Com. ex rel. Mount v. Rundle

• Decision Date: 18 April 1967
• Citation: 228 A.2d 640,425 Pa. 312
• Parties: COMMONWEALTH of Pennsylvania ex rel. George A. MOUNT, Appellant, v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania.
• Court: Pennsylvania Supreme Court

Page 640

228 A.2d 640

425 Pa. 312

COMMONWEALTH of Pennsylvania ex rel. George A. MOUNT, Appellant, v. Alfred T. RUNDLE, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania.

Supreme Court of Pennsylvania.

April 18, 1967.

Stephen M. Feldman, Robert E. Lenton, Philadelphia, for appellant.

Alan J. Davis, Asst. Dist. Atty., Philadelphia, for appellee.

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

OPINION

JONES, Justice.

George Mount entered a plea of guilty to murder generally and, after a hearing, a three-judge court unanimously found him guilty of murder in the first degree ¹ and, after a hearing under the so-called 'Split Verdict Act' (Act of December 1, 1959, P.L. 1621, § 1, 18 P.S. § 4701), the court unanimously imposed upon Mount the sentence of death. On direct appeal to this Court, we affirmed the judgment of sentence: Commonwealth v. Mount, 416 Pa. 343, 205 A.2d 924 (1965), cert. den. 381 U.S. 954, 85 S.Ct. 1815, 14 L.Ed.2d 727 (1965).

Six months later, Mount petitioned Court of Common Pleas No. 2 of Philadelphia County for the issuance of a writ of habeas corpus alleging that the judgment of sentence of death was illegal, void and in violation of his constitutional rights. That court dismissed, without hearing, Mount's petition and from that order Mount has appealed to this Court.

As pertinent to this appeal, the factual background may be briefly stated. ² Frances Lieberman--a 23 year old pregnant woman--was found dead in her apartment in Philadelphia on August 29, 1963, her death being the result of thirteen stab wounds which, in the medical examiner's opinion, caused death within five minutes after infliction of the wounds. Four days later--September 2, 1963--Mount was apprehended by the police and, on that same day, he made a written statement wherein, inter alia, he admitted stabbing the victim. The next day--September 3, 1963--Mount was given a preliminary hearing at which he was held without bail for grand jury action. Three days subsequent to the preliminary hearing--September 6, 1963--the police, having by that time been furnished with certain information, obtained from findings in the criminal laboratory, which led them to believe that Mount had sexually assaulted the victim, took a second written statement from Mount in which he said that, after stabbing the victim, he went into the living room, removed his clothes preparatory to having sexual intercourse with the victim, returned to where she was lying, picked up her legs and dropped them again because he could not go through with it. This second statement further related that, thereafter, Mount went back into the living room, got dressed, took some money, took the knife out of the victim and left the premises.

On September 11, 1963, Mount was indicted for murder. He then requested the appointment of counsel and counsel were appointed.

On this appeal no challenge is made to the sufficiency of the evidence to justify the finding of murder in the first degree or to the Voluntariness of the two confessions which Mount made. The challenge is to the sentence of death and two-fold in nature: (a) that the second confession--obtained when Mount was without counsel, had not been warned of his right to remain silent and After the preliminary hearing--should not have been admitted into evidence at his trial and, had it not been received in evidence, the court, in determining the appropriate sentence, could not have considered, as it did, the contents of that confession which evidenced an intent to sexually assault the victim; (b) that, even though the evidence other than that obtained through the use of the second confession might have justified the death penalty, the facts contained in the allegedly inadmissible confession did play a large factor in determining the appropriate penalty.

In passing upon the admissibility of the second confession, it must be borne in mind that the trial of Mount took place in January, 1964, almost six months prior to the ruling of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 476, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). By reason of Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), the rulings of the United States Supreme Court in Escobedo and in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) are inapplicable to cases tried prior to the date of such rulings except as to challenges to confessions which necessarily involve the voluntariness of such confessions. Originally, Mount relied on Escobedo; however, in the light of Johnson, he has changed his position and he now contends that both Escobedo and Miranda simply extended the rulings previously made in Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) both of which vitiated confessions made in the absence of counsel.

We do not consider either Spano or Massiah presently apposite. In both Spano and Massiah, ³ the challenged confessions were made after indictments had been returned whereas in the case at bar the challenged confession was made prior to Mount's indictment. In Spano, the confession was attacked primarily on the ground that it was made involuntarily while voluntariness is conceded in the case at bar.

The validity of the challenged second confession must be evaluated under Pre-Escobedo legal principles. At the time the second confession was obtained, Mount had been warned by the police that anything which he said would be used for or against him at trial but he had not been warned of his right to remain silent and of his right to have the assistance of counsel. In Commonwealth ex rel. Mumford v. Cavell, 423 Pa. 280, 223 A.2d 852 (1966), this Court, speaking through Mr. Justice Roberts, said: 'Petitioner's principal contention is that his confession was improperly admitted at his trial because it was obtained during custodial interrogation in the absence of counsel and without the police warning him of his right to remain silent. This fact, in and of itself, does not vitiate petitioner's Pre-Escobedo trial. Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 223 A.2d 296 (1966); Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 222 A.2d 856 (1966).' (at p. 282, 223 A.2d at p. 853). During the custodial interrogation of Mount in September, 1963, he had no Absolute right to the assistance of counsel at that stage of the proceedings. In Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 1292, 2 L.Ed.2d 1448 (1958), the Court stated: 'Under these principles, state refusal of a request to engage counsel violates due process not only if the accused is deprived of counsel at trial on the merits * * * but also if he is deprived of counsel for any part of the pretrial proceedings, provided that he is so prejudiced thereby as to infect his subsequent trial with an absence of 'that fundamental fairness essential to the very concept of justice'.' See also: Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958); Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A.2d 730 (1966). Proof of such prejudice, of course, would render Mount's confession inadmissible but the instant record reveals no such prejudice present.

Mount made no request for counsel until five days subsequent to his indictment at which time counsel was furnished. We recognize that this Court in Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), following the ruling in United States ex rel. Russo v. New Jersey, 351 F.2d 429 (CA 3, 1965), did hold that a request for counsel was unnecessary to invoke the constitutional privilege and that, in Miranda, supra,--presently inapplicable--the Court stated that 'an individual need not make a pre-interrogation request for a lawyer' and 'his failure to ask for a lawyer does not constitute a waiver.' 384 U.S. 436, at p. 470, 86 S.Ct. 1602, at p. 1626. However, the law during the Pre-Escobedo and Pre-Miranda periods did require that the accused Request counsel, otherwise a waiver would occur. In Commonwealth v. Schmidt, 423 Pa. 432, 224 A.2d 625 (1966), this Court, speaking through Mr. Justice Eagen, said: 'A close study of the opinions in these cases (Miranda and Johnson) compels the conclusion that our original interpretation of Escobedo was correct. In other words, under Escobedo, supra, an individual is not unconstitutionally deprived of the assistance of counsel during police questioning, unless he requested such assistance and was not effectively warned of his right to remain silent. We now accept this final definitive ruling of the United States Supreme Court as controlling on the question.' (at p. 440, 224 A.2d at p. 629). See also: Commonwealth v. Jefferson, 423 Pa. 541, 544, 226 A.2d 765 (1966).

That Mount had not been warned of his right to remain silent and to have the assistance of counsel Per se did not render the second confession inadmissible at the time of Mount's trial: Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Commonwealth v. Cheeks, 423 Pa. 67, 74, 223 A.2d 291 (1966); Commonwealth ex rel. Shadd v. Myers, 423 Pa. 82, 89, 223 A.2d 296 (1966).

In Davis v. North Carolina, supra,--decided on the same date as Miranda--the accused, as in the case at bar, was advised he did not have to make a statement and that any statement he made could be used for or against him at trial but was given no other warning. The Supreme Court observing that such lack of warning would be held improper under Miranda, ⁴ nevertheless, held that the judgment of sentence could not be reversed 'solely on the ground that warnings were not given and waiver not shown'. (384 U.S. at p. 740, 86 S.Ct. at p. 1764). However, the Court, noting that the failure to warn an accused of his right to counsel or to remain silent constituted a ...