OPINION BY MR. JUSTICE ROBERTS, January 12, 1965:
The facts of the case before us need be presented only in their brief essentials. In 1940, Leon Butler was arrested and, during his arrest, confessed to murder. Butler had no counsel at his preliminary hearing,
Basing his petition on these central facts, as well as others, Butler sought a writ of habeas corpus in 1964. In essence, the petition framed two significant questions: (1) Does lack of counsel at preliminary hearing in this Commonwealth, in and of itself, amount to a deprivation of due process of law? and (2) Is the ruling of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774 (1964), to be given retroactive effect? Answering both questions in the negative, the Court of Common Pleas No. 1 of Philadelphia County dismissed the petition without hearing.
Petitioner does not allege, nor does the record show, any consequences which flowed from the absence of counsel at the preliminary hearing. No legal right
The court below rejected petitioner's assertion. Our Superior Court has ruled to the same effect. Commonwealth ex rel. Land v. Rundle, 202 Pa.Super. 509, 198 A.2d 433 (1964), allocatur denied, 203 Pa. Superior Ct. xxxvi (1964); Commonwealth ex rel. Jones v. Rundle, 204 Pa.Super. 316, 204 A.2d 487 (1964). And this Court has reached a like result. Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 206 A.2d 283 (1965); Commonwealth ex rel. Herge v. Rundle, 415 Pa. 36, 202 A.2d 24 (1964); Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 198 A.2d 565 (1964); Commonwealth ex rel. Wagner v. Myers, 414 Pa. 35, 198 A.2d 540 (1964); Commonwealth ex rel. Whiting v. Rundle, 414 Pa. 17, 198 A.2d 568 (1964); Commonwealth ex rel. Parker v. Myers, 414 Pa. 427, 200 A.2d 770 (1964).
The holding of these cases is that a preliminary hearing in this Commonwealth is not ordinarily a critical stage in the proceedings against the accused. As this Court has noted, the situation in White v. Maryland, supra, is distinguishable. There the accused entered a plea of guilty at the preliminary hearing without the benefit of counsel and that plea was subsequently used against the accused at his trial after he had changed his plea to not guilty. Thus, the plea of guilty at the hearing in that case became important. These facts transformed the preliminary hearing in that instance into a critical stage.
In the absence of unusual circumstances which transform the proceeding into a critical stage, lack of
As has been noted, the appellant-petitioner raised the alleged involuntariness of his confession during the 1940 trial. In dealing with that contention, the trial judge submitted the confession to the jury along with instructions that the jury must determine whether the confession was, in fact, voluntarily given. If it was found to be involuntary, the trial judge charged, it must be completely disregarded. This method of submitting contested confessions to the trial jury without a prior independent judicial determination of voluntariness was established practice in this Commonwealth and was considered to be in accord with constitutional requirements of due process and had been so held in Stein v. New York, 346 U.S. 156, 73 S.Ct. 1077 (1953). However, in June of last year, the Supreme Court of the United States again reviewed this question and reached the conclusion that procedures such as ours failed to afford due process of law because they were not "fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession. . . ." Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 1788 (1964).
Since the relator in this case was tried, and his judgment finalized, the case clearly presents the important issue of whether the Jackson ruling operates
The most persuasive authority for the proposition that the principle of Jackson v. Denno is to be applied to convictions finalized prior to the date of that decision is Jackson itself. Although none of the various opinions filed in the numerous proceedings in the case give the exact date of the conviction, Jackson must have been convicted in late 1960 or early 1961. The New York Court of Appeals affirmed his conviction. 10 N.Y.2d 780, 177 N.E.2d 59, 219 N.Y.S.2d 621 (1961), amended, 10 N.Y.2d 816, 178 N.E.2d 234, 221 N.Y.S.2d 521 (1961). The Supreme Court of the
The thrust of this history is to show that the now rejected procedure of deciding issues of voluntariness was held to be constitutionally insufficient in a case which had already been finalized. Jackson itself was a collateral proceeding and it would seem untenable to conclude that the holding of that case may not be equally applied to other collateral proceedings. Logic and constitutional imperatives shy away from such arbitrary inconsistency.
In what appears to be a further indication of the correctness of our conclusion, the Supreme Court of the United States, by memorandum decisions dated the same day as Jackson v. Denno, remanded numerous cases to various courts for further proceedings not inconsistent with its opinion in Jackson.
An even more recent case is available for support. In Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174 (1964), the defendant had been convicted in 1960 and his conviction had been affirmed.
We find these indicia compelling. But even beyond the authorities, an examination of the nature of the constitutional deprivation which was found to exist in Jackson leads us to the same conclusion. The underlying rationale of Jackson posits the rule that a conviction obtained upon a trial into which an involuntary confession has been introduced cannot stand in the light of the Fourteenth Amendment. 378 U.S. at 386, 84 S. Ct. at 1785. Given this prohibition, Jackson held that prior jury methods of determining voluntariness did not afford adequate safeguards by which courts could adjudicate whether a conviction was, in fact, based on a jury's improper consideration of a coerced confession. 378 U.S. at 388-91, 84 S. Ct. at 1787-88. Since previous practice has been held to fall short of
We are painfully aware that, for a time, our conclusion may exert further strain on our courts. Yet we are also aware that when liberty is denied without constitutional assurances of due process of law, the conviction may not be permitted to stand. We cannot sacrifice to mere expediency the wise restraints and constitutional safeguards which make men free and advance the quality of criminal justice.
The order of the court of common pleas is vacated and the record is remanded for an evidentiary hearing
Vacated and remanded.
Mr. Chief Justice BELL concurs in the result.
Mr. Justice COHEN would grant a new trial.
See, also, Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964). The decision in Jackson intervened between the time of Coyle's trial and our decision in the case on the direct appeal. Nevertheless, we remanded for a hearing so that the requirements of Jackson might be fulfilled.
Our decision in Wilson, however, was based on our announced belief that the primary purpose of Mapp was deterrent in nature, and that such a purpose was not served by retroactive application. 412 Pa. at 118-22, 194 A. 2d at 147-49. See also Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U. Pa. L. Rev. 650 (1962).
As was said of the deficiency found to exist in Mapp: "[T]he fairness of the trial itself and the truth of the verdict are not involved. The constitutional injury lies elsewhere." State v. Smith, 37 N.J. 481, 485, 181 A.2d 761, 763 (1962). The deficiency in the Jackson situation does go to the fairness of the trial since conviction and trial based on what may be an involuntary confession are unquestionably unfair. See Brown v. Allen, 344 U.S. 443, 475, 73 S.Ct. 397, 416 (1953).