Opinion
Submitted April 20, 1965.
July 6, 1965.
Criminal law — Constitutional law — 6th and 14th Amendments — Person arrested for crime — Preliminary hearing — Lack of counsel — Confession — Voluntariness — Rule of Jackson v. Denno — Rule of Gideon v. Wainwright.
1. One who is on trial for a crime and who does not attack the voluntariness of his confession at the trial may not, long after the final stage of the direct litigation has passed, raise that issue. [519]
2. The rule of Jackson v. Denno, 378 U.S. 368, controls only where the question of the voluntariness of incriminating statements used in evidence is controverted and put in issue at trial. [519]
3. In the absence of unusual circumstances which transform the preliminary hearing into a critical stage of the proceedings against the accused, lack of counsel at such hearing does not constitute a deprivation of due process. [519]
Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 131, Jan. T., 1965, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1964, No. 5750, in case of Commonwealth ex rel. Clarence Lofton v. Harry E. Russell, Superintendent. Order affirmed.
Habeas corpus.
Petition dismissed, order by GUERIN, J. Relator appealed.
Clarence Lofton, appellant, in propria persona.
Gordon Gelfond and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
This appeal is from an order of the Court of Common Pleas No. 5 of Philadelphia County dismissing the appellant's petition for a writ of habeas corpus.
The appellant alleges that his present confinement is illegal in that his constitutional rights have been denied. He alleges that he did not have the benefit of counsel when he gave the police a statement of his implication in a crime with the commission of which he was subsequently charged.
At the time of trial, the petitioner was represented by two attorneys. He entered a voluntary plea of guilty and no objection was raised to the introduction of his confession. In addition thereto, the appellant testified that his confession was voluntary.
The appellant cites Jackson v. Denno, 378 U.S. 368, as he attacks the propriety of the introduction of his confession. In Com. ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965), we said that in Jackson v. Denno, supra, the trial court was well aware that the voluntariness of the confession was in question. These are not the facts in this case. Had the issue of involuntariness been called to the court's attention, or had the introduction of the confession been objected to, we would remand for a hearing, consistent with the ruling of Jackson v. Denno.
The appellant also raises the issues that he was not represented by counsel at the time of his arrest and at the time of his arraignment citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963). We can find little merit in this contention as it is applied to the appellant. In addition thereto, we have held on many occasions that the preliminary hearing ordinarily is not a critical stage in Pennsylvania criminal proceedings. It was not in the instant case. Com. ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965). The petitioner was represented by counsel at the time of his trial and entering a plea of guilty. There were no objections to the introduction of his pretrial statements and, finally, he testified at his trial with counsel that his pre-trial confession was voluntary.
In addition it should be noted that on two occasions after his conviction, the appellant-petitioner again testified as to his participation in the crime. See the records in Com. v. Turner, 367 Pa. 403, 80 A.2d 708 (1951) and Com. v. Turner, 371 Pa. 417, 88 A.2d 915 (1952).
Our examination of the record discloses no lack of judicial fairness or violation of his constitutional rights requiring the grant of the Writ.
Order affirmed.