Carl B. Stoner, Jr., Harrisburg, for appellant.
LeRoy S. Zimmerman, Dist. Atty., Harrisburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., joins in this opinion and files a concurring opinion in which O'Brien and Manderino, JJ., joined. Eagen, J., concurs in the result. Pomeroy, J., concurs in the result.
Appellant formerly filed a direct appeal to this Court from a conviction for murder in the first degree where the jury had imposed the penalty of death. After consideration of the full record, the briefs and oral argument of the parties in an opinion filed September 19, 1973,*fn1 we reversed the judgment of sentence and awarded the grant of a new trial. A request for reargument was refused on December 21, 1973. Thereafter, the Commonwealth petitioned the United States Supreme Court for a writ of certiorari, which request after due consideration was subsequently granted. By order of June 17, 1974, 417 U.S. 964, 94 S.Ct. 3166, 41 L.Ed.2d 136, the United States Supreme Court vacated the aforementioned order of this Court and remanded the cause to us for further consideration in view of their decision in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d
(1974). Pursuant to this directive, argument was again had on January 13, 1975, and the matter is now ripe for disposition.
A detailed statement of the facts, giving rise to this conviction, appears in our earlier opinion and need not here be repeated. The specific issue considered was the admissibility of oral and signed written statements which were elicited from the accused without first advising him of the right to appointed counsel if he was indigent and unable to bear the expense of representation. The custodial interrogation pre-dated the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but the trial commenced (January 9, 1967) after that decision had been announced.
The Commonwealth now argues that the United States Supreme Court's decision in Michigan v. Tucker, supra, requires that we must alter our former view as to the admissibility of the questioned statements. We do not agree.
First it is clear that Michigan v. Tucker, supra, does not alter the Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) ruling that Miranda standards are applicable to pre- Miranda custodial interrogations where the trial commenced after Miranda. It is also obvious that the issue addressed by the United States Supreme Court in the majority opinion in Tucker is materially different from the issue to be decided in this appeal. In both instances the Miranda violation consisted of the failure to advise the suspect of his right to free counsel if he was indigent. Here the similarity ends.
In Tucker, the statement was excluded in the state trial and that ruling was not challenged. The controversy in that cause centered around the right of police officials to use the testimony of a witness whose ...