Anthony D. Pirillo, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case. Pomeroy, J., concurs in the result. Roberts, J., files a Dissenting Opinion in which Manderino, J., joins.
This appeal arises from the dismissal, without a hearing, by the Court of Common Pleas of Philadelphia, of the counseled Post Conviction Hearing Act Petition of appellant, Edward Bennett. The facts surrounding this appeal are as follows.
In October, 1965, appellant was tried by a judge sitting with a jury and was convicted of murder in the second degree, aggravated robbery and conspiracy. On March 18, 1966, post-verdict motions were denied, and appellant was sentenced to ten to twenty years' imprisonment for conviction of murder in the second degree, ten to twenty years' imprisonment on the aggravated robbery conviction and one to two years' imprisonment for the conspiracy conviction. All sentences were to run consecutively. Appellant filed a direct appeal to this court from the above convictions. On March 21, 1967, this court affirmed his judgment of sentence in a per curiam order. (Mr. Justice Eagen filed a dissenting opinion joined by Mr. Justice Roberts.)*fn1 Commonwealth Page 319} v. Bennett, 424 Pa. 650, 227 A.2d 823 (1967); cert. denied, 389 U.S. 863, 88 S.Ct. 122, 19 L.Ed.2d 132 (1967).
Appellant then sought a writ of habeas corpus in federal district court. This application was denied and appellant sought review by the United States Court of Appeals for the Third Circuit. The Court of Appeals remanded the matter to the Pennsylvania state courts for a public suppression hearing. U.S. ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir. 1969).
Pursuant to the order of the Third Circuit, a public suppression hearing was held on November 25, 1970. The suppression motion was denied on December 17, 1970, and appellant appealed the denial of his motion to suppress to this court, which affirmed the order of the court below. Commonwealth v. Bennett, 445 Pa. 8, 282 A.2d 276 (1971).
On December 2, 1975, appellant filed a counseled Post Conviction Hearing Act Petition, which was dismissed, without an evidentiary hearing, by the Court of Common Pleas of Philadelphia. This appeal followed.
Appellant first argues that he was denied his right of confrontation under the Sixth Amendment to the United States Constitution when the court below allowed the confession of a co-defendant, Willie Hamilton, to be read into the record. Appellant was tried separately from Hamilton.
The Commonwealth presented the testimony of Sgt. D. Bennett (unrelated to appellant), which testimony consisted of a verbatim excerpt from the confession of Hamilton. The excerpt named appellant as the man who did the shooting. Defense counsel objected and the objections were overruled. Appellant has characterized the admission of Hamilton's confession as a violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) (which made Bruton retroactive).
We are of the opinion, however, that Bruton is not controlling in the instant case. Bruton was concerned with the joint trial of two co-defendants and the admission of a confession of one co-defendant which also inculpated the other co-defendant. See Commonwealth v. Ransom, 446 Pa. 457, 464, at n. 4, 288 A.2d 762 (1971). Appellant's claim is a pure right-to-confrontation case rather than a Bruton issue and, therefore, is governed by Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), Douglas v. Alabama 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640 (1963).
Having clarified the nature of appellant's claim, we are of the opinion that the issue is "waived".
§ 1180-4 of the Post Conviction Hearing Act provides:
"(b) For the purposes of this act, an issue is waived if:
"(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or any other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
"(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his ...