Commonwealth v. Thomas ( 1970 )

Dissenting Opinion by

Mr. Justice Roberts:

I must dissent from the majority’s decision for the same reasons as I set out in my dissenting opinion in Commonwealth v. James, 440 Pa. 205, 269 A. 2d 898 (1970).

The Supreme Court’s decision in Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970) compels the conclusion that appellant’s uncounseled certification hearing was unconstitutional.

Nor is there any justification for the majority’s conclusion that Coleman is prospective only. Right to counsel cases “have all been made retroactive, since the 'denial of the right must almost invariably deny a fair trial.’ See Stovall v. Denno, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, 18 L. Ed. 2d 1199.” Arsenault v. Massachusetts, 393 U.S. 5, 6, 89 S. Ct. 35, 36 (1968), holding retroactive White v. Maryland, 373 U.S. 59, 83 S. Ct. 1050 (1963). Coleman was a direct extension of the Court’s holding in White. As White was held retroactive, there is no sound basis for the majority’s prospective limitation of Coleman.

Accordingly, I would remand appellant’s case, as was done in Coleman, for a determination whether the unconstitutional certification hearing was harmless error. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967).