*1 present by his ad- his efforts former wife. case closely into duced no such evidence rather fits more distinguished type Mc- of case which this Court Ahren, being: parent had
“We are not faced with a case where the
years
only
greeting
sent
one or two
over the
cards
parent
interest
where the
has demonstrated an
only
proceedings.”
adoption
child
initiation of
Adoption
Compare
Pa.
In Re
Since parental for perform duties has failed or refused to his adoption is period of six months and excess warranted, clearly find the forfeiture we rights permissible. parental party
Decree affirmed. Each
to bear own costs.
Supreme Pennsylvania. Court of
Argued April 1974.
Decided Nov. *3 Mozenter, Green, P., Philadel- Kenneth L. I. P. R. B. appellant. for phia, Atty., A.
F. Richard Fitzpatrick, Emmett Dist. Richman, Asst. Sprague, Atty., 1st Asst. David Dist. Boland, Atty., Appeals Div., Phila- Chief, P. Dist. Wm. appellee. delphia, for O’BRIEN, JONES, EAGEN, ROB- J.,
Before and C. ERTS, POMEROY, MANDERINO, NIX and JJ. THE
OPINION OF COURT POMEROY, Justice. adjudged guilty Green, appellant, was
Kenneth L. degree non-jury trial murder in second a for a public Motions street. carrying firearm on ap- denied were judgment in arrest trial and new years im- ten term of one to a sentenced pellant viola- firearms on the murder; sentence prisonment for judg- appeal from suspended. This direct tion fol- conviction imposed the murder on ment of sentence lowed. appellant. presented by principal are
Two issues them, affirm Finding we will no either merit judgment of sentence.
I. argued First, judge, sitting it is that the trial fact-finder, passing abused his discretion in both guilt. voluntariness of confession and on his trial, quickly The can salient facts stated: Prior to moved for the of a confession police grounds he made to the on the it was involun tary during period and that it had been un obtained delay necessary arraignment. arrest and See between (1975 Pamphlet). sup 130, 19 The Pa.R.Crim.P. P.S. motion, concluding pression court denied the validly had and was therefore been obtained at The issue of the voluntariness of admissible trial. again permitted trial, raised confession was 323(j) of Criminal Procedure. of our Rules Rule judge (a than the one conduct different who suppression hearing) the confession to be found ed *4 involuntary that not con on the record he did and stated guilt. making it in of sider his determination appears principal claim thrust of The of a question of the voluntariness to be that when the pass trial, judge placed in at the who confession is issue it in of the issue, if he resolves favor de es that the fendant, guilt because knowl cannot also determine unconscious- edge the could of the contents of confession ly judge’s thinking guilt-determining in the color arguing process. In effect is that the mere ex- enough posure prejudicial nullify to evidence is to in judge’s verdict a case. cannot subscribe such We view, judicial for it is of the essence of the function to proffered evidence, or hear or view whether testimonial form, be in whether or it should exhibit decide initially provi- evidence, or admitted into or if admitted disregarded.1 sionally, excluded For should later be or effect, accept appellant’s in be, us to contention would judge; would disqualification of a be a find practice in a go against in our courts honored time criminal, and situations, would myriad of civil well as as immeasurably trial courts. of the to the workload add are, in our rights in this area a defendant of Pennsyl protected opinion, adequately Rule 323 of (1975 Procedure, 19 P.S. Rules of Criminal vania of evidence. relating to the Pamphlet), so-called Massachusetts rule modelled after is That Supreme of by the Court approved rule “humane” Denno, 368, 84 S.Ct. 378 U.S. in Jackson United States speaks his on treatise McCormick 1. Professor by many experienced trial adopted practice of the “wisdom admitting all evidence provisionally judges nonjury cases debatable, admissibility its is objected to if he thinks which is admissibility be questions of will all the announcement with Evidence, McCormick, § 60 in.” the evidence is all reserved until omitted). (footnote It (Cleary 1972) author’s ed. at 138 ex- position cannot take the view those who “misguidely”. his mind do from so clude inadmissible evidence Cal.App.2d People Shepardson, 251 Id. n. See at also Appeals Cal.Rptr. (1967), in which the California Court obtained held that the mere fact that a confession which was part record did factfinder, violation of Miranda was received court, acting error not constitute when the trial determining guilt. disregarded stated that he otherwise, said, contrary To hold to the the court “would exclusionary objectives sought in development rules probable prejudicial evidence” are “based on [the] effect 38-39, jury” Cal.App.2d improper evidence. at Note, Cal.Rptr. (emphasis added). generally, Improper See Nonjury Reversal?, Evidence in for Trials: Basis 79 Harv.L.Rev. *5 562
1774, (1964). provides 12 prior L.Ed.2d It to 908 upon trial, suppress motion of the defendant to evidence allegedly unconstitutionally, hearing obtained shall admissibility challenged held to the evi determine the admissible, the de dence. If the evidence is found to be only challenging fendant from its admissi is foreclosed trial; bility may validity such at he still contest the example, in notwithstanding For evidence its admission. challenge involun case the on confession, the of a may grounds trial. See Common tariness be renewed at (1971), 253, cert. A.2d 325 Camm, wealth 443 v. Pa. 277 1320, denied, 31 L.Ed.2d S.Ct. 405 U.S. Joyner, (1972); Commonwealth present appellant above, the As detailed rule. fully rights this the accorded availed himself Denno, supra, lends Appellant that Jackson contends uncon Jackson, held support the Court for his In claim. process procedure the as violative of due stitutional permitted vol York the issue of the New State same a confession be submitted to untariness of holding, guilt. determined The Court’s which also indepen however, that there was no the fact rested evidentiary hearing on the issue of voluntariness dent exposing alone; procedure in the the vice jury to permitting questionable confession and to a conflicting question of voluntari assess present case, in trial. first instance at In ness opportunity an contrast, appellant did have contest separate hearing pre at admissibility of the confession ceding than before a other trial and e.2 adopt seeks have us would judg The rule judge in a situation where same We not faced with are thus guilt. both voluntariness the first instance determined case, e., preliminary been there has no i. where Where that is voluntariness, courts have held least determination of two Spears v. improper S. ex rel. procedure Jackson. U. to be under Rundle, (E.D.Pa.1967); rel. Ow- F.Supp. U. S. ex 695-96 Cavell, (M.D.Pa.1966). also Com- F.Supp. See ens v. Goodman, (dictum (1973) 311 A.2d monwealth v. hearings require seem to there be two one; just rather than the trial would have to abort *6 if, here, concluded that was the trial as he the confession voluntary. think cannot that such a result was not We contemplated by Supreme the in Jackson v. Denno. Court explicitly ap- contrary, above, the as noted On Court jury proved procedure when a was the herein followed the factfinder: concerning the question Massa- no here
“We raise
integrity
procedure.
the
of
.
.
. Given
chusetts
judge, the Mas-
preliminary proceedings before the
the
pose
opinion,
not,
in our
procedure does
sachusetts
.
.
. The
rights
the
of a defendant.
hazards to
judge’s
out
voluntariness
is carried
consideration of
separate
reliability
the
from
of the
and aside
issues
guilt
the
or innocence
accused
confession and
may again
regard
be
and
to the fact the issue
without
against
jury
the defend-
the
if decided
raised before
judge’s
the
conclusions
The record
show
ant.
will
hearing
pre-trial
and
judge
presides
that a
at a
who
at
prejudicial testimony
be
trial
hears
which would
inadmissible
that,
himself).
request
judge,
he
should
recuse
honor
463,
Corbin,
But see Commonwealth v.
serving
(1972)
suppression judge
as trial
(any objection
also
case,
or,
waived,
judge
light
of the facts of that
commentator, the
error).
In the
at least one
harmless
view of
“permis-
Supreme
entirely
in Jackson intimated that it was
Court
judge
and
sible for
same
determine both
Law, Confessions,
the
voluntariness
guilt.” Developments in
Harv.L.Rev.
935,
n.
what
This conclusion is based
Court said in footnote 19 in Jackson:
jury,
judge,
judge,
but
“Whether the trial
another
or another
convicting
fully
not the
resolves
issue of voluntariness
jury,
agree
is
with
not a matter of concern here. To this extent we
York,
Stein v.
97 L.Ed.
New
346 U.S.
73 S.Ct.
(1953)
between
free to
functions
States are
allocate
judge
they
and
84 S.Ct.
see fit.” 378 U.S. at
n.
at
“Once the
confession
found to be volun-
tary by
[suppression]
judge,
reconsideration not,
course,
improperly
this issue
does
credibility
jury’s
or
determination
affect
probativeness
determi-
or its ultimate
added).
guilt
(Emphasis
or innocence.”
nation of
1781,
II.
Appellant’s
principal
once his
other
contention is that
consideration,
the evi-
was
from
eliminated
States,
51,
U.S.App.D.C.
3.
also Hutcherson v. United
See
748,
(1965):
ruled that the con-
F.2d
755
voluntary
“But once
court has
Denno, (citation omitted)
fession is
Jackson v.
authoriz-
ruling,
jury
disagreement
es
of and
with such
reconsideration
notwithstanding
might
not lim-
there
be evidence before the
voluntariness,
favor of vol-
ited to the issue of
for one decision in
made,
already
ex-
untariness
have been
free of all evidence
will
cept
upon
which bears
that issue.”
that
argument, appellant
In a related
asserts that
the confession
suppressed
allegedly
ground
it was
should have been
on the
that
product
unnecessary delay
of an
between
time of his ar-
arraignment
in
set forth in Com-
rest
violation of the rule
Futch,
389,
may
(1972).
v.
447 Pa.
Our
of review in
claims re
sufficiency
garding the
is
of the evidence well known:
“
sufficiency
accepting
‘the test of
evidence whether
evidence, together
in
reasonable
true all
with all
properly
ferences therefrom
could
which
verdict,
its
inferences are
have based
such evidence and
prove guilt beyond
sufficient
a reasonable
law
”
95,
93,
Carbonetto, 455 Pa.
doubt.’
Commonwealth v.
(1974).
314 A.2d
v.
also Commonwealth
See
Long,
(1975);
460 Pa.
333 A.2d
Commonwealth
Clark,
v.
(1973);
454 Pa.
ground. opposite the hill On on the side of Cobbs Creek group boys groups of white formed. The ex- two changed epithets. rocks and racial After accidental discharge, Britt, Green handed another bullet to who re- attempted, unsuccessfully, loaded the rifle and to fire it. discharge in turn and Smith tried and failed to Green gun, Britt, which Smith then returned to loaded with still another Britt then fired bullet. aimed and boys killing hill, hitting direction of the on the and Ste- phen Warrington. 57, Hornberger, 441 Pa.
In Commonwealth v.
A.2d 195
“
[1]
egal
malice
(1970),
exists not
we reiterated
only
where
oft-repeated rule
there is a
par
will,
there is a wickedness
ticular ill
but also whenever
cruelty,
conduct,
heart,
disposition,
wanton
hardness
regardless of so
consequences
and a mind
recklessness
attending
duty.
may
It
be found from the
circum
cial
61,
also Common
stances.” Id. at
270 A.2d
197. See
(1975);
Stewart,
274,
wealth v.
461 Pa.
336 A.2d
Durant,
319 A.2d
Commonwealth v.
Bolish,
Pa.
(1974);
Commonwealth v.
Drum,
(1955);
Commonwealth v.
MANDERINO, J., filed a ROBERTS, J., joins.
MANDERINO, (dissenting). Justice completely miss- majority opinion . I dissent because ap- trial, argument. Prior point of es the *9 suppress pellant po- moved to to a confession made the lice, result, contending and all evidence obtained as involuntary. that the confession was He also contended Pennsylvania confession violated Rule product Rules Criminal Procedure in that it was the unnecessary delay arraignment. of an between arrest and Relief was denied the confession was into introduced appellant’s by prosecution. evidence at Appellant, year boy, a fifteen old arrested on was June 16, 1971, p.m. police at about 1:50 The had information appellant participated incident an several days during year boy earlier which another fifteen old fatally appellant. shot friend of the was appellant arraigned was until sometime dur- morning day ing delay after his arrest. The arraignment period of arrest and was at least between During evening seventeen hours. afternoon arrest, early morning day hours of his and the following appellant day, the confined almost contin- was sitting interrogation uously in room a steel a small During periods in he which riveted to floor. chair alone, times to the he was at all handcuffed left was sleep, given opportunity but he He no was chair. Appellant was permitted to use the bathroom. fed and ap- interrogated During intermittently and left alone. participated policemen pellant’s custody, seven different interrogation. After one time or another in hours, custody been for about twelve had statements, during inculpatory time he no made police mother for decided contact the asking give per- purpose for the her the first time lie detector mission for her son take a test. brought to the Ad-
Appellant’s mother was then Police Building. not informed at ministration She rights, told but was constitutional time about her son’s Appellant’s in a homicide. involved that her son was 2:45 about a.m. permitted her son at to see mother was *10 interrogat- meeting, one the beginning the of this At what appellant his mother the tell ing officers told appellant the Appellant’s visited with happened. mother mother, appellant’s Thereafter, period. the for a short giv- signed form police, a waiver request given to her to be permission lie test ing detector for sign any The record appellant not waiver. son. The did so was not refused to do silent to whether he is interroga- test, Following another the lie asked. detector during began appellant which the confessed tion session During interroga- participation homicide. this session, appellant’s present. At mother one tion say point, stated that he didn’t want anything after his mother told him more, but continued appellant signed the state- finish the statement. The ment. circumstances, about which involved the above
Under
confession,
delay prior
appellant’s
fifteen
to the
hour
unnecessary delay
product
of an
been
arraignment
have
and should
arrest and
between
Pennsylvania
suppressed prior
Rule
to trial.
130
Procedure;
Culli
Commonwealth v.
Rules of Criminal
301,
(1975); Commonwealth
son,
Pa.
I the trial no doubt that have stating opinion influenced his that the verdict was not accept by cannot, however, prejudicial I confession. opinion, though may be, determinative honest it as 368, 84 S.Ct. Denno, 378 U.S. of the issue. Jackson v. (1964), 12 L.Ed.2d 84 S.Ct. considered a on the whether conviction should be allowed to stand erroneously assumption intro- that a confession been had disregarded jury by a in deter- duced into evidence but allowing mining guilt. conviction Jackson said that to stand was: unacceptable fact of a de- . . . . .
“. [t]he jury’s implanted solidly in the fendant’s confession confession, only but it heard the for it has not mind judge its volun- to consider and been instructed has position is in it is tariness and a to assess whether involuntary, true or If it the confession false. finds disregard jury- indeed, can it—then the con- does the — there its instructions? If fession in with accordance lingering sufficiency are about the of the other doubts evidence, unconsciously lay jury to rest does the them uncertainty by to the about resort confession? Will prove guilt be- sufficiency other evidence to of the actually acquittal yond result a reasonable doubt jury given when the knows defendant has truth- a [though ful confession? inadmissible] difficult, impossible, prove It is if not that a confes- involuntary sion which a has found to be has nev- ” ertheless influenced verdict . . . Id. 1786,12 84 S.Ct. at L.Ed.3d at (emphasis added) recogni- expressed
The view is a realistic Jackson influencing persuasive tion that factors the decision incapable maker erro- are subtle and of detection. An presents grave danger that neously admitted confession a unknowingly disregarded the decision maker not has confession. course, addressing
Jackson was itself whether may jury may have been influenced disregarded. have case is This different that a recognize alone sat the trier I in non- of fact. evidence does trials erroneous introduction of validity verdict, always but affect prejudicial great, effect confession is may, pointed jury, out about a “unconscious- Jackson *12 sufficiency of ly” lay lingering doubts to rest about by to the confession. the other evidence resort evi- the influence Addressing question of the related im- ability judge’s to rule might guilt of have on a dence an incriminat- of of voluntariness partially on the issue Spears ex rel. statement, in United ing the court States F. aff’d. 405 (E.D.Pa.1967), F.Supp. Rundle, 268 that curiam), concluded (per 1969) (3d Cir. 2d 1037 “ reliably determine objectively and impossible to is [i]t considering voluntary [the after rea- Spears court The at 696. guilt.” Id. defendant’s] hearing separate required a v. Denno Jackson soned that on the finder is issue the fact a voluntariness where judge jury, saying, rather than a judge trying
“The of a a a case without function j fact, udge] as well twofold: is a finder of [the responsibility an arbiter of law. The is burden- great some. But the task re- becomes too we when quire judge guilt, who of has heard evidence objectively coldly and assess a as to distinct issue Objectivity voluntariness the confession. cannot be guaranteed, reliability and questioned. must be Jack- properly son construed, prohibits the finder fact passing from on the voluntariness a confession since its decision as voluntariness could be colored evi- guilt.” dence as (Emphasis added.) Id. at 695.
See also Patterson, Commonwealth v. (1968) A.2d (Concurring Dissenting Opinion by and above), Mr. quoting Justice O’Brien Levin Cohen, Exclusionary Nonjury The Criminal Rules Cases, (May 1971). reasoning U.Pa.L.Pev. 905 Spears is, course, equally applicable to the situation presented by the appeal. instant recognized
It has been in other that certain situations erroneously may present po- admitted much tential for whether a sits as unfairness the trier of Rivers, fact. Commonwealth v. 218 Pa.Su- per. 184, say- 279 A.2d reversed (1971), conviction ing prior testimony the trial about the defendant’s prejudicial pending charge crimes and a murder was so facts) “even (sitting trial as trier of though he an experienced judge, able and could have come to no other than conclusion that the predilection had a A.2d at for crime.” Id. at Pa.Super. 503, In Lockart, Commonwealth opin- (1974), its Superior Court noted improper photographic ion that evi- introduction *13 572 which, indicating prior
dence a criminal be record would error in a would likewise be revers- reversable trial non-jury Al- able error in a trial. See Commonwealth v. len, (1972). A.2d Judge dissenting Spaulding opinion
The Com- of Pa.Super. 73, 79, A.2d Goodman, monwealth rely up- (1972), pointed out not that “we should say- judicial of on the fiction a blind side.” He continued ing: ap-
“I a wholesale do not there should be conclude plication apply they of the rules as judges sitting To trials to the fact-finder. do so deprecate judge’s long years study ex- would and perience, justice and his dedication to ends However, qualities of fairness. restraint assume lay- logic in a we do not assume man does not mean that we should overlook nature, judges subject are to human that we should continuously seek to assure fairness cases where judges act the fact-finder.”
Id. at 189. also at See Commonwealth A.2d Goodman, exposed prejudicial highly
The evi- trial improperly admitted dence—a confession —which was light exposure, that the In this I conclude trial. put out of judge, despite such evidence sincere effort mind, to have done so. The cannot said of Rule it in violation was secured inadmissible because Pennsylvania Procedure of Criminal Rules The interpreting that Rule. of this Court and the cases appellant guilt to a or inno- is entitled determination of by, from, by fact-finder and unaffected cence insulated confession. inadmissible raise the majority holds cannot The also post- this was not raised issue before Court because opinion denying post-verdict mo- motions. verdict admissibility appel- specifically stated that tions *14 properly pretrial determined in the lant’s statements Although hearing. not con- record does hearing post-verdict motions, transcript of the tain a opinion the issue was court’s indicates that trial raised and considered.
Judgment reversed and a new of sentence should be granted. I dissent. therefore ROBERTS, dissenting opinion. joins in this J., A.2d 690 Appellee, Pennsylvania,
COMMONWEALTH LASCH, Appellant. Albert Andrew Pennsylvania. Supreme Court Argued March 1975. Nov.
Decided