Commonwealth v. Broaddus

342 A.2d 746, 458 Pa. 261, 1974 Pa. LEXIS 441

• Court: Supreme Court of Pennsylvania
• Decided: March 26, 1974
• Docket: Appeal, 440
• Status: Published

Opinions

Opinion by

Me. Justice Eagen,

In February 1959, Spencer Broaddus, the appellant, while assisted by counsel, entered a plea of guilty to murder generally. After an evidentiary hearing before a three-judge court, he was found guilty of murder in the first degree and was sentenced to life imprisonment. No appeal was filed.

In September 1964, Broaddus instituted an action in habeas corpus in the trial court, which was later dismissed. No appeal was entered from this order.

In 1967, Broaddus filed a petition in the trial court under the Post Conviction Hearing Act,¹ and, after a counseled evidentiary hearing, relief was denied. This order was subsequently affirmed by this Court on appeal. See 428 Pa. 599, 239 A.2d 204 (1968). Broaddus was not represented by counsel in this appeal.

In 1968, Broaddus sought habeas corpus relief in the Federal District Court, and, after a counseled evidentiary hearing, relief was denied. On appeal, this order was affirmed by the United States Court of Appeals for the Third Circuit. See United States ex rel. Broaddus v. Rundle, 429 F.2d 791 (3rd Cir. 1970).

In August 1970, Broaddus filed a second petition in the trial court under the Post Conviction Hearing Act, which was denied without a hearing. The instant appeal challenges the correctness of that order.²

The prosecution emanated from the fatal shooting of a security guard in a housing project in Philadelphia on August 15, 1959. Three days after the occurrence, Broaddus surrendered voluntarily to the police and, during the questioning, admitted being involved in the shooting, but said the victim was shot by his own gun during a tussle between the two. He said Murray Dickerson was with him at the time. A preliminary hearing was held, and Broaddus was ordered committed to the county prison to await grand jury action. Within a few hours after his commitment, the police requested a judge of the Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions in Philadelphia to sign a “bring-up” order, i.e., authority to transfer Broaddus temporarily from the prison to the district attorney’s office in City Hall for further questioning. The order was executed and Broaddus was transferred and questioned as indicated. During this questioning, Broaddus again admitted his involvement in the shooting, and also stated he stole the victim’s watch and wallet after the shooting. Broaddus was without counsel during this questioning.

At the hearing to determine the degree of guilt, evidence of the inculpatory statement made by Broaddus in the district attorney’s office following the “bring-up” order was introduced against Mm without objection. Broaddus now contends the admission of this evidence violated due process. He argues the “bring-up” order proceeding was a critical stage in the prosecution process at which he was entitled to be represented by counsel, and since the statement resulted from a proceeding conducted under circumstances constitutionally impermissible, it could not be used as evidence against him.³

This very same argument was urged upon this Court in Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970), and upon the United States Court of Appeals for the Third Circuit in United States ex rel. Dickerson v. Rundle, 430 F.2d 462 (3rd Cir. 1970), and in both instances the Court ruled a “bring-up” order proceeding is not a critical stage in the prosecution process where the accused is entitled to be represented by counsel. Broaddus contends White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963),⁴ and Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157 (1961), compel a different conclusion. We disagree.

Initially, it is clear the principles enunciated in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970), have no application instantly. Consequently, we do not now decide if a “bring-up” order proceeding is a critical stage under Coleman. In Coleman, the Supreme Court of the United States ruled the determination of whether a judicial proceeding is a critical stage depends upon an examination of “whether potential substantial prejudice to defendant’s rights inheres in the * * '* confrontation and the ability of counsel to help avoid prejudice.” This formula, however, is not applicable to the 1958 “bring-up” order proceeding under consideration, since the Supreme Court has expressly ruled the Coleman decision is not to be given retroactive effect. See Adams v. Illinois, 405 U.S. 278, 92 S. Ct. 916 (1972).

To adopt Broaddus’ position that White and Hamilton control the disposition of the instant case would require giving these two cases an overly broad reading and application. We view White and Hamilton as holding a judicial proceeding is a critical stage only in cases where lack of an attorney at the proceeding directly prejudices the accused. Hence, to come within the holding of these two cases the prejudice must have arisen at a judicial proceeding. In White, there was prejudice because a plea of guilt at the preliminary hearing was subsequently used against the accused at trial. Likewise, in Hamilton, there was prejudice because if the accused failed to assert a defense at the preliminary hearing, the defense could be lost forever. Thus, the lack of the assistance of an attorney gave rise to prejudice during the proceeding, which affected the accused’s rights at trial. Presently, the complained of prejudice did not arise during the proceedings in which the “bring-up” order was requested and granted.

In Adams v. Illinois, supra, Mr. Justice Brennan, in discussing the retroactive application of Coleman, clearly expressed the view of the Supreme Court that White and Hamilton are narrow in their import. He stated: “We do not think that law enforcement authorities are to be faulted for not anticipating Coleman. There was no clear foreshadowing of that rule. A contrary inference was not unreasonable in light of our decision in Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114, and White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963). Hamilton denominated the arraignment stage in Alabama critical because defenses not asserted at that stage might be forever lost. White held that an uncounseled plea of guilty at a Maryland preliminary hearing could not be introduced by the State at trial. Many state courts not unreasonably regarded Hamilton and White as fashioning limited constitutional rules governing preliminary hearings.” 405 U.S. 283, 92 S. Ct. at 920.

In United States ex rel. Dickerson v. Rundle, supra, in ruling White and Hamilton did not mandate a “bring-up” order proceeding to be a critical stage, the Court aptly stated: “The doctrines of White v. Maryland, supra [and] Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961) ... are judicially crafted benchmarks which delineate particular phases in criminal proceedings when the right to counsel attaches absolutely under the Sixth Amendment. But this right attaches not so much by the chronology of proceedings or even by the interposition of ancillary judicial proceedings as it does by the accumulation of a circumstantial complex which heightens the probability that there will be violence to constitutional rights of one whom the authorities are prosecuting....

“Similarly, the judicial proceedings designed to cause a ‘bring-up order’ to issue was not a critical proceeding. The issuance of the ‘bring-up order’ for Dickerson was not a judicial inquiry into guilt vel non of the defendant; it was an administrative procedure authorizing the transfer of the prisoner from the county prison to police headquarters to make him available for questioning. Prior to the preliminary hearing, the prisoner could have been moved from one police lockup to another stationhouse or to detective headquarters without the necessity of any court order. Such movement, in and of itself, would not create a situation in which there would be a right to counsel. The issuance of a court order which accomplished, after a preliminary hearing, that which could have been effected before the hearing without such an order does not, in our view, constitute the critical event in the chain of proceedings.” 430 F. 2d at 466.⁵

Hence, we conclude White and Hamilton are only applicable where the complained of prejudice arose in the proceeding.⁶ Consequently, the cases have no application instantly. To read tlie cases as broadly as Broaddus suggests would be to give them an interpretation synonymous with Coleman.7

We, therefore, believe the focus of our inquiry must be on the interrogation period which followed the “bring-up” order. This is obviously a critical stage under Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964); however, the prevailing view in this jurisdiction in Massiah is not to be given retroactive application. See Commonwealth ex rel. Johnson v. Rundle, supra; United States ex rel. Dickerson v. Rundle, supra; United States ex rel. Allison v. New Jersey, 418 F.2d 332 (3d Cir. 1969).⁸

Thus, the crucial issue is the voluntariness of the statement made by Broaddus during this period. In Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962), we recognized this very fact and stated: “The defendant also complains that the trial court, by its charge, deprived the defendant of a fair consideration by the jury of whether his statement to the police was voluntarily given. It appears that on August 19, the defendant gave Ms first written statement to the police. On the morning of August 20, he was taken before a magistrate, arraigned and committed to the county prison. On the afternoon of August 20, in open court, the district attorney requested permission of the court to remove the defendant from the prison, for the purpose of further questioning in an effort to clear up certain statements he had previously made wMch did not coincide with facts disclosed by the investigation. The court signed what is termed as a £bring-up’ order. There is nothing siMster or secretive about this procedure and it is a practice commonly used, not only in Philadelphia County, but in other counties of the Commonwealth.

“When a defendant is questioned, under such circumstances, he may elect to cooperate or refuse to do so as he sees fit. If the police wished to question him further after his arraignment, certainly, they would have the right to do so within the confines of the prison and the fact that they saw fit to remove him from the prison for this purpose did not result in any prejudice. The pertinent inquiry concerning the validity of a confession or statements made by a defendant is their voluntariness or involuntariness. Of course, in determining this question, the jury must consider all of the circumstances including the manner in which, and the locale under which, they were given.” Id. at 107-108, 176 A.2d at 424. However, after a review of the record, we are convinced Broaddus is now foreclosed from attacking the voluntariness of his statement. As noted before, at the degree of guilt hearing held in 1958 Broaddus’ statement was admitted without objection, and there was no attack on its voluntariness; nor is the competency of the trial counsel now questioned. Under these circumstances, Broaddus may not raise the issue now. See Commonwealth v. Jones, 446 Pa. 223, 285 A.2d 477 (1972); Commonwealth v. Nash, 436 Pa. 519, 261 A.2d 314 (1970); Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967); Commonwealth ex rel. Sanders v. Maroney, 417 Pa. 380, 207 A.2d 789 (1965).

In Sanders, this Court recognized the necessity for a contemporaneous objection stating: “Appellant-petitioner does not contend, nor does the record indicate, that his plea of guilty was anything other than voluntarily and intelligently entered. On this record, the plea having been accepted by the court, the court’s sole inquiry was to determine the degree of guilt and the penalty. Petitioner’s ‘plea constituted an admission of guilt and of all the facts averred in the indictment; it constituted a waiver of all non-jurisdictional defects and defenses.’ Commonwealth ex rel. Walls v. Rundle, 414 Pa. 53, 55, 198 A.2d 528, 529 (1964). Of course, this does not mean that a defendant who has pleaded guilty to murder waives the right to object to the admission of improper evidence which will bear on the degree of guilt and the punishment to be imposed. In the instant case, however, there was no attack on the involuntariness of petitioner’s confession. There was no challenge to the voluntariness based either upon the absence of counsel at any stage of the proceedings or upon any other premise. Petitioner at no time, for any reason, contended that his confession was involuntary.

“Since the voluntariness issue was not raised for determination by the court which heard the testimony on the plea, it is deemed waived and we need not pass upon it in a habeas corpus proceeding. Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 207 A.2d 810 (1965). The principles governing the need for the timely raising of an issue apply equally to proceedings upon pleas of guilty as well as to trial proceedings.” Id. at 382-83, 207 A.2d at 790-91. Thus, appellant is foreclosed from attacldng the voluntariness of his statement⁹ at this late date.

Order affirmed.

1 Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. 1180-1 et seq.

2 This case was assigned to the writer on January 15, 1974, for the purpose of preparing an opinion expressing the views of a majority of this Court.

3 Even if tlie challenged evidence were erroneously admitted at the degree of guilt hearing, this would not invalidate the guilty plea, but would require a new hearing to determine the degree of guilt. See Commonwealth v. Chambers, 432 Pa. 253, 247 A.2d 464 (1968).

4 White was held to be retroactive in Arsenault v. Massachusetts, 393 U.S. 5, 89 S. Ct. 35 (1968), thus White must be considered in determining if the 1958 “bring-up” order proceeding here involved constituted a critical stage.

5 This Court accepted the rationale of United States ex rel. Dickerson in Commonwealth ex rel. Johnson v. Rundle, supra.

6 It could be argued that Commonwealth v. Horner, 453 Pa. 435, 309 A.2d 552 (1973), controls the disposition of the instant case. However, a close reading of Horner clearly shows that case finds its foundation in White and Hamilton. The prejudice therein arose at the judicial hearing, therefore, Homer is distinguishable.

7 We also note that the propriety of bring-up orders has long been established in this Court. See Commonwealth v. Trunk, 311 Pa. 555, 167 A. 333 (1933).

8 In Johnson, we stated: “Appellant’s contention has now been answered by the Third Circuit in United States ex rel. Dickerson v. Rundle, 430 F.2d 462 (3rd Cir. 1970). . . . There the majority of the court held that a defendant, interrogated after his preliminary hearing, and pursuant to an ex parte bring-up order, ‘stood in the same legal shoes as did the defendant in Massiah,’ id. at 467, and hence his interrogation did constitute a critical stage requiring counsel. Massiah’s protection, however, is not to be retroactively applied, so that Dickerson’s confession was therefore properly utilized. See United States ex rel. Allison v. New Jersey, 418 F.2d 332 (3rd Cir. 1969).” 440 Pa. at 488, 270 A.2d at 184.

9 The Third Circuit recognized this point in their review of Broaddus’ federal habeas corpus petition. The Court stated:

“The United States Supreme Court has recognized that the contemporaneous objection rule serves a ‘legitimate state interest’ and will under proper circumstances prevent the tardy assertion of error after trial. Henry v. Mississippi, 379 U.S. 443, 447, 85 S. Ct. 564, 13 L.Ed.2d 408 (1965).

“In the present ease, it seems abundantly clear that defense counsel did not object to the admission of this statement at the degree-of-guilt hearing because they had concluded that the statement was admissible. This conclusion was no doubt based in some measure on Broaddus’ statement to his lawyers that he ‘voluntarily gave information’. Under these circumstances, we hold that even if the MoMann trilogy does permit an inquiry into the admissibility of the statement, the failure to raise objection to its admission at the degree-of-guilt hearing was a deliberate by-pass of the state procedures available to test admissibility in the first instance and now prevents its consideration in a collateral proceeding. Fay v. Noia, 372 U.S. 391, 434, 438-439, 83 S. Ct. 822, 9 L.Ed.2d 837 (1963).” 429 P.2d at 795.