Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1958, No. 742, in case of Commonwealth of Pennsylvania v. Spencer Broaddus.
Eric L. Lilian, for appellant.
Bonnie Brigance Leadbetter 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, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Justice Manderino.
In February 1959, Spencer Broaddus, the appellant, while assisted by counsel, entered a plea of guilty to murder generally. After an evidentiary hearing before a three-judge court, he was found guilty of murder in the first degree and was sentenced to life imprisonment. No appeal was filed.
In September 1964, Broaddus instituted an action in habeas corpus in the trial court, which was later dismissed. No appeal was entered from this order.
In 1967, Broaddus filed a petition in the trial court under the Post Conviction Hearing Act,*fn1 and, after a counseled evidentiary hearing, relief was denied. This order was subsequently affirmed by this Court on appeal. See 428 Pa. 599, 239 A.2d 204 (1968). Broaddus was not represented by counsel in this appeal.
In 1968, Broaddus sought habeas corpus relief in the Federal District Court, and, after a counseled evidentiary hearing, relief was denied. On appeal, this order was affirmed by the United States Court of Appeals for the Third Circuit. See United States ex rel. Broaddus v. Rundle, 429 F.2d 791 (3rd Cir. 1970).
In August 1970, Broaddus filed a second petition in the trial court under the Post Conviction Hearing Act, which was denied without a hearing. The instant appeal challenges the correctness of that order.*fn2
The prosecution emanated from the fatal shooting of a security guard in a housing project in Philadelphia on August 15, 1959. Three days after the occurrence, Broaddus surrendered voluntarily to the police and, during the questioning, admitted being involved in the shooting, but said the victim was shot by his own gun during a tussle between the two. He said Murray Dickerson was with him at the time. A preliminary hearing was held, and Broaddus was ordered committed to the county prison to await grand jury action. Within a few hours after his commitment, the police requested a judge of the Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions in Philadelphia to sign a "bring-up" order, i.e., authority to transfer Broaddus temporarily from the prison to the district attorney's office in City Hall for further questioning. The order was executed and Broaddus was transferred and questioned as indicated. During this questioning, Broaddus again admitted his involvement in the shooting, and also stated he stole the victim's watch and wallet after the shooting. Broaddus was without counsel during this questioning.
At the hearing to determine the degree of guilt, evidence of the inculpatory statement made by Broaddus in the district attorney's office following the "bring-up" order was introduced against him without objection. Broaddus now contends the admission of this evidence violated due process. He argues the "bring-up" order proceeding was a critical stage in the prosecution process at which he was entitled to be represented by counsel, and since the statement resulted from a proceeding conducted under circumstances constitutionally impermissible, it could not be used as evidence against him.*fn3
This very same argument was urged upon this Court in Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970), and upon the United States Court of Appeals for the Third Circuit in United States ex rel. Dickerson v. Rundle, 430 F.2d 462 (3rd Cir. 1970), and in both instances the Court ruled a "bring-up" order proceeding is not a critical stage in the prosecution process where the accused is entitled to be represented by counsel. Broaddus contends White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963),*fn4 and Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961), compel a different conclusion. We disagree.
Initially, it is clear the principles enunciated in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970), have no application instantly. Consequently, we do not now decide if a "bring-up" order proceeding is a critical stage under Coleman. In Coleman, the Supreme Court of the United States ruled the determination of whether a judicial proceeding is a critical stage depends upon an examination of "whether potential substantial prejudice to defendant's rights inheres in the * * * confrontation and the ability of counsel to help avoid prejudice." This formula, however, is not applicable to the 1958 "bring-up" order proceeding under consideration, since the Supreme Court has expressly ruled the Coleman decision is not to be given retroactive effect. See Adams v. Illinois, 405 U.S. 278, 92 S. Ct. 916 (1972).
To adopt Broaddus' position that White and Hamilton control the disposition of the instant case would require giving these two cases an overly broad reading and application. We view White and Hamilton as holding
a judicial proceeding is a critical stage only in cases where lack of an attorney at the proceeding directly prejudices the accused. Hence, to come within the holding of these two cases the prejudice must have arisen at a judicial proceeding. In White, there was prejudice because a plea of guilt at the preliminary hearing was subsequently used against the accused at trial. Likewise, in Hamilton, there was prejudice because if the accused failed to assert a defense at the preliminary hearing, the defense could be lost forever. Thus, the lack of the assistance of an attorney gave rise to prejudice during the proceeding, which affected the accused's rights at trial. Presently, the complained of prejudice did not arise during the proceedings in which the "bring-up" order was requested and granted.
In Adams v. Illinois, supra, Mr. Justice Brennan, in discussing the retroactive application of Coleman, clearly expressed the view of the Supreme Court that White and Hamilton are narrow in their import. He stated: "We do not think that law enforcement authorities are to be faulted for not anticipating Coleman. There was no clear foreshadowing of that rule. A contrary inference was not unreasonable in light of our decision in Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114, and White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963). Hamilton denominated the arraignment stage in Alabama critical because defenses not asserted at that stage might be forever lost. White held that an uncounseled plea of guilty at a Maryland preliminary hearing could not be introduced by the State at trial. Many state courts not unreasonably regarded Hamilton and White as fashioning limited constitutional rules governing preliminary hearings." 405 U.S. 283, 92 S. Ct. at 920.
In United States ex rel. Dickerson v. Rundle, supra, in ruling White and Hamilton did not mandate a "bring-up" order proceeding to be a critical stage, the
Court aptly stated: "The doctrines of White v. Maryland, supra [and] Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961) . . . are judicially crafted benchmarks which delineate particular phases in criminal proceedings when the right to counsel attaches absolutely under the Sixth Amendment. But this right attaches not so much by the chronology of proceedings or even by the interposition of ancillary judicial proceedings as it does by the accumulation of a circumstantial complex which heightens the probability that there will be violence to constitutional rights of one whom the authorities are prosecuting. . . .
"Similarly, the judicial proceedings designed to cause a 'bring-up order' to issue was not a critical proceeding. The issuance of the 'bring-up order' for Dickerson was not a judicial inquiry into guilt vel non of the defendant; it was an administrative procedure authorizing the transfer of the prisoner from the county prison to police headquarters to make him available for questioning. Prior to the preliminary hearing, the prisoner could have been moved from one police lockup to another stationhouse or to detective headquarters without the necessity of any court order. Such movement, in and of itself, would not create a situation in which there would be a right to counsel. The issuance of a court order which accomplished, after a preliminary hearing, that which could have been effected before the hearing without such an order does not, in our view, constitute the critical event in the chain of proceedings." 430 F.2d at 466.*fn5
Hence, we conclude White and Hamilton are only applicable where the complained of prejudice arose in the proceeding.*fn6 ...