Lead Opinion
OPINION OF THE COURT
On May 15, 1974, appellant was convicted of first degree murder and burglary in connection with the killing of a young housewife in suburban Harrisburg in May of 1972. Post-trial motions were filed and denied and the appellant was sentenced to life imprisonment.
Appellant raises three major issues on appeal to this Court: 1) whether the suppression judge erred as a matter of law in ruling that the June 13, 1973 signed confession of appellant was admissible at trial despite allegations that it was obtained as a result of coercion; 2) whether the June 13, 1973 confession, if not the result of coercion, was tainted by prior allegedly illegally-obtained statements, more precisely statements given to police on May 24, 1973 and June 7, 1973; and 3) whether the trial judge erred in prohibiting defendant from introducing testimony concerning the use of the polygraph examination which was offered to show that coercive tactics were used in securing the statement of June 7,1973.
On April 25, 1973, and again on May 24, 1973, appellant spoke with state policemen and discussed Hoffman’s possible involvement in the crime. On June 7, 1973, with the knowledge and consent of his parents, appellant agreed to submit to a polygraph examination to enable the police officials to assess the truth of the allegations made by appellant against Hoffman. Following that examination, which was preceded by proper Miranda warnings and the signing by appellant of a polygraph waiver form, appellant first implicated himself by admitting that he was present at the home of the victim on the day in question, that he observed Ronald Hoffman stab the victim, but that his function was merely that of a lookout while Hoffman burglarized the home.
The next day appellant was arraigned on burglary charges and on June 9th Ronald Hoffman was arrested and charged with murder. On June 13, 1973, at 2:00 P. M., appellant was interviewed in the District Attorney’s office for the expressed purpose of preparing the testimony that would be used against Hoffman at his prelimi
Prior to trial, defense counsel filed timely motions to suppress the statements of May 24, June 7 and June 13, 1973, on various grounds. The motions were heard and denied after a three-day suppression hearing.
It is axiomatic that a confession to be valid must be given free of any physical or psychological coercion which might interfere with one’s will to resist. Culombe v. Connecticut,
I. THE COUNSELED INTERVIEW OF JUNE 13, 1973
Appellant asserts that the signed statement which was introduced against him was involuntarily given and thus should have been suppressed. This statement was obtained during a counseled interview which took place during the evening hours of June 13, 1973. As has been previously noted, appellant first admitted complicity in the murder on June 7, 1973. In this statement he described his participation in the incident as a lookout and denied responsibility for the actual stabbing of the victim. After these admissions, he was charged only with the crime of burglary. As a result of the information supplied by appellant, Ronald Hoffman was arrested and charged with murder. It is also evident that the Commonwealth’s case against Hoffman was dependent solely upon the testimony of appellant.
On June 13th, appellant was taken to the District Attorney’s office at 2:00 P.M. for the purpose of preparing him to testify as a Commonwealth witness against Hoffman at the latter’s preliminary hearing. It was during this discussion that appellant volunteered the information that he killed the victim and that Ronald Hoffman was not involved in the crime. Up to the time of this admission Hoffman, and not appellant, was the target defendant as to the slaying of Ms. Karen Dockray. When the police became aware of this change of posture in the case they insisted that appellant contact his parents.
When notified of the situation, the parents of appellant obtained counsel who met and conferred with appellant. Thereafter, a counseled interview took place during which the statement, which is now challenged, was prepared and signed.
Finally, there is not a scintilla of evidence upon which to predicate a challenge to the voluntariness. At no point has appellant identified the presence of a single coercive influence during the interrogation in question. To the contrary, the presence of counsel at that time resulted from the police insistence that appellant contact his parents. Most significant is the fact that counsel was present and was available to detect and describe even the most subtle coercive or suggestive influences if they in fact had existed. No such testimony was offered. The significance of the presence of counsel during custodial interrogation was referred to at several places in
That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process.
Id. at 466,86 S.Ct. at 1624 .
At another point of the decision, the United States Supreme Court observed:
[The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial.]
Id. at 470,
We therefore conclude that the statement elicited during the June 13th counseled interview was knowingly made and free of any coercive influence.
II. “THE FRUIT OF THE POISONOUS TREE”
In view of our finding that the June 13th statement was free of any illegal or coercive influences affecting its admissibility at trial, the only conceivable taint to the statement must have occurred as a result of prior police
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”
Id. at 487-88,83 S.Ct. at 417 (footnote omitted) (citations omitted)
The issue in this case then is whether a counseled interrogation, preceded by an adequate opportunity to confer with counsel, is the kind of attenuating circumstances which would dissipate any prior illegality and “purge the primary taint.”
Before answering this question, it is crucial to understand how the United States Supreme Court has perceived the role of counsel in the protection of the constitutional rights of our citizens. The thrust of the majority of landmark cases in this area is the requirement that devices be created to assure the presence of counsel at critical stages in the criminal proceedings, or to as
The denial of the defendant’s request for his attorney thus undermined his ability to exercise the privilege— to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.
Miranda v. Arizona, supra,384 U.S. at 466 ,86 S.Ct. at 1623 (emphasis added)
In view of the express language of Miranda, denominating counsel “an adequate protective device” the
This Court has recently considered the effect of counsel as an insulating factor from prior police misconduct. In Commonwealth v. Cockfield, supra, the defendant had been taken into custody at 1:00 A.M. and was questioned intermittently until 12:05 A.M. on the succeeding day. During all of that time, appellant was without benefit of counsel. It was not until after the statement had been reduced to writing and he was in the process of signing it that counsel, retained by his family, first arrived. After a brief discussion, during which the attorney was made aware of the charges, counsel advised his client to continue signing the statement. This Court reasoned that, regardless of what police improprieties may have preceded counsel’s arrival, the act of signing by appellant after the instruction was given by counsel, was a result of counsel’s advice and not the product of any suggestion or coercion which may have occurred prior thereto.
It may very well be that had the appellant not conferred with counsel his confession would be considered involuntary under the totality of the circumstances test. The appellant, however, after conferring with counsel who had an opportunity to read the confession, reaffirmed, on the advice of counsel, his willingness to make the statement by signing the statement in the presence of counsel. Psychologically coercive influences may have affected the appellant prior to his consultation with counsel, but it cannot be said that the signing of the statement after consultation with counsel was a product of those factors. Counsel had not been subjected to those factors and after being informed of the statement advised his client to sign the statement. Appellant was obviously following the ad*589 vice of counsel. Had counsel advised otherwise any statement made or signed by the appellant prior to the appearance of counsel would present an entirely different question. Under these circumstances however, we cannot conclude that the prosecution failed to meet its burden of proving the voluntariness of the confession by a preponderance of the evidence. Commonwealth ex rel. Butler v. Rundle,429 Pa. 141 ,239 A.2d 426 (1968). Id.465 Pa. at 419 ,350 A.2d at 835 .5
The facts presented in this appeal provide an even more compelling basis for adopting the Cockfield rationale. Even, as we have heretofore so indicated, assuming that there was some coercion exercised prior to the counseled interrogation of June 13th this appellant, unlike Cockfield, had an unhurried opportunity to confer with counsel prior to the interrogation in a location separate and apart from police officials. Further, the incriminatory statements resulting during the interview were elicited under circumstances which we have already found to be devoid of any type of coercive influence.
Under these circumstances we find that the counseled interrogation, preceded by ample opportunity to confer, was an occurrence, as a matter of law, so attenuated any prior illegalities that any taint was sufficiently purged.
III. THE COURT’S RULING ON THE ADMISSIBILITY OF THE EVIDENCE RELATING TO THE POLYGRAPH
In a somewhat related argument, appellant contends that the trial judge erred in prohibiting defendant from
The United States Supreme Court in Jackson v. Denno,
The rights of a defendant in this area are, in our opinion, adequately protected by Rule 323 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. (1975 Pamphlet), relating to the suppression of evidence. That rule is modelled after the so-called Massachusetts or “humane” rule approved by the Supreme Court of the United States in Jackson v. Denno,378 U.S. 368 ,84 S.Ct. 1774 ,12 L.Ed.2d 908 (1964). It provides that prior to trial, upon motion of the defendant to suppress evidence allegedly obtained unconstitutionally, a hearing shall be held to determine the admissibility of the challenged evidence. If the evidence is found to be admissible, the defendant is foreclosed only from challenging its admissibility at trial; he may still contest the validity of such evidence notwithstanding its admission.
Commonwealth v. Green, supra
This practice, however, is exercised under the supervisory power of this Court and is circumscribed by, among other things, the normal rules of evidence. Merely because we permit a jury to also consider the question of voluntariness does not mean that the jury
Notes
. Implicit in the dissent of Mr. Justice ROBERTS is the assumption that the purpose of the Fifth and Sixth Amendment rights is to prevent a suspect from making incriminatory statements. This is not, nor has it ever been the purpose as determined by the United States Supreme Court of these protections. The constitutional protections assure that a suspect of crime will not be compelled against his will to incriminate himself. The constitutional safeguards were never intended to prevent him from doing so if the election was the product of his free will with a full appreciation of the consequences of his actions.
“In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda v. Arizona,384 U.S. 436 , 478,86 S.Ct. 1602 , 1630,16 L.Ed.2d 694 (1966).
. At trial the Commonwealth confined proof of its case to information obtained from the June 13th signed statement and not from any of the prior statements which appellant has challenged here.
. For purposes of a resolution of this appeal we will assume, without deciding, that there was a possibility of police misconduct. We note, however, that the record would indicate to the contrary.
. In the event that counsel fails to fulfill his role the appropriate redress can be obtained through a claim of ineffective assistance of counsel. Post-Conviction Hearing Act, Act of January 25, 1966, P.L. 1580, § 3, 19 P.S. § 1180-3(c)(6); Commonwealth v. Laboy,
. We are at a complete loss to understand Mr. Justice ROBERTS’ analysis of our decision in Cockfield. The suggestion that Cock-field should be read as providing that an accused who has been offered the opportunity to confer with counsel before confessing to a crime, is but a factor in the legal determination of the admissibility of the statement is, in our judgment, completely irreconcilable with the facts and the language of that opinion.
. The latter portion of the argument goes to the effectiveness of the waiver, hence its admissibility, which is unquestionably a matter that must be determined by the court and is distinguishable from the first part of this argument which relates to the voluntariness of the statement which may, under the proper circumstances, also be presented to the trier of fact. Commonwealth v. Johnson,
. Although the trial court did not base the exclusion of this evidence on the factors of legal attenuation and relevancy, we have often held that we may affirm the holding of a lower court if an alternative ground exists. Commonwealth v. Shoatz,
Dissenting Opinion
dissenting.
In this appeal, appellant makes the following contentions:
(1) his confession of June 13, 1973, should have been suppressed because (a) it was tainted by improper police questioning on May 24 and June 7, 1973; and (b) it was involuntary;
(2) he should have been permitted to introduce evidence at trial concerning the use of a polygraph examination as a coercive tool used to secure the confession.
The majority dismisses appellant’s first contention because appellant met with counsel before the June 13 confession was taken. I cannot agree with the majority’s suggestion that the presence of counsel necessarily renders a confession voluntary and purges the confession from the taint of prior illegalities. Both claims are properly resolved only after an evaluation of the totality of the circumstances surrounding the confession. The majority unwisely departs from the fundamental principle that no single factor is determinative of these questions.
After reviewing the record, I would hold that the suppression court did not err when it denied appellant’s motion to suppress because I find that his confession was voluntary in the totality of the circumstances and that no improper police conduct preceded the June 13 confession. I would not rely on the new, per se rule created by the majority today.
In my view, however, appellant’s second contention is meritorious. Appellant is entitled to a new trial because the trial court erred in excluding evidence concerning the use of a polygraph examination on June 7 as a coercive factor which led to his June 13 confession. Evidence that a defendant was given a polygraph examination before confessing is relevant to the determination whether the confession was voluntary in the totality of the cir
The majority holds, however, that because appellant’s conference with counsel dissipated the taint of any prior illegalities as a matter of law, coercive influences surrounding appellant’s June 7 statement were irrelevant to the jury’s determination of the voluntariness of the June 13 confession. I cannot agree that the determination that a second confession is free of the taint of prior illegalities affects the relevance of the events which preceded the confession when the voluntariness of the confession is at issue. The majority has confused two distinct doctrines which have different purposes and applications. Appellant’s experience with a polygraph examination on June 7 was part of the totality of the circumstances which led to his later confession and was therefore relevant to the jury’s consideration of the voluntariness of his subsequent confession. By its holding today, the majority has unjustifiably curtailed appellant’s right to a jury determination of a crucial issue in the case.
I would reverse the judgment of sentence and grant a new trial.
I — The Facts.
On May 12, 1972, at approximately noon, Karen Dock-ray was found stabbed to death in the garage of her home. The police investigation eventually focused on Ronald Hoffman, a student at Susquehanna Township High School, located near the victim’s home. On April 25, 1973, the police interviewed appellant, William Cunningham, another Susquehanna Township High School student. Appellant was known as one of Hoffman’s acquaintances. The interview, which lasted about one hour, was conducted at the high school with the consent of appellant’s parents and in the presence of an assistant principal. Appellant was not given Miranda
On May 19 and May 20, 1973, appellant was questioned at his sister’s house by a detective who was also a family friend. At the latter session, appellant stated that at 11:30 A.M., on the morning of the homicide, Hoffman told him that a woman had been killed.
On May 24, 1973, appellant was taken, with parental consent, to state police headquarters for questioning. Again, he was not given Miranda warnings. He related various details of the crime but maintained that everything he knew came from Hoffman. The police requested that appellant take a polygraph examination. After he initially refused, the police persuaded him to take the examination. The examination was scheduled for a later date.
On June 7, 1973, at approximately 9:00 A.M., appellant was taken, with parental consent, to the Susquehanna Township Municipal Building for the polygraph examination. Appellant was read his Miranda warnings and signed a waiver form.
On June 18, 1973, appellant was taken from the county prison to the district attorney’s office at about 2:00 P.M., to prepare him to testify at Hoffman’s preliminary hearing. He was again advised of his constitutional rights. During the interrogation, appellant broke down and cried. He then confessed that he, not Ronald Hoffman, killed Karen Dockray. The district attorney again informed him of his rights and suggested that his parents be called. Appellant chose to complete his statement.
At 4:00 P.M., after the conclusion of this oral confession, appellant’s parents were called and brought to the district attorney’s office. They retained an attorney who arrived and conferred with appellant from 6:00 P. M. to 6:30 P.M. At 6:30 P.M., after he was again advised of his constitutional rights, appellant made a steno-graphically recorded statement in the presence of his counsel, in which he confessed to the murder of Karen Dockray. This last recorded statement was the only one introduced by the Commonwealth at trial.
When he confessed to this homicide, appellant was an 18 year old special education student. His I.Q. was 77, which placed him on the border line between normal and retarded. Appellant’s expert witness, a psychiatrist, testified appellant had little capacity for exercising judgment in difficult situations. He concluded that appellant
II — The Suppression Court Properly Denied Appellant’s Motion to Suppress.
A. Fruit of the Poisonous tree.
Appellant claims that his statements on June 13, 1973, were tainted by prior improper questioning. He asserts that he was entitled to Miranda warnings before the interview of May 24, 1973, and that his waiver of his rights on June 7, 1973, was ineffective. However, the trial court’s determination that the June 13 confession was not preceded by improper police interrogation is supported by the record. It is, therefore, unnecessary to reach the fruit of the poisonous tree issue.
1. The May 24,1973 Questioning.
The police had no duty to inform appellant of his Miranda rights before the May 24, 1973 questioning. Miranda warnings must be given before any police questioning whenever an individual is in custody or is the focus of a police investigation. Commonwealth v. D’Nicuola,
2. The June 7,1973 Questioning.
The record supports the suppression court’s determination that appellant knowingly and intelligently waived his rights before he was questioned on June 7,1973.
The Commonwealth has the burden of proving by the preponderance of the evidence that appellant knowingly and intelligently waived his rights. Commonwealth v. Romberger,
B. Voluntariness.
Appellant asserts that even if the June 13, 1973, confession was not tainted by improper police conduct, it was involuntarily given.
The Commonwealth has the burden of proving that a confession was voluntary. Commonwealth v. Jones,
*600 The test of voluntariness is whether “the confession [was] the product of an essentially free and unconstrained choice by its maker. If he has willed to confess, it may be used against him. If . his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process.”
Culombe v. Connecticut,
Here, it is undisputed that appellant was neither physically mistreated nor continuously interrogated. On June 7, 1973, appellant arrived at the Municipal Building
Appellant contends that despite the lack of physical mistreatment, the interrogations on June 7 and June 13 were psychologically coercive. This argument is based upon appellant’s low I.Q., the length of time he was subject to police supervision (if not interrogation) and the use of the polygraph examination in the interrogation process. As Mr. Justice Nix stated for the majority in Commonwealth v. Alston,
“[W]hen the question of voluntariness passes beyond the realm of physical coercion and into degrees of psychological coercion, most careful attention will be afforded to any facts, circumstances or events tending to overbear the will of the accused.”
Accord, Commonwealth v. Kichline,
A review of the record shows that appellant’s confession was voluntary. His statements to the police were entirely exculpatory until after he took the polygraph
This conclusion is buttressed by our decision in Commonwealth v. Cockfield,
C. The Majority Misinterprets Miranda v. Arizona and Commonwealth v. Cockfield.
The majority suggests that under the rationale of Miranda v. Arizona,
Indeed, in Miranda itself, the Supreme Court implicitly recognized that the mere presence of counsel does not necessarily dissipate the inherently compelling pressures accompanying in-custody interrogation. In discussing the requirement that interrogation must cease if the accused indicates in any manner that he wishes to remain silent, the Court observed:
“If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might be fairly construed as a waiver of the privilege for purposes of these statements.”
Id. at 474 n. 44,
However, the confession here was not preceded by improper police interrogation. Therefore, it is not necessary to reach the “fruit of the poisonous tree” issue. The majority, without deciding whether the questioning on May 24 and June 7, 1973 were improper, relies on Commonwealth v. Cockfield,
In Cockfield, we found that an accused’s opportunity to confer with counsel before signing a written confession rendered the confession voluntary in the totality of the circumstances. Cockfield stands only for the proposition that conferring with counsel shortly before incriminating oneself lends support to a finding that the admissions were voluntarily made.
Cockfield involved a determination whether a confession was voluntary, not whether it was tainted by prior illegalities. Nevertheless, since both inquiries examine the totality of the circumstances, I believe that the opportunity to confer with counsel is also relevant to the determination whether a confession was obtained in a fashion sufficient to purge it from the prior taint. But I
Accordingly, while I agree that the suppression court properly denied appellant’s motion to suppress, I am unable to accept the majority’s analysis of this question.
Ill — The Polygraph Evidence was Improperly Excluded at Trial.
Appellant’s last contention is that he was entitled to introduce evidence concerning the use of a polygraph examination during the interrogation of June 7, 1973. Appellant claims that use of the polygraph examination was a coercive influence which led to his first confession on June 7, and that the evidence therefore was relevant to the jury’s determination whether his later confession was involuntary in the totality of the circumstances.
The general rule in Pennsylvania is that a reference to a polygraph examination or the results thereof which may raise an inference concerning the guilt or innocence of a defendant is inadmissible. Commonwealth v. Camm,
Appellant emphasizes that he did not attempt to introduce evidence that he had taken a polygraph examination in order to prove the truth or falsity of his admissions. In this respect, appellant’s offer differed from those in prior cases which prohibited a defendant from introducing polygraph evidence. Appellant’s purpose was to show that the use of the examination contributed to the coercive atmosphere which led to his involuntary admissions.
The issue, then, is one not previously addressed in Pennsylvania: whether a defendant may introduce evidence that he took a polygraph examination in order to prove to the jury that his confession was involuntary.
In Tyler v. United States,
“The evidence had a material bearing upon the conditions leading to Tyler’s confession and was relevant upon the vital question as to whether the same was voluntary. With the court’s clear and positive instruction to the jury, holding the evidence within proper bounds ... we are not warranted in assuming that any prejudicial results followed . . . .”
193 F.2d at 31 .
Other courts have concluded that evidence that a polygraph test was administered is not admissible if the evidence raises an inference as to the test results. This implies that cautionary instructions are not sufficient to protect the defendant from prejudice. See Johnson v.
“It is well established that the mere fact that a lie detector examination may have been involved in procuring a confession does not render the confession inadmissible. . . . However, if the defendant is forced to submit to the examination or if the methods of examination are such as to constitute actual or psychological coercion the resulting confession may well be found involuntary. . . .
“Necessarily, when a confession procured during or as a result of a lie detector examination is challenged, the facts surrounding the confession will be disclosed. . . . [T]hese same facts — including the fact that the defendant was subjected to a lie detector — may be disclosed to the jury . . . . ”
Id.
In State v. Green,
“ [E] vidence of the results of polygraph tests is not admissible as substantive evidence to prove that a person has lied or told the truth. Nevertheless, the jury is likely to infer from evidence of the fact that a criminal defendant was the subject of a polygraph test before making a confession that he lied in response to ques*609 tions asked during a polygraph test and that he confessed because he was caught lying by the polygraph. As a result, there is danger that such evidence may unduly prejudice the jury . . . .”
Here, however, it is unnecessary to decide whether the Commonwealth may ever introduce evidence that a defendant took a polygraph examination. We need only decide whether a defendant is entitled to introduce such evidence to aid the jury in passing on the voluntariness of his confession.
The taking of a polygraph examination is part of the totality of the circumstances in which a confession is obtained and, as the cases discussed above uniformly recognize, is therefore relevant to determining voluntariness. The only reason to exclude such evidence is the danger of prejudice to the defendant. Where the defendant seeks to admit such evidence, the rationale for exclusion disappears. Unlike the cases in which prosecution seeks to introduce evidence of a polygraph examination, the only question here is the relevance of the evidence. Appellant obviously concluded that the value of evidence that he took a polygraph examination to his claim that his confession was coerced outweighed the danger of prejudice. This is a tactical decision that is properly left to the defendant. Since the evidence appellant offered was relevant, it should not have been excluded by the trial court.
In a recent decision, the Maryland Court of Special Appeals reached the same conclusion. In Johnson v. State,
“[i]t would be unsound to exclude from the jury’s consideration of voluntariness the psychological effect of the use of polygraph devices when we fail to exclude the effect of any other potential coercive condition, person or device present during interrogation.”
The majority refuses to reach appellant’s claim, asserting that because “the counseled confession of June 13, as a matter of law, was purged of any prior illegality, evidence relating to allegedly coercive influences surrounding the involuntary statement of June 7 is irrelevant.” I cannot agree.
A defendant has a constitutional right to a fair hearing and reliable determination at some stage of the proceedings on the voluntariness of his confession. Jackson v. Denno,
“The determination of voluntariness usually involves issues of fact which traditionally belong to the jury. . [Requiring the jury to pass on the issue of voluntariness . . . preserves to the defendant his right to a jury trial on this critical issue. Pa.Const, art. I, § 9. . . . [To leave] to the jury only the question of weight and credibility, would in our opinion deprive the defendant of a jury trial on one of the most fundamental questions of the case — voluntariness of his self-incrimination.”
In my view, appellant offered a cognizable theory of involuntariness and should have been permitted to submit his evidence to the jury. Just because a suppression court has determined that prior illegalities have been purged, a defendant is not precluded from introducing evidence of those prior events at trial to prove to the jury that his subsequent confession was involuntary.
Here, it was within the jury’s province to find that the atmosphere was so coercive on June 7 and June 13, 1973, that appellant’s admissions were involuntary, notwithstanding the later presence and advice of counsel. The presence of counsel on June 13 did not render evidence concerning the June 7 interrogation irrelevant; appellant has the right to introduce evidence bearing upon the atmosphere and events which led to his confession.
The majority reasons that since the presence of counsel on June 13 purged appellant’s confession of the taint of any prior illegalities as a matter of law, it also rendered all preceding events irrelevant for purposes of determining the voluntariness of his statements. This position has no foundation in law, logic or reason.
First, the presence of counsel does not, as a matter of law, render a confession voluntary or purge the taint of prior illegalities. Part II C, supra. Until the majority’s inexplicable departure from precedent, these determinations have always been based upon an evaluation of the totality of the circumstances.
The “fruit of the poisonous tree” doctrine “is a response to the realization that if police officers are permitted to use knowledge gained from unlawfully obtained evidence to obtain the same or other valuable evidence legally, an inducement to commit such unlawful practices continues to exist.” Comment, Fruit of the Poisonous Tree — A Plea for Relevant Criteria, 115 U.Pa.L.Rev. 1136, 1138 (1967). Thus, the “fruit of the poisonous tree” doctrine involves a balancing of the benefits accruing to society from deterring unlawful police practices against the detriments from the suppression of probative evidence.
The exclusion of confessions obtained against the will of the accused, on the other hand, involves far more than the “deep-rooted feeling that the police must obey the law while enforcing the law.” Spano v. New York,
Miranda v. Arizona,
The ultimate test of voluntariness is whether “the confession [was] the product of an essentially free and unconstrained choice by its maker.” Columbe v. Connecticut,
The determination of the voluntariness of a confession is, therefore, unlike the balancing process a court undertakes in deciding whether to suppress evidence as the “fruit of a poisonous tree.” The latter inquiry cannot be compared to the often sensitive analysis of an accused’s mental state which must be made when he asserts that his free will was overborne.
Thus, the majority errs when it asserts that the “question of attenuation . . . necessarily involves a determination of whether preceding events are relevant to the issue of voluntariness.” The two concepts simply are not comparable. Therefore, evidence of an accused’s experience during police interrogation may be relevant to a determination of the voluntariness of a subsequent confession whether or not a court concludes that prior illegalities have been purged.
The majority’s holding today impermissibly limits appellant’s right to a jury trial. At the suppression hearing, the court heard evidence concerning the use of the polygraph examination in the interrogation process of June 7. Appellant’s counsel cross-examined one of the interrogating officers as follows:
“Q. Am I correct one of the questions you asked him on the polygraph, did you stab Karen Dockray?
A. I didn’t ask the questions.
Q. You were there when they were asked?
A. Eight, right.
Q. That would seem to indicate that he was very definitely a suspect?
A. These are normal questions, yes. At this point, like I said, the latter part of the pre-test, the questions are made up from. Now at this point he was giving a description of how this happened and at this point, in my mind, we felt he must have been there, he must have had knowledge.
Q. Now, at this point in taking the test you are tell him, I think you are holding back. You look at this and you look at the results and you say Bill I think you are holding back, I think you were there, is that correct?
A. This was the general result, we felt he had more knowledge. He was there by himself or with someone else.
*615 Q. You told him he was suspect, you thought he was there?
A. At the murder scene.
Q. You told him specifically that you thought after having taken this test he wasn’t being wholely truthful and he was there at Karen Dockray’s house when she was killed?
A. Right.”
At trial, the tapes of the June 7 interrogation which followed the polygraph examination were played for the jury but were edited to omit all reference to the polygraph examination. Thus, appellant was precluded from presenting to the jury, as is his right, his claim that the polygraph examination was used to coerce his confession. This was error. As the Maryland Court of Special Appeals stated:
“A trial judge may not select which circumstances relative to voluntariness may go to the jury and which may not. Once its preliminary determination of voluntariness is made ... all of the relevant evidence bearing on voluntariness must then be submitted to the jury . . . . ”
Johnson v. State,
In short, while the use of a polygraph examination during the interrogation of an accused does not necessarily render a subsequent confession involuntary as a matter of law, the jury may consider the procedure so coercive in a particular setting as to declare the confession involuntary. Appellant was entitled to have the jury consider the polygraph examination as a factor in its determination of voluntariness in the totality of the circumstances. I am not convinced beyond a reasonable doubt that consideration of the rejected polygraph evidence would not have affected the jury’s determination of the voluntariness of appellant’s confession. See e. g.,
Accordingly, I would reverse the judgment of sentence and remand for a new trial.
. Miranda v. Arizona,
. The police stated that although appellant was not the focus of the investigation at that time, it was their procedure to advise an individual of his Miranda rights prior to the pre-polygraph interview.
. The use of a polygraph examination in the interrogation process, standing alone, does not render a confession involuntary. Commonwealth v. Jones,
. In Pennsylvania, even if the suppression court determines a confession is voluntary and therefore admissible, a defendant has the right to contest voluntariness before the jury. Like a suppression court, the jury decides whether a confession is voluntary on the basis of the totality of the circumstances. Here, the defense’s theory was that in light of the coercion on June 7, as well as other circumstances, appellant’s confession on June 13 was also involuntary.
. In Commonwealth v. Camm,
. Appellant states that his polygraph expert would testify that the police lied when they suggested that the polygraph machine indicated that appellant had not been truthful. This, too, is relevant to the voluntariness inquiry. Deception concerning the results of the polygraph test would indicate that there was a strenuous effort to induce a confession. Thus, it lends support to the defense theory that the atmosphere and interrogation were psychologically coercive.