Commonwealth v. Broaddus

¶1Concurring Opinion by

¶2I agree that Spencer Broaddus may not now challenge the admission of his inculpatory statement. No objection was made when the statement was introduced into evidence, and this Court will not consider alleged trial errors for the first time on appeal. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972). In my view, this case begins at the introduction of the statement and ends at its admission without objection.

¶3I must, however, dissociate myself from the majority’s gratuitous historical survey of the misapplication of White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963), and Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961), by this Court and the federal courts of this *271circuit. That Whiteand Hamiltonrequire the assistance of counsel at every critical stage in a criminal prosecution cannot be denied. In 1968 I stated my view that the ex parte issuing of a “bring-up” order is a critical stage. Commonwealth v. Dickerson, 428 Pa. 564, 565, 237 A.2d 229, 230 (1968) (dissenting opinion). Today’s majority opinion has done nothing to change my judgment. And the right-to-counsel cases decided since 1968 have only confirmed my Dickersonviews.1Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970); Adams v. Illinois, 405 U.S. 278, 92 S. Ct. 916 (1972).

¶4It is indeed difficult to imagine an in-custody situation that has greater potential for prejudice than ex parte issuance of a “bring-up” order. Here a prisoner *272held for the grand jury is removed under the authority of a “bring-up” order — a judicial document — and taken not to court, but to police headquarters for interrogation.2

¶5This Court has recently defined “critical stage.” In Commonwealth v. Horner, 453 Pa. 435, 440, 309 A.2d 552, 555 (1973), we rejected the Commonwealth’s argument that Horner’s preliminary hearing was not a *273“critical stage.” Speaking through Mr. Justice Eagen, we stated: “The Commonwealth argues the preliminary hearing instantly may not be considered a critical stage in the prosecution proceedings, because as distinguished from White and Arsenault [v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35 (1968)], it did not involve the entry of a guilty plea. Accepting that the use of the entry of a guilty plea at a preliminary hearing is not the same as utilizing the testimony of the accused that he shot and killed a person in self-defense, nonetheless, prejudice did result to Horner by the trial use of his testimony at the preliminary hearing, and this prejudice renders the preliminary hearing a ‘critical stage.’ ” Even the closest reading of Hornerdoes not reveal how it may be distinguished from the instant case.3

¶6As the majority notes, Hornerfinds its foundation in Whiteand Hamilton. This fact does not, however, lead to the conclusion that a judicial hearing may be a “critical stage” only when the prejudice complained of arises at that hearing. The Hornertest is whether use of the unconstitutionally-obtained testimony results in prejudice. If it does, this prejudice shows that when the testimony was taken, the accused was involved in a “critical stage” of a criminal proceeding.

¶7Had Hamiltonand Whitenever been decided, the “bring-up” order interrogation procedure here employed would still be constitutionally impermissible. The majority justifies its denying Broaddus relief by focusing on the date of his confession. Had he been interrogated after Massiah v. United States4 was decided, even the majority concedes, the confession would be inadmissible.

¶8“Only the technical operation of a judicial concept of nonretroactivity prevents the Massiah rule from ap*274plying here. But that technicality cannot make the denial of counsel at a critical stage of a criminal proceeding, which is unconstitutional to-day, wholly unobjectionable when it was experienced ... in 1958. Massiah did not make the procedure there condemned unfair. Rather, judicial perception of unfairness made Massiah.” United States ex rel. Dickerson v. Rundle, 430 F.2d 462, 469-70 (3d Cir. 1970), cert. denied, 408 U.S. 928, 92 S. Ct. 2498 (1972) (Hastie, C. J., dissenting, joined by Freedman and Adams, JJ.)

¶9Like Judge, then Chief Judge, Hastie, I believe the issuance of the “bring-up” order and the interrogation conducted without defense counsel were fundamentally unfair. Use of the resulting confession denied appellant due process of law.

¶10I cannot join an opinion which sanctions this unconstitutional police practice.

¶20Dissenting Opinion by

¶21I must dissent. Every person accused of crime is a person presumed innocent. An accusation by one person (police) against another person (accused) does not relegate the person accused to the status of a second-class citizen. An accused, until he is pronounced guilty by his peers, is entitled to the protections provided by the federal and state constitutions. The sixth amendment to the Federal Constitution and article I, section 9, of the Pennsylvania Constitution, guarantee that in all criminal prosecutions, the accused (a citizen presumed innocent) is entitled to the assistance of counsel. The constitutional guarantees given to an accused (a citizen presumed innocent) do not say that one is entitled to the assistance of counsel sometime or only at critical stages or only when a judge decides counsel is needed, or only at preliminary hearings. An accused (a citizen presumed innocent) is entitled to his consti*275tutional guarantees at all times from the initial moment that the person becomes an accused (a citizen presumed innocent).

¶22If an accused (a citizen presumed innocent) is denied the assistance of counsel at any time, the denial might be harmless. If, however, it is harmful — rather than harmless — the accused’s conviction cannot be allowed to stand.

¶23An accused (a citizen presumed innocent) does not lose any constitutional rights. In addition to the right to the assistance of counsel, an accused (a citizen presumed innocent) is entitled, under the fourth amendment to the Federal Constitution and article I, section 8, of the Pennsylvania Constitution, to be secure in his person. An accused (a citizen presumed innocent) cannot be seised at the pleasure of any justice, judge, magistrate, policeman, or any other of his fellow citizens. An accused (a citizen presumed innocent) who is in a jail cell does not become a hunk of human flesh stripped of his dignity and his person. A jail cell in which an accused (a citizen presumed innocent) is placed does not become a conversion chamber for the kinetic transformation of a human into a lower animal state. Cattle may be herded from place to place, they have no constitutional protections (at least not in our country) to be secure in their eattleness from being arbitrarily seized and shuffled from place to place. A judge in our system has no authority to order a person removed, when he is in a jail cell pursuant to probable cause, at the arbitrary pleasure of the judge or the police.

¶24The first seizure of an accused (a citizen presumed innocent) pursuant to probable cause supports incarceration. It does not support successive arbitrary seizures shuffling an accused (a citizen presumed innocent) from place to place. Each successive seizure after the initial seizure must be reasonable.

¶25*276The majority not only has decided that the defendant in this case (a citizen presumed innocent) is only sometimes entitled to the assistance of counsel, hut has also decided that the defendant (a citizen presumed innocent) may be seized and herded around at the pleasure of a judge who need not answer to anyone.

¶26I must dissent from the loose, liberal, and unreasonable interpretation given by the majority to the federal and state constitutions. Commonsense — not finely spun grammatical cloth — is the root of a written constitution. If an innocent person (maybe you or me) can have counsel only sometimes and can be seized and shuffled anytime, our written constitutional guarantees might as well be pedagogical propaganda for the classroom.

¶27The majority does not deny that the defendant suffered harm in this case. The majority concludes, however, that since the harmful evidence was not obtained during a hearing, but was obtained as a result of a hearing, there is no relief. Suppose, at a preliminary hearing, a defendant (a citizen presumed innocent) is not represented by counsel, and says nothing, but the magistrate orders the defendant (a citizen presumed innocent), at the conclusion of the hearing, to be taken into an adjoining room for police interrogation. In the adjoining room, instead of during the hearing, a statement is obtained. Under the reasoning of the majority, had the statement been made in the public chamber of the magistrate, it would not be admissible, but when made in the adjoining secret chamber, it becomes admissible. That is exactly what happened in this case except that a judge issued the order instead of a magistrate. Strange our constitutions protect an accused in public chambers, but must wait outside the doors of secret chambers. I cannot agree. People — not places — have rights.

¶28Even accepting the majority’s premise that we must determine what constitutes a critical stage, I must dissent. A critical stage is any stage in which the denial *277of the assistance of counsel is harmful rather than harmless error.

¶29Initially, appellant pled not guilty and a jury trial began in February of 1959. At the conclusion of the prosecution’s case, however, the appellant withdrew his plea of not guilty and entered a plea of guilty to murder generally. In April and May of 1959, a degree of guilt hearing was conducted before a three-judge panel. During the degree of guilt hearing, the statement obtained from the appellant pursuant to the judicial order was introduced into evidence in an attempt to establish first degree murder under the felony-murder rule. The appellant was convicted of first degree murder and sentenced to life imprisonment.

¶30Appellant claims that the judicial proceeding held at the request of the prosecution was a critical stage in his pretrial proceedings. It was a critical stage because the proceeding resulted in prejudice to him in that evidence obtained as a result of that judicial proceeding was later used against the appellant during his degree of guilt hearing. Appellant received no notice of the judicial proceeding and was not represented by counsel. In fact, appellant was not represented by counsel after his arrest, at his preliminary hearing, at the judicial proceeding, or at the time the second incriminating statement was obtained. I agree with the appellant that he was deprived of his constitutional right to the assistance of counsel at a critical stage.

¶31The United States Supreme Court has consistently held that a defendant is entitled to the assistance of counsel at every critical stage in the proceeding against him. In White v. Maryland, 373 U.S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050 (1963), the Court found that a preliminary hearing was a critical stage at which counsel was required to protect the defendant from prejudice at trial. The prejudice in Whitewas the use at trial of a guilty plea entered at a preliminary hearing with*278out the assistance of counsel. In Arsenault v. Massachusetts, 393 U.S. 5, 21 L. Ed. 2d 5, 89 S. Ct. 35 (1968), a guilty plea and statements made by the defendant at a preliminary hearing without the assistance of counsel were used at trial. Arsenault reaffirmed Whiteand further held, citing Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), and Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963), that Whitewas fully retroactive. Arsenaultlike Gideon and Douglasthus requires the reversal of any conviction in which the defendant was prejudiced by the use at trial of evidence obtained at a critical stage at which the defendant was deprived of the assistance of counsel.

¶32In Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970), the Court reaffirmed the principle of Whiteand Arsenaultthat a defendant is entitled to the assistance of counsel at a critical stage. Colemansaid that it was necessary to scrutinize not only the preliminary hearing but any pretrial confrontation of the accused to determine whether it was so critical so as to require the presence of counsel to preserve the defendant’s basic right to a fair trial. Colemansaid that the accused is guaranteed that he need not stand alone against the state at any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. Colemanfurther said that it is necessary to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.

¶33It is important to note that Coleman, unlike Whiteand Arsenault, did not reverse the defendant’s conviction even though he was deprived of the assistance of counsel at the preliminary hearing. The conviction was not reversed because Alabama law prohibited the use at trial of anything that occurs at the preliminary hearing. *279The Court, however, said that other possible prejudice, aside from the use of evidence at trial, might occur during a pretrial confrontation without the assistance of counsel. Coleman, theretofore, remanded the case for a determination of whether prejudice, other than the use of evidence at trial, had occurred. In Adams v. Illinois, 405 U.S. 278, 31 L. Ed. 2d 202, 92 S. Ct. 916 (1972), it was held that Colemanis not to be retroactively applied. The defendant, in Adams, was denied relief because there was no claim of actual prejudice, at trial or otherwise, by the lack of counsel at the pretrial confrontation. Adamsspecifically held that any such claim would have entitled the defendant to a hearing without regard to the holding in Adamsthat ColemanAvas not to be retroactively applied. Convictions after Coleman, therefore, Avill be reversed if the defendant was deprived of assistance of counsel at any pretrial confrontation where there was a potential for prejudice. White, which is fully retroactive under Arsenault, requires reversal of any conviction if actual prejudice rather than potential prejudice resulted.

¶34In Commonwealth v. Horner, 453 Pa. 435, 309 A.2d 552 (1973), the defendant testified at a preliminary hearing, without the assistance of counsel, that he had shot and killed the victim in self-defense. The statements resulting from the preliminary hearing were used at trial by the prosecution. The issue in Horner, Avas controlled by Whiteand Arsenault, not Colemanand Adams. In reversing the judgment of sentence, we stated: “[PJrejudice did result to Horner by the trial use of his testimony at the preliminary hearing, and this prejudice renders the preliminary hearing a ‘critical stage.’” (Emphasis added.) Id. at 440, 309 A.2d at 555.

¶35In the present case, a judicial proceeding resulted in the obtaining of inculpatory statements from the appellant. The appellant was gi\Ten no notice of that proceeding and did not have the assistance of counsel. Had *280counsel and the appellant been present at the pretrial judicial proceeding, he might have challenged the court’s authority to grant the prosecution’s petition, he might have advised the appellant to remain silent, he might have informed the appellant as to the operation of the felony-murder rule, or he might have taken other steps to prevent prejudice to the appellant in violation of the appellant’s constitutional right to the assistance of counsel. I, therefore, conclude, as in Horner, that prejudice did result to the appellant by the trial use of his prior statements. This prejudice rendered the judicial proceeding that produced the statements a critical stage. See Commonwealth v. Dickerson, 428 Pa. 564, 237 A.2d 229 (1968) (Justice Roberts dissenting); cf. Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970) (Justice Roberts dissenting).. Since actual prejudice at trial resulted from the denial of counsel at a pretrial proceeding, retroactive application of White, is required.

¶36The issue raised in this appeal was previously raised by the appellant’s co-defendant on two occasions in this Court and relief was denied. Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (decided January 2, 1962) and 428 Pa. 564, 237 A.2d 229 (decided January 9, 1968). Arsenault, which held that Whitewas to be fully retroactive, however, was not decided until October 14,1968, six years after the first Dickerson decision and ten months after the second Dickerson decision. The Arsenaultdecision, along with the Colemandecision in 1970, and the Adamsdecision in 1972, have now defined the full scope of the constitutional right of a defendant to the assistance of counsel at any pretrial proceeding.

¶37Since the appellant pleaded guilty to murder generally, and does not now attack that plea, it need not be disturbed. The judgment of sentence for first degree *281murder, however, should be vacated and the record remanded for a new degree of guilt hearing.

¶38I must also dissent for another reason. Even if there were no issue raised in this appeal concerning the assistance of counsel, I would remand the case for an evidentiary hearing on another issue. The appellant, in both his 1967 PCHA hearing and in his 1970 PCHA hearing, specifically raised the issue of the denial of his Douglasright of appeal following his judgment of sentence in 1959. Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963). Although testimony was taken on this issue at the hearing following the 1967 petition, the trial court made no findings and did not address itself to this issue. When the issue was raised by the appellant in 1970, no testimony was taken and the trial court did not make any findings or address itself to the issue. Since this is a first degree murder case, we should not ignore the appeal issue which appellant has raised twice in the trial court. Cf. Act of February 15, 1870, P. L. 15, §§ 1-2, 19 P.S. §§ 1186-87. I would remand for an evidentiary hearing, findings of fact and conclusions of law on this issue. This alternate relief, however, should not be necessary since the judgment of sentence for first degree murder should be vacated and the record remanded for a new degree of guilt hearing.