been associating with Cochran's wife and wanted the man to cease his threats. He asked Cochran to meet him in a tavern. Whatever might have been his purpose, he took with him a loaded revolver and an extra box of shells. He imbibed two more orange and vodka drinks and went to the tavern where the shooting occurred. His explanation was that he had become alarmed because of threats reported to him from Cochran and wanted to show him that he was armed. He said he took the revolver out to show Cochran that he was in earnest and accidentally the revolver went off, killing Cochran. The jury determined that this was a typical case of murder while lying in wait in violation of the Pennsylvania Statute, 18 Purdon's P.S. § 4701. The shooting was witnessed by bystanders. He was then taken to the police station. He tried to call his parents to obtain counsel for him but was refused even a single telephone call. He was put into a cell without food or ...

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