Com. v. Stevens

• Decision Date: 16 April 1968
• Citation: 429 Pa. 593,240 A.2d 536
• Parties: COMMONWEALTH of Pennsylvania v. Rayford G. STEVENS, Appellant.
• Court: Pennsylvania Supreme Court

Page 536

240 A.2d 536

429 Pa. 593

COMMONWEALTH of Pennsylvania v. Rayford G. STEVENS, Appellant.

Supreme Court of Pennsylvania.

April 16, 1968.

[429 Pa. 594] Appeal from the Order of July 24, 1967 of the Court of Oyer & Terminer of Delaware County at No. 472 June Sessions 1954 Court, Delaware County; Henry G. Sweney, P.J., Judge.

Rayford G. Stevens, in pro. per.

Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Division, Vram S. Nedurian, Asst. Dist. Atty., John R. Graham, First Asst. Dist. Atty., Stephen J. McEwen, Jr., Dist. Atty., Media, for appellee.

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

OPINION OF THE COURT

ROBERTS, Justice.

In Commonwealth ex rel. Berkery v. Myers, Pa., n. 2, 239 A.2d 805, 807 n. 2 (1968) we specifically reserved the question of the extent to which two recent opinions of the Third Circuit Court of Appeals would require this Court, under the doctrine of Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), to modify our view that tacit admissions made prior to Miranda were not retroactively invalid. That question must now be faced.

I.

Appellant Rayford Stevens' 1954 jury trial resulted in a verdict of first degree murder and a sentence of life imprisonment. In this collateral attack, Stevens asserts that trial counsel was incompetent and that the evidentiary use of four tacit admissions at his trial resulted in a deprivation of due process. The first of these allegations has already been adjudicated adversely to appellant, see Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 21, 213 A.2d 613, 624 (1965), and need not be reexamined.

Stevens was accused of participation in the felony-murder of a Chester shopkeeper. In a statement to the police, appellant admitted that he and one Maxwell entered the store but insisted that he intended to purchase a soda, that Maxwell fired the fatal shot after a brief struggle (a fact not disputed at trial) and that he had no knowledge whatsoever of either Maxwell's possession of a pistol or that a robbery was planned. The Commonwealth, to sustain its burden, was thus compelled to connected Stevens with the robbery attempt. This it chose to do Solely by the use of four tacit admissions. After Stevens was warned that he had the right to remain silent and that anything he Said could be used against him at trial, the prosecuting authorities had his statement stenographically recorded and signed. Immediately thereafter, statements obtained from each of the four other alleged participants in the offense were read seriatim to Stevens. Before these four statements were read, Stevens was told that he could make any corrections he wished but not that, if he failed to reply, this failure would result in the use at trial of the statements of his four alleged confederates. Other than one brief comment, Stevens made no reply.

At trial, the Commonwealth's case consisted of medical testimony establishing the cause of death, an employee of the deceased who testified only that Stevens was in the store at the time of the shooting ¹ and the tacit admissions which, in varying degrees, implicated Stevens. ² Stevens, on the other hand, reiterated the version contained in his statement, denying any complicity in the offense.

The two Third Circuit opinions, both authored by Judge Hastie, indicate that not all tacit admissions can be retroactively attacked but make no attempt to isolate those which are constitutionally infirm other than stating that their use must be fundamentally unfair. See United States ex rel Staino v. Brierly, 387 F.2d 597 (3d Cir. 1967); United States ex rel. Smith v. Brierly, 384 F.2d 992 (3d Cir. 1967). However, the Court of Appeals did stress two factors in both opinions--the fact that the tacit admissions were vital to the prosecution case ³ and the presence of a warning of the right to remain silent given prior to the reading of the statement ⁴--as indicia of when use of a tacit admission is fundamentally unfair. Both of these factors are here present. Of the two decisions, Staino is factually almost identical to the circumstances under Stevens' tacit admissions were obtained. Staino was twice confronted by statements of alleged co-conspirators and each time was warned of his right to remain silent, a procedure which the Third Circuit characterized as 'an indefensible sort of entrapment.' 387 F.2d at 600. Furthermore, that court found significant the fact that Staino's co-conspirators did not testify at trial (nor did any of Stevens' accomplices); this, said the court, created many of the risks inherent when a defendant is denied the right to confront his accusers. Additionally, the use of the four tacit admissions obtained from Stevens contains an element of unfairness found in neither Smith nor Staino for it is arguable that in fact appellant did not admit the veracity of these statements. Having just made a statement in which all complicity in the crime had been denied, Stevens may well have believed that this alone operated as a denial of his confederates' statements and that no action on his part was necessary.

Finding no material difference between the present case and those which confronted the Third Circuit, ⁵ we conclude that the Court of Appeals would hold that Stevens' tacit admissions were obtained and used under circumstances which are fundamentally unfair. A denial by this Court of Appeallant's petition would cause disrespect for the law, create confusion and congestion in our trial courts and impair the finality of our judgments. These very factors caused us in Commonwealth v. Negri, supra, and Commonwealth ex rel Berkery v. Myers, supra, to adopt a conclusion of the Third Circuit which was at variance with the one advocated by this Court in its prior decisions. They are equally applicable here and we thus conclude that introduction at Stevens' trial of the tacit admissions is a defect which can be successfully attacked in a collateral proceeding and which requires a new trial.

II.

The Commonwealth contends, however, that any claim based upon the evidentiary use at Stevens' trial of his tacit admissions has been waived and that appellant is therefore precluded from obtaining collateral relief on this basis. See Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 4, 19 P.S. § 1180--4 (Supp.1967). We must begin with the proposition articulated in Commonwealth v. Snyder, 427 Pa. 83, 88--94, 233 A.2d 530, 533--536 (1967) that the content of our state doctrine of waiver is identical to that employed by the federal courts under Fay v. Noia, 372 U.S. 391, 439--440, 83 S.Ct. 822, 849, 9 L.Ed.2d 837 (1963) and Henry v. Mississippi, 379 U.S. 443, 452, 85 S.Ct. 564, 570, 13 L.Ed.2d 408 (1965), i.e., the prisoner's non-action must be a deliberate bypass of state procedures available to litigate the prisoner's claim. ⁶ The Commonwealth's position is simply that Stevens' prior attempts at collateral relief ⁷ constituted an available state procedure to litigate the constitutional validity of his tacit admissions and that his failure to do so in those proceedings constitutes a waiver of his present claim. However, this position ignores what we believe to be the dispositive consideration--at the time each of Stevens' prior collateral actions was filed he could have had no knowledge of the retroactively applicable decisions of the Third Circuit, ⁸ decisions which, under Commonwealth v. Negri, we will follow.

Both our own cases and those of the Supreme Court of the United States establish the doctrine that failure to assert a now retroactively applicable constitutional infirmity not available to the prisoner as a basis for collateral attack at the time his prior attempts were filed does not operate as a waiver. See Commonwealth ex rel. Berkery v. Myers, Pa., 239 A.2d 805 (1968); cf. Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967). Perhaps the clearest statement of this view is contained in O'Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966). At O'Connor's trial a violation of Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) occurred. Furthermore, since O'Connor's conviction had not been finalized at the...