Com. v. Snyder

• Decision Date: 26 September 1967
• Citation: 427 Pa. 83,233 A.2d 530
• Parties: COMMONWEALTH of Pennsylvania v. George M. SNYDER, Appellant.
• Court: Pennsylvania Supreme Court

Page 530

233 A.2d 530

427 Pa. 83

COMMONWEALTH of Pennsylvania v. George M. SNYDER, Appellant.

Supreme Court of Pennsylvania.

Sept. 26, 1967.

George M. Snyder, Philadelphia, for appellant

Richard S. Lowe, Dist. Atty., Richard A. Devlin, Asst. Dist. Atty., Henry T. Crocker, Asst. Dist. Atty., Norristown, for appellee.

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

OPINION OF THE COURT

ROBERTS, Justice.

George M. Snyder was convicted in 1961 of voluntary manslaughter and sentenced to a term of 6 to 12 years. After new trial motions asserting several evidentiary errors were denied, Snyder appealed to this Court which affirmed his conviction. Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962). On May 23, 1966 appellant filed a petition under the Post Conviction Hearing Act. The court below appointed counsel, denied Snyder's request for a hearing and after argument dismissed the petition.

In this appeal from dismissal of the post conviction petition, Snyder alleges--in a pro se petition and brief notable for both their length and sophistication--that four coerced 'confessions' were introduced at his trial, that the Commonwealth employed perjured testimony, that false statements by the trial judge in both his charge and opinion obstructed appellant's right to appeal, that the lower court's dismissal without a hearing of the post conviction petition was a denial of due process and an unconstitutional suspension of the writ of habeas corpus, and that appellant's sentence exceeds the statutory maximum. We shall treat each of these contentions seriatim.

The Coerced Confession Claim

Snyder insists that four coerced 'confessions' were admitted into evidence at his trial: (1) an oral statement, the notes of which were read at trial; (2) a written, statement (Commonwealth's Exhibit #35); (3) testimony as to a re-enactment of the crime performed by appellant and several police officers; and (4) appellant's own trial testimony. Since we have decided that these coerced confession allegations cannot be raised for the first time collaterally, we will not question appellant's classification of the latter two events as 'confessions.'

The record, combined with an affidavit filed by appellant's trial counsel, supports Snyder's assertion that the first two of the four confessions were obtained under circumstances violative of the rules announced in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). However, the United States Supreme Court decided in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) that both the Miranda and Escobedo decisions would be denied retroactive application--the Miranda rules would be applied only to persons whose trials had not begun as of June 13, 1966 and the Escobedo decision to trials commenced after June 22, 1964. See Commonwealth v. Senk, 423 Pa. 129, 223 A.2d 97 (1966). Trial in the instant case commenced more than three years before June 22, 1964 so that appellant cannot avail himself of these two landmark decisions, at least to the extent that they hold that failure to give an accused opportunity to consult with counsel or absence of police attempts to advise the accused of his constitutional rights per se constitute a due process deprivation.

The non-retroactivity announced in Johnson was to an uncertain extent mitigated by the Supreme Court's pronouncement that police failure to comply with the doctrines of Escobedo and Miranda could form the basis of a claim that the accused's confession was involuntary:

'Thus while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.' 384 U.S. at 730, 86 S.Ct. at 1779.

See Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966). Based primarily upon this statement, appellant contends that he is entitled to a hearing on his involuntariness allegations under the doctrine of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). We disagree and hold that appellant has waived ¹ any coerced confession claim and has deliberately bypassed state procedures available to litigate this allegation.

Beginning with Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965), as amplified by Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A.2d 730 (1966), this Court has consistently held that failure to raise at trial the issue of voluntariness precludes later, collateral attempts challenging the voluntariness of the accused's confession. We need not detail here, as we did in Fox and Mullenaux, the reasons supporting our insistence upon a contemporaneous objection to the admission of an allegedly involuntary confession other than to note our continuing judgment that a requirement of contemporaneous objection ² is vital to the orderly administration of criminal trials and clearly serves a legitimate state interest. The record in the instant case is barren of any conduct by either counsel or appellant indicating that the voluntariness of the confessions was challenged. ³

Implicit in our decision in Fox, as demonstrated by our reliance upon Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), was a realization that, although we might find that the accused's failure to object constituted a waiver of his federal claim, ⁴ in any collateral federal proceeding the federal court would examine whether the habeas applicant had deliverately by-passed state procedures. See Fay v. Noia, 372 U.S. 391, 439--440, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963). Henry was convicted partially on the basis of evidence allegedly seized in violation of the Fourth Amendment; his counsel failed to object when the evidence was admitted, though he did assert this alleged constitutional error as the basis for his directed verdict motion. Finding that the state had not yet had an opportunity to establish the presence of a waiver, the Supreme Court remanded the case to the state courts with full recognition that 'petitioner might still pursue vindication of his federal claim in a federal habeas corpus proceeding in which the procedural default will not alone preclude consideration of his claim, at least unless it is shown that petitioner deliberately by-passed the orderly procedure of the state courts.' Henry v. State of Mississippi, supra , 379 U.S. at 452, 85 S.Ct. at 570. The clear import of Henry is that, where the state courts make no attempt to resolve the deliberate by-pass issue, a federal court will do so. We accept the opportunity. ⁵

The deliberate by-pass concept has its origin in the following statement found in Fay v. Noia, supra, 372 U.S. at 439, 83 S.Ct. at 849:

'If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the Deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits--though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default. (Citation omitted.) At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner. (Citations omitted.) A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court's finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question.' (Emphasis supplied.)

Noia had been convicted of murder on the basis of a coerced confession and sentenced to life imprisonment; no appeal was taken. After his co-conspirators' confessions were found constitutionally infirm, Noia filed a collateral, coram nobis proceeding in a New York state court. The state petition was unsuccessful as was Noia's federal district court habeas petition--both state and federal district court found that Noia's failure to appeal waived his federal claim. The United States Supreme Court granted relief for it found no deliberate by-pass of state procedure. Characterizing Noia's choice, whether to accept a life sentence or, if his appeal was successful, retrial and a possible death sentence, as 'grisly,' ⁶ the Court found neither a tactical litigation choice nor a deliberate by-pass. ⁷

Snyder's choice--attacking his confession and thus possibly alienating the jury or permitting its admission without objection--was by no means grisly. The absence of any objection in the instant case is most easily explained in terms of counsel's tactical decision. See footnote 3, supra. Furthermore, although the practice followed for attacking the voluntariness of a confession in this Commonwealth at the time of appellant's trial was unconstitutional in light of Jackson v. Denno, supra, ⁸ Pennsylvania procedure did nevertheless afford a mechanism for attacking the confession. Upon request counsel could obtain a preliminary determination regarding the confession's admissibility, but if the court decided that the question of the voluntary nature of the confession was one of fact, this factual issue was resolved by the same jury that determined the question of guilt. See Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389 (1941); Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161 (1923); Laub, Pennsylvania Trial Guide § 81.2 (1959). ⁹ Appellant...