Commonwealth v. Broaddus

Appellant. Commo nwealth Broaddus, April Submitted 1972. Before C. J., Jones, O’Brien, Pomeroy, Nix and Man- Eagen, Roberts, JJ. DERINO, Lilian, appellant. L.

Eric Bonnie Leadbetter Milton M. Stein, Brigance James D. Crawford, Assistant District Attorneys, A. District Richard First Sprague, Deputy Attorney, and Arlen District Specter, Assistant District Attorney, for Attorney, Commonwealth, appellee. by

Opinion March 1974: Me. Justice Eagen, In February 1959, Spencer Broaddus, appellant, a while assisted entered by counsel, plea guilty murder After an before evidentiary hearing generally. he in a was found of murder three-judge court, guilty the first and imprisonment. was sentenced to life No filed. appeal was

In September Broaddus instituted an action in in the trial corpus habeas which was later court, was dismissed. No entered from this order. appeal In Broaddus filed a in the trial court petition under the Conviction after a Hearing Post Act,1 and, counseled relief was denied. This evidentiary hearing, order affirmed this on subsequently by 239 A.2d 204 Broad- appeal. See in this represented by appeal. dus was Broaddus habeas relief sought corpus In 1968, the Federal District after a counseled evi Court, and, relief was denied. On dentiary appeal, order was affirmed United States Court of Ap ex for the Third See United States rel. peals Circuit. 429 F.2d 791 (3rd Broaddus Cir. Rundle, 1970). filed a Broaddus second August 1970, petition under the Post Conviction in the trial court Hearing without a hearing. was denied The instant which Act, the correctness order.2 challenges appeal January 25, (1965) 1580, L. P. P.S. 1180-1 Act of et seq. assigned January 15, 1974, writer on to the This case opinion expressing preparing purpose views of a

majority Court. of this shooting the fatal from emanated prosecution

The in Philadel- housing project in a security guard of a occur- after the days Three 1959. August 15, on phia police to the voluntarily surrendered Broaddus rence, involved being admitted during questioning, and, was shot the victim but said shooting, He said between the two. tussle during a gun own A him at the time. pre- Dickerson was with Murray ordered and Broaddus was hearing was liminary held, jury grand to await county prison to the committed after his commitment, a hours Within few action. and of the Court of Oyer requested judge police Quarter Ses- Delivery General Jail Terminer and sign “bring-up” order, i.e., Philadelphia sions from the temporarily Broaddus to transfer authority Hall for attorney’s City to the district office prison order was executed questioning. further and as indicated. questioned Broaddus was transferred again this Broaddus admitted his questioning, During and stated he the also stole shooting, involvement after the the watch and wallet shooting. victim’s counsel this Broaddus was without during questioning. determine degree At the the of evi- guilt, statement made by dence of the Broaddus inculpatory office attorney’s following in the district the “bring-up” Mm order was introduced against objection. without the admission of Broaddus now contends this evidence He argues due the process. violated order “bring-up” stage proceeding prosecution he at which was entitled to be process represented by and since the statement resulted from a counsel, pro- under circumstances ceeding conducted constitutionally be used as it could not evidence impermissible, against him.3 3 challenged erroneously evidence were tlie if Even admitted at guilt this would not guilty invalidate plea, of

264 urged same argument upon

This very ex rel. Johnson v. Rundle, in Commonwealth 270 183 and the United States upon A.2d (1970), United States for the Third Circuit in Court Appeals ex v. rel. Dickerson 462 Cir. Rundle, (3rd F.2d in both a “bring- instances Court ruled 1970), order is a critical up” proceeding stage prose cution where the accused is to be process rep entitled v. resented counsel. White Mary Broaddus contends land, 373 U.S. 83 S. Ct. 1050 and Hamilton (1963),4 Ct. U.S. 82 S. Alabama, (1961), compel a differеnt conclusion. We disagree. is clear enunciated in

Initially, principles Coleman v. Alabama, U.S. S. Ct. instantly. have no application we do not Consequently, now decide if order proceeding is a critical “bring-up” under Coleman. Coleman, Supreme Court States United ruled the determination of whether a judicial is a critical proceeding stage depends upon an potential examination “whether preju- substantial * '* * dice to defendant’s inheres in the rights confronta- tion and the ability avoid help prejudice.” This formula, however, applicable to the 1958 “bring-up” proceeding order under since consideration, the Supreme Court has expressly ruled Coleman decision is not to be given retrоactive effect. See Adams Illinois, 916 (1972). To Broaddus’ adopt position that White and Hamil- ton control disposition the instant case would require these giving two cases overly broad reading We White application. view and Hamilton as hold- require hearing a guilt. but would new to determine Chambers, 253, See (1968). 247 A.2d 464 held to be in White retroactive Massachusetts, was Arsenault v. 5, 89 S. Ct. thus White 393 U.S. must be considered in determining “bring-up” proceeding the 1958 if order here involved stage. a critical constituted stage only proceeding judicial in ing cases is a critical directly attorney proceeding lack of an where prejudices within the come the accused. Hence, prejudice holding aris- must have of these two cases the preju- judicial proceeding. ‍​​​​​‌‌​​​​‌​‌​‌​​‌‌‌​‌​‌‌‌‌​​‌‌​​​​​​‌​‌​​‌‌‌​‌‍In there was White, en at a preliminary plea guilt at the dice because against subsequently at trial. used the accused was prejudice if because in there Hamilton, Likewise, preliminary assert a defense at the accused failed to the defense could be lost forever. Thus, attorney gave preju- rise lack of the assistance of during proceeding, affected the accused’s dice which rights Presently, complained at trial. during proceedings in

did arise which the “bring-up” requested granted. order supra, in In Adams v. Mr. Justice Illinois, Brennan, application discussing clear the retroactive of Coleman, Supreme ly expressed that White the view of the import. and Hamilton are narrow their He stated: not think are “We do that law enforcement authorities anticipating be Coleman. There faulted for not foreshadowing contrary A was no clear of that rule. light inference was unreasonable in of our decision Hamilton v. 368 U.S. S. Ct. Alabama, 157, Maryland, L. Ed. and White v. 2d 10 L. Ed. 2d Hamilton de arraignment stage nominated the Alabama critical stage might asserted because defenses not at that plea held forever lost. White that an uncounseled guilty Maryland preliminary hearing at a could not be Many the State at trial. introduced state courts not regarded unreasonably Hamilton and White as fashion ing governing preliminary limited constitutional rules hearings.” 405 U.S. 92 Ct. 920. S. supra, ex rel.

In United States Dickerson v. Rundle, ruling White and Hamilton did not mandate a proceeding “bring-up” stage, order to be a critical 266 “The of v. Mary stated: doctrines White aptly 368 U.S. Hamilton v. supra Alabama,

land, [and] 114 are judicially L. Ed. 2d ... (1961) benchmarks delineate particular phases crafted which in criminal at right when the proceedings the But taches under Sixth Amendment. absolutely chronology attaches not so much of right by or even proceedings interposition ancillary ju dicial as it does the accumulation of a proceedings complex heightens probability circumstantial which be that there will violence to constitutional of one rights are whom the authorities prosecuting.... the judicial

“Similarly, proceedings designed cause a order’ to ‘bring-up pro- issue was not The issuance of the ceeding. order’ for Dick- ‘bring-up erson was not a into vel non judicial inquiry guilt was an defendant; administrative authoriz- procedure of the prisoner transfer from the ing county prison him police headquarters to make available for ques- Prior to the tioning. preliminary prisoner hearing, been moved from police could have one to an- lockup other stationhouse or to detective headquarters without court order. any Such necessity movement, create a would not situation in itself, which there be a to counsel. The would issuance of a court after a accomplished, preliminary order which been which could have effected beforе the hearing an order does such our not, view, without constitute in the chain of the critical event proceedings.” F. 466.5 2d at White and Hamilton we conclude are

Hence, complained of where applicable arose the cases proceeding.6 Consequently, have no appli- accepted the rationale of United This Court States ex rel. Rundle, supra. ex rel. Johnson in Commonwealth Dickerson argued Horner, that Commonwealth It could disposition controls the A.2d instant case. Broad as as broadly read tlie cases To instantly. cation interpretation be to them give would suggests dus with Coleman.7 synonymous must our inquiry the focus of believe therefore, We, followed the which interrogation period be on the un a critical obviously This is order. “bring-up” 84 Ct. S. 201, United 377 States, der Massiah v. in juris view this however, prevailing (1964); appli in is to be retroactive given Massiah diction v. Rundle, ex rel. Johnson cation. See Commonwealth Dickerson v. Rundle, supra; ex rel. United States supra; 418 F.2d Jersey, Allison v. New United States ex rel. Cir. (3d 1969).8 issue is the voluntariness the crucial Thus, this during period. by statement made Broaddus 176 A.2d Commonwealth v. 406 Pa. Dickerson, “The fact and stated: very we recognized its by the trial court, defendant that complains also a fair consideration the defendant of charge, deprived police his statement to the by of whether jury that on August 19, It voluntarily given. appears reading clearly However, Horner shows that finds a close case in Hаmilton. The therein arose its foundation White and judicial therefore, distinguishable. Homer is propriety bring-up long We also note that has orders Trunk, in been established this Court. See 167 A. 333 Johnson, “Appellant’s 8In stated: contention we has now been in answered the Third Circuit United States ex rel. Dickerson v. 1970). Rundle, (3rd majority 430 F.2d Cir. . . . There the defendant, interrogated preliminary court held that a his hear after ing, pursuant parte bring-up order, to an ex in ‘stood the same legal Massiah,’ shoes as did the defendant in id. at and hence interrogation stage requiring did constitute a critical counsel. however, protection, retroactively applied, Massiah’s is not to be so properly Dickerson’s confession was therefore utilized. See Jersey, (3rd ex rel. Allison v. States New United F.2d 332 Cir. 1969).” Pa. at 270 A.2d at 184. Ms gave defendant first written statement to the police. On the he taken morning August before a and committed magistrate, arraigned to the county prison. On the afternoon of August 20, open court, the district attorney requested permission of the court to remove the from the for the prison, pur defendant pose of further questioning effort to clear up cer tain statements he had previously made wMch did not coincide facts with disclosed investigation. court is signed what termed as a order. £bring-up’ There is nothing siMster or secretive about this procedure and ais practice commonly used, Philadel phia but other County, counties of the Common wealth.

“When a defеndant under questioned, such cir- he cumstances, may elect to cooperate or refuse to do so as he sees fit. If the police wished question him further after his arraignment, they would certainly, have the to do so within the confines of the prison and the fact that saw fit they to remove him from the prison for this did purpose not result in any prejudice. The pertinent inquiry the concerning of validity a con- fession or statements made aby defendant is their vol- untariness or involuntariness. Of in determin- course, this the ing question, jury must consider all of the cir- cumstances the including manner in which, and the lo- cale under were which, they given.” Id. at 176 107-108, 424. after a However, A.2d at review of the we record, are convinced Broaddus is now foreclosed from attack- the voluntariness of his ing before, statement. As noted guilt of degree hearing held in 1958 Broaddus’ statement was admitted without objection, and there its no attack on voluntariness; nor is the compe- of the trial counsel now questioned. tency Under these Broaddus may not raise circumstances, the issue now. v. Jones, 446 Pa. Commonwealth See 285 223, A.2d 477 v. 261 A.2d 519, Commonwealth 436 Pa. (1972); Nash, Pa. Snyder, 83, Commonwealth (1970); Ma ex rel. Sanders A.2d 530 Commonwealth (1967); 417 Pa. A.2d 789 roney, (1965). for necessity

In this Court the recognized Sanders, objection “Appellant-peti contemporaneous stating: indicate, tioner does nor does the record contend, not of other than volun plea anything that his guilty the record, entered. On tarily intelligently been the court’s sole plea having accepted by court, of and the degree guilt was to determine inquiry an admission penalty. ‘plea Petitioner’s constituted it indictment; and of all the facts averred in the guilt of all defects non-jurisdictional constituted waiver rel. Walls v. Rundle, defenses.’ Commonwealth ex course, Pa. 198 A.2d Of (1964). this does mean that a defendant who has pleaded to to the ad guilty object murder waives evidence will bear on the mission of which improper imposed. and the guilt punishment there was no attack on the instant case, however, involuntariness confession. There was petitioner’s no to the voluntariness based either challenge upon any stage absence of counsel at proсeedings premise. other Petitioner at no upon any time, any contended that his confession was involuntary. reason, the voluntariness issue was not raised for de- “Since which termination the court heard on testimony deemed and we need up- waived plea, pass corpus proceeding. a habeas on it Fox v. A.2d 810 Maroney, ex rel. governing need for principles apply equally an issue timely raising proceedings trial as well as to of guilty proceedings.” upon pleas at 790-91. Thus, 207 A.2d appellant 382-83, Id. at foreclosed from the voluntariness of his state- attacldng ment9 at this date. late

Order affirmed. recognized point The Third Circuit in their review corpus petition. Broaddus’ federal habeas The Court statеd: Supreme recognized “The United States Court has objection ‍​​​​​‌‌​​​​‌​‌​‌​​‌‌‌​‌​‌‌‌‌​​‌‌​​​​​​‌​‌​​‌‌‌​‌‍contemporaneous ‘legitimate rule serves a state interest’ proper prevent tardy and will under circumstances assertion of Henry Mississippi, 443, 447, error after trial. v. U.S. (1965). 13 L.Ed.2d 408 present ease, abundantly “In the it seems clear that defense object counsel did not to the admission of this statement at degree-of-guilt hearing they because had concluded that the state ment was admissible. This conclusion was no doubt based in some lawyers ‘voluntarily measure on Broaddus’ statement that he gave circumstances, information’. Under these we hold that even trilogy permit inquiry if the MoMann admissibility does into the statement, objection the failure to raise to its аdmission at degree-of-guilt hearing by-pass was a deliberate of the state procedures admissibility available to test in the first instance and prevents its proceeding. Fay now consideration in a collateral v. Noia, 391, 434, 438-439, 372 U.S. (1963).” 83 S. Ct. 9 L.Ed.2d 837 429 P.2d at 795.

Concurring Opinion by Me. Justice Roberts : I agree that Spencer Broaddus may not now chal- the admission of lenge his inculpatory statement. No was made objection when the statement was introduced into and this evidence, Court will not consider alleged trial errors for the first time on appeal. Commonwealth 296 A.2d 741 Agie, In my view, this case begins introduction of the statement and ends at its admission without objection.

I must, dissociate however, myself from the ma- historical jority’s gratuitous survey of the misapplica- tion White Maryland, S. Ct. 1050 and Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. this Court and the 157 (1961), federal courts of this

271 assist Hamilton require White and That circuit. in a criminal every at ance of I view my In 1968 stated be denied. cannot prosecution is a criti order of a issuing “bring-up” ex parte that the 428 Pa. 564, v. Dickerson, Commonwealth cal stage. opinion). 230 (1968) (dissenting 229, 237 A.2d 565, change to nothing has done opinion Today’s majority decided cases right-to-counsel And the my judgment. views.1 Dickerson my confirmed 1968 since have (1970); 1999 90 S. Ct. 399 U.S. Alabama, 1, Coleman v. 92 916 (1972). S. Ct. 405 U.S. 278, Adams v. Illinois, an situa- in-custody imagine indeed difficult It is ex than for has greater potential tion that Here a prisoner order. “bring-up” of a issuance parte 1 codefendant, Dickerson, Murray contested Broaddus’ In 1962 Dickerson, legality “bring-up” ordеr, 406 v. Commonwealth year requested (1962), 102, a writ one later 421 and A.2d Pa. 176 Rundle, 411 corpus. Dickerson v. ex rel. Commonwealth habeas (1963). denied, 915, 347, 214 651, 84 S. Ct. cert. 375 U.S. 192 A.2d Pa. relief. denied occasion this Court On each granted relief then Dickerson habeas district court The federal interrogation following the of counsel of denial because Rundle, “bring-up” Dickerson 238 ex rel. v. United States order. 1965). appeals F.Supp. (E.D. court of modified Pa. The 218 hearing lor the the case to the state courts order and returned 368, (1964). Denno, required v. U.S. 84 S. Ct. 1774 Jackson 378 Rundle, (3d 363 F.2d 126 Dickerson v. Cir. ex rel. United States 916, denied, (1967). 1966), 87 880 386 Relief was U.S. cert. per opinion. again affirmed curiam without this Court and denied 564, Dickerson, (1968). 237 Pa. A.2d 229 This v. Commonwealth opinion. dissenting Id. at 230. A.2d at filed a writer court, court. The to federal district returned Dickerson appeals, again granted order, unreported habeas relief. court panel three-judge argument and two en banc before a rear after Judge Hastie, to three. guments, of four Chief a vote reversed Judges Adams dissented. The United States Fbeedman Commonwealth ex rel. Supreme certiorari. Dickerson denied 1970), denied, (3d Rundle, cert. Cir. F.2d Ct. 92 S. grand authority

held for the is removed under jury of a order —a document —and taken judicial “bring-up” court, police headquarters interroga- but tion.2 has defined “critical stage.”

This Court recently 309 A.2d Horner, argu- rejected we Commonwealth’s was not a Horner’s preliminary ment constitutionality “bring- analysis agree 2 I of the of with the up” dissenting expressed in оrders Mr. Justice Manderino opinion. Further, that, contrary I wish the assertion of to note to (see majority majority opinion), the note of the Trunk, 167 A. 333 does not indicate that “the Pa. propriety bring-up long in of orders has been established this Court.” County Montgomery County.

Trunk the of Detective His police were a chief of and an district co-defendants assistant attor- ney. Campbell, prosecuted negro, charging “Thomas a them that they upon aggravated battery him had committed an assault and falsely imprisoned and had him.” Id. at A. at 335. The Superior sentenced terms at defendants were to hard labor and the Court affirmed. granted This Court the defendants a new because trial of the charge jury. judge’s charge, found, to That trial thе the Court char- having Campbell defendants’ acterized the conduct removed from county jail they interrogate police so that could him at head- quarters. Specifically judge’s charge this found that the trial jury’s improperly had removed from the consideration the issue of good judge’s the defendants’ faith. Reversal was based on the trial legality jury charge “bring-up” on the of order. view, prisoner my jail ‍​​​​​‌‌​​​​‌​‌​‌​​‌‌‌​‌​‌‌‌‌​​‌‌​​​​​​‌​‌​​‌‌‌​‌‍only upon a be should released from a proper presence required when Ms court order in court. attorneys police interrogate prison- district If or assistant want to a grand jury action, being they may, er for held like defense counsel agents Investigation, prison Federal Bureau of comе to the Transporting interview facilities there and use the available. jail headquarters police interrogation accused from under judicial “bring-up” compulsion is, my a view, of order in- herently given Defense counsel should coercive. be opportunity .the of such a critical regard issuance order to contest the without prejudicial event occurs. where the Mr. stage.” through “critical Justice Speaking Eagen, stated: “The Commonwealth argues preliminary we a not be considered hearing instantly may in the prosecution because as proceedings, distinguished from White and Arsenault Massachusetts, [v. entry 89 S. Ct. 35 it did not involve the (1968)], a the use of the plea. Accepting entry that guilty at a is not the same аs

guilty plea preliminary hearing of the accused that he shot and utilizing testimony person self-defense, prejudice killed nonetheless, did Horner result the trial use of his testimony and this renders preliminary prejudice ” a ‘critical stage.’ Even preliminary closest of Horner does not reveal reading may how from instant case.3 distinguished Horner majority As the finds its foundation notes, in White and Hamilton. This does however, fact not, lead to the conclusion that a be a judicial hearing may stage” only prejudice “critical when the complained The Horner hearing. arises at test is whether use unconstitutionally-obtained results testimony If it prejudice. does, shows that when testimony was accused was involved in taken, stage” “critical of a criminal proceeding. Had Hamilton and White never been decided, order “bring-up” interrogation procedure here employed still be constitutionally impermissible. would The ma- denying its Broaddus relief jority justifies by focusing his he on the date of confession. Had been interrogated v. United States4 after Massiah even decided, the confession concedes, would be majority inadmissi- ble. the technical of a

“Only operation judicial concept the Massiah nonretroactivity prevents rule from ap- majority opinion. note of the See 84 S. Ct. 1199 377 U.S. here. But make the de technicality cannot plying nial of at a critical a criminal proceed unobjec which is unconstitutional ing, to-day, wholly tionable it was ... 1958. Massiah experienced when make the there condemned procedure did not unfair. of unfairness made Massi Rather, judicial perception ex rel. Dickerson v. ah.” United States Rundle, F.2d 469-70 Cir. cert. (3d 1970), denied, C. J., (1972) dissenting, (Hastie, joined by JJ.) Freedman Adams, Like then Chief believe the Judge, Judge, Hastie, I issuance of the order and the “bring-up” interrogation conducted defense counsel were fundamentally without unfair. Use of resulting confession denied appel- lant due law. process

I cannot join opinion which sanctions this uncon- stitutional police practice. by

Dissenting Opinion Mr. Justice Manderino: I must dissent. Every person accused of crime is a An person presumed innocent. accusation one pеr- son another (police) against does not person (accused) accused to the relegate person status of second- An class citizen. until he is accused, pronounced guilty peers, is entitled to the protections provided by the federal state constitutions. The sixth amend- ment to the Federal Constitution and article section I, Pennsylvania guarantee that Constitution, all criminal prosecutions, (a accused citizen pre- is entitled to the assistance of innocent) sumed counsel. guarantees The constitutional to an given (a accused citizen do not that one presumed innocent) say is en- to the assistance of counsel sometime titled or only when a judge decidеs counsel stages at An preliminary hearings. or needed, accused is entitled presumed innocent) citizen to his (a consti- all times from initial moment tutional at guarantees an accused citizen person (a presumed becomes innocent).

If an accused citizen is de- (a presumed innocent) the denial any nied the assistance time, be it is harmless. harmful —rather might If, however, al- than harmless —the accused’s conviction cannot be stand. lowed to

An accused citizen does not (a presumed innocent) lose constitutional addition any rights. to to assistance of an (a pre- accused citizen counsel, sumed is under the fourth amend- innocent) entitled, ment to the Federal Constitution and article section I, Pennsylvania to be secure in his Constitution, person. An citizen (a presumed accused can- innocent) not be seised at the pleasure any mag- justice, judge, policeman, any other of his istrate, fellow citizens. An (a accused presumed citizen innocent) who is cell jail does become hunk human flesh stripped of his and his A dignity person. jail cell in which an citizen (a presumed accused innocent) placed does not become a conversion chamber for the kinetic trans- formation aof human into a lower animal state. Cattle be may herded from to place no place, they have consti- tutional protections (at least not in our to be country) secure their eattleness from being arbitrarily seized from shuffled A place place. judge our sys- tem has no to order a authority person removed, when he is in a cell jail pursuant to probable cause, arbitrary pleasure of or the judge police. first seizure anof accused (a citizen presumed cause

innocent) pursuant probable supports incar- ceration. It does support successive sei- arbitrary shuffling (a zures accused citizen presumed inno- from Each cent) place place. successive seizure after initial seizure reasonable. must not majority only has decided that the defend- ant in this case citizen is (a presumed only innocent) sometimes entitled to the assistance of has hut counsel, also decided that in- (a defendant citizen presumed be seized nocent) may and herded pleasure around of a who need not judge anyone. answer to

I must from dissent the loose, and unreason- liberal, able interpretation given to the federal majority and state constitutions. Commonsense —not finely spun grammatical cloth —is the a root of written constitution.

If an innocent person (maybe can you me) have sometimes and can be seized and shuffled anytime, ‍​​​​​‌‌​​​​‌​‌​‌​​‌‌‌​‌​‌‌‌‌​​‌‌​​​​​​‌​‌​​‌‌‌​‌‍our written guarantees constitutional as might well be pedagogical propaganda the classroom.

The majority does not deny that the defendant suf- fered harm in this case. The majority concludes, how- that since ever, the harmful evidence was not obtained a during but was obtained as a a hearing, result hear- there is no relief. ing, at a Suppose, hear- preliminary a ing, (a defendant citizen presumed is innocent) represented by and counsel, says but the nothing, magis- trate orders the defendant citizen (a presumed inno- cent), conclusion of the to be hearing, taken into an room for adjoining police interrogation. In the ad- instead of joining room, during a hearing, statement is obtained. Under the reasoning had majority, the statement been public made chamber of the it would not be magistrate, admissible, but when made in the secret adjoining it becomes chamber, admissible. is what exactly happened That this case except that a issued the judge order instead of a magistrate. Strange our constitutions protect accused in public cham- but must outside bers, wait the doors of cham- secret I agree. bers. cannot People places rights. —not —have Even accepting majority’s premise that we must determine a what constitutes critical I stage, must dis- A sent. any stage which the denial of the assistance of counsel is rather than harm- harmful less error. appellant pled guilty trial

Initially, jury began of 1959. the conclusion of the February At prosecution’s case, however, appellant withdrew his plea of not and entered a guilty plea guilty to mur- der generally. April May of degree guilt hearing was conducted before a three-judge panel. During guilt statement ob- tained from the pursuant to the or- appellant judicial der was introduced into evidence in an attempt to es- tablish degree first murder under the felony-murder rule. The appellant was convicted of first mur- der and sentenced to life imprisonment.

Appellant judicial claims that the proceeding held request prosecution was a critical in stage his pretrial proceedings. It was a critical stage because the in proceeding prejudice resulted to him that evi- dence obtained as judicial result proceeding was later used the against appellant during his degree of guilt hearing. Appellant received no notice of the judiсial proceeding was not represented by coun- sel. In fact, appellant was not represented by counsel after his at his arrest, at preliminary hearing, the judi- cial or at the time proceeding, the second incriminating statement was obtained. I agree with appellant that he was deprived of constitutional right assistance of counsel at a critical stage.

The United States Supreme Court has consistently held that a defendant is entitled to the assistance of at every stage the proceeding against him. In White v. Maryland, 373 U.S. 10 L. 59, Ed. 2d 83 S. Ct. 193, (1963), Court found that a pre- liminary hearing was a critical stage at which counsel required protect the defendant from at trial. The prejudice White was the use at trial guilty plea of a entered at a preliminary hearing with- v. Massa Arsenault In of counsel. out the assistance 89 S. Ct. 35 (1968), L. Ed. 2d 5, chusetts, 5, the defendant at and statements made a guilty plea the assistance of counsel without a preliminary White and Arsenault reaffirmed trial. were used 335, v. 372 U.S. Wainwright, Gideon citing further held, and Douglas 9 L. Ed. 83 S. Ct. 792 (1963), 2d Ct. 372 U.S. L. Ed. 2d S. California, Arsenault retroactive. that White was (1963), fully reversal of like thus Douglas requires Gideon prejudiced any conviction which defendant trial at a critical use at of evidence obtained of the as deprived at which the defendant was sistance of counsel. Coleman 399 U.S. 26 L. Ed. 2d Alabama,

90 S. Ct. 1999 the Court reaffirmed the princi- White ple of and Arsenault that a is entitled defendant to the assistance of counsеl at a critical Cole- stage. man said that it was to scrutinize necessary but preliminary hearing any pretrial confrontation the accused to determine whether it was so critical so require as presence preserve counsel to the de- fendant’s basic to a fair trial. Coleman said that is guaranteed accused need not that he stand alone at against the state any formal prosecution, in court or informal, where out, counsel’s absence from the might accused’s fair derogate to a trial. Coleman further said that is necessary analyze whether potential substantial prejudice to defendant’s inheres in rights the particular confrontation and the of counsel to ability help avoid that prejudice. It is to note important that unlike White Coleman, and Arsenault, did not reverse the defendant’s convic- he though tion even was deprived of the assistance of preliminary counsel at the hearing. The conviction was not reversed because Alabama law prohibited the use at trial of that occurs at the anything preliminary hearing. The said that Court, possible other however, prejudice, aside from the use evidence at trial, might occur dur a ing pretrial confrontation without the assistance of counsel. Coleman, theretofore, remanded case for a determination of whether other than the prejudice, use of evidence at had occurred. In Adams v. Il trial, linois, 31 L. Ed. 2d it was (1972), held that Coleman is not to be retroac tively applied. The was denied defendant, Adams, re lief because there was claim of no actual prejudice, at trial or the lack of otherwise, by the pretrial confrontation. Adams specifically held any that such claim would have entitled the defendant ato without regard to the holding Adams that Coleman Avasnot to be retroactively applied. Convictions after Coleman, Avill if therefore, reversed the defendant deprived assistance of counsel at any pretrial confrontation where there was a potential for prejudice. which White, is fully retroactive under re Arsenault, reversal quires of any convictiоn if actual prejudice rather than potential prejudice resulted.

In Commonwealth v. Horner, Pa. 309 A.2d defendant testified at a preliminary without hearing, the assistance of that counsel, he had shot and killed the victim in self-defense. The state- ments resulting from the preliminary hearing were used at trial by the prosecution. The issue in Avas Horner, controlled by White and Arsenault, Coleman and Adams. reversing judgment of sentence, we stated: “[PJrejudice did result to Horner trial use of his testimony at the preliminary prejudice renders preliminary hearing ‘critical stage.’” (Emphasis Id. at added.) 440, 309 A.2d at 555.

In the present case, judicial proceeding resulted in obtaining inculpatory statements from the ap pellant. appellant was gi\Tennо notice of pro and did not have the ceeding assistance of counsel. Had at pretrial the present been appellant the counsel and have challenged he might proceeding, judicial he petition, grant prosecution’s to authority court’s he to remain silent, the appellant advised might have as operation to the appellant informed have might other he have taken rule, might of the felony-murder in violation appellant prevent prejudice steps to the assistance right constitutional appellant’s in that as Horner, therefore, conclude, of counsel. I, use of the trial result appellant did prejudice judi This rendered the statements. prior a critiсal statements produced cial that proceeding 428 Pa. Dickerson, 564, See stage. Commonwealth (Justice dissenting); A.2d 229 (1968) Roberts cf. 485, ex rel. Johnson 440 Pa. Rundle, (Justice dissenting).. (1970) A.2d 183 Roberts from the denial at trial resulted Since actual prejudice applica retroactive pretrial proceeding, of counsel at a required. tion White, raised previously

The raised this appeal issue co-defendant on two occasions appellant’s v. Dicker and relief was denied. Commonwealth (decided January 2, A.2d son, 237 A.2d (decided January and 428 Pa. 1962) which held that White to be 1968). Arsenault, however, was decided until Octo retroactive, fully after the first Dickerson decision years ber six 14,1968, after the second Dickerson decision. and ten months the Coleman decision, along The Arsenault with deci and the Adams decision have now sion constitutional scope defined the full assistance of counsel any pretrial defendant to the proceeding. to murder pleaded guilty gener- the appellant

Since attack plea, not now need does ally, ‍​​​​​‌‌​​​​‌​‌​‌​​‌‌‌​‌​‌‌‌‌​​‌‌​​​​​​‌​‌​​‌‌‌​‌‍of sentence first judgment disturbed. re- record and the be vacated should however, murder, hearing. guilt of degree manded for a new if reason. Even another I dissent must also concerning this appeal issue raised in there were no an case for I remand the would counsel, assistance of appellant, on another issue. hearing evidentiary 1970 PCHA in his 1967 PCHA and both his of of the denial rаised issue specifically of sen his judgment appeal following Douglas 372 U.S. California, Douglas tence 1959. testi Although 814 (1963). L. Ed. 2d 83 S. Ct. following the hearing taken on this issue at mony findings the trial court made no 1967 petition, When the issue address itself to this issue. did not was taken testimony no raised by appellant not make or address any findings the trial court did is a first murder degree issue. Since this itself to the issue which appeal ap we should not case, ignore in the trial court. Act of has raised twice pellant Cf. P. L. 19 P.S. 1186-87. February 15, 1870, 1-2, §§ §§ evidentiary hearing, findings I remand for would on this issue. This alter conclusions law fact and necessary should not be since the relief, however, nate murder degree for first should be of sentence judgment for a record remanded new and the vacated hearing. guilt Appellant. v. Sanders,

Case Details

Case Name: Commonwealth v. Broaddus

Court Name: Supreme Court of Pennsylvania

Date Published: Mar 26, 1974

Citation: 342 A.2d 746

Docket Number: Appeal, 440

Court Abbreviation: Pa.