Opinion
Submitted May 25, 1966.
September 27, 1966.
Practice — Habeas corpus — Necessity for hearing — Questions of law — Dismissal of petition.
1. In a habeas corpus proceeding, where no material or substantial questions of fact are involved and where the questions presented are questions of law, no hearing for the taking of testimony is necessary. [538]
Criminal law — Constitutional law — Person arrested for crime — Lack of immediate preliminary hearing — Confession — Voluntariness — Rule of Jackson v. Denno.
2. In this case in which it appeared that there was a 13 days delay after relator was taken into custody before he had a preliminary hearing but there was no evidence that prejudice or harm resulted from such delay and the relator was convicted of murder in the first degree and sentenced to life imprisonment in 1955, it was Held that the delay alone does not justify the issuance of a writ of habeas corpus in 1966.
3. Relator's contention that the voluntariness of statements introduced by the Commonwealth at his trial in 1955 was not evaluated and determined by the trial court under the ruling enunciated in Jackson v. Denno, 378 U.S. 368, was Held to be without merit.
4. The rule of Escobedo v. Illinois, 378 U.S. 478, announced on June 22, 1964, applies only to those cases in which the trial began after that date. [539]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 52, May T., 1966, from order of Court of Common Pleas of York County, Jan. T., 1966, No. 34, in case of Commonwealth ex rel. Lawrence Rogozinski v. Harry E. Russell, Superintendent. Order affirmed.
Habeas corpus.
Petition dismissed, order by SHADLE, J. Relator appealed.
Lawrence Rogozinski, appellant, in propria persona.
John T. Miller, First Assistant District Attorney, and John F. Rauhauser, Jr., District Attorney, for appellee.
This is an appeal from an order of the Court of Common Pleas of York County refusing to issue a writ of habeas corpus.
On August 25, 1955, Lawrence Rogozinski was convicted of murder in the first degree and sentenced to life imprisonment. On appeal to this Court, we affirmed the judgment of sentence: Commonwealth v. Rogozinski, 387 Pa. 399, 128 A.2d 28.
On July 12, 1965, Rogozinski petitioned the Court of Common Pleas of York County for a writ of habeas corpus. That court appointed counsel for Rogozinski and the matter was heard before the court on briefs and oral argument. The court, on August 23, 1965, dismissed the petition ( Commonwealth ex rel. Rogozinski v. Russell, 79 York 115) and no appeal was taken from that order.
No testimony was taken because of the absence of any issue of fact.
Approximately two months later, Rogozinski filed the instant petition. Counsel was appointed for Rogozinski, the Commonwealth answered the petition and, after the oral arguments of counsel and the submission of briefs, the court refused to direct issuance of a writ of habeas corpus. From its order Rogozinski now appeals.
Rogozinski initially claims he was entitled to be heard by way of taking testimony. An examination of the petition and answer indicates that no issues of fact but simply questions of law were raised. In such posture a hearing would be unwarranted: Commonwealth ex rel. Hilberry v. Maroney, 417 Pa. 534, 540, 207 A.2d 794; Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 111, 194 A.2d 143.
Rogozinski, alleging a violation of his constitutional rights, specifically makes the following allegations: (1) at trial the Commonwealth placed in evidence certain statements which he had made at a time (a) when, after several requests, he had been refused and lacked the assistance of counsel, (b) when he was not warned of his right to remain silent and (c) when he was tricked, coerced or threatened to make such statements; (2) that a preliminary hearing — held 13 days subsequent to the time he was taken in custody — was not promptly afforded him; (3) that the voluntariness of his pretrial statements was determined by the jury and not preliminarily by the trial judge in violation of the ruling in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774.
The trial testimony, part of which is attached to Rogozinski's petition, indicates he was told he did not have to make a statement.
Rogozinski, in his petition, concedes he was not physically mistreated but contends he was mentally mistreated. The trickery of which he complains was the withholding of information that the victim of the assault had died.
In Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 311, 207 A.2d 810, we said: "It has been held that, although regrettable and to be discouraged, the absence of an immediate preliminary hearing, per se, constitutes no violation of petitioner's constitutional rights. [citing an authority]." See also: Commonwealth ex rel. Light v. Maroney, 413 Pa. 254, 196 A.2d 659; Commonwealth ex rel. Santiago v. Myers, 419 Pa. 326, 214 A.2d 206. The instant record reveals neither prejudice nor harm which resulted to Rogozinski from the delay in holding a preliminary hearing in the instant case. While we do not condone but, on the contrary, condemn the unreasonable delay, such delay alone does not justify the issuance of this writ.
Rogozinski's next contention is that the statements which he gave at a time when he was without requested counsel, when he was not warned of his rights and when he was unaware of the victim's death were improperly admitted under the rule of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758. On June 20, 1966, the U.S. Supreme Court in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 34 L.W. 4592, held that "Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision". Cf. Com. v. Negri, 419 Pa. 117, 213 A.2d 670. This contention is, therefore, without merit.
When the statements were offered at the trial, no objection to the admission thereof was made. Under such circumstances, the admissibility of such statements cannot now be collaterally attacked: Com. ex rel. Blackshear v. Myers, 419 Pa. 151, 213 A.2d 378; Com. ex rel. Johnson v. Myers, 419 Pa. 155, 213 A.2d 359.
For the same reason, we need not consider the final complaint that the trial court did not follow the rule stated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 which is applied retrospectively.
We have carefully examined the instant record and we find therein no justification for the issuance of the Great Writ upon the contentions made in the instant petition. On the contrary, it is made evident by such examination of the record that Rogozinski received a fair trial and that his constitutional rights were adequately protected.
Order affirmed.