*1 Judgment sentence and a reversed new trial granted. Eagen
Mr. Justice dissents. Commonwealth, Horner. Appellant, 8, 1973. Before Argued January C. J., Jones, and Man- O’Brien, Roberts, Nix Eagen, Pomeroy, JJ. derino, *2 him District with Makadon, Attorney, Assistant M. District Stein, and Milton Assistant
Mark Sendrow District Attor- Crawford, James D. Deputy Attorneys, At- Richard A. First Assistant District Sprague, ney, for Com- Arlen District Specter, Attorney, and torney, monwealth, appellant. him Packet, Defender, Assistant with Jona-
John W. Zic- J. than Vincent Miller, Defender, Assistant for appellee. cardi, Defender, by Opinion 19, 1973: Eagen, September Mr. Justice con- Felix Wade Horner was On September 12,1962, and the of murder the first degree aby victed at life No imprisonment.1 fixed post- punishment filed and the court sentence imposed motions trial were No from the appeal directed. was entered the jury judgment. Horner filed a seek 1969, petition February 13,
On relief provisions ing post-conviction P. L. (1965) P.S. January 25, Act of an evidentiary After the trial hearing, et seq. §§1180-1 as mandated appeal found Horner’s U.S. 353, 83 S. Ct. California, Douglas guilty pleaded generally to murder October On evidentiary hearing, adjudged guilty and, of murder in an after However, per degree to death. sentenced was later first plea and the sentence was vacated. to withdraw mitted granted permission had been violated and him post-trial pro to file motions “mine mo- tunc.” Such subsequently tions were filed and a court en banc granted vote two to one Horner a new trial. The appeal challenging Commonwealth filed this the cor- rectness of that order.2 may
The relevant facts be summarized as follows: On acting December two 18, 1959, officers, pursuant anonymous phone to an went to the resi- call, dence of a Mr. and Mrs. Donald Newman Philadel- phia body discovered dead of Mr. Newman buried under earth the basement. A medical exam- ination gunshot disclosed death was caused wound of the thorax. day,
Later the same Homer and Mrs. Newman were police custody taken Harrisburg, into Pennsylvania, following questioning Homer made a statement, *3 shooting was wherein he recorded, admitted but Newman, stated he acted in self-defense. Homer completely any complicity. absolved Mrs. Newman of making Prior to the above Horner statement, was ad- anything against vised that he said him could be used he but was not court, advised he could have the as- during sistance of questioning. the On given December prelimi- Homer 19, was nary hearing committing magistrate. before a He was represented by nor was he counsel, advised he could have such assistance. At this the district attor- ney called Horner as a Commonwealth witness and, warning after him that he testify did not have to and anything against he said could be used him in the event he held for was asked trial, Horner to “tell us what you happened.” “Do warning?” understand the After Homer he warning, indicated understood the the dis- complained pure questions the order Since was based on law, may appeal. the Commonwealth Wrona, Cf. Commonwealth v. 2d Pa. again you attorney us “Do tell want asked, trict happened?” happened? Homer’s what Tell us what given to testimony consistent with his statement was testimony, During police day Hor- the before. specific questions by attor- the district ner was asked ney relationship Mrs. New- and conduct with about his killing. leading up He was and to the man the events about the and voluntariness also asked truthfulness police. Homer admitted the statement he made to its and affirmed the statement voluntariness hearing, Homer At the conclusion of the truthfulness. jail grand was committed to to await action jury. immediately police days
In followed, question him New- continued to Horner and told Mrs. changed story. her man had On December again questioned police Homer detective a written statement confronted with Mrs. Mrs. this statement Newman Newman. plotted she Horner her said husband’s death lay asleep her he and Homer shot husband as month, then in bed. Homer admitted Mrs. Newman’s state- it. ment was true At Mrs. Newman testified as a Commonwealth testimony and her witness,3 consistent with previously given police, namely, had statement she romantically that she been Horner, had involved with plotted and the Mr. death two Newman’s asleep while he was shot victim bed. Testifying on his Homer behalf, own admitted his *4 relationship romantic with Mrs. Newman while New- having man and discussions with was alive her about killing securing He also her husband. admitted 3 trial, plead guilty Newman Prior to Horner’s Mrs. an in charging adjudged husband’s her with her murder. She dictment was degree imprison guilty and the first sentenced to of murder life ment. he used. he stated
gun eventually However, which was and did shooting to Mrs. Newman she gave gun a second floor bedroom while he was living room on conceal the first floor. He admitted helping Mrs. with body following shooting traveling Newman to thereafter. Harrisburg immediately
On cross-examination the district without attorney, if he asked remembered his objection, Horner, part, at the before the com- testimony preliminary hearing on December if at mitting magistrate 19, 1959, Homer did not under oath he shot hearing testify Newman.4 Homer admitted he so testified at but Evelyn said it was “to New- time, protect [Mrs. ”. man]
A
of the
en banc
below ruled this
majority
use
at trial of Homer’s
hear-
testimony
preliminary
without counsel and
ing when
was
not informed he
could have such assistance was prejudicial error which
a new trial.5 We reluctantly
required
agree.
is controlled by
issue
White v.
Maryland,
U.S. Arsenault v. Massachusetts, 393 U.S. S. Ct. 35 attorney’s questions during phase The district of the cross- emphasized Holy Horner had examination sworn on “The Bible” at nothing truth to tell the but the truth. also ruled it was reversible error The court for the trial court request deny specific instruct it must deter of Horner’s statement to voluntariness mine the and his adoption subsequent police. of Mrs. Newman’s statement to the In principal issue, disposition unnecessary it is of our view ruling. of this the correctness reach us to 6 White, guilty plea petitioner entered a at his being present. Following hearing, without plea, counsel, withdrew went to trial. Since the obtained guilty plea was introduced into prior evidence at uncounseled preliminary hearing that White’s Supreme held constitut Court proceedings requiring stage in the assistance of coun critical aed granted Accordingly, petitioner new trial at which the sel. against plea not to be used him. withdrawn *5 440 Ct. 90 S. 399 U.S. Alabama, 1, v. Coleman
Citing
S. Ct.
U.S.
92
Illinois,
278,
Adams v.
405
(1970),
1999
Pa. 205,
440
James,
v.
916
and Commonwealth
argues
the Commonwealth
The Commonwealth be considered a critical stage instantly may from as distinguished because proceedings, prosecution of a it did not Arsenault, entry involve entry use plea. Accepting is not the same at a preliminary hearing guilty plea of the accused that shot testimony utilizing in self-defense, nonetheless, prejudice killed a person of his testimony the trial use did result and this renders the hearing, prejudice the preliminary “critical Common Cf. stage.” ex rel. Firmstone v. and Common Myers, supra, wealth Parker v. 414 Myers, ex rel. Pa. 200 2d 427, wealth (1964). 770 urges the Commonwealth Harris v. New
Finally,
Order Nix concurs the result. Justice
Mr. Opinion Concurring Me. Justice Roberts : majority’s readily today in the concur decision I appellant’s “testimony holding at use, he when was without counsel could have such assistance informed [is] not error trial.” As the prejudicial which require [s] majority issue is controlled acknowledges, clearly White v. 83 S. Maryland, U.S. Ct.
Had the of this Court the im- majority recognized port efficacy White Maryland, earlier, supra, other would have the relief to litigants received they were constitutionally entitled. Common- See, e.g., wealth v. 428 Pa. 237 A. 2d Dickerson, 564, 565, 230 (1968) (dissenting opinion).
I note that
while
with the
that Har
agree
majority
ris v. New
York,
U.S.
Mr. Justice Mandeeino in joins this concurring opinion.
Dissenting Opinion by Pomeeoy Me. Justice : convinced that the trial Being in erred the two on which grounds appellee awarded a new from the must dissent affirmance of its order.
I. considered Court The issue its opinion is by the a statement whether defendant at an un- 1959 counseled could be used
443 a,t against by way impeachment him of his trial which question place in. The took 1962. Court holds that this Maryland, L. is controlled 373 U.S.. (1963), a Ed. 2d 193 that the use such states prejudicial required at trial “was error which agree trial.”1 I cannot with that conclusion. Maryland procedure per under a White arose (but require) prelim mitted did not the defendant at a inary hearing against plea charges to enter to the him. entered case defendant, uncounseled, plea plea, withdrew later, counseled, plea guilty, proceeded only entered a of not to trial, impeached guilty plea to he uncounseled preliminary hearing. Supreme Court of the United citing Hamilton 7 L. States, Alabama, U.S. 52, 55, (1961), “only presence Ed. 2d held that counsel could have enabled this accused all the to know plead intelligently.” him defenses available to Notwithstanding the White and Hamilton decisions, Coleman v. however, until Alabama, U.S. L. general prop Ed. 2d 387 it was the as a law that presence preliming hearing osition the of counsel at a (one pleas Mary at which were not taken—White v. one at which defenses not then land-, raised were not Alabama) constitutionally lost—Hamilton v. was not required. general Coleman, of course, overruled that proposition (1) and held that an Alabama stage” prosecution awas “critical of a criminal presence constitutionally at which the counsel is man (2) petitioner and that dated; Coleman en to a remand to determine if titled the absence of coun prejudiced manner sel had some him, in whether, *8 constitutionally it was harmless stead, error. As the 1 Maryland, supra, It is clear that decision White v. is to retrospectively applied. Massachusetts, 5, Arsenault v. be 393 U.S. (1968). L. Ed. 2d 5 21 444 held, Illi- in Adams v. Coleman
majority indicates,
to
Ed. 2d
apply
31 L.
202 (1972),
405 U.S.
nois,
278,
bear-
to
that
is to say,
preliminary
only,
prospectively
1970.2
conducted after June 22,
ings
If
of authority.
faced with two lines
are thus
We
claim to counsel falls with-
case appellee’s
the instant
or
v.
Alabama,
Maryland,
in Hamilton v.
White
supra,
he is entitled
without a showing
prejudice
then
supra,
are not
if Hamilton
ap-
but
White
trial;3
is the
then Coleman
gov-
situation,
plicable
appellee’s
as
If the latter
is
case, then,
erning authority.
the date of that deci-
hearing precedes
this preliminary
to assistance
counsel will fail,
claim
sion, appellant’s
retroactively applied.4 Clearly,
Coleman not being
2
at bar
on De
The
ease
was held
19, 1959.
cember
3
Maryland,
repeat
v.
Indeed, appellee prelimi- oc- runs in direction to what opposite nary or Rather de- curred Hamilton. than waive to he selected one—self-defense—and testified fenses, been that he that effect warned only having after first and he not to what did that required say anything be held him. than confess Rather say might against innocence that Horner professed by explaining guilt, not homicide, that is to justifiable say, killing a all. think Homer’s claim crime at therefore that to is not that in either White or Hamilton of Coleman v. Alabama leads nonretroactivity that at the date of the conclusion that this preliminary Horner had constitutional hearing (1959), hearings who without counsel in defendants were that thereby prejudiced (i.e., who were after June conducted error) entitled to new trials. The intermediate not harmless are by appellee seem, implicitly by and, adopted it would rule advanced merely holding retroactively ap majority of Ooleman notwithstanding application plied, such retroactive is not re that Illinois, text, supra. quired, Adams v. cited in see by testifying argued to a version of the facts be It could self-defense, appellee precluded amounting- a claim himself however, asserting Hamilton, a defense. was a different from later indigent layman danger recognition inis at a (under waiving an Alabama defenses law which recognize preclusion) provided his failure to for such time Here, however, constitute a knows them defense. the facts recognized de that his version facts did constitute a Pennsylvania precluded hy procedure from iater He was fense. only penalty asserting at trial. would be defense different change story. always one decides one’s arises when that which majority rationale reaches counsel. The contrary least to most unclear.6 is, at result, me, (at Immediately upon being arrested pre-Miranda), appellee gave pre-Escobedo a date admitting killing, but as- serting point, pre-trial, At no either self-defense. any post-trial, suggestion been made that has *10 in this first statement some manner inadmissible. was objection it introduced at the trial was without Indeed, during the Commonwealth’s case-in-chief. When at tri- having al defendant took the stand and denied justifiably open killed the or it was deceased, otherwise, impeach using the to Commonwealth to either this him, already into first introduced or us- statement, evidence, ing transcripts preliminary hearing. the from the The evidently Commonwealth chose the because it latter, was judicial given quite under oath before a officer and was understandably more a tool for effective the Common- purpose.7 majority, “preju- wealth’s Unlike the see no procedure garden other than the dice” common variety switching from that comes from mid-stream having of a claim of a claim self-defense to not killed majority distinguishes Coleman v. Alabama from this case “Herein, , in. Coleman . . as follows: unlike . hear stage prosecution ing proceedings critical in the was a where required.” counsel was assistance of respect, distinguished ground all Coleman cannot be With on the stage”. following a “critical it did not involve Witness the ex- cerpt opinion Brennan, speaking Mr. from the Justice for the indigent inability of the accused “The on his own realize Court: lawyer’s advantages compels of a assistance the conclusion these preUmdnary hearing stage’ Alabama is a ‘witical of the process at criminal which accused is ‘as much entitled State’s ” counsel] ... as at the trial itself.’ [of aid 399 U.S. to such at 9-10 added). (emphasis necessity deciding discussing applicability 7 1 see York, New 401 U.S. 28 L. Harris v. Ed. 2d 1 to this course, assuming, situation, denial of a constitutional present in this case. not constitutionally Appellee, en- at all.8 was however, preliminary hearing Cole- to counsel at the titled under the man not entitled to counsel Alabama, Maryland Ala- and Hamilton v. decisions White only damage to Ms defense bama, and therefore giving generally of inconsistent state- caused oath. ments under
II. granted appellee on an- trial The lower opinion ground, not considered other judge give jury a trial refusal Court: the requested must to the effect that the instruction of Horner’s third state- first determine voluntariness go regarded only if determined should it be ment part of was introduced as This statement evidence.9 attorney might altered the an would have ask whether One preliminary hearing. Horner had took at the the defendant stance Philadelphia police already *11 story Newman’s was consistent with Mrs. he asserted self-defense. signed statement, having in thus asserted It been claim. that attorney might competent advised Horner to continue his well have hearing. preliminary claim self-defense obliged abandon self-defense at trial Horner was reason The Newman) hearing, (Mrs. the wife after that was conspiracy story changed to murder with Horner as of to one her jury pleaded killer, murder. No would be- then acknowledged guilt. paramour had The when self-defense lieve counsel, logically the absence of but rath- prejudice not from arises to remain constant in her earlier wife of the refusal from the er inconstancy accomplices killing. of the law For the of account remedy. provides no actually paramour-wife, that of the was third The conspiracy her participation in to murder husband admitted who shooting. Horner, dur done the actual had stated Attorney District after Assistant ing with interview an hearing, agreed that this statement had was date signed it Commonwealth introduced it. The had truth adoptive admission. an objection. defense case without the Commonwealth’s defense direct testimony, Homer’s During ratified state- this the “voluntariness” touched upon Q. Did extent: to this only ment Counsel] “[Defense I finally A. Yes, statement? you sign finally me many questions. so quit asking it so would good I think it was any didn’t As started say, was it fact, to see an attorney. I hadn’t a chance no There I had an was attorney.” ten months before no evidence there was coercion; of physical evidence interrogation techniques the use impermissible asser- There is only an attorney. the questioner, asking he would quit “I it so finally signed tion that me so many questions.” in to this asserts appellee
While
is
there
constitutional
dimension,10
not of
struction
of our
an instruction is part
but
such
question
Heckathorn,
Commonwealth
e.g.,
law. See,
State’s
ex
2d
Commonwealth
241 A.
97 (1968);
I remand with directions that the would reverse and allegations pass on the four error not lower court opinion granting appel- order with in the dealt lee a new trial. joins dissenting
Mr. Chief Justice Jones opinion. 'testimony pe 11 1 the notes of from Ho-rner’s note POHA pro granted appeal tunc) (on a direct nunc
tition Attorney The Assistant District not been transcribed. who have represented POHA at that stated in a the Commonwealth opposition post-trial motions that “[a]t filed de brief below May 20,1970, Guerin, post-conviction on Charles L. fendant’s Judge together Esquire, [who that he and Meade were testified object to the trial] did admission counsel at Horner’s defense they gave defendant because concluded that of the statements doubly so, voluntarily.” If would be certain that statements does not warrant new trial. issue the voluntariness Appellant. Clark, Commonwealth