Commonwealth ex rel. Green, Appellant,
v.
Rundle.
Supreme Court of Pennsylvania.
Submitted April 20, 1966. June 24, 1966.*237 Before BELL, C.J., MUSMANNO, JONES, EAGEN, O'BRIEN and ROBERTS, JJ.
Samuel Green, appellant, in propria persona.
Nathaniel P. D'Amico and Joseph M. Smith, Assistant District Attorneys, and Arlen Specter, District Attorney, for appellee.
OPINION BY MR. JUSTICE ROBERTS, June 24, 1966:
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.[1] The Court of Appeals for the Third Circuit affirmed[2]*238 and certiorari was denied by the Supreme Court of the United States.[3]
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).[4] Moreover, appellant does not assert, and the record does not reveal, that his confession *239 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).[5]
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.
NOTES
[1] Misc. No. 2672, March 12, 1964.
[2] United States ex rel. Green v. Rundle, 337 F.2d 1013 (3d Cir. 1964) (per curiam).
[3] 381 U.S. 946, 85 S. Ct. 1791 (1965).
[4] Accord, Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965).
[5] 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.