*1 returned a verdict of jury That jury’s consideration. lessens the way possibility the third in no degree murder of from a verdict of jury the court’s error diverted that error, the But for the trial court’s voluntary manslaughter. justi- the intoxication evidence might have found jury verdict, even if manslaughter compromise voluntary fied a to justify acquit- believed that evidence insufficient jury tal. voluntary entitled to a on charge
Appellant clearly completely expressed which manslaughter correctly Musselman, 483 Pa. Commonwealth law. g.,E. instructions (1979). A.2d 625 found the trial court’s Having defective, this Court manslaughter may on to be voluntary of harm which could recognized possibility not overlook error acknowledged arise from that error. The trial court’s a reasonable beyond in this case was far from harmless for new doubt. I would reverse and remand trial. MANDERINO, J., in this joins dissenting opinion.
Argued April 1979. Aug.
Decided
Manderino, J., in the concurred result.
Nix, J., dissenting opinion. filed a Larsen, J., filed a dissenting opinion. *3 Gilman,
Arthur Sagoskin, Gary R. B. Doylestown, for appellant. Schenck,
Peter Harris, F. Asst. Dist. Atty., Stephen B. for Doylestown, appellee. EAGEN, J., O’BRIEN, ROBERTS, NIX,
Before C. LARSEN, MANDERINO and JJ.
OPINION EAGEN, Chief Justice.
Bruce B. was Bussey, appellant, convicted of murder of degree first following nonjury trial the Court of Common Pleas County. of Bucks Post-verdict motions were denied, and judgment sentence of life imprisonment imposed. This followed. appeal raises two issues seeking discharge grant a new trial. request of his for support discharge, Bussey maintains
the trial court erred his for an order denying application dismissing charges pursuant 1100(f). to Pa.R.Crim.P. While trial did not commence within two hundred seventy filed, from the date the days complaint was Pa.R. 1100(a)(1), Crim.P. and while no to extend the petition *4 mandatory period filed, which to commence trial was 1100(c), Pa.R.Crim.P. the argues Commonwealth trial com- menced within the mandatory period of Pa.R.Crim.P. 1100(a)(1) because computation of the mandatory period requires exclusion of a time period bring of sufficient to the commencement trial of within the two-hundred-seventy- mandate. the (270)-day Specifically, urges Commonwealth 18, January the between December 1973 and period The should be excluded.1 Commonwealth is correct. 21, 1973, that,
The
on December
Bussey
record shows
justice
hearing.2
before a district
for a
appeared
preliminary
justice
Bussey
The district
asked
if he wished to obtain
received an affirmative
The
private
reply.
counsel and
continuing
indicated it would not
the
oppose
Commonwealth
but asked that
the date be set after “the first of the
hearing,
hearing
January
was set for
year.”
Subsequently,
1974 at
time
with counsel. Counsel
Bussey appeared
which
then
a continuance which was
requested
granted.
Millhouse, 470 Pa.
Commonwealth v. (1977), controlling period. as to Commonwealth Millhouse, who supra, indigent present- the accused was not ed himself for a without counsel and preliminary proceeding reason, not right did waive his to counsel. For this that, was We concluded under such proceeding delayed. circumstances the accused was unavailable within the mean- 1100(d)(1) of and that of ing period delay Pa.R.Crim.P. resulting unavailability, from the i. e. until counsel entered be appearance, automatically was to excluded. at a
Instantly, Bussey appeared preliminary proceed counsel, ing counsel, without did not waive his right was financially capable counsel.3 retaining private in the was the result4 circum- delay proceeding of these period bring 1. This is sufficient the commencement of trial within mandatory period. argues part period period The Commonwealth also that a of a Bussey days one hundred five should be excluded and that protections light disposi- waived the 1100. In of our Pa.R.Crim.P. tion, arguments. we these need not consider public present, 2. A was defender but indicated that he did not represent Bussey attempting private and that to retain counsel. capability; yet, 3. maintains the record does not show this counsel, private Bussey responded when asked if he wished to obtain and, fact, affirmatively private obtained counsel. Here, Millhouse, supra, as in 470 Pa. at Commonwealth v. delay A.2d at the “sole reason for the was the absence of
226 January
stances counsel did not enter into the case until Hence, 18, period, 1974.5 was unavailable for this Bussey pursuant and it must be excluded to Pa.R.Crim.P. 1100(d)(1).6 this must be excluded in period computing
Since and since so the commence period doing brings mandatory 1100(a)(1), ment trial within the confines Pa.R.Crim.P. in denying application the trial court did not err to dismiss.7 trial, for a new support request Bussey argues of his
the trial in to his motion to refusing grant court erred certain statements him to suppress incriminatory given by and in use of these statements police permitting evidentiary at the statements were Specifically, Bussey argues trial. rights interpreted in violation of his constitutional as given Arizona, 436, 1602, in Miranda v. 86 S.Ct. U.S. in he L.Ed.2d 694 did not [hereinafter: Miranda] an understanding rights.8 waive or indicate of his expressly We agree.
The relevant
facts are:
1973,
14,
in Burlington,
on December
arrested
by police
New
at
1:30 a. m.
of that
Jersey,
approximately
arrest, Bussey
At
the scene of the
was advised of
city.
request
proceeding,
defense
that the
counsel.”
Commonwealth’s
year”
delayed,
once
be scheduled
“the first of the
did not cause
after
delay.
time,
appearance
appear
at
5. Counsel did not enter an
but did
at
proceeding
January
on
1974.
Wade,
(1977),
6. Commonwealth
v.
475 Pa.
Bussey transported to Burlington Police City Station. Arriving m., there at 1:45 approximately a. he was confronted a detective from the Office District of Bucks Attorney County. The detective asked Bussey he was “all right, and whether he was under the influence drugs or alcohol.” Bussey that he responded alright [of] and that he was not under such any influence. then
Bussey was asked if “he knew why he had been picked up,” and he responded “it must be because killed [I] that dude back in Pennsylvania.” The detective then left to make certain phone calls.
Shortly m., after 2:00 a. a Bensalem Township police detective and a Pennsylvania trooper, state who had been present during conversation, the 1:45 a. m. began talking to Bussey “about different things get to him A talking.” conversation occurred concerning Bussey’sgirl friend. Then the two gave Bussey warnings pursuant to Miranda which he acknowledged and indicated he understood. indi- Bussey cated he was to “willing answer questions without presence of an attorney.” Bussey then told the two that the victim had been killed by “three men who broke into [Bus- sey’s] house and that [he, Bussey,] was not responsible for the death of the victim.”
The state trooper then told he not Bussey did believe him because it was contrary to what Bussey had said to the detective from the Indeed, district attorney’s office. told trooper he was Bussey “lying.” Bussey began to talk about friend, his girl but the conversation soon returned to the subject of the crime. then Bussey just stated: “I can’t you.”9 tell bit,” then “fill began up to i. got e. “ready The cry.” police detective then told Bussey he suppression 9. The court expres- characterized this statement as an right sion of emotion and not an exercise of the to remain silent. We need not accepted decide whether the court’s characterization can be dispose and, appeal, accordingly, not in order to of this we do not. “feel better if he about it.” then might did talk gave incriminatory statement which included a reference to throwing “guns Burlington off the Bristol Bridge.” at 2:30 a. m. when instructions were questioning stopped received from the district office that a formal attorney’s statement would be taken when a court ar- stenographer interrogation rived and that was not to be conducted until then. conversation, to the above in conver-
Subsequent Bussey, sation with the from the district office attorney’s detective extradition, about indicated looked for “things pretty bad him long and ... he have to either a might spend time jail.” or the rest of his life in He also stated he would “. . . plead guilty right now.”
The court at 4:05 a. m. and a formal stenographer arrived m. beginning statement was taken at 4:28 a. Prior *7 statement, taking the formal a lieutenant of the Bensalem Township Department, questioner, Police who was the chief rights. warned of his At the conclusion of the Bussey recitation of the when asked if he understood “all warnings things just explained,” Bussey that have been asked the lieutenant to the last The up part.” to lieuten- “[b]ack ant which advises of the to a repeated warning right . free “lawyer charge” Bussey . . could not hire” “afford to one. then and Bussey responded, “[o]kay,” rights explained. then asked if he understood his as He indicated he did and was asked if he wanted “to answer our questions lawyer being present without . . . ? Yes or I say something no.” asked: “Can Bussey yes besides could, asked, no?” When told he he you “What do recom- mend?” The assistant district who was attorney present replied:
“That’s to to decide since we are up you representing District It’s to decide wheth- Attorney’s up you Office. questions er want to answer our without a you lawyer being present.” will, I your ques- then stated: I’ll answer
Bussey “Okay, tions.” thereafter when
Questioning began shortly but asked happened house, what when the victim came to Bussey’s he “I asked: ain’t allowed to ask no questions?” lieuten- ant responded: you “Ask whatever want.” Bussey respond- ed:
“Well, I to him explained everything detective from [the the office of the district see I attorney, p. supra] before. don’t know I have to this now.” why say “Well, The lieutenant we responded: would like to hear this again ourselves.” Bussey replied: “[o]kay,” and the formal statement completed continued until at 5:04 a. m. waived extradition
Bussey judge before in Mt. Holly, New Jersey and was to Bensalem transported Township Police Headquarters where he arrived at 11:00 a. m. on December m., 1973.10 At 1:30 p. while- being processed, Bussey saw office, the detective from the district attorney’s see supra, indicated he wished to to him speak in private. The detective indicated such a conversation would have to await completion processing. m.,
At 2:00 p. Bussey spoke to the detective who told response that, “if inquiries one of two do people arrested,” a job, and both it get up would be to the court whether have to “they serve time in the same prison” that the detective was aware of a crime gang-related where persons served in separate prisons. The detective then asked . . . was “why someone else involved with you “Yes, this killing.” Bussey replied: but I don’t know if I him, would I testify against would fear for life.” my then Dwight incriminated one Tools and advised the detec- *8 tive that he had not thrown the guns bridge, involved over a and that Tools gun had one and the other was New Jersey. was then Bussey taken to a lieutenant’s office where he repeated information, above was advised he route, Bussey engaged 10. While in in conversation with two detec- questions including tives in which he asked various what would happen prove told, if he could he did not kill the victim. He was so, go, Bussey that were he would be let but that was not what had previous night. said the There is no indication in the record that Bussey rights was warned of his at this time. could not be taken the state line to locate one of the across and indicated the location of the The was guns, gun. gun found where indicated it was left. were Bussey Warnings not given during to to this Bussey immediately prior Bussey arraigned p. conversation. at 3:45 m. court, effect, found an under- suppression implicit waiver of constitutional
standing rights by Bussey and be- Bussey response fore first incriminated himself in to the if he knew he had been As noted inquiry why picked up. before, rights was not warned of his constitutional at Bussey this exact warnings time. While it is true that such were given about fifteen minutes earlier at the scene of the that, time, arrest, the record demonstrates at that particular did not he or waived his acknowledge understood rights. Butler,
In North Carolina U.S. 99 S.Ct. (1979), L.Ed.2d 286 Supreme United States Court held an waiver implicit rights could be found where an accused expresses understanding rights gives of his a statement without his We could expressly waiving rights. distinguish the instant on the never expressed case basis that an understanding rights prior of his to himself at incriminating m., 1:45 a. but so we we decline do decline to follow Butler, supra. North Carolina v. surely requires warnings given,
Miranda be and the of the has not from Supreme departed Court United States se per requirement. Accordingly, recog that Court still warnings nizes a need for as a matter of federal constitu law, tional and we are bound to follow this mandate. Since er11 so, that is we fail to understand an waiv why explicit and, should required, pursuant not also be accordingly, our supervisory powers and interpretation Pennsylva Constitution, nia we an waiver explicit mandatory hold By explicit waiver, we mean an outward manifestation of a waiver oral, physical such as written or manifestation.
231 Goldsmith, See Commonwealth v. requirement.12 83, 438 Pa. 263 Walker, Commonwealth v. (1969). A.2d 322 Cf. 470 Pa. 534, 546, 368 A.2d 1290 (Eagen, J. concurring opinion joined Jones, J., by C. O’Brien and JJ.) Pomeroy, (standard warnings and explicit responses “most desirable”). unlike North
Our Butler, Carolina v. ruling, supra, will promote certainty in an knowing accused has waived his rights and will avoid a mountain of litigation which might otherwise result from trying to determine what “implicitly” went on in an accused’s mind.13 Cf. Commonwealth v. Davenport, 471 Pa. (1977). A.2d 301 Our will ruling also serve to on impress an accused the importance of his Butler, North Furthermore, decision.14 Carolina v. assuming supra, was concerned with additional burdens being placed Miranda, officials, on law enforcement given we cannot agree our ruling creates such any burden. Surely rights must be explained, merely asking for an answer to a question burden, and, is no great even if burden, is a it it. will promote and, in the certainty law eliminate a thereby, greater burden resulting from allowing implicit waivers.
Accordingly,
since Bussey expressed no desire to
waive his
rights prior
the 1:45
giving
incrimination,
a. m.
it was
obtained
illegally
and having allowed
use
evidentiary
thereof
requires the
of a new trial.15
grant
imply
12.
express
We do
every
not mean to
an
waiver for each and
right
necessary.
is
warnings,
expression
13.
understanding,
addition to
an
of
and the
giving
statement,
of a
by
a multitude of manifestations
an accused
expression
can occur
understanding
giving
between an
and a
of a
ruling
statement. Our
will not eliminate consideration of such mani-
festations, but, by
waiver,
requiring
express
we can limit
number of cases in
may
which the multitude of manifestations
affect
finding
the ultimate
of a waiver.
importance
waiving
rights
obvious, and,
14. The
one’s
is
our
ruling,
promote
we seek to
a deliberate and conscious decision before
any
given.
statement
persons
speak
Common sense teaches
often
they
before
think.
Certainly
question
“likely
expected
asked of
to or
confession,”
Simala,
to elicit
Commonwealth v.
434 Pa.
and,
(1969),
hence,
252 A.2d
interrogation.
constituted
from Bussey
obtained
statements
incriminatory
the fruit
clearly
were
a. m. conversation
the 2:00
during
*10
given
were
they
since
obtained statement
illegally
prior
the
incrim
the 1:45 a. m.
confronted with
was
after
only
of the
Hence,
exploitation
it was obtained
ination.
admitted into evi
was improperly
illegality
primary
Frazier, 443 Pa.
178,
33
v.
279 A.2d
Commonwealth
dence.
Ware,
517,
A.2d 790
v.
438 Pa.
(1971); Commonwealth
was
at 4:28 a. m.
Also,
given
formal statement
the
(1971).
reason as the
evidence for the same
allowed into
improperly
strong
“link” is not as
While the
a. m.
2:00
statement.
is with the
m. statement
as it
with the 4:28 a.
connection
same
statement,
thing
to hear the
request
the
2:00 a. m.
4:28 a. m. state
that
the
ruling
a
clearly precludes
again
v.
taint.” Commonwealth
of the
primary
was “purged
ment
Ware,
521,
Judgment MANDERINO, J., in the result. concurs NIX, J., opinion. dissenting files a LARSEN, J., dissenting opinion. files NIX, Justice, dissenting. of to mind the witicism calls majority opinion
Today’s
make it so.”
leg
it a
doesn’t
“calling
Abraham Lincoln that
the
labeling
delay
decision
today’s
is the case with
Such
to the
hearing
preliminary
first aborted
appellant’s
from
of proper-
instead
unavailability
to appellant’s
second as due
This distinction is not
a continuance.
it as
ly identifying
this case
out.
point
the circumstances of
as
quibble,
Procedure states:
our Rules of Criminal
1100(d)
Rule
of
trial,
for commencement
(d)
determining
period
In
such
at
period
delay
shall be excluded therefrom
there
as results from:
proceedings
any stage
Williams,
In the instant appellant arraigned on December and a was scheduled for preliminary hearing De- cember 21. At the preliminary hearing, appellant indicated to the court that he wished to retain defense private counsel. response, stated: court
I want the defendant be entitled to all of his rights, one of which is to I will private grant retain counsel. request and will hearing ground. be continued on that (Emphasis added).
At the the suggestion of assistant attorney, district the was continued the preliminary hearing to “after first of the year” specifically, January to 1974. On January — with the appellant appeared private counsel for preliminary of hearing. today agrees the Court majority with the court trial that of 28-day period delay chargeable to the be appellant and should excluded from the computations fixing the Rule run-date of It obvious appears to me the delay product was the of a granted continuance for the benefit of so as to to appellant allow him retain counsel of his choice. the Since continuance was not in excess of thirty days, section (d)(2) period mandates that the of delay cannot be excluded from the computation the Rule’s run-date.
The majority contends that our
opinion
Commonwealth
Millhouse,
Pa.
LARSEN, Justice, dissenting.
I
First,
dissent.
I cannot agree with the
con-
majority’s
clusion that
the detective’s questions
interroga-
“constituted
tion”. Appellant was merely asked if he
right”;
was “all
“he was under the
alcohol”;
influence
drugs or
and if
[of]
“he knew
he
why
had been picked up”.
questions
Such
do
no more than inform the
of whether
police
a defendant
is
suffering discomfort
faculties,
and
control of his
and
whether he has been advised of the charges against him.
They are preliminary to determining whether a defendant
able to knowingly,
intelligently,
and voluntarily waive his
rights and answer questions concerning the crime charged;
they are not
to or
“likely
expected to elicit a confession.”1
I
Accordingly,
would hold that appellant’s
statement was
not
the product of custodial
not,
“interrogation”
and did
therefore,
require waiver of constitutional
rights.2
majority’s
In
upon
1.
of
period
delay
view the
reliance
between
January
December 21 and
question
I need not reach the
period
chargeable
whether
appellant
some other
could be
so as to
bring
addition,
his trial within the limits of Rule 1100.
In
in view of
my
appellant
belief
discharged,
should be
I need not reach the
majority.
other issues considered
questions
1 The detective
obviously
who asked these
.
felt that
because,
appellant responded
was the case
question
after
to the third
inculpatory statement,
with his
pursue
the detective did not
perform
matter
further and left the room to
other duties.
See,
Arizona,
436, 478,
Miranda v.
384 U.S.
86 S.Ct.
(1966):
L.Ed.2d
dealing
through
with
interrogation,
statements obtained
we do
purport
not
to find all confessions
inadmissible. Confessions re-
proper
main
Any
given
element
in law enforcement.
statement
freely
voluntarily
any
is,
compelling
without
influences
course,
import
admissible in evidence. The fundamental
privilege
custody
while an individual
is in
is not whether he is
police
allowed to
warnings
talk to the
without
the benefít of
counsel,
interrogated,
(emphasis
but whether he
supplied)
can be
*13
interrogation,
constitute
Moreover,
questions
even if these
short-
rights
his constitutional
advised of
had been
appellant
recent-
and,
Court
Supreme
as the
them
answering
before
ly
Butler,
441 U.S.
S.Ct.
held in North Carolina
ly
responses
(1979),
defendant’s
1755,
Accordingly, reasons, judgment affirm would, foregoing for the sentence. eleven United States question ten of the has been addressed
3. The See, states. Appeals at least seventeen and the courts of Courts of n. n. 99 S.Ct. Id. 441 U.S. at