*1 between Mrs. her at- colloquy extensive Dickerson and Mr. Baran, prior entry plea torney, he informed her of the na- carefully which non-binding of the recommendation. ture Mr. And advised [By at that time we Baran] “Q. of the fact that we had certain you engaged plea with the District correct? Attorney; is that bargaining Q. Yes. We also A. advised that Weinrott you Judge was not a to of those party bargaining sessions is not bound the same. Do understand that? you Q. A. Yes. Do further understand the fact that you we have had discussions with Mr. Stevens and he has us that he is to make going advised a recommendation? Q. I tell A. Yes. And did not you recom- be for a going mendation was sentence of prison Q. from A. Yes. I years? two five Did further tell you upon this is the Trial binding Judge that he neither has to nor but accept reject the same, can make his determination own based on the facts? A. Yes.”
Where the attorney district enters into and keeps a plea bargain to recommend a certain sentence and the defendant court, clearly understands this rec- ommendation is not on the binding as this rec- court, ord persuasively is not demonstrates, plea rendered invalid merely because the court at- rejects district recommendation. torney’s
Order affirmed. Appellant.
Commonwealth v. Leamer, *3 Argued 1972. January 17, Before J.,C. Jones, and Man- Eagen, O’Brien, Roberts, Nix Pomeroy, JJ. DERINO,
T. Dean for appellant. Lower, Amos Davis, District Attorney, for Commonwealth, appellee.
Opinion
October
1972:
Mr.
Justice
Pomeroy,
Appellant was
convicted
1958 following a jury
trial of the 1955
murder of
92-year-old
grandfather, Samuel Jacob Learner, and sentence was
fixed at life imprisonment. After the jury returned its
verdict, appellant’s counsel made an oral motion for a
new
which
trial,
prior
was withdrawn
immediately
sentencing.
1970, we reversed the dismissal of ap
pellant’s 1968 Post Conviction
Act1
Hearing
petition
based
held,
our decision in
upon
Littlejohn,
seq. 2 leading appeal We note that the trail to this has been -well- by jury trial, corpus post- marked earlier one numerous habeas and
80 degree murder case of Commonwealth’s
Tlie confession, of a primarily consisted appellant against and here challenged, which is not of the voluntariness this pursuant discovered evidence corroborating then appellant, his confession, According statement. his grandfather the home of of went years age, 30 with the avowed September 2, 1955, the of evening on the victim Finding a committing robbery. of purpose the ostensi- him house, lured outside appellant at home, then struck fatally an albino and deer, to look at bly A small of amount pipe. him the head Avith a piece over house, from the were stolen flashlight and money of the deceased. from the body and watch was taken to and body deposited transported then the Appellant quarry in water-filled hole. it a nearby con- to refute the took the stand trial appellant At to the elder gone he had fession. He stated that help pay dollars to the Learner’s house to borrow five re- disparaging made rent; grandfather when he, the suggested marks Avifeand appellant’s about appeals. petitions, in At his first trial conviction several other guilty pleaded adjudged appellant guilty, of first 1956 appeal, (386 murder, affirmed. sentenced to death. On and was corpus petition (1956)). 485, in A habeas Pa. A. 2d 1957 126 409 County in reversal resulted Court Common Pleas Blair appellant had determined that this after it was 1956.conviction competent appeal taken from the to stand trial. No not been corpus petitions subsequent were trial in but habeas second County by 1963; Blair the Court of Common Pleas of dismissed Pennsylvania by Supreme by 1963; States Court United by in-1963; Supreme for the the United States District Court Court Pennsylvania (No. Corpus) ; District of 532 Habeas Middle by County (affirmed Court of Common Pleas in 1967 the Blair Pennsylvania Supreme by Court at 243 A. 2d petition appellant’s (1968)). PCHA denied County Court, resulting this latter order Blair Common Pleas pro filing mino tuno of the motion for our reversal subject appeal. is the matter of this new trial which
81 better able her satisfy be to amorous grandfather, might in deceased acci- scuffle ensued which the proclivities, struck his head on the dentally stove; frightened, ap- then the removed hole. pellant body quarry the more than in thirty alleged Of errors asserted trial appellant his new motion, presses only now seven. For reasons which we conclude that all are follow, without merit and therefore affirm 1958 judgment the of sentence.
(1) Appellant
argues
that he was unconsti-
tutionally denied
counsel at his
right
prelimi-
the
to
in 1955.
nary hearing
the
States
Although
United
Su-
Court
in 1970
preme
held
that a preliminary hearing is
a critical
in
stage
a criminal
proceeding, requiring
presence
counsel unless
Coleman
knowingly waived,
399
L.
Alabama,
U.S.
26
Ed.
387
1,
2d
(1970),
decision is not
Illinois,
retroactive. Adams v.
405 U.S.
L. Ed.
278, 31
2d 202
Commonwealth
(1972).
v. Thom-
440 Pa.
as,
(2) Appellant complains next that he was preju- diced refusal of trial to court allow defense counsel to cross-examine a Commonwealth witness as to the defendant whether had been advised his con- rights stitutional before confession. making Ms The Commonwealth contended, the trial court agreed, 1955, prior Supreme Court’s decisions Escobedo 378 U.S. 12 L. Illinois, 478, Ed. 2d 977 and Miranda v. (1964) 384 U.S. Arizona, L. Ed. 2d 694 rights no such were known to exist. The practice this jurisdiction, was to however, advise de- fendants least their rights to remain at silent and made statements could be used against them. These were warnings not considered constitution- a useful pre- but desirable mandated, practice
ally
re-
successfully to
if the Commonwealth were
caution
as
confession
involun-
challenge
a subsequent
but
A. 2d
v. Negri,
Commonwealth
tary.
v. Dilsworth,
595 (1964);
so
cases,
above two
(5)
from appellant’s
on
aside
ground that,
challenged
support
insufficient
evidence to
there
confession,
“. . .
The law is well settled
guilt.
this degree
accused
or
of one
an
admission
confession
extrajudicial
and un
unless
received
evidence
crime cannot be
es
been
til
the crime has first
delicti of
corpus
that failure to com
by
proof,
tablished
independent
will exclude the admission
this
ply
prerequisite
with
Commonwealth,
. .
. . . the
or
. [Wjhenever
confession
for
the person
has established
a homicide case,
in fact
death the
was instituted is
prosecution
whose
under circumstances
and that
the death occurred
dead
someone,
criminally
it was
caused
indicating
may
or
is satisfied and admissions
confessions
rule
as
proof
identity
then
be received
always
*7
458,
282 Pa.
Gardner,
Commonwealth v.
guilty agent;
276
238.”
235,
Commonwealth v.
Pa.
463;
Pugilese,
340 Pa.
16 A. 2d
Turza,
128, 133-34,
401
See also Commonwealth
(1940).
Leslie,
403
227 A. 2d
Commonwealth v.
(1967);
Ross,
900
331,
A.
780
cert.
368 U.S.
denied,
2d
358,
(6) Appellant’s
assignment
sixth
sum
error,
marily rejected
the trial
is that after
court,
original
panel
jurors had been exhausted
voir
on
the sheriff
dire,
did not follow the statutorily
pre
scribed procedure for summoning additional
jurors.3
The Act of April
P. L.
14, 1834,
P.S.
§144,
in effect at the time of trial, provided as follows: “If
a sufficient number of the persons summoned and re
turned as aforesaid shall not
as
appear
or
required,
if,
(also
seventh,
We note that
this same contention
which
text)
fully
raised,
rejected
aired,
appel-
follows in the
corpus petition
lant’s counselled 1964 habeas
in the District Court
of the United States for the
Pennsylvania,
Middle District of
No.
prior
Corpus,
532 Habeas
to the effective date of the Post Convic-
Hearing Act, supra,
appeal appears
tion
note 1. No
to have been
ruling,
way
knowing
taken from this
and there is no
on
right
appeal
knowingly
record
us
before
whether the
waived.
Hearing
4 of the Post
Section
Conviction
Act is thus not a bar to
*8
presentation
points
the
appeal.
of
sixth and seventh
raised on this
Cannon,
Commonwealth v.
442 Pa.
(1971).
A.
275
2d 293
Cf.
Faison,
(1970),
Appellant represented citizenry from or the choosing bystanders stead of ju- additional the the solicited county at sheriff large, rors the favor weighting panel by telephone, thereby “anti-crime” senti- of his own “law and order” and toas however, ments. There is in the nothing record, in fact jurors the manner in which the additional were cannot we the lower court called, say as error in trial the directing proceed jury the with need not whether the Accordingly, selected. decide alleged telephone improper the use of the under Act of 1834. contention the court
(7) final is Appellant’s in allowing Commonwealth to introduce his erred the record of conviction either assist prior burglary the or life setting penalty imprison at death jury the then “Parker Rule” prevailing ment under murder, event returned a verdict of they Atl. Parker, see Commonwealth **4In purposes.i or for Common- impeachment 4 Appellant’s record introduced before he took the stand Appellant put character into issue. admits that had own admissibility proof reversed, prior been the order of rec challenged. however, contends, He ord could Com knowing way strategy had no what de monwealth subject be, and in fact forced him to fense broach the would good character.
wealth v. Chapasco, 258 A. 2d we restated the three factors to be in considered deter mining when the introduction of a defendant’s prior criminal record under the Parker Rule was prejudi so cial as to amount to a denial of due process. Those factors are: the number (1) and nature of the prior crimes and their relationship to the murder charged; whether (2) Commonwealth actively sought death penalty; whether (3) there was a substantial question of to be guilt resolved at trial. We are satis in fied, reviewing the record light of these factors, the introduction of the burglary conviction proper was under the Parker Rule as bearing on the be penalty to imposed should the find jury appellant guilty of mur der the first there degree; was prejudice no which could said to a amount denial of due process. one Only prior conviction was put evidence, and of a a crime of it nature; different not likely influence the on the jury question basic The of guilt. death penalty actively sought by the Common (appellant wealth had fact received it on his first evidence of trial). Finally, guilt, considering appel lant’s confession, clearly sufficient to convict with out resort criminal prior record. Moreover, the court on properly charged the purpose and effect of the prior exception and no record, was taken there to. the above, we conclude that light introduction record was appellant’s prior under proper the Parker need decide therefore its
Rule, admissibility for impeachment purposes. of sentence
Judgment affirmed. Dissenting Opinion Mb. Justice Manderino : A defendant exercising constitutionally guaran- teed is entitled to a appeal judgment right on the rights merits to constitutional as known according understood at the time his constitutionally guaranteed is decided. appeal being
The non-retroactive doctrine is sometimes which used—and sometimes not—to of con- judge merits stitutional questions ap- mandated constitutionally is peals built upon quicksand logic. For courts to speak of old and new constitutional on rights based *10 calendar by cut-off established dates, judicial decrees, involves the usurpation authority reserved alone can amend consti- people—they alter and, thus, tutional rights effective on a day certain.
Courts, judicial exercising authority, perpetually receive insight new from ever increasing knowledge arts sciences. These insights new result new applications unchanging princi- constitutional ples to age-old well-known situations. The arts and sciences teach continually us more ourselves about as members of and our society relationships to each other. deciding justice of any man’s cause, new awareness of constitutional injustice should not be arbitrarily ignored because of the calendar. How- men ever, because rational may for provide finality the appellate process, constitutionally erroneous re- sult occurring that process may insulated from collateral attack legislative unless other- enactments wise provide. See §3(c)(12) of the Post Conviction Act, Act of Hearing January 25, P. L. (1965) 1180-3(c) P.S. §3, (12). I dissent. The non-retroactive doctrine should not have barred some of the constitutional claims presented defendant.