Opinion
Submitted April 20, 1966.
June 24, 1966.
Criminal law — Criminal procedure — Practice — Habeas corpus — Scope of review.
1. The question of the sufficiency of the evidence to support the conviction of defendant, absent extraordinary circumstances, is not cognizable on habeas corpus. [238]
Criminal law — Murder — Evidence — Sufficiency — Plea of guilty — Effect.
2. Where a person pleads guilty to an indictment for murder and is found guilty of second degree murder, the sufficiency of the other evidence to support the conviction is moot. [238]
Criminal law — Constitutional law — 5th, 6th and 14th Amendments — Lack of counsel — Competency of counsel — Rule of Escobedo v. Illinois.
3. The rule of Escobedo v. Illinois, 378 U.S. 478, is not applicable to a conviction finally sustained prior to the announcement of the rule on June 22, 1964. [238]
4. A petition for a writ of habeas corpus which alleges that relator's counsel was incompetent but which contains no factual averments concerning the question of incompetence may be dismissed without hearing. [239]
Criminal law — Constitutional law — Double jeopardy — Flight during first trial.
5. Where a person's first trial on an indictment for murder is terminated by reason of his flight from the jurisdiction during the course of the trial, his retrial does not constitute double jeopardy. [239]
Mr. Justice COHEN took no part in the consideration or decision of this case.
Before BELL, C. J., MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 163, Jan. T., 1966, from order of Court of Common Pleas No. 8 of Philadelphia County, June T., 1965, No. 4628, in case of Commonwealth ex rel. Samuel Green v. A. T. Rundle, Superintendent. Order affirmed.
Habeas corpus.
Petition dismissed without hearing, order by McCLANAGHAN, J. Relator appealed.
Samuel Green, appellant, in propria persona.
Nathaniel P. D'Amico and Joseph M. Smith, Assistant District Attorneys, and Arlen Specter, District Attorney, for appellee.
In 1961, appellant, while represented by counsel, entered a plea of guilty to the charge of murder generally. A hearing was held on the plea and appellant was adjudged guilty of murder in the second degree and sentenced to a term of imprisonment of 10 to 20 years. No appeal was taken from the judgment of conviction or sentence.
Subsequently, appellant filed a petition for a writ of habeas corpus which was denied and this Court affirmed. Commonwealth ex rel. Green v. Rundle, 413 Pa. 401, 196 A.2d 861 (1964). A petition for federal habeas corpus was likewise denied by the United States District Court for the Eastern District of Pennsylvania. The Court of Appeals for the Third Circuit affirmed and certiorari was denied by the Supreme Court of the United States.
Misc. No. 2672, March 12, 1964.
United States ex rel. Green v. Rundle, 337 F.2d 1013 (3d Cir. 1964) (per curiam).
381 U.S. 946, 85 S.Ct. 1791 (1965).
Appellant thereupon filed the present petition for habeas corpus in the court below. The petition was dismissed without a hearing and this appeal followed. Our examination of the record leads us to conclude that appellant's contentions are without merit and we affirm the action of the court below.
The contentions contained in the petition relate to the sufficiency of the evidence, the admissibility of a confession obtained in the absence of counsel during a pre-trial interrogation of appellant, the competence of trial counsel, and a claim of double jeopardy.
Appellant's challenge to the sufficiency of the evidence to support the adjudication of murder in the second degree raises a matter which, absent extraordinary circumstances, is not cognizable on habeas corpus. See Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 74 n. 1, 215 A.2d 637, 639 n. 1 (1966). Moreover, in light of appellant's plea of guilty to the charge of murder generally, the sufficiency of the evidence to support the lesser charge of murder in the second degree is moot. See Commonwealth ex rel. Davis v. Russell, 422 Pa. 223, 226, 220 A.2d 858, 859 (1966); Commonwealth ex rel. Andrews v. Russell, 420 Pa. 4, 6, 215 A.2d 857, 858 (1966).
Appellant's trial having occurred prior to the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964), he may not presently claim relief in reliance thereon. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772 (1966). Moreover, appellant does not assert, and the record does not reveal, that his confession was otherwise tainted. See Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287 (1958); Cicenia v. LaGay, 357 U.S. 504, 78 S.Ct. 1297 (1958); cf. Commonwealth ex rel. Bell v. Russell, 422 Pa. 232, 220 A.2d 632 (1966); Commonwealth ex rel. Mullenaux v. Myers, 421 Pa. 61, 217 A.2d 730 (1966).
Accord, Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965).
Although the Supreme Court of the United States held in Miranda v. Arizona, 384 U.S. 436, 479 n. 48, 86 S.Ct. 1602, 1630 n. 48 (1966), that "Crooker v. California, 357 U.S. 433 (1958) and Cicenia v. LaGay, 357 U.S. 504 (1958) are not to be followed," that same Court subsequently held that the principles set forth in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964), and Miranda are not entitled to retrospective application. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772 (1966).
Thus, in the instant case, in which trial was commenced prior to the decision in Escobedo on June 22, 1964, the standard for determining the admissibility of a confession challenged solely on the ground of denial of counsel during custodial police interrogation remains as set forth in Crooker v. California, supra, and Cicenia v. LaGay, supra. See Johnson v. New Jersey, supra; Miranda v. Arizona, supra.
With regard to appellant's claim that trial counsel was incompetent, there is nothing contained in the petition beyond the mere allegation. In the absence of some factual averment which, if proved, would support the inference of incompetence, there was no requirement of a hearing below and no merit to the contention.
Finally, the double jeopardy contention is based upon the fact that the Commonwealth brought appellant back to trial after a prior proceeding was terminated by reason of appellant's flight from the jurisdiction during the course of the trial. Obviously, there is no basis for a claim of double jeopardy under such circumstances.
Order affirmed.
Mr. Justice COHEN took no part in the consideration or decision of this case.