decided amended march 12 1974.: February 5, 1974.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. No. 46-71 Erie).
McLaughlin and Van Dusen, Circuit Judges and Green, District Judge. Seitz, Chief Judge, McLaughlin, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Adams, Circuit Judge, dissenting.
During the course of an armed robbery in Erie, Pennsylvania on April 27, 1967, one Nicholas Fytikas was shot and killed by Norman Stanyard, an acquaintance of petitioner, Royall Collins, alleged to be the driver of the getaway car. After a jury trial in the Court of Common Pleas of Erie County, Pennsylvania, Collins was convicted of second degree murder, and the judgment was affirmed by the Pennsylvania Supreme Court.*fn1 During the course of its opinion, that Court held that it had been error to admit a statement of Collins into evidence at his trial but that the ruling of the trial judge had been harmless in view of other evidence in the case.
On a petition for writ of habeas corpus, the United States District Court for the Western District of Pennsylvania found that the "error" had not been harmless, although it accepted the view of the Pennsylvania appellate court that the statement had been secured in violation of petitioner's constitutional rights.*fn2 On this latter point we differ with both the Pennsylvania Supreme Court and the District Court, and we reverse.
The record establishes that Collins and two friends, Carr and Seawright, went to the home of a friend at about 10:00 P.M. on April 26, 1967, where they met Stanyard. Later that evening all four left in petitioner's automobile. Where they went thereafter is disputed. Collins contended that they took Stanyard to Eighteenth and Parade Streets in Erie, Pennsylvania and did not see him again that day. The contested statement that the petitioner made to police contained little more than this information.
Stanyard, however, testified that all four first drove to Sixteenth and Parade Streets where he robbed a Spur Gas Station at gunpoint while the others remained in the car. After driving around for about an hour, it was decided by all to rob an establishment called "Steve's Lunch" located at Sixteenth and State Streets, about four blocks from the gas station. Again Stanyard went into the lunch room alone while the others waited outside. When the proprietor attempted to dive below a counter top, he was shot by Stanyard. The others drove away and Stanyard fled on foot. The shooting occurred about 2:00 A.M., and Stanyard was apprehended a few hours later.*fn3
About 5:00 P.M. on that same day, Detective Kalinowski of the Erie Police force went to petitioner's residence and found both Collins and Seawright there. They were asked and agreed to accompany the police to headquarters. When they arrived there, Kalinowski told Collins, Seawright, and three other youths that they were going to have a lineup and that the police wanted to see if "this boy can identify some of them . . ." The detective testified that ". . . I think it was Seawright, he already knew who the boy was because I guess he saw it on T.V. or something."*fn4
After the lineup, Seawright and Collins were taken to separate rooms, and each was interviewed privately. Kalinowski testified at the suppression hearing that he gave petitioner a card on which his "rights" were printed and asked Collins to read it and, if he understood it, to sign it. Collins replied that he did understand it and at the officer's request signed the form.*fn5
Following this, according to the version at the suppression hearing, Kalinowski told Collins that they wished to talk to him about the "Nicholas Fytikas case and about Stanyard." At the trial several months later, the detective testified that "before signing that [the waiver form], we told him that we were going to ask him questions regarding the shooting done by Norman Stanyard and then we explained his rights to him . . ."
Collins testified at the suppression hearing that at the time he was questioned he had not known that Fytikas had been killed or that Stanyard was involved.*fn6
Petitioner did not testify at the evidentiary hearing in the district court.
The Court of Common Pleas, in rejecting a motion for a new trial, wrote:
"Counsel also argues that [the statement] is inadmissible because the officers did not advise Collins of the reasons for his detention on questioning until after he was advised of his rights, and until after he signed the waiver. It is our opinion that the sequence is unimportant as long as Collins knew his rights when the questioning began. That this is so is, in our opinion, an established fact."
The court then discussed the requirements set out in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and concluded, "We believe that Collins was properly apprised of these matters and that he effectively waived his ...