*2 JONES, J., EAGEN, O’BRIEN, Before ROB- C. ERTS, POMEROY, MANDERINO, NIX JJ.
OPINION NIX, Justice.
Appellant charged along with four was and indicted (4) youths stabbing other for the of one Isaac fatal Philadelphia on City Saltzman which occurred in the July 30, separate trial, appellant or about In a 1970. guilty by jury was de- found of murder in the second gree imprisonment and less sentenced to a term of of not years.1 (5) years (15) than five nor more than fifteen appeal This direct follows.
In appeal, the instant a reversal seeks judgment ground of sentence on incrimina- tory by police statements im- made him were to officials properly agree introduced into and evidence at We trial. for the judgment reasons thаt follow of sen- reverse tence and award a new trial. Appellant was companion also convicted under a bill of indict- charging conspiracy. charge suspend- ment On this sentence was accepted finding ed. appeal We have conspiracy under the pursuant 31, 1970, V, § July to the Act of P.L. No. art. 503(а); § 211.503(a) P.S. (Supp.1974-75). August 1, 1970-, at or
Appellant on about was arrested arrest, the time his was 8:30 A.M. At seventeen Appellant age. at years (10) (17) ten months of arrived A.M.; the interro- headquarters homicide 9:40 resulted in a gation process at 9:40 A.M. and commenced 2,1970. August signed on at 3:55 A.M. statement twenty- During span (19) hours and this of nineteen (10) custodial interrо- ten (25) five minutes there were twenty (20) from gation periods ranging in duration (3) questioning was three hours. minutes to almost by investigating (4) detectives. Between conducted four liberty periods questioning was these placed. The where he had been move about in the room (12) approximately (12) by feet room twelve twelve was three containing He fed on a desk and chairs. feet permitted (3) and have water use occasions requested. lavatory facilities when confession, it determining validity of a speak established that the decision must be product of a free and uncoerced choice of its maker. been
“The test that which hаs ultimate remains only clearly Anglo-American courts established test years; Is of voluntariness. for two hundred test the. essentially an free is, if he has If it unconstrained choice its maker "l may it is against If confess, it be used willed him. capacity for not, will has and his if his been overborne impaired, use of critically self-determination *4 Richmond, process. Rogers v. offends due is that at which The line of 365 distinction U.S. 534. governing compulsion, lost and self-direction is helps propels infused, or or whatever nature however Connecticut, propel v. Culombe confession.” 602, 1860, 1037 568, 1879, 6 L.Ed.2d 367 81 U.S. S.Ct. Added) (Emphasis (1961). 516, Pa. 333 Goodwin, also, v. 460
See Commonwealth 359, Purvis, 458 Pa. Commonwealth v. (1975); 892 A.2d
387
Alston, 456 Pa.
(1974);
v.
326 A.2d
Commonwеalth
369
Simms, 455
128,
(1974);
A.2d 241
v.
317
Commonwealth
Banks,
599,
(1974);
Pa.
Commonwealth v.
Further, voluntariness of attending must confession, all circumstances factors and be considered and evaluated. interroga . duration,
“. . and the methods tion; atti the manifest the conditions detention defendant, the defend tude of the toward physical other psychological all ant’s state and present may pow ones conditions which drain serve self- suggestion ers of resistance to and undermine supra Connecticut, 367 determination. See v. Culombe rel. 602, ex 1860; U.S. at 81 S.Ct. Commonwealth 431; supra Butler v. at Rundle, 429 at 239 A.2d 151, 574, A. Eiland, supra Pa. at Commonwealth v. 301 supra Pa. at 654; Riggins, 2d at Commonwealth v. supra Banks, 476; 304 A.2d at v. Commonwealth noted, As we have 454 Pa. at A.2d at 579. beyond passes question when the voluntariness physical coercion, attention will realm of most careful any facts, or events be circumstances afforded tending Common of the accused. overbear will supra 429 Pa. Rundle, wealth ex Butler v. rel. supra Alston, at 430.” Commonwealth v. A.2d supra; Common also, Goodwin, See Purvis, supra. wealth v. *5 period protracted of in the facts a
Under instant in terrogation time of nine spanned an interval of excess Accepting obser (19) Commonwealth’s teen hours. periods questioning continu that were not vatiоn opportunity to appellant an afforded ous and that was during period satis we are nevertheless eat and rest this designed the re process to overcome that fied appellant from a statement to obtain him sistance important guilt. More his with their belief of consistent police officials ly clearly that the record discloses objective achieving their in fact were successful prod not the ultimately obtained that statement the result coercion.2 a but rather uct of free will (20) twenty min- period hours and (5) a of five For knowledge any appellant denied arrest, after utes his persistent assertion оf pertaining This to the incident. knowledge surrounding any to led events lack of any inference Mr. Saltzman the death of rebuts the. surround- appellant wished communicate information police During ing officials. five hour the events this period with communication had parents with minute world was his for a five vis- outside visit, approximatеly this At the time of it at 11:40 A.M. emotionally parents being described their son Significantly departure upset.3 parents' he after his upon any insist continued his unawareness position re- surrounding circumstances His incident. substantially when mained at 1:50 P.M. unaltered until being prepared undergo polygraph examina- he was a by police tion he first ordered this time At officials. conceded that he observed the incident and witnessed Appellant 2. question made a officials raises as to whether rights. inquiry sufficient his as to whether understood not be view our issue need decision in matter this this reached. Sgt. corroborated witness McManus during par- his crying fact that conversation with Irvin was ents. At Dennis 5:30 P.M. Deen stab victim. *6 Deen, appel- of the
was confronted with who was advised P. remained alone until accusation. two 6:10 lant’s appellant re- with Deen Even after the confrontation M. mained in that Deen had steadfast his assertion stabbed appellant It not until 8:08 P.M. that Mr. Saltzman. point in first that he was It was at this stated involved. interrogation process the when he admitted that agree give Further, a stabbed the victim. he did not morning. written statement until 1:10 A.M. next reading rejects finding A realistic of this record a young protract pressures this man withstood this police investigation incriminatory ed and these offered as a statements result of his free and unfettered will. cоntrary To the we are forced conclude there was part police through a system blatant effort on the persistent interrogation atic appel and to undermine capacity that, lant’s to resist and as a direct result of effort, this ultimately statement was obtained. Com supra. Purvis, monwealth v.
Although suppression opin- court failed to an file support ruling ion in denying sup- of its the motion to press, disposing post-trial in trial court motions upholding and suppression the decision of the court re- lied on Darden, Commonwealth v. 441 Pa. A.2d (1970); Commonwealth Willman, v. (1969); A.2d 534 and Commonwealth Moore, 440 Pa. We believe that these are cases inapposite. supra, In Darden, challenged was obtained after police custody four hours of two and one-half hours questioning. Moore, of actual In supra, only two and a half elapsed hours between the arrest and the implicated time the accused Also himself. Willman, in supra, made initial incriminat- ing twenty statеments within minutes after his arrest. Willman, Our decision in supra, instructive as to situation, instant not for the reasons factual however suggested There we observed: Commonwealth. “Appellant almost immedi- made initial admission ately, question is no that his at time when there This, anything voluntary. statements could be but course, necessarily admis- doеs not validate his later sions, statement, after the first rec- ., . . but filling in ord indicates that were interested perhaps making appel- details, in the sure that original true and not the lant’s admission was Id. confusion.” Willman, supra, contradistinction *7 any informa- a desire to withhold evidenced determined might possessed relating crime tion thаt to the he have overbearing only the and this resolve was overcome persistence police period For in of of officials. a excess knowledge (5) any the in- hours, denied five admitting only the that he witnessed cident, thereafter stabbing. persisted for an culpability in his lack of He admitting (6) after orally hours. Even additional six give guilt written for an a statement addi- refused tortuously (5) tional five Each concession was hours. police had appellant only officials from after extracted of cus- advantage oppressive of the influences full taken interrogation. todial pro- supra, Alston, v. Commonwealth decisiоn in
Our interesting comparison the factual an with instant vides supra, Alston, setting. also seven- the custody years police for age in held and was teen distinguish- (7) over seven That case is not hours. length police de- able in the because difference equally important authorities tention that but as is permitted confer relatives to be with accused’s during interrogation. Ir- stages with him at crucial response parents police in headquarters vin’s returned to advising telephone approximately to a 3:00 P.M. call spending five they them that After could see their son. attempting unsuccessfully they hours their re- see son turned home and did not see him until after the contested apparent statement had been It thus that al- secured. though parents present they were were denied opportunity during period to confer with their son ultimately proved that to be the most critical of the en- interrogating process. tire conclusively
While record does nоt establish inability parents point to see their son at this design a result of the of the officers deliberate conducting it investigation, it to conclude that is fair suggest probability does While this this fact. Court has not stated that have an affirm- officials provide youthful duty ative with the benefit accused parent’s during any of a questioning, сounsel indication they prevented right (police) this of consultation during interrogation strongly suggests an intention to preserve employ the isolation of the it as accused and a tool to overcome his will. appeal in the facts instant share similar features
with the in ac facts cases which have found thе we subject cused to have been coercion to unconstitutional subsequently and have been to have held involuntary. supra; Purvis, Common *8 Riggins, wealth Simms, supra; v. su Commonwealth v. pra; supra. Eiland, Commonwealth v. In each case initially accused activity. denied criminal He was then questioned intermittently varying in each from elev case en twenty-five periods hours to of intermit hours. The tent questioning by lengthy immediately were followed periods of isolation.
We, therefore, subjected hold that the was coercion, unconstitutional that his will was overborne complicity” and his decision to “admit was not product essentially of an free and unconstrained choice involuntary. and, hence, The oral admissions and 392 suppressed should have been
written statements trial error. their introduction at judgment new trial is reversed and a The sentence awarded. JJ., O’BRIEN, in the result. concur
EAGEN and dissenting opinion POMEROY, in which J., filed a joined. JONES, J.,C. (dissenting). Justice
POMEROY, appellant’s confession issue of the voluntariness The hearing; suppression vigorously contested at a volun hearing judge have been found the confession again defendant, right, tary. was his At trial challenged the voluntariness the confession. Pa.R.Cr. jury Appendix (Supp.1974-75). The 323(j), P. P.S. 19 concerning is length the voluntariness was instructed specifically they if determined told that sue and was they “disregard involuntary should confession was defend properly find the completely” and could [it] with quarrel no guilty. ant not has exception it. judge’s charge issue, took no on this of fact Notwithstanding the finders by decisions these law, today a matter level, the the trial Court holds as will of a free but that the confession not “was Opinion, at 134. ante coercion.” rather the result of me My the record satisfies examination of own supportable, abide and I would lower court result v. therefore Commonwealth its I dissent. decision. 865, (1975); Common Long, 461, 867 Karchella, 732, A.2d 273, 449 Pa. wealth v. Garvin, 448 Pa. v. (1972); A.2d 33, 39 “totality always of circumstances” taken a
We have question voluntariness. Common approach to A.2d Rundle, 429 Pa. Butler ex rel. wealth
393 (1968). length interrogation fac 426 The but one is determining tor be considered in whether a confession truly is of the free will of its maker. Com (1975). Tucker, monwealth v. Pa. A.2d 461 335 704 permeates present The error which decision giving weight single of undue a in the total to but factor group interroga circumstances, length viz., of the period. tion by
The majority involving cases cited “similar as ap- totality features” to the all instant case reflect proach. In Purvis, Commonwealth v. 458 326 Pa. (1974), year 369 a A.2d defendant was 21 old who mentally had been classified had retarded and who undergoing light been methadone of these treatment. In facts, involuntary we held his confession where he was interrogated for some 25 the confes- We found hours. Simms, sion 455 Pa. (1974) involuntary
265 to be where it was shown that year IQ defendant was a 31 61 old with an who questioned been had a for 22 hours while handcuffed metal chair. Riggins, 519, 304 Commonwealth v. 451 Pa. (1973) A.2d 473 a found be invol- involved untary year because obtained from a 17 old defendant questioned continuously who had been for 17 hours. case cited the majority perhaps which is the closest factually Eiland, to the case at bar is Commonwealth v. case, In that de- year grade fendant was old with a 10th education interrogated by any who when police initially denied involvement in the crime ultimately of which he con- periods victed and who was for isolated several of time during span interrogation. He confessed hours arraigned later and was not until after hours Eiland, length however, arrest. it not merely interrogation which rendered the confession involun- tary рrecipitated but the fact that what the confession interrogation began promise hours after was a lenien- *10 police would We cy by if the defendant confess. the of these factors “consti- the there held that combination powerful imper- form of nonetheless tuted a subtle but 574, A.2d at psychological coercion.” Id. at missible pros- Considering “the evidence we must as the for much of the evidence and so ecution’s witnesses as a fairly context of the record as, in the defense read Connecticut, uncontradicted,” whole, Culombe v. remains L.Ed.2d 1860, 1880, 6 81 S.Ct. 367 U.S. 195-196, at supra (1961), Tucker, at a find- in at bar does not warrant that evidencе the case involuntary as a ing appellant’s was the pass- one-half hours almost matter of law. While the questioned and appellant was first ed between time confession, signing written completed his formal time period; during that interrogation not continuous rest, opportunity ample to given frequent and Irvin was permitted to see He was the bathroom. eat and use appellant first Furthermore, parents. with converse approxi- the crime presence of scene admitted his interroga- hours after onset mately one-half 4 and stabbing in the participation His admission tion. inculpatory statement of this first 7 hours made within following commencement hours and less than 11 justi- spans time to nothing in these I questioning. find police effort” accusing of a “blatant in fy this Court having capacity resist, or of appellant’s to undermine from On him. “tortuously each concession extracted” jury trial suppression court and the contrary, the en- finding that evidentiary supрort ample for had legitimate on up efforts period was taken with tire solving of two towards part directed involving which and another Irvin stabbing assaults, one charge those simultaneously, order occurred almost for these It participated. have who were shown unwilling declare, reasons that I am as the ma- does jority, appellant’s interrogation final involuntary was coerced and a matter of Hence law. this dissent.
JONES, J., joins in this C. dissent. MOYER, Appellant,
John A. *11 PHILLIPS,
E.C. M.D. Supreme Pennsylvania. Court
Submitted Nov. 1974. July 7, Decided