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decided: September 19, 1973.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, Nos. 1144 to 1146, inclusive, in case of Commonwealth of Pennsylvania v. Felix Wade Horner.


A. Makadon, Assistant District Attorney, with him Mark Sendrow and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

John W. Packel, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Nix concurs in the result. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this concurring opinion. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Jones joins in this dissenting opinion.

Author: Eagen

[ 453 Pa. Page 436]

On September 12, 1962, Felix Wade Horner was convicted by a jury of murder in the first degree and the punishment was fixed at life imprisonment.*fn1 No post-trial motions were filed and the court imposed sentence as the jury directed. No appeal was entered from the judgment.

On February 13, 1969, Horner filed a petition seeking post-conviction relief under the provisions of the Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. ยงยง 1180-1 et seq. After an evidentiary hearing, the trial court found Horner's right to appeal as mandated by Douglas v. California, 372 U.S. 353, 83 S. Ct. 814

[ 453 Pa. Page 437]

(1963), had been violated and granted him permission to file post-trial motions "nunc pro tunc." Such motions were filed and subsequently a court en banc by a vote of two to one granted Horner a new trial. The Commonwealth filed this appeal challenging the correctness of that order.*fn2

The relevant facts may be summarized as follows:

On December 18, 1959, two police officers, acting pursuant to an anonymous phone call, went to the residence of a Mr. and Mrs. Donald Newman in Philadelphia and discovered the dead body of Mr. Newman buried under earth in the basement. A medical examination disclosed death was caused by a gunshot wound of the thorax.

Later the same day, Horner and Mrs. Newman were taken into police custody in Harrisburg, Pennsylvania, and following questioning Horner made a statement, which was recorded, wherein he admitted shooting Newman, but stated he acted in self-defense. Horner completely absolved Mrs. Newman of any complicity. Prior to making the above statement, Horner was advised that anything he said could be used against him in court, but he was not advised he could have the assistance of counsel during the questioning.

On December 19, 1959, Horner was given a preliminary hearing before a committing magistrate. He was not represented by counsel, nor was he advised he could have such assistance. At this hearing the district attorney called Horner as a Commonwealth witness and, after warning him that he did not have to testify and anything he said could be used against him in the event he was held for trial, asked Horner to "tell us what happened." "Do you understand the warning?" After Horner indicated he understood the warning, the district

[ 453 Pa. Page 438]

    attorney again asked, "Do you want to tell us what happened? Tell us what happened?" Horner's testimony was consistent with his statement given to the police the day before. During his testimony, Horner was asked specific questions by the district attorney about his relationship and conduct with Mrs. Newman and the events leading up to the killing. He was also asked about the truthfulness and voluntariness of the statement he made to the police. Horner admitted the voluntariness of the statement and affirmed its truthfulness. At the conclusion of the hearing, Horner was committed to jail to await action by the grand jury.

In the days that immediately followed, the police continued to question Horner and told him Mrs. Newman had changed her story. On December 23, 1959, Horner was again questioned by a police detective and confronted with a written statement given the police by Mrs. Newman. In this statement Mrs. Newman said she and Horner plotted her husband's death for a month, and Horner shot her husband as he lay asleep in bed. Horner then admitted Mrs. Newman's statement was true and he signed it.

At trial, Mrs. Newman testified as a Commonwealth witness,*fn3 and her testimony was consistent with the statement she had previously given the police, namely, that she had been romantically involved with Horner, and the two plotted Mr. Newman's death and Horner shot the victim while he was asleep in bed.

Testifying on his own behalf, Horner admitted his romantic relationship with Mrs. Newman while Newman was alive and having discussions with her about killing ...

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