Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1960, No. 344, in case of Commonwealth of Pennsylvania v. James Pickett.
Patrick F. Casey, and Burgess, Casey & Janson, for appellant.
Jeffrey Philip Paul, James T. Ranney and Milton M. Stein, Assistant District Attorneys, 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 Manderino. Mr. Justice Pomeroy and Mr. Justice Nix concur in the result. Mr. Chief Justice Jones dissents.
The appellant, James Pickett, was convicted by a jury of first degree murder in 1962. Post-trial motions
were denied on April 29, 1963, without opinion, and the appellant was sentenced to life imprisonment. No appeal was taken following the denial of post-trial motions. On June 7, 1967, the appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. §§ 1180(1)-(4). Relief was denied and an appeal was taken to the Superior Court which certified the appeal to this Court since it involved felonious homicide. On November 11, 1968, this Court, at the prosecution's request, remanded the case for the appointment of counsel to assist the appellant in filing a direct appeal from his judgment of sentence. The original trial judge then filed an opinion, dated February 24, 1971, in support of his April 29, 1963, denial of post-trial motions. This direct appeal from the judgment of sentence followed.
The victim's death occurred as a result of injuries sustained during the commission of a robbery. On June 2, 1960, the victim, Artis Watson, was robbed at 22nd and Federal Streets in Philadelphia. The appellant admitted he struck the victim in the face with his right hand, causing the victim to fall backwards. The victim hit his head on the ground and lay absolutely still. The appellant also admitted that he and his companions then took certain items from the victim, including a watch, some keys, a plastic case containing cards, and some change. The prosecution contended that the robbery was the motive for striking the victim. The appellant denied that he struck the victim with the intent to rob. He said that the robbery was an afterthought. The appellant said that he struck the victim because, as they were crossing the street, the victim, known to the appellant as a homosexual, grabbed appellant's arm and whispered "Come along."
One of the appellant's contentions is that a statement which he gave to the police should not have been admitted into evidence during the trial because he had
not knowingly, intelligently, and voluntarily waived his constitutional rights prior to giving the statement to the police. There was no waiver according to the appellant because he was not given the full Miranda warnings. There is no merit to this argument. Appellant's trial was in 1962. The failure to give full Miranda warnings at that time does not require a conclusion that the appellant did not knowingly, intelligently and voluntarily waive his constitutional rights. Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), is only applicable to trials which took place after June 22, 1964. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), is only applicable to trials which took place after June 13, 1966. Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966); Commonwealth v. Hardy, 423 Pa. 208, 223 A.2d 719 (1966). The appellant has made no claim that his statement was involuntary under the totality of the circumstances test. Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966). We have, nonetheless, reviewed the record and conclude that the appellant's statement was voluntary.
The other questions raised by the appellant concern a claim that he did not receive the effective assistance of trial counsel. The prosecution contends that the appellant has waived his right to raise this claim because it is raised for the first time in this direct appeal. A waiver, however, cannot be found, where, as in this case, trial counsel fails, before the judgment of sentence, to question his own effectiveness as trial counsel. Under these circumstances, on direct appeal, an appellant is entitled to a review of a claim of ineffective assistance of counsel at trial unless the issue has been finally litigated. Appellant's claim ...