*1 in Pennsylvania. any party First, be allowed to should impeach any allowed, only witness. If were not party prior who did call not the witness in- could use virtually consistent statement. This would be same present prior Second, law. inconsistent statement only impeach witness, would be but admissible changes would be substantive evidence. These are not by acceptance drastic, jurisdic- as evidenced their in the tions listed above.6 majority’s only keep relevant result serves jury. evidence from the serves no
reliable Its result greater principle judicial than I inertia. believe is, trial fundamentally, objective search account upon charges of the events which the are based. criminal evidentiary An ignore rule which forces the searcher to reliability relevant clues whose can be tested cross-ex- purpose. I, amination serves dissent from therefore, no majority’s result. MANDERINO, J., joins opinion. dissenting in this 354 A.2d Pennsylvania
COMMONWEALTH Appellant. JOHNSON, Arthur Supreme Pennsylvania. Court
Argued April 7, 1975. April 7, 1976. Decided Reargument Denied June 1976. required by would Chambers appear This result also Mississippi, 410 U.S. S.Ct. 35 L.Ed.2d *4 Pallastrone, George Bachetti, A. Philadel-
.Rudolph S. phia, appellant. for Fitzpatrick, Atty.,
F. Emmett Dist. H. Gold- Steven blatt, Atty., Appeals Div., Chief, Dist. Asst. S. Gito- Glen mer, Philadelphia, appellee. O’BRIEN, JONES, J., EAGEN,
Before C. ROB- ERTS, POMEROY, MANDERINO, NIX and JJ. THE
OPINION OF COURT POMEROY, Justice. Johnson,
Arthur the appellant, was convicted of mur- degree killing der in the first for the of one Jerome by jury. Wakefield after a trial Post-trial motions were denied, imprisonment. and Johnson was sentenced to life appeal This direct followed.1 only presented The evidence trial Common- appellant wealth which linked murder with which charged he was was a confession elicited from Johnson subsequent challenged to his arrest. admis- sibility pre-trial suppression hear- ing grounds: (1) on three the confession was the tainted product illegal arrest; (2) of an know- Johnson did not ingly intelligently right silent waive remain appointed present during question- and to have counsel ing; involuntary. the confession was coerced and rejected court these contentions ruled that the confession was admissible. appeal pursuant July
1. This direct taken P. to Act of 673,17P.S. §211.202(1). L. *5 by (j) of provided procedure the Rule Pursuant to (1975 Pam Procedure, our of 19 P.S. Rules Criminal phlet) challenge the va trial his , Johnson renewed at n.2 evidence, the lidity After the close of of the confessio validity the judge of question the of the trial submitted disregard the jury, charging them to confession to the they rights have find the waiver should unintelligent unknowing, the invol been or or cottfession pressed (The ground at untary. illegal was not arrest necessarily By jury trial). guilty the its verdict of respect against con to both of those found Johnson with appeal appellant alleges that several tentions. this On compel by suppression new at trial errors court and or arguments either waived trial. As these have been are without merit will we affirm.
I. sup challenges ruling of the first re pression In confession was admissible. court that his viewing ruling initial task is to determine this our findings supported the record. whether are the factual only determination, are to consider making “In we much prosecution’s and so evidence of the witnesses fairly as, read in the context evidence of the defense procedure recently explained as follows: 2. This has been are, opinion, in our “The a defendant in this area protected by Pennsylvania adequately Rules Rule 323 Procedure, (1975 Pamphlet), relating to the Criminal 19 P.S. the so- rule is modelled after of evidence. That approved by Su- or rule called ‘humane’ Massachusetts Denno, 378 U.S. preme Jackson v. Court the United States provides that It to hearing 84 S.Ct. L.Ed.2d 908 trial, upon suppress evi prior motion of the defendant be unconstitutionally, allegedly shall dence obtained challenged admissibility of evidence. held to determine admissible, fore- is the defendant If the evidence found trial; may admissibility only challenging closed from its at notwithstanding its validity of still contest such evidence confession, chal example, For case of admission. lenge trial. grounds may be renewed to it on involuntariness Camm, See Commonwealth v. denied, (1971), 31 L.Ed.2d 92 S.Ct. cert. U.S. Com whole, remains uncontradicted.” the record as a 516, 522, Goodwin, monwealth v. *6 supports (1975). viewed, the evidence If, when so 895 findings; by findings we such the factual are bound we may only legal there if conclusions drawn reverse case, review the instant our from are in error.3 In hearing factual judge’s the record satisfies us that given these findings amply supported, that were arrest findings correctly that Johnson’s we concluded confes valid, his was effective and was waiver voluntary. issues seri will deal with these sion We atim. giving arrest rise to Johnson’s circumstances
may 1970, Jerome briefly 6, described: On October wounds; a of knife and bullet died as result Wakefield day Philadelphia gang The next victim of warfare. police police Payne, told one who arrested Alexander slaying him the Wakefield. that Johnson had aided test. Payne voluntarily to a detector then submitted lie supplied, and of the information thus with- On basis procuring police warrant, first John- out went for the Jer- son’s home and there arrested him murder below, Appellant argues, ome now did Wakefield. cause, probable that this warrantless arrest was without thereof, tainted fruit confession obtained was a ruling court therefore erred the confession admissible. Joyner, 242, 441 272 (1972); 589 v. A.2d Pa. (1971).” 454 Green, 557, 561-562, 682,
Commonwealth v.
A.2d
684
464
347
(1975).
Tucker,
191,
(1975);
704
v.
461 Pa.
335 A.2d
Goodwin,
516,
(1975);
v.
892
460
Pa.
1,
Eden,
Commonwealth v.
(1974); Com-
456 Pa.
“The law clear is constitu- a warrantless arrest tionally cause, invalid which based probable unless as, is defined facts and circumstances within the ar- resting knowledge officer’s which and of he had rea- sonably information, trustworthy sufficient in them- selves to warrant a man of reasonable caution to be- being committed, lieve an offense has been or is person to be arrested has committed the offense.” Jeffries, Commonwealth v. Jones, also
See Commonwealth Mackie, *7 372, 375, 320 A.2d v. Norwood, (1974). 330, 332, 319 A.2d appellant’s argument
The essence of is that the supplied police by pro information Payne to the did not “reasonably necessary vide the trustworthy information” satisfy probable contention, the cause This standard. however, is in the teeth of a well-settled in this rule “[t)he Commonwealth that of a codefendant implicates suspect supply probable which the will the cause for a warrantless arrest.” Commonwealth v. Ken ney, (1972). See also Rush, (1974). Accordingly, appel reject we must
lant’s first contention.4
(2) argues Johnson next confession was that his suppressed inadmissible and should been because have the knowingly Commonwealth failed to establish that he question Because have we was val- that the arrest concluded id, appellant we need pressed by not discuss the contention product illegal that the confession is the arrest. tainted of an Wong States, See Sun v. 9 L. United 371 U.S. S.Ct. Whitaker, Ed.2d 441 A.2d 603 intelligently rights prior his
and waived Miranda sub mitting questioning by police.
Cobbs, 397, 403, 305 25, 28 suppression The hear- evidence at the Commonwealth’s ing adequately ad- tended to establish Johnson appeared rights; times alert vised his that he at all comprehend normal; that he each seemed af- warnings given; in the when he answered warning. if firmative when asked each he understood present Johnson at the that he no hearing testified had having his or of recollection been advised (at having by implication) waived least them, background to he did not have sufficient educational comprehend warnings hearing given. The judge noting and, discounted this that he “was im- understanding pressed with of the matter [Johnson’s] hearing,” way suppression during he testified rights. effectively concluded that Johnson had waived amply supported by the This conclusion was record. appellant Finally, challenges voluntarily ruling court’s that Johnson’s confession was given. produced hearing evidence at established following chronology arrest- events: immediately interroga- ed taken to a. m. and was headquarters room the homicide where division tion m. chair was handcuffed to a and left alone. 8:30 a. *8 At questioned he advised of his Miranda was permitted go a. to to five minutes. At 8:35 m. he was the lie de- bathroom. Johnson then consented take a m, two tector test. began The test at 8:55 a. and lasted food, supplied hours. At was with 10:55 a. m. Johnson bathroom, given an again was allowed the was use 11:30 interrogation rest. The resumed opportunity p. at which time John- a. m. and 12:05 m. continued until the participation in son made his an oral of confession agreed give crime and a formal statement.
155 support In of contention the that statement hearing involuntary was Johnson testified at the investigating officers, was the state beaten the by the ments contained in were drafted the confession typed police, and that he not the confession be did read was, reading. The time, incapable cause he at the of as Commonwealth’s witnesses contradicted of these each judge hearing sertions. The the conflicts chose to resolve in and, in favor based of above-described, chronology of concluded events in voluntary. no confession find error We this conclusion.
It is well-established that the voluntariness totality light of the confession is to be determined assessing surrounding In circumstances its elicitation.5 factors, interrogation relevant “it the continuous rendering in which is the crucial element voluntary.” Rundle, 429 rel. Butler v. Commonwealth ex 141, 151, 426, In the instant 431 only forty- case, interrogated Johson was for a total of voluntary hour minutes, two five and also underwent interrogations confessing. polygraph test, These before separated periods. by adequate were rest sup adequately go twice bathroom and allowed to to the plied findings, the judge’s with factual food. Given in approach those circumstances of case do interroga length stances where we have held that involuntary.6 tion rendered the resultant confession See, v. g., among holding, legion 5. Columbe e. of cases so 1037, Connecticut, 6 L.Ed.2d 81 S.Ct. 367 U.S. Tucker, 704 A.2d v. Rundle, rel. Commonwealth ex Butler findings of Compare have overturned those cases in which we interrogation length involved: voluntariness because (inter Irvin, A.2d 132 hours); Com questioning consecutive for over nineteen mittent Purvis, (1974); (accused monwealth v. span by at twenty-five IQ hour interrogated over with
II. Having suppression that the court did concluded admitting not err in confession, we now consider Johnson’s that he the additional evidence contention presented requires hold, law, at trial us to a matter of as purported that Johnson’s waiver of and subse quent involuntary.7 fact were Because any supportable finder’s on would be if based conclusion find evidence, reasonable reconstruction of the we can only evidence, error matter as a of law if the when taken light in finding favorable to a of waiver most effective voluntariness, support could a conclusion. such Having light, reviewed the in have evidence we con appellant’s cluded that merit. contention is without only trial the is introduced at evidence sues signifi of waiver and voluntariness which differed cantly presented from that at which was hearing McNally, an was the of Lorraine one expert testing of employed the Board in educational Philadelphia. testified in tests ad She Education fourteen, ages eight ministered Johnson IQ in the with an “retarded educable” Johnson tested was inca range. opinion It was her 63-70 containing more than pable understanding sentences incapable of therefore, would, concept one and that occasions); eight different police officers on least five different (ac- Simms, intermittently for over twen- IQ questioned of 61 with an cused finding of voluntari- hours); ty-two which a with those cases in Walker, A. upheld: ness custody educable as retarded (1969) (accused 2d 283 classified Joyner v. rel. hours); ex for one one-half IQ with (1968) (accused Brierley, 429 period). hour questioned over ten for five hours ‘‘admis- is not issue here what is at It be noted should light validity confession, legal its rather sibility” but Rules of 323(j) of our pursuant Rule at trial evidence adduced supra. note See Procedure. Criminal *10 comprehending warnings.8 It is several of the Miranda put intelligence appellant’s now to us low level of purported demonstrated this renders his agree. waiver ineffective not as a matter of do law. We per adopt consistently Our Court to refused “[has] inability se exclu- rule to waive constitutional sively physical deficiency. based on mental and . totality always Rather we have of the cir- adhered to a cumstances rule where we consider all factors surround- ing knowing the waiver to determine whether it was intelligent.” Scoggins, Commonwealth v. (citations omitted).9 304 A.2d (1973) IQ
Thus, weighty while in as- Johnson’s low was a factor sessing totality surrounding of circumstances purported waiver, compelled jury certainly not finding to reach a of ineffectiveness factor based alone. failing jury
Nor do we find that the erred adopt McNally’s to opinion could Mrs. comprehended meaning have the Constitutional warnings degree cre which were read to him. “The given pri opinion dence to to evidence of this sort marily within fact-finder, the discretion of the to whose judgment support we will if it in the defer there is Embry, record. 272 A.2d Johnson, See also Commonwealth v. Karchella, (1972).” Common Tucker, wealth v. Specifically, McNally not be Mrs. testified that Johnson would comprehend questions following able to him read when interruption: without (1) your own choice right lawyer “You have to talk to lawyer you any questions before we ask and also to have a you you questions. here with while we ask one, you you lawyer “If want cannot afford hire a you free you lawyer provided we will see that charge have a questions.” you any before we ask supra.
9. See cases cited at note amply supports jury’s Here the conclusion. record McNally On cross-examination it that Mrs. was revealed Johnson, most personally had never examined upon more recent she relied conducted test which prior question, yeárs incident than four peer opinion that her not take of Johnson’s did account supplied group him with the could contacts which have insights necessary meanings of the to understand warnings. reliability opinion was further of her McNally Johnson’s weakened when Mrs. conceded that multiple present ability con- to formulate sentences with *11 testimony previous in of the cepts, as demonstrated her of John- day, with evaluation quite at variance significantly, Finally, capacity. son’s mental but no less assessing at trial in the coherence of Johnson’s reasonably jury that Johnson could have concluded responding intellectually emotionally capable interrogation.10 Indeed, intelligently to sustained expressly un- cross-examination Johnson stated warnings. meaning Accord- derstood the each of his jury’s ingly, conclusion that Johnson’s waiver supported adequately intelligent was an one was by the record. confes
The
be
of Johnson’s
same must
said
consistently
waiver,
held
sion. As in the case
we have
simply
involuntary
be
that a confession is not rendered
IQ
the emo
cause of the
of the defendant.11
low
While
intelligently to
ability
respond
10.
defendant
observed
important
certainly
questioning
while on
witness
stand
assessing
of inabili
employed
factor to
claim
in
defendant’s
ty
respond
police
intelligently
questioning.
See Common
Abrams,
(1971);
wealth v.
Com
443 Pa.
Judgment of sentence affirmed.
MANDERINO, J., concurring opinion filed a in which J., ROBERTS, joins.
NIX, J., concurs in the result. Joyner Brierley, monwealth ex rel. Appellant error, allegations raises neither two additional but properly preserved Appellant contention has been for review. *12 first product contends that his statement of an was the unneces- sary delay arraignment between im arrest and and hence was properly against admitted in evidence him trial. Common Futch, 389, wealth v. (1973). 447 Pa. A.2d 417 Since this is 290 sue independent ground was not raised an for relief until post-trial motions, it came not too late for the confession could Mitchell, 117, then be excluded. See Commonwealth v. 375, (1975); Spriggs, 344 Commonwealth v. Newsome, (1975); A.2d 883 Commonwealth v. 337 A.2d Segers, 906 Commonwealth v. 460 467 n. 3 Appellant assigns allegedly inflammatory also as error certain by closing argument. remarks made attorney the district No objection at tion of remarks, however, during was taken or to these either attorney’s argument. Any the end of closing the district asser- point appeal. may properly thereafter be made on Mennyweather, Commonwealth (1974); A.2d 493 Sampson, A.2d Commonwealth v. White,
MANDERINO, (concurring). Justice join Pomeroy except opinion I in the of Mr. Justice arising implications opinion’s certain from that refer- polygraph ences References to ad- examinations. polygraph police of ministration a examination picture opinions necessary give complete of our are way ap- chronology events, of but in no indicate proval polygraph of results for use examinations evidentiary purpose. purposes any or for other appellant majority implies con- that because taking sented, polygraph exami- spent two hours poly- A consideration. nation is to be excluded from graph examination, however, nothing more than addi- interrogation: during ex- interrogation which an tional Interrogation is in- to machine. aminee is connected person’s regardless A terrogation what it’s called. being interrogated irrelevant is as consent to wired while to walk being or consent person’s seated as a consent purposes. interrogation particular room for inter- agree Therefore, the two hours I cannot during subjected rogation appellant was to which from consider- excluded should be examination polygraph determining or not the whether ation when voluntarily uttered. concurring opinion. ROBERTS, J., joins in this Pennsylvania COMMONWEALTH CHERRY. David RANDOLPH, Esq. L. Appeal Harold Pennsylvania. Supreme Court Argued 1976. Jan. April
Decided