*1 For the court to have held otherwise would been de- meant that a has finally fully case which law later be relitigated termined can nevertheless This respect later to change. thereto seems invite make judgments chaos the law and uncertain future constantly subject changes.
It plaintiff clear that has had than “his more in Court. day” affirmed.
Judgment Mr. Justice took part in the consideration Jones or decision of this case. Baity, Appellant.
Commonwealth C. J., Before Bell, November 1967. Submitted JJ. Roberts, O’Brien Musmanno, Eagen, Jones, *2 Johnson and George Melvin De- Assistant Dildine, and Herman I. fenders, appel- for Pollock, Defender, lant.
Alan J. Assistant District Bichard Davis, Attorney, A. Sprague, First Assistant District Ar- Attorney, len ap- District Specter, Attorney, Commonwealth, pellee. by
Opinion Mr. Justice 1968: January 9, Roberts, In Commonwealth v. 597-98, 425 Pa. Garrett, 229 A. 2d (1967) announced the rule that a defendant who had pled at trial could never- guilty theless an challenge allegedly coerced confession col- provided he could laterally, prove that the plea was motivated primarily by confession.1 today We are faced with the task of settling some of the unresolved problems presented rule.
In 1949 William appellant, E. pled Baity, guilty murder generally connection with the robbery-mur- privilege of collateral confession, attack set Garrett, exception general out in rule that “a made, knowingly guilty, guilt constitutes an admission of and is a nonjurisdictional defects of all waiver and defenses.” Common supra Garrett, at 229 A. 2d at wealth 924. See Common Myers, 423 Pa. rel. West 222 A. ex wealth found He was shop owner. Philadelphia bicycle
der of a and sentenced degree of murder the first guilty Altogether, taken. appeal No imprisonment. life given of this crime four men convicted were young hav- fourth having pled guilty, life three sentences, com- In 1966 jury. found ing guilty by Hearing Conviction under the Post menced this action Coun- relief. at collateral Act; attempt it was his first evidentiary 1967 an and on June 16, sel was appointed, court Philadelphia pleas held in common hearing was before Judge Spaeth. hear- made but a
Appellant single argument from coerced He testified that his confession was ing. attempt him trial counsel made no force, to inform him inadmissible, that such a confession was and that his therefore subsequent plea was *3 other product only this tainted evidence. The solely post-conviction- witness at the was the surviv- hearing to ing appointed member Baity’s two-lawyer-team defend him in 1919. that He relevant part, testified, spoken plea he had to several times the Baity before was and that con- had admitted that entered, Baity fession was obtained or without the use of force any threats. trial According Baity’s appellant counsel, him had informed that the confession was after given one of the interrogating officers told that Baity Harry a had Cohen, co-defendant, “fingered as Baity” whereupon “trigger man”, appellant claimed he the lookout. was Based on only coun- information, sel advised that his Baity confession was un- voluntary that a trial der the could well law, result the death and that he had an penalty, informal understanding the district attorney recommend life sentences pled guilty. for those who According trial counsel was plea voluntarily entered Baity’s and came direct result discussions had between counsel and appellant. Judge an- hearing Spaeth of this
At the conclusion Baity’s not believe that he did nounced from the bench replete with interrogation, version version of the 1949 jacks, re- physical beatings, etc. As black threats, Realizing petition Baity’s denied. sult, likely findings be overturned would not court’s factual appeal, that the confession on now maintains involuntary solely been obtained because it had story that he had related to i.e., “trick”, “trigger” man. named as
Recognizing, did in the numerous Garrett, as we aspects impending may a de- of an trial influence by pleading guilty, fendant to waive the entire ordeal we are nevertheless in the case, unable find, any Baity’s factor other than confession which plea. mind In motivated the trial counsel fact, post-conviction proceeding testified of record at prompted appellant that it confession which plea guilty. following ap- dialogue enter pears post-conviction between counsel and Mr. Scarica- appellant’s original [By “Q. trial Mr. mazza, counsel: you [Baity] Then did Johnson] him discuss with possibility of a in this case? A. [Mr. Sca- you Q. Yes. And ricamazza] could detail the circum- plead stances of that discussion? A. How came to guilty? Q. already Yes. A. He had confessed to a participa- crime. There was no doubt about of tion in the crime. He admitted he was the lookout.” (Record 9-10.) Mr. testimony Scaricamazza’s entire *4 any piece contains mention of other of evidence, knowledge tainted or the might not, of which have prompted Baity plea.2 Baity’s to his enter If attorney 2 Baity’s is There some indication that trial counsel an in had understanding attorney with the formal district that life sentences pled guilty. for be recommended those would who However, any bargaining indicate particular not record does vis-a-vis this de particular crime. or this Thus we fendant would hold, be loath to
310
had of other wis- knowledge any supporting facts dom of a never it is clear that these were plea, made appellant.3 purposes known to for Furthermore, Garrett, specific bargain primary did in we that a mo- was the tivating appellant’s guilty plea. appear force for to Nor do there present any nonevidentiary in be this case of the other that factors frequently plead guilty, i.e., to a influence defendant to a desire chest,” “get thing step off toward rehabili- whole his the first tation, unwillingness publicity jury trial, a etc. to face the of 3 imply Baity’s plea entered mean that was not We do not intelligently simply every knowingly and because he was not told possible may prompted attor relevant consideration which his ney purposes suggest plea. sufficient, think it We entered, demonstrating plea knowingly intelligently that a was and admissible, that told that the confession was was counsel itself, sufficient, probably him. convict be and of and would Baity’s agreement plead guilty knowledge, Based on this satisfy participation personal part on his made with sufficient Although, process requirements. again, here the court due on-the-record-inquiry it conducted an have been advised had better practice accepting plea, realize a that such before Rundle, generally rel. Commonwealth ex West v. followed 1949. People also, Serrano, (1968). 15 See A. 2d Pa. 237 196 428 Comment, (1965) ; N.E. 2d 2d N.Y.S. N.Y. 1262, 1268 Rev. Calif. L. Admittedly, appellant trial counsel did not tell that challenged. ground argued confession could be On this that entry knowingly could not have been intelli gently argument Garrett, made. This Court faced identical rejected saying: suggest it, that “To . . . must defendant always possibility the theoretical that a be told of confession could ability if the no avail defendant lacks excluded is of be knowledge upon a rational tactical able to make choice based to be may Accordingly, . we conclude counsel . . that information. would, as to whether the determination confession the initial make strength challenged, admitted. Then nonetheless strategy their determine con and his client conclusion Garrett, plea.” Pa. at 600- cerning possible Commonwealth ex rel. United States Cuevas v. Run cf. But at 926. A. 2d 1966). (E.D. In the it is Supp. Pa. case dle, 258 F. informed conclu trial counsel uncontradicted admissible. confession sion *5 speaking of what in terms it does as test, of Garrett plead not exam- guilty, must we motivated anyone himself. save ine the mind of allegedly confession bad Once satisfied that appellant’s plea, primary we motivation consti- in confession fact, now decide whether, we tutionally however, infirm. To make this decision, implicitly questions of the unsettled must resolve one by governed are to be raised test: Garrett passing voluntariness 1949 law or 1967 law with of We of start, course, confession? firmly proposition, Court, established both now Supreme that an of the United States, and the Court procured involuntary unlike a confession confession, warnings, could Miranda or Escobedo the absence of impact reliability fact find- on have such an possibility ing process, it due to the substantial applica- represents give that we retroactive untruth, Supreme Court tion to all the current United States dealing involuntary e.g., cases confessions. See, Davis v. North 86 Ct. 1761 S. 737, Carolina, (1966); cf. Commonwealth v. 428 Pa. Padgett, (1968). A. See “Fore- also, Mishkin, High word: The The Great Court, Due Writ, Process Time Harv. L. Rev. Law”, 79-86 were we faced with an Thus, involuntariness stemming jury from a 1949 trial claim which the were used there evidence, confession would be no parameters 1967 law would dictate doubt the confession must which now be within tested. So question simply: ought becomes there then, be a a confession between used to difference convict at trial, entry to motivate the plea, one used i.e., to alter sufficient the test difference voluntariness proceeding such in a collateral used as this. We think not. plea
Assuming Baity’s guilty entered be- cause he felt that be used trial, the confession would reliable seems clear that would be no more *6 jury allegedly than a coerced verdict based on the same by confession. Professor the reason stated Moreover, application involuntary Mishkin the retroactive of equally applicable confession cases is to both pleas jury trials.
“Valuing
liberty
highly
of
the innocent as
as
proceedings
reliability
earlier
do,
whose
not meas-
does
up
ure
to current constitutional
for deter-
standards
mining guilt may
inadequate justi-
well be considered
fication for continued detention.
For to continue
imprison
person
having
without
first established
presently required degree
of
confidence
not in fact innocent is indeed to hold
in the words
him,
corpus
of the
custody
habeas
‘in
statute,
violation of
corpus
the Constitution.’ On this basis, habeas
validity
long
assess the
of a
no matter
conviction,
how
past, by any current constitutional standards which
enhancing
have an intended
reliability
effect of
process.”
guilt-determining
79
L.
Harv.
Rev. at 81-
Baity’s
S2.4 5Wetherefore hold that
confession by
be tested
the most recent cases.®
4 It
is clear tliat Professor Mishkin does not intend the above
quoted
apply
rationale
violations, since,
to Miranda or Escobedo
already stated,
as we have
such
go
violations do not often
reliability
confession, and,
actual
as stated in
84
footnote
(79
81),
“guilt”
throughout
Harv. L.
Rev.
word
is used
only
guilt
fact,
i.e.,
article to refer
to actual
has the accused
charged?
committed
crimes
5
jurisdictions,
conclusion has been
A similar
reached in other
actually
although
never
courts there involved
decided the issue.
Wilson,
(9th
Smiley
1967) ;
We believe that the facts recited above cannot port a claim of even tested involuntariness, the most Supreme recent ground Court and on decisions, properly alone relief could be In denied. Culombe v. (1961), Connecticut, 81 S. Ct. Supreme Court of the United States set out a test for determining the voluntariness of a confession which controlling today. remains Mr. Justice Frankfurter, Avriting explained for the Court, the test as follows: product “Is the confession the essentially of an free and unconstrained choice its maker? If it if he is, may against has Avilledto it confess, be used him. If his will not, has capacity overborne and his appears, It never post-conviction least on the face of the record, actually However, whether Cohen made such a statement. falsity of the truth or this accusation is not here relevant. Sec 7, infra. note use of critically impaired,
for self-determination at 367 U.S. process.” due offends confession Unit- Court of Supreme 1879. Although S. Ct. at case confession involuntary that each ed has said States a com- nevertheless its own facts, be treated on those present ease, the facts parison between con- involuntary, held recently confessions surrounding con- Culombe, in the words of vinces us that, In will. of an overborne product not the fession was Ct. 1761 S. Davis v. 384 U.S. Carolina, North which a confession was (1966) invalidated for been interrogated until the defendant had given rest. or no for sixteen with little breaks straight days, span In not even interrogation did case, hours. 373 U.S. many Haynes Washington, con- Ct. 1336 the Court invalidate (1963) S. saw had fession that was after the defendant given only been told that he could not until he talked. see his wife it appear right Nowhere does was denied the police to have visitors. Culombe Finally, itself, took a suspect old, mental of a nine age year him for interrogated paraded five twice straight days, him the crowd-lined through streets of New Britain, exhibited him in a wire where Connecticut, cage mesh he was photographed by newspaper photographers, denied his for request counsel.
Except the absence of Miranda and Escobedo warnings, infirmity which, by could not itself, sup- *8 port an involuntariness see claim, Johnson v. New Jer- 384 U.S. 86 S. Ct. sey, 1772 719, other (1966), only possible present in irregularity Baity’s interrogation the so-called “trick.” The Supreme Court of the spoken United States has in infrequently the area of but trick those confessions, few cases which do appear that the in indicate law this area does not conflict with Pennsylvania
our own decisions. As early as 1923, this Court announced the rule that a trick which has
315
permissi-
produce
tendency
confession is a
a false
weapon
interrogator’s
arsenal. Common-
ble
Spardute,
164
Two decisions clearly type can trick which States illustrate the deprivation process. cases, In both rise to a of due produced false confession the likelihood that the trick a By comparison, a mis- almost is evident. it would against Baity employed trick a nomer to call the device Spano Ct. In 79 S. all. v. 360 New York, shooting (1959), an to death after defendant, ex-prizefighter eve- him earlier who had beaten Gaspar telephoned ning, Bruno, his close one friend, policeman, a killed rookie and told Bruno that he had decedent from because he in a daze the beat- was still ing. Placing duty friendship, immedi- before Bruno ately relayed superiors ar- this information to who blithely rested defendant. When defendant refused any questions lawyer, answer without his the detectives suggested contacted Bruno and that he tell defendant (defendant’s) making that his refusal to confess was story Bruno’s look untrue and that a result Bruno would be in serious trouble defendant did not talk. Graham, v. See Commonwealth Pa. 182 A. Johnson, (1953) ; (1962) ; Pa. A. Commonwealth 2d 691 (1939). Although Hipple, 333 Pa. 3 A. 2d Commonwealth suggests In that a distinction has been its brief the Commonwealth involving upon a trick cases based under those drawn between true, employing lying and one a state itself statement made, support find no for such in fact never that was ment meaningful we think would be a do the cases. Nor distinction any involuntary here, the test for test as is if made. distinction impinging elements confession, itself with those concern not, Thus, matter in the case it would will. defendant’s actually attributed made the statement example, Cohen whether accuracy. way ascertaining its have no him, since *9 way job although agreed, in no was fact his
Bruno Spano, met had thrice with threatened. after he Then, pleaded to save him to confess, defendant, friendship job, ad- latter’s both with Bruno and the his naturally quite killing. This confession mitted the involuntary. held (1954)
Leyra v. 74 Ct. 716 Denno, S. days presents several an even more extreme case. After slaying questioning concerning hammer of intensive Leyra complained parents, trouble of sinus requested in a room a doctor. He was told to lie down previously “bugged” which had been was at being police captain. time In a few monitored appeared minutes a man himself as who identified Although neglected doctor. he was indeed a doctor, Leyra psychiatrist to tell that he also a skilled hypnosis. proceeded the art of The doctor then hypnotize who atrocious defendant, confessed to the response questions picked crime, such as “Yes. You up the hammer. Where was the hammer?” As soon police captain complete, this “confession” was repeat rushed into the room and had defendant story. Both confessions were held inadmissible.
By stratagem employed police contrast, fairly in the case could said have a producing Although likelihood of a false confession. Baity probably being believed a lookout would sub- ject penalty him being to a trigger lesser than man, part and thus confessed to his culpatory gesture, in the crime as an ex- surely nevertheless he realized that even as a lookout illegal. his conduct was In order to pulled deny trigger, that he certainly there was need to confess some other criminal conduct. In Baity’s interrogation view the fact spanned less unaccompanied nine than by physical hours, vio- employ any and did not lence, designed pro- trick resulting appellant’s story, hold that a false duce voluntary. confession was *10 explore re- opinion the not did our
Because
Garrett
for determin-
lationship
out
there set
the test
between
plea
preceding
guilty
could
ing
a
if a confession
provisions
the
collaterally
the
attacked and
waiver
Hearing
because
furthermore,
and
Post Conviction
Act,
relationship
hold
be clarified,
must
we feel that this
alternatively
Baity’s
invol-
if
confession
that even
Hearing
in-
untary,
Act8 as
§4 of the Post Conviction
terpreted by
Snyder,
All that evi- of that additional a recitation case con- Baity probably been have would which dence opinion one of that earlier in We victed. stated plead Harry elected Cohen, co-defendants, the four gas jury two At that trial trial. and face young they three saw testified that attendants station immediately fol- boys Negro from decedent’s store run boys lowing gunshots. Fitzwater on ran west The to iden- unable however were These witnesses Street.11 tify boys. testified, himself Cohen However, when began walking Fitzwater east on he stated that he boys company Baity the other two of and stopped walking Street (Cohen) before that he here involved, group subse- Broad he reached Street, quently at Broad saw three turn the corner friends (the Broad entrance on and Fitzwater store’s past running Street), and minutes come then, later, split!”12 yelling, “Split, him on west Fitzwater, of time time Cohen’s observation at coincides with gas station unidenti- which attendants saw three boys con- fied dash from store. Cohen was Since Baity’s degree guilt hearing, victed before there is nothing indicate he have would refused tes- tify had chosen to trial face rather than enter a plea. testimony, coupled Cohen’s that of at- certainly place tendants, sufficient to appellant the scene the crime. trigger Herbert
Furthermore, Elliott, confessed degree guilt hearing, testified at the man, at which explained par- time the entire crime, and named the Decedent’s store located on the northwest corner of Streets, Philadelphia. Broad and Fitzwater Cohen’s defense was he did not know that the other boys planning store, to rob were or three that one of them had gun. seriously These two assertions were shaken on cross-exam ination, however. *13 trial counsel Appellant’s including Baity.
ticipants, tes- had so had no who suspect Elliott, reason willing equally not be tified against himself, therefore conclude We testify against Baity.13 could be held involuntary, even confession that confes- right litigate nevertheless waived the sion Act. now under of the Post Conviction Hearing §4
Order affirmed. Eagen Mr. Justice Jones and Mr. Justice concur the result.
Mr. took part Justice the consideration Cohen or decision of this case.
Concurring Dissenting Opinion Mr. Chief Justice Bell:
I concur in the but result with numerous disagree statements and much of the majority reasoning Opinion. testify easily Elliott’s failure to at Cohen’s trial can ex plained. days degree Cohen was tried several before Elliott’s
guilt hearing subsequent However, conviction. Common certainly try wealth could have chosen to Elliott had after convicted, in order Elliott would no reason ob ject testifying against appellant.
Carey Philadelphia Transportation Co.,
Appellant.