No 80-30-714, Appeal from the Order entered August 21, 1980 by the Court of Common Pleas of Columbia County, Criminal Division, to No. 2, January Term, 1978
Robert L. Marks, Danville (Court-appointed), for appellant.
Marion E. MacIntyre, Sp. Deputy Atty. Gen., for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Roberts, J., filed a concurring opinion in which Wilkinson, J., joined. Flaherty, J., filed a concurring opinion in which Kauffman, J., joins. O'Brien, C. J., and Nix, J., concurred in the result.
On July 11, 1961 appellant Frank Earl Senk killed thirteen-year old Jane Benfield. Appellant was apprehended on January 18, 1962, and while in custody he confessed to the murder. In a jury trial appellant was convicted of murder of the first degree. Motions for a new trial and arrest of
judgment were denied, and appellant was sentenced to death. A direct appeal was taken to this Court which affirmed the judgment of sentence. Commonwealth v. Senk, 412 Pa. 184, 194 A.2d 221 (1963).
In 1964 the U.S. Supreme Court granted certiorari; Senk v. Pennsylvania, 378 U.S. 562, 84 S.Ct. 1928, 12 L.Ed.2d 1039 (1964), and remanded the case to this Court for a review of the voluntariness of appellant's confession in accordance with its decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This Court remanded the proceedings to the trial court for the purpose of conducting a Jackson-Denno hearing. The trial judge determined that appellant's confession was voluntary based on the Jackson-Denno standard. This Court again affirmed the judgment of sentence. Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97 (1966). The U.S. Supreme Court then denied certiorari, Senk v. Pennsylvania, 387 U.S. 914, 87 S.Ct. 1694, 18 L.Ed.2d 638 (1967).*fn1
Represented by the same counsel that represented him at trial and direct appeal, appellant filed his first petition under the Post Conviction Hearing Act*fn2 (hereinafter PCHA) in 1968. Appellant alleged, inter alia, that his confession was the result of an unlawful arrest and should have been excluded from trial. After a hearing, the PCHA court denied relief. This denial was affirmed by this Court. Commonwealth v. Senk, 449 Pa. 626, 296 A.2d 526 (1972).*fn3
Before our affirmance of the PCHA court's denial of his petition, appellant again sought habeas corpus relief in U.S. District Court for the Middle District of Pennsylvania. The District Court denied appellant's petition on March 21, 1972, without a hearing. Appellant appealed to the United States Court of Appeals for the Third Circuit which reversed and remanded the case to the District Court for hearing on the habeas corpus claims. U.S. ex rel. Senk v. Brierley, 471 F.2d 657 (3rd Cir. 1973). Upon remand new counsel was appointed to represent the appellant. After a hearing the District Court denied appellant's petition. U.S. ex rel. Senk v. Brierley, 381 F.Supp. 447 (M.D.Pa. 1974). Specifically, the District Court found, inter alia, that appellant's confession was not the result of an unlawful arrest. The United ...