COM. EX REL. PARKER v. MYERS, 422 Pa. 221 (1966)

220 A.2d 851

Supreme Court of Pennsylvania.Submitted November 9, 1965.
June 24, 1966.

Criminal law — Constitutional law — 5th, 6th and 14th Amendments — Confession to police — Rule of Escobedo v. Illinois — Retroactive effect — Confession — Validity — Absence of issue at trial — Testimony corroborating confession.

1. The rule of Escobedo v. Illinois, 378 U.S. 478, with respect to the constitutional right to counsel at the pretrial stage of criminal proceedings is not applicable to a conviction finally sustained prior to the announcement of the rule on June 22, 1964. [222]

2. In a murder trial in which the defendant’s own trial testimony is substantially identical with his description of the crime given in his confession, which was made a part of the record without objection while he was represented by counsel, the validity of the confession may not thereafter be collaterally attacked in a habeas corpus proceeding. [222-3]

Mr. Justice COHEN took no part in the consideration or decision of this case.

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

Appeal, No. 264, Jan. T., 1965, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1965, No. 723, in case of Commonwealth ex rel. Alfred Parker v. David N. Myers, Superintendent. Order affirmed.

Habeas corpus.

Petition dismissed, order by ALEXANDER, J. Relator appealed.

Alfred Parker, appellant, in propria persona.

Gordon Gelfond and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Page 222

OPINION BY MR. JUSTICE ROBERTS, June 24, 1966:

This is an appeal from a dismissal of a petition for writ of habeas corpus. The dismissal of a previous petition was affirmed by this Court in Commonwealth ex rel. Parker v. Myers, 414 Pa. 427, 200 A.2d 770 (1964).

The record discloses that petitioner, in October 1959, while represented by counsel, entered a plea of guilty to the charge of murder generally. The Commonwealth certified that guilt rose no higher than murder in the second degree,[1] and the court heard testimony to determine the degree and to fix the penalty. Petitioner was adjudged guilty of murder in the second degree and sentenced to a term of imprisonment of 9 to 18 years. No appeal was taken.

Petitioner raises three issues not contained in his previous petition. He first asserts that under Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964), his confession should not have been admitted at the hearing. No discussion of this point is required, since Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772 (1966), which held that Escobedo would not be applied retrospectively, precludes the present claim.[2]

Petitioner next contends that his confession was involuntary and, therefore, inadmissible at the hearing on his guilty plea. This contention likewise does not merit extended treatment. Petitioner entered a plea of guilty, there was no objection to the admission of the confession at the hearing, defense counsel stipulated to the truth of the confession, and petitioner took the stand and testified to substantially the same facts

Page 223

as contained therein. Such circumstances, we have consistently held, preclude a subsequent challenge to the admission of the confession on habeas corpus. Commonwealth ex rel. Czako v. Maroney, 421 Pa. 462, 219 A.2d 664 (1966); Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A.2d 730 (1966) Commonwealth ex rel. Rehak v. Maroney, 420 Pa. 37, 215 A.2d 622
(1966); Commonwealth ex rel. Blackshear v. Myers, 419 Pa. 151, 213 A.2d 378 (1965); Commonwealth ex rel. Adderley v. Myers, 418 Pa. 366, 211 A.2d 481 (1965); Commonwealth ex rel. Pomales v. Myers, 418 Pa. 369, 211 A.2d 483 (1965); Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965). Moreover, an examination of the record reveals that no injustice resulted from the admission of petitioner’s confession. Cf. Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A.2d 730 (1966).

Petitioner finally contends that the trial judge employed a racial epithet in referring to him and, in general, exhibited prejudice toward him at the hearing. An examination of the notes of testimony, however, reveals no such prejudicial remarks or conduct on the part of the court.

Accordingly, we conclude that the court below properly dismissed the petition.

Order affirmed.

Mr. Justice COHEN took no part in the consideration or decision of this case.