Opinion
July 15, 1969.
Criminal Law — Evidence — Confession — Absence of Miranda warnings only issue raised in motion for new trial — Claim of denial of right to appeal by petitioner for post-conviction relief — Futility of hearing on issue of right to appeal — Denial of direct appeal only under particular factual posture of case.
Where it appeared that the only issue raised in defendant's motion for a new trial was that his Miranda rights were violated; that the court of common pleas refused defendant a hearing on his petition for post-conviction relief, on the ground that he was denied his right to appeal, because the only issues which can be raised on appeal are those raised in a post-trial motion, and, in its view, Miranda was inapplicable to retrials; and that the Superior Court, in an order entered before the Supreme Court decided (in Commonwealth v. Willman) that as a matter of State law Miranda is inapplicable to retrials, remanded for a hearing as to whether defendant had waived his right to appeal; it was Held that defendant had no issue which he could successfully raise on appeal, and therefore it would be a vain gesture to order a hearing on the issue of whether he had waived his right to appeal; defendant's right to a direct appeal because he could not win the appeal, if taken, was denied only under the particular factual posture of this case.
Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Petition for leave to appeal No. 250, March T., 1969, from order of Superior Court, April T., 1969, No. 145, affirming order of Court of Oyer and Terminer and General Jail Delivery of Crawford County, Nov. T., 1962, Nos. 36, 37, 38, 40, 41, and 47, in case of Commonwealth v. James Lee Brady. Allocatur granted. Order of Superior Court reversed.
Same case in Superior Court: 215 Pa. Super. 704.
Petition for post-conviction relief.
Order entered dismissing petition without hearing, opinion by THOMAS, J. Petitioner appealed to Superior Court, which remanded for hearing. Petition for allocatur filed with Supreme Court.
David P. Truax, Assistant District Attorney, and Paul D. Shafer, Jr., District Attorney, for Commonwealth, appellant.
R. Charles Thomas, for appellee.
Appellee, James Lee Brady, filed a post-conviction petition, alleging that he was denied his right to appeal. The Court of Common Pleas, Criminal Division, of Crawford County denied the petition on January 23, 1969, stating that the only issue raised in the motion for new trial was that appellee's Miranda rights were violated. Since the only issues which can be raised on appeal are those raised in a post-trial motion, and since in the court's view Miranda was inapplicable to retrials, a hearing was denied. The Superior Court, in an order of June 5, 1969, quite properly remanded for a hearing as to whether appellee had waived his right to appeal. On June 5, it had not yet been decided that as a matter of State law Miranda was inapplicable to retrials. However, on June 27, 1969, in Commonwealth v. Willman, 434 Pa. 489, 255 A.2d 534 (1969), we held that Miranda was inapplicable to retrials. Appellee thus has no issue which he can raise on appeal, and therefore it would be a vain gesture to order a hearing on the issue of whether he waived his right to appeal.
We note that, in adopting the rather unusual position that it is proper for us to deny appellee's right to a direct appeal because he could not win the appeal, if taken, we do so only under the particular factual posture of this case, where only a few brief weeks ago we decided, after briefing and argument, appellant's only argument adversely to him. As a practical matter, it would make no sense to permit such a useless appeal.
Our opinion, however, should not be read as indicating that we will in the future be receptive to the argument that a prisoner should be denied an appeal because the record indicates that his appeal may be futile. The merits of the appeal will properly be considered by us, with briefs from counsel, when the appeal is taken, and we will not lose sight of the fact that even when the law seems to be against an appellant, it is always open to him at least to argue that precedents should be overturned.
The allocatur is granted and the order of the Superior Court is reversed.