
    Commonwealth v. Hornberger, Appellant.
    
      Submitted April 15, 1968.
    Before Bell, C. J., Musmanno, Jones, Eagen, O’Brien and Roberts, JJ.
    
      John B. Stevens, Jr., Assistant Public Defender, for appellant.
    
      Arthur Ed. Saylor, First Assistant District Attorney, and Robert L. VanEoove, District Attorney, for Commonwealth, appellee.
    July 1, 1968:
   Opinion by

Mr. Justice O’Brien,

This is an appeal from the order of the Court of Oyer and Terminer of Berks County, dismissing after hearing appellant’s petition under the Post Conviction Hearing Act seeking Jaehson-Denno relief. Appellant was convicted by a jury on March 24, 1961, of murder in the first degree, and sentenced to life imprisonment. Some time thereafter, he was committed to the Far-view State Hospital where he was an inmate at the time this Post Conviction Hearing Act proceeding was begun on April 15, 1966. In his petition, appellant alleged that an involuntary confession was illegally admitted into evidence at his trial. Pursuant to the dictates of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), appellant was granted a hearing on the issue of voluntariness. The court below (Hess, P. J.) held that the confession was voluntary, and dismissed the petition. This appeal followed.

We agree with the court below that the confession was voluntary. The law in this area has recently been summarized in Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A. 2d 426 (1968) and Commonwealth ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A. 2d 434 (1968). Although the decision in the court below antedated the decisions in those cases, it is apparent that the learned court below had in mind the same standards enunciated there.

We agree with the court below that the factors relied upon by appellant do not establish that the confession was involuntary. It is undisputed that appellant was not advised of his right to counsel. Yet, although this is a factor to be considered, Davis v. North Carolina, 384 U.S. 737, 740, 86 S. Ct. 1761, 1764 (1966); Butler, supra, Joyner, supra, it is not conclusive, or Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) and Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964) would be retroactive. Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966) has held that they are not. Besides, appellee’s testimony establishes that appellant was indeed advised of some of his rights, including the right to remain silent and that anything he said might be used against him. Although appellant denies that he was told this, the court below, quite within its power, resolved the question of credibility against appellant. The court recognized that appellant had no prior experience with the police, and that the confession was not signed. It weighed these factors along with the factor that appellant’s statement itself revealed that he was tired and sleepy when he gave it. The court believed appellant’s testimony that he had been awake for some twenty hours immediately before confessing. It recognized that appellant had had a history of mental problems, but pointed out that mental illness was not urged as a source of the involuntariness of the confession. The court pointed out, and we deem it crucial in this case where there is no allegation of actual physical coercion, the fact that appellant, by Ms own testimony, was questioned for only two hours. In Joyner, supra, we distinguished Butter, supra. “In Butler, supra, we stated that ‘It is the continuous questioning which is the crucial element in rendering the confession involuntary.’ ” Similarly, the factor is absent in the instant case. Moreover, it is apparent that appellant was not badgered into giving a statement, but gave one on his own in response to no question by the police.

The conclusion of the court below that appellant’s statement was voluntary is amply supported by the record.

The order of the court below is affirmed.

Mr. Justice Cohen took no part in the consideration or decision of this case.  