Com. v. Dickerson

Decision Date09 January 1968
Citation237 A.2d 229,428 Pa. 564
PartiesCOMMONWEALTH of Pennsylvania v. Murray DICKERSON, Appellant.
CourtPennsylvania Supreme Court
Walter Stein, Philadelphia, for appellant

Arlen Specter, Dist. Atty., Alan J. Davis, Asst. Dist. Atty. Chief, Appeals Div., Joseph M. Smith, Asst. Dist. Atty., Chief, Litigation Div., Philadelphia, for appellee.

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

OPINION OF THE COURT

PER CURIAM.

Order affirmed.

ROBERTS, J., files a dissenting opinion.

DISSENTING OPINION

ROBERTS, Justice.

Murray Dickerson was arrested on August 19, 1958 in connection with the murder of one Duffey. On the day of arrest he was questioned by police and a statement was obtained. Sometime on the morning of the following day Dickerson was given a preliminary hearing before a magistrate and a commitment order was signed placing Dickerson in the hands of the prison authorities 'there safely to keep to answer at the next Court of Oyer and Terminer.' 1 Apparently dissatisfied with Dickerson's responses during the first interrogation, the district attorney obtained a 'bring-up' order 2 on the afternoon of the 20th to have Dickerson taken from prison to police headquarters for further questioning. This second period of interrogation produced a statement which was substantially more incriminating than that first obtained; this statement was admitted over strenuous objection at Dickerson's trial.

It is conceded by the Commonwealth that the 'bring-up' order is obtained ex parte without notice to either the prisoner or his counsel; in fact, it appears that the district attorney merely handed a Quarter Sessions judge an order which was perfunctorily signed without any inquiry as to the purpose of the proposed bring-up. Dickerson strenuously contends, and I agree, that this procedure was a sufficient violation of his constitutional rights to warrant the grant of a new trial.

To place Dickerson's contention in context a discussion of the rather complex prior litigation involving this claim is necessary. In direct appeal from his conviction Dickerson did contest the legality of the bring-up order and was rebuffed by this Court. See Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). A habeas corpus action was then instituted. We denied relief, see Commonwealth ex rel. Dickerson v. Rundle, 411 Pa. 651, 192 A.2d 347, cert. denied, 375 U.S. 915, 84 S.Ct. 214, 11 L.Ed.2d 154 (1963), holding that the habeas action presented questions identical to those answered on direct appeal and rejecting Dickerson's contention that he was entitled to counsel's aid in preparation of his habeas petition. Having exhausted his state remedies, Dickerson filed a federal habeas corpus petition which was granted by the district court primarily on the basis that the second statement was obtained at a time when representation of counsel is constitutionally required. See United States ex rel. Dickerson v. Rundle, 238 F.Supp. 218 (E.D.Pa.1965). The Commonwealth appealed to the Third Circuit and that court modified the district court order, giving the Commonwealth the option of releasing Dickerson or granting him a Jackson v. Denno hearing in a state trial court. See United States ex rel. Dickerson v. Rundle, 363 F.2d 126 (3d Cir. 1966), cert. denied, 386 U.S. 916, 87 S.Ct. 880, 17 L.Ed.2d 790 (1967). It is from the denial below of Jackson v. Denno relief that Dickerson now appeals; however, he continues to press for a new trial on the basis of the bring-up procedure.

Although in Dickerson's direct appeal this Court insisted that there was 'nothing sinister or secretive' about the bring-up procedure, I believe that both of these adjectives Are unquestionably applicable. Not only was this bring-up order issued ex parte, but it is also condemned by state statute. 3 Judge Finletter, in ringing language with which I heartily concur, highlighted the evils inherent in this practice. See Commonwealth v. Brines, 50 C.C.R. 68, 29 Dist. 1091 (1920):

'I do not see that I have any power, by my mere order, to take the defendant against his will from the county prison, to which he has been lawfully committed to await trial, for any other purpose connected with his case except the trial.

'By the terms of the commitment, he is to remain in the county prison to answer the charge or murder, not to answer the call of any and every person, official or other, who may wish to meet him or speak to him. If his presence elsewhere is needed to answer any lawful demand which he would be compelled to answer if at liberty, it may be secured by a proper writ of Habeas corpus.

'It seems to be forgotten that an accused is not a convict, and that it is only strong necessity that compels his detention Before trial. It is a restraint of the liberty of his person which is unavoidable. It certainly should not be aggravated by the infliction of any unnecessary indignity.

'An accused, but unconvicted, prisoner is not to be bundled about the county at the beck and call of every policeman or prosecutor who may wish to see him.' (Emphasis in original.)

I believe that Dickerson should be granted a new trial for the very simple reason that the bring-up request constituted a 'critical stage' in these proceedings, a critical stage at which Dickerson was unrepresented by counsel. 4 White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) clearly demonstrates that a preliminary hearing is acritical stage in the proceedings if the prisoner will be put at a substantial disadvantage in the absence of counsel. Our cases usually classify the preliminary hearing as noncritical because nothing, as a rule, there occurs to the detriment of the prisoner. However, if a preliminary hearing can be a critical stage when assistance of counsel is necessary to protect an indigent's rights, would counsel's services have not been equally efficacious in contesting what to me is an illegal bring-up order, an order issued after the preliminary hearing stage had been passed? 5

Alternatively, I believe that the second period of questioning was a critical stage requiring representation of counsel. I well realize that the Third Circuit in United States ex rel. Dickerson v. Rundle, supra, 363 F.2d at 129, a decision followed by this Court in Commonwealth er rel. Mount v. Rundle, 425 Pa. 312, 319--320, 228 A.2d 640, 644--645 (1967) 6 has held that the intervention between the first and second interrogation sessions of the preliminary hearing is without legal significance. I believe that this position is a distortion of the holding of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Massiah, defendant, after indictment and while released on bail, made incriminating statements which were overheard by police through use of a listening device. Holding that these statements could not be employed at Massiah's trial because they were obtained in the absence of ...

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6 cases
  • Commonwealth v. Broaddus
    • United States
    • Pennsylvania Supreme Court
    • March 26, 1974
    ... ... said the victim was shot by his own gun during a tusssle ... between the two. He said Murray Dickerson was with him at the ... time. A preliminary hearing held, and Broaddus was ordered ... committed to the county prison to await grand jury action ... ...
  • United States ex rel. Dickerson v. Rundle
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 21, 1970
    ...proceedings before Judge Wood. This holding was affirmed by the Pennsylvania Supreme Court for the third time in Commonwealth v. Dickerson, 428 Pa. 564, 237 A.2d 229 (1968), with Justice Roberts dissenting on the grounds that the police violated the defendant's right to counsel when they ob......
  • Commonwealth v. Broaddus
    • United States
    • Pennsylvania Supreme Court
    • March 26, 1974
    ... ... being involved in the shooting, but said the victim was shot ... by his own gun during a tussle between the two. He said ... Murray Dickerson was with him at the time. A preliminary ... hearing was held, and Broaddus was ordered committed to the ... country prison to await grand jury ... ...
  • Commonwealth v. Horner
    • United States
    • Pennsylvania Supreme Court
    • September 19, 1973
    ... ... received the relief to which they were constitutionally ... entitled. See, e.g., Commonwealth v. Dickerson, 428 ... Pa. 564, 565, 237 A.2d 229, 230 (1968) (dissenting opinion) ... I note that ... while I agree with the majority that Harris v ... ...
  • Request a trial to view additional results

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