*1 fixing the auditor’s compensation.’ Thomp- Moats v. son, Atl. 313, 323, 105, we observed: 'Chal- lenge is made of the amount of the auditor’s fee. It approved by the court below and there is nothing on the record us satisfying im- approval was provident. We will not, interfere with the therefore, ” lower court’s exercise of discrеtion in it.’ regard to challenges this account both by were widow and nephew. To the extent audi- tor’s services were performed in connection determination of what assets were includible as estate assets rather than as jointly assets owned widow and decedent and with the determination if what, cоntribution any, should be made by the toward widow tax payment income a contribution to- deficiencies, ward such payment services should be made To widow. this end, the matter is remanded to the court below.
Decree, affirmed. modified, Commonwealth ex Appellant, rel. Firmstone,
Myers. *2 (1 May Mus- J., 1968. Before Submitted Bell, and JJ. Rоberts, O’Brien manno, Eagen, Jones, persona. propria appellant, in Firmstone, Nathaniel appel- Attorney, for Hager, District 3rd, Henry G. lee.
Opinion by Mr. Justice October 1968: Roberts, In 1951 appellant Nathaniel Firmstone was charged on two bills with the crimes burglary larceny and (Bill No. 26, December and Sessions, aggra- 1951), vated assault and battery and an accom- robbery with plice No. (Bill 27, December He was Sessions, 1951). tried and convicted on Bill No. plead guilty on Bill charges No. consecutive sen- tences ten to on twenty years each bill. sen- These tences were later vacated appellant sentеnced life imprisonment under Act of June 24, P. L. 872, peti- P.S. §1108(b), §5108(b). 1964 a tion for habeas corpus was life granted revoking sentence; appellant then receiving resentenced, *3 consecutive sentences six to twelve on Bill years No. 27 (the on guilty plea) six to years twenty Bill 26No. (the trial). appellant commenced in
Next,
present
action
corpus
habeas
in which he attacked both convictions.
an
Following
evidentiary
the Court
Com-
hearing,
mon Pleas of Lycoming County
the petition.
dismissed
appealed
Firmstone
the Superior
contesting
Court,
conviction on
only the
Bill No. 26. That court af-
per
firmed,
curiam, Judgе Hoffman
filing a dissenting
Spaulding.
opinion joined
Judge
Commonwealth
ex rel. Firmstone v.
Myers,
Pa. Superior Ct. 496,
It is uncontested that
to his trial on Bill No.
given
was
a
appellant
preliminary
at which
hearing
unrepresented by
time he was
counsel.
he
Moreover,
anything
told
about
never
the right
was
to counsel. At
appellant
entered
plea
hearing,
of guilty. Al-
later
plea
was
though
withdrawn,
Common-
appellant’s
trial introduced
at
wealth
uncounseled guilty
direct violation of
White v.
plea
Maryland,
(1963).1
sole issue
Thus,
No examining first vel non of can made without be heavily, Hamilton v. the case on White relies so hold- In Alabama, Ct. 157 82 S. ing petitionеr coun- entitled to Hamilton was arraignment, Court noted sel at his per always arraignment, “criti- an was Alabama se, stage” requiring of counsel because, cal the assistance raised under certain defenses must Alabama law, arraignment unavailable to the or be forever at in Hamilton The cruciаl fact however defendant. arraign- petitioner counsel anat
not that was without an he without counsel at but rather that ment, arraignment critical the crimi- which was a proceeding. in Hamilton did Of the Court nal course, arraignment to face the issue whether not have preliminary hearing something could аmount less stage.”2 a “critical than guilty plea White, petitioner entered a at his being present. hearing, Following without counsel *4 counsel, plea, trial. withdrew his and went to obtained White guilty plea prior evi uncounseled was introduced into the Since prelimi trial, Supreme the Court held White’s this at dence stаge requir proceeding nary hearing in the a constituted critical petitioner granted Accordingly, ing was a of counsel. assistance guilty plea to the withdrawn was not be used trial at which new against him. “arraignment” “preliminary hearing” are terms The proceeding. example, For same in Penn refer to the used to often hearing proceeding preliminary is that in sylvania same which a hearing magis arraignment. a It is before a is called Alabama etc., alderman, at time it is determined trate, which whether there Supreme ques- facing Court came closer to this
tion in White itself. Unlike
there was
Alabama,
Maryland
рreliminary
every
rule
that would make
hearing
stage.
Supreme
a critical
the
Court
However,
particular hearing
did hold that
the
just
present
critical
the
an un-
because,
case,
plea
guilty
counseled defendant entered a
of
at
preliminary hearing
yet
later
withdrawn,
deciding
still introduced into evidence
In
at trial.
so
the Court said: “We
therefore hold
Hamilton v.
governs
Alabama
. . . .”
1051.
Placing
these two decisions side
the answer
side,
retroactivity
clearly
to the
of White
reveals itself.
Stovall v. Denno,
Hamilton v. Alabama as one of those cases to be plied retroactively. Although the Commonwealth present retroactivity case as it concedes, must, argues this Hamilton, does not the. affect it. retroactivity only because White, Hamilton involved peculiar arraignment procedure. Alabama We do argument persuasive. find we Hamilton,
As read the crucial .fact that the particular аrraignment Court found the stage proceedings. be a critical in the ar- That all prima pending facie case sufficient hold exists defendant in- jury. grand present dictment As White and the demon- case pleas strate, guilty hearing. are sometimes entered at Of require Pennsylvania plea course, does not to be entered at hearing. Accordingly, preliminary plea entered, unless such a something hearing prejudices at done which later else de- fendant, will not be considered a critical requiring See, e.g., the assistance counsel. Commonwealth Myers, (1964) ; 414 Pa. Parker v. 200 A. 2d ex rel. Commonwealth Rundle, Maisenhеlder v. x rel. e A. 2d *5 per stages has raignments se in Alabama are critical except bearing the reached, on result whatsoever in Hamilton’s decision as it made the Court’s insofar holding that of Hamilton is easier. The real bit case arraignment any amounts requires presence stage of counsel. tо a critical particular hearing merely in that holds that the White in Hamil- test set forth the critical meets case holding specifically says that its ton. White fact, inexorably by “governed” It Hamilton. follows White since Hamilton is retroactive, that therefore must be.3 comports by this held view,
This result that rule of White tribunals, Court as well as other portion forged from the same Hamilton is and Constitution of the United of the Amendment Sixth Wainwright, that mandated Gideon States Douglas (1963) California, and Ct. 792 83 S. every right Ct. 814 The 83 S. making the the aid counsel individual have journey path complex of crimi- down the difficult and always procedure held is one that been has nal court retroactivity of both and retroactive. Gideon upon proposition Douglas so fundamental rest point that its absence at to counsel operate up- machinery begun judicial has after the extremely effects can have deleterious accused on the procеss determining upon itself. truth Whenever presided courtroom, he it over enters a the accused long transpires judge magistrate or so what retroactive, appellant itself were if White Even present Since the under Hamilton. case to relief entitled identical, factually since Court of the are governed by it was Hamil declared in While States present governed Hamilton, is also ease ton, likewise admittedly decision. retroactive *6 courtroom becomes a critical stage the proceeding counsel must be at the defendant’s side unless know- ingly and intelligently waived.
This Court has
frequently
together
classified
right
to counsel at a preliminary
(where that
hearing
hearing amounts to a critical
and the
stage)
counsel at
trial
on appeal. For
in Com
example,
monwealth ex rel.
v.
Wright
422
Cavell,
Pa. 253, 257,
220 A. 2d
613
611,
Mr. Chief
(1966),
Justice
Bell,
discussing
rule of
stated:
rule
Gideon,
ap-
“This
plies whenever
critical stage
rights
where
reached,
preserved
may
or lost.”
support
for
As
this state-
ment the opinion cites White v. Maryland.
Similarly,
in Commonwealth ex rel. Fairman v.
Pa.
423
Cavell,
Finally, holding until today Maryland we im- have retroactive, conclusion in reached pliedly numerous cases of a White claim the merits were where discussed even preliminary took place though well before ex rel. e.g., Commonwealth decision. See, the White (1965) ; Maroney, A. 2d 288 416 Pa. Linde v. Myers, 414 Pa. Parker Commonwealth ex rel. Chap- (1964); ex rel. Commonwealth A. 2d 770 (1964) Maroney, ; A. 2d 414 Pa. man v. Wаgner Myers, Commonwealth ex rel. (1964) Maisen- ex rel. Commonwealth ;
Lastly,
even
contends that
the Commonwealth
appellant’s
though
case,
not followed
White was
only
to
Not
are we unable
harmless.
this error was
say,
error of constitutional
must whenever an
as we
alleged
proportions
of
that
error
to be
harmless,
plea
admitting appellant’s guilty
“be-
was harmless
Chapman
yond
v.
doubt,”
California,
a reasonable
(1967);
Commonwealth Pear-
87 Ct.
U.S.
S.
18,
(1967),
A.
further-
2d 552
but
427 Pa.
son,
45,
Mary-
violation White v.
believe
we
more,
regard
requires
to
an automatic reversal without
land
could have been harmless.
the error
whether
Chapman
error
In
landmark harmless
decision,
its
(1967),
87 S. Ct.
18,
California,
point-
specifically
of the United States
Court
constitutional
сertain
errors could never
ed out
require
automatic reversal. Id.
harmless
Among
Ct. at
n.8.
errors
87 S.
n.8,
at mantle
automatic
reversal
was
cloaked
in violation of Gideon.
of counsel
Since
denial
corollary
under
is but
right
counsel
to
a White
seem that
violation also re-
it would
Gideon,
and we
reversаl,
so hold.
quires automatic
we noted
Pad-
Furthermore,
Commonwealth v.
gett,
(1968),
could be harmless. one of review, guidelines pass upon used to the harmless error-auto question matic reversal whether retroactive effect given right had been to the whose violation claimed to be harmless. The for reason this test was the well- rights founded notion that those whose violation tends greatest reliability to have the adverse effect on the process guilt determining traditionally have rights example been the retroactive effect, right to counsel or the con have coerced Similarly, fessions excluded from evidence. it was felt rights Court that these same are so basic Ap their could violation not be considered harmless. plying retroactivity possible this barometer of to the of a White harmlessness violation, since White is retro grounds do we hold its so also violation active, to be *8 for automatic reversal.* appellant
Accordingly, must be a new trial may guilt 26 in order he on Bill No. have his оr prior the innocence determined without use of a un- plea. guilty counseled Superior of the Court
The order is reversed, Lycoming Court of Common order of the Pleas of County and the record is vacated, remanded to that y
* . Supreme subsequentl of Court States The has consistent with the determination in this issuе resolved ease. Massachusetts, 393 v. (1968) Arsenault 89 Ct. S. See Curiam). (Per proceedings consistent further
court opinion. part in considera- no Cohen took Justice
Mr. or of this case. tion decision by Opinion
Dissenting Bell: Mr. Chief Justice magistrate’s not and I hold that a Pennsylvania at stage” in a “critical has been never person amake crime cannоt arrested for a which represented by voluntary counsel. unless confession, ap- say Majority that this cannot not and does pellant dangerous convicted criminal who was —this battery rob- aggravated and and or assault guilty. bery case still another not This is —was Majori- many Court which of this recent decisions implied- expressly ty but are necessitated—not believe by by ly, recent decisions Procrustean stretch — Supreme In the the United States. of the guilty years, Courts have invalidated both last few voluntary guilty pleas, and confessions verdicts, guilty undoubtedly dangerous criminals on some interpre- recently unrealistic and farfеtched invented, Constitution which United States of the tations minority United States Court correct- of the “supported” ly “home” and were no found said Harrison v. United States, the Constitution: Escobedo v. 378 U.S. 4551; Illinois, Week U.S.L. 525. 499; Arizona, Miranda U.S. 478, 494, Wesberry 42. Sanders, also, See supra, Justice Illinois, U.S., In Escobedo joined Justice Justice Stew Clark (рage majority dissenting, said 499) art, voluntary “for . Opinion confessions . . rea excluded provisions home* in find can sons, page 494 and on Constitution”; Justice thereof, * Italics, ours. *9 said that
Stewart “supported by Majority no stronger than its authority . . .” own rhetoric.
In Miranda Justice Arizona, U.S., supra, in joined Justice Stewart and Justice Harlan, sаid dissenting, (pp. 525-526) : “Nothing White, the letter or spirit of the in the Constitution precedents squares with the heavy-handed and one- sided action that is so precipitously taken the Court in the name of its fulfilling responsi- constitutional bilities”; and Justice Clark “The said (page 500): ipse dixit of the majority support has no our cases.”
In Harrison
36 U.S.L. Week
States,
Justice
said: “But
White,
dissenting,
here,
in Miranda v.
See also, Sanders, 376 suprа, U.S., joined where Justice by Justice Stewart, Harlan, said : dissenting, (page 42) “The Constitutional Court creates is manufactured out of whole cloth.”
Our citizens law-abiding as never need, equal before, and adequate protection Justice with, all mur- from, violent rapists, robbers, derers, rioters, and all viola- I am law; of the sorry tors say that are they it. getting I would affirm reasons, For these the decision of of Common Pleas and of the Superior Court. joins Justice this dissenting Mr. Musmanno Opinion.