No. 56 January Term 1978, Appeal from the Order under the Post Conviction Hearing Act of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at No. 1657 February Term 1972.
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty., Robert B. Lawler, Chief, Appeal Div., Paul S. Diamond, Asst. Dist. Attys., for appellant.
James J. Phelan, Jr., Philadelphia, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., and Pomeroy, former J., did not participate in the decision of this case.
On February 9, 1973, John Holly was convicted of murder of the first degree by a jury following trial in the Court of Common Pleas of Philadelphia. After denial of post-verdict motions, judgment of sentence of life imprisonment was imposed. A direct appeal resulted in affirmance of the
judgment of sentence by an equally divided court.*fn1 Commonwealth v. Holly, 463 Pa. 142, 344 A.2d 465 (1975) (Nix, J., absent).
On June 3, 1976, Holly filed a petition seeking post-conviction relief pursuant to the Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1978-79) [Hereinafter: PCHA]. Counsel was appointed, and an amended petition was filed. A hearing was scheduled on the petition, but Holly chose not to offer any evidence. Following oral argument on the petition, the PCHA court ordered the judgment of sentence vacated and granted a new trial. This appeal by the Commonwealth from that order followed.
In granting relief, the PCHA court ruled the admission into evidence at trial of an incriminatory statement given by Holly to police constituted reversible error because it was obtained in violation of the mandate of Pa.R.Crim.P. 130 as interpreted in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), and, alternatively, because it was not a voluntary act by Holly. Additionally, the court ruled that the foregoing issues had not been "finally litigated" under Sections 3(d) and 4 of the PCHA, 19 P.S. §§ 1180-3(d) and 4 (Supp.1978-79), because on direct appeal this Court affirmed by an equally divided court, and that both issues were cognizable under the PCHA because each is of constitutional dimension.
We will affirm the order of the PCHA court granting a new trial because we agree with its conclusion that Holly's incriminating statement was obtained under coercive circumstances and hence, should have been suppressed pretrial.*fn2 The Commonwealth does not dispute ...