Maris, Seitz and Stahl, Circuit Judges. On Reargument: Hastie, Chief Judge, and Freedman, Seitz, Van Dusen, Aldisert, Adams and Gibbons, Circuit Judges.
On August 15, 1958, a housing project guard in Philadelphia was found shot to death in the incinerator room. Three days later, Spencer Broaddus, informed that the police were looking for him in connection with the homicide, appeared at a police station at midnight and submitted to an interrogation which lasted through the night. Toward morning, during a polygraph test, Broaddus admitted shooting the guard and implicated an accomplice, Murray Dickerson.*fn1
That afternoon Dickerson also voluntarily surrendered to the police and was turned over to the homicide division for interrogation by five detectives. He first denied being at the housing project, but upon being read Broaddus' statement admitted his presence at the scene of the killing. He then gave his first written statement to the police in which he admitted scuffling with and hitting the guard. He insisted, however, that following this scuffle he ran out of the incinerator room and did not see the shooting.
A preliminary hearing for both Dickerson and Broaddus was held on the morning of August 20, 1958. Neither was represented by counsel and there is no indication that either was informed of the constitutional right to counsel or to remain silent.*fn2 Both were held for the grand jury and removed to the county prison.
Within a few hours a "bring-up order" was submitted by the detective bureau to a quarter sessions judge and routinely signed by the court.*fn3 It authorized the removal of the defendants from the county prison for further interrogation. Returned to City Hall, Broaddus was again interrogated and gave a second statement in which he admitted taking the guard's watch and wallet after shooting him. Dickerson also signed a second statement confessing the theft of the guard's blackjack. It is clear that neither man was afforded the advice of counsel until some time after these second statements were obtained.
Upon arraignment, Broaddus entered a plea of not guilty and proceeded to jury trial in February, 1959. The second statement, in which the defendant had admitted killing the guard and stealing his watch and wallet, was introduced by the Commonwealth. Under the Pennsylvania felony-murder rule, the larceny admission was important to the first degree murder conviction sought by the prosecution.*fn4 Appellant contends that an objection to the introduction of the statement was made and overruled. The trial then proceeded to the conclusion of the Commonwealth's case, at which time Broaddus, following consultation with his attorneys, withdrew his plea of not guilty and entered a plea of guilty to murder generally.
There followed in April and May, 1959, a degree-of-guilt hearing before a three-judge state court which included the judge who had presided over the jury trial. At this hearing, no objection was raised by the defense to the introduction of both statements given by the defendant to the police. Moreover, the defendant himself took the stand and admitted shooting the guard and attempting to sell the guard's revolver to a friend later that evening. It is significant that although certain of Broaddus' testimony at this hearing was at variance with the statements already introduced by the Commonwealth, the defense made no attempt in its extensive examination of the defendant to attack the accuracy of the statements, other than a brief passing reference to the defendant's physical condition at the time the statements were given.
At the conclusion of the hearing the court found Broaddus guilty of murder in the first degree and sentenced him to life imprisonment. No direct appeal from the conviction and sentence was taken. In September, 1964, appellant applied for a writ of habeas corpus in the sentencing court but was denied relief. A petition under the state's Post-Conviction Hearing Act was subsequently filed, counsel was appointed, and following a hearing, relief was again denied. An appeal was taken from this decision to the Pennsylvania Supreme Court which affirmed in Commonwealth v. Broaddus, 428 Pa. 599, 239 A.2d 204 (1968). Broaddus then petitioned the district court for habeas relief, contending, as he had in the state courts, that his second statement to the police was wrongfully admitted at his degree-of-guilt hearing and that his guilty plea was invalidly entered. Counsel was appointed and after an evidentiary hearing the court below denied relief. This appeal followed, first before a panel of this court and now before the full court.
To support his contention that the second statement should not have been admitted, appellant advances a two-pronged constitutional argument: that his Fifth Amendment rights were violated because the statement was involuntarily made, and that his Sixth Amendment right to counsel was impugned because he was denied the assistance of a lawyer when the "bring-up order" issued from the quarter sessions judge.
Whether we may consider these arguments, however, depends on whether appellant's decision to plead guilty to the murder of the guard, arrived at after consultation with counsel, precludes an attack on the plea in these collateral proceedings. And notwithstanding an inclination to meet the arguments on the merits,*fn5 we are persuaded that appellant is foreclosed from such collateral attack. First, we must consider the effect of the impressive trilogy of the guilty-plea cases announced by the Supreme Court on May 4, 1970. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763; Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785; Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747.
In all of these cases, as witnessed by its language in McMann, the Court posed and answered ...