Commonwealth of Pennsylvania Ex Rel. George W. Craig v. James F. Maroney, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania

352 F.2d 30, 1965 U.S. App. LEXIS 4085

Opinions

PER CURIAM.

The gravamen of the petition for rehearing is that the court erred in concluding that there was no denial of the defendant Craig’s right to counsel. More particularly, as we view it, the issue presented is whether the right to counsel is denied when a confession is elicited outside the presence of counsel whose assistance has previously been invoked by the accused? As was found in our opinion filed June 30, 1965, 348 F.2d 22: (1) the accused had conferred with his attorney prior to confessing; (2) the accused was aware of his right to have his attorney available for further consultations; (3) the accused was aware of his right to remain silent; (4.) the accused’s request for his attorney some hours prior to his confessing was not refused, his attorney merely being unable to be reached; (5) there was no abusive physical or psyhcological police pressure used to coerce the accused’s confession. These salient factors clearly distinguish this case from Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In our view the Supreme Court has not repudiated the doctrine of effective waiver in either of those cases. Indeed, footnote 14 of Escobedo speaks of its retention in certain terms. Thus neither Escobedo nor Massiah may be invoked without a consideration of waiver. We found in our opinion filed June 30, 1965 that the accused had intelligently and unequivocally waived a right to counsel that had been previously secured to him. The petitioner has presented nothing that may alter our view of the appropriateness of our finding of waiver. The petition for rehearing thus will be denied.