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COMMONWEALTH v. SHADD (10/03/73)

decided: October 3, 1973.

COMMONWEALTH
v.
SHADD, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1958, No. 954, in case of Commonwealth of Pennsylvania v. Ronald Shadd.

COUNSEL

Kenneth Mirsky, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Albert L. Becker, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Nix

[ 454 Pa. Page 150]

In May of 1960, appellant Ronald Shadd was tried before a judge and jury and convicted of first degree murder. Post-trial motions were filed but later withdrawn, and a sentence of life imprisonment was imposed. In October, 1965, appellant filed a petition for habeas corpus alleging that his trial had been tainted by the introduction of testimony that he stood mute when confronted at a police station interview by a co-defendant's statement implicating him in the homicide. The trial court dismissed the petition and an appeal to this Court followed in which we recognized that the doctrine of tacit admission was in conflict with the protections afforded under the Fifth Amendment to the United States Constitution. See Miranda v. Arizona, 384 U.S. 436 (1966). We refused the requested relief to the appellant holding that this newly acknowledged right need not be applied retroactively. Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 223 A.2d 296 (1966).

That decision, however, did vacate the order of the court below and remanded the record for a hearing solely to determine if the appellant effectively waived his right to the assistance of counsel in the prosecution of the new trial motion and an appeal from the Judgment of Sentence. See Douglas v. California, 372 U.S. 353 (1963). A review of the briefs filed with this Court and the entire record, certified by the court below fails

[ 454 Pa. Page 151]

    to indicate whether a hearing was held pursuant to the order of remand and any disposition that may have been made.

On June 21, 1968, almost two years after the date of our decision, appellant filed a petition pursuant to the Post-Conviction Hearing Act*fn1 again challenging the use of a tacit admission at his trial. A hearing was held on that petition, and appellant was granted leave "to file a motion for new trial nunc pro tunc to the issues raised as a result of admission of Petitioner's tacit admission at the time of his trial, the admission of the co-defendant's confession and the effect thereof."*fn2 Pursuant to this order a motion was filed and after argument denied. This appeal is from the denial of that motion for a new trial.

In our first review of this case although recognizing that tacit admissions were no longer consistent with the protections now understood to be embraced by the Fifth Amendment a majority of the members of this Court determined that we were not required by the Federal Constitution to give retroactive effect to this newly recognized right and elected not to do so. Relying heavily on an analogy with Griffin v. California, 380 U.S. 609 (1965) and Tehan v. Shott, 382 U.S. 406 (1966) this Court held that this protection would be awarded prospectively and would not be considered in

[ 454 Pa. Page 152]

    a collateral attack on a judgment finalized ...


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