Com. ex rel. Johnson v. Rundle

• Decision Date: 09 October 1970
• Parties: COMMONWEALTH of Pennsylvania ex rel. Robert JOHNSON, Appellant, v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 183

270 A.2d 183 440 Pa. 485 COMMONWEALTH of Pennsylvania ex rel. Robert JOHNSON, Appellant,
v.
Alfred T. RUNDLE, Superintendent, State Correctional
Institution, Philadelphia, Pennsylvania. Supreme Court of Pennsylvania. Oct. 9, 1970.

[440 Pa. 486] Leon H. Kline, Philadelphia, for appellant.

[440 Pa. 487] Arlen Specter, Dist. Atty., [440 Pa. 486] James D. Crawford, Chief, Appeals Div., Samuel T. Swansen, Asst. Dist. Attys., Philadelphia, for appellee.

Before BELL, C. J., and JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

[440 Pa. 487]

Page 184

OPINION OF THE COURT

PER CURIAM.

In 1946 appellant pleaded guilty to murder generally. Following a degree of guilt hearing, he was found guilty of murder in the first degree and sentenced to death, a sentence which was later commuted to life imprisonment. No appeal was taken. In 1965 appellant filed a habeas corpus petition, in which he alleged that his confession was elicited at a critical state in the proceedings, but without the presence of counsel, and hence its admission into evidence at the degree of guilt hearing constituted error. The hearing court found against appellant, the petition was dismissed, and an appeal taken.

In 1968 appellant filed a PCHA petition, alleging that the confession was obtained unconstitutionally through physical force, that this confession primarily motivated his guilty plea, and hence the plea was invalid, and that he was denied his right of appeal. Again the hearing court found against appellant, and an appeal was taken. Both cases being on appeal at the same time, we had them consolidated and argued together.

Appellant's initial contention is that his confession was elicited at a time when counsel's presence was constitutionally required. The evidence shows that immediately after appellant had his preliminary hearing the police kept him in their custody and interrogated him, securing his confession, rather than returning him to the city prison to which the magistrate and committed him. Since this interrogation occurred After the preliminary hearing, petitioner urges that it therefore constituted a critical stage in the proceedings, and that the [440 Pa. 488] sixth amendment required the presence of counsel. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Commonwealth v. Dickerson, 428 Pa. 564, 565, 237 A.2d 229, 230 (1968) (dissenting opinion); cf. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). But see Commonwealth ex rel. Mount v. Rundle, 425 Pa. 312, 319-320, 228 A.2d 640, 644-645 (1967).

Appellant's contention has now been answered by the Third Circuit in United States ex rel. Dickerson v. Rundle, 430 F.2d 462 (3d Cir. 1970) (en banc) (Hastie, C. J., Freedman and Adams, JJ., dissenting). There the majority of the court held that a defendant, interrogated After his preliminary hearing, and pursuant to an ex parte bring-up order, 'stood in the same legal shoes as did the defendant in Massiah,' id. at 467, and hence his interrogation did constitute a critical stage requiring counsel. Massiah's protection, however, is not to be retroactively applied, so that...