Opinion by
Charles Ross, James Houlahan and Leo Chester 1 were indicted by the grand jury of Allegheny County for the murder of Harold Walker. Ross, tried before Judge J. Prank Graff and a jury, was convicted of first degree murder with the penalty fixed at life imprisonment. Motions for a new trial and in arrest of judgment were denied by the court below and judgment of sentence imposed. Prom that judgment this appeal was taken.
Midmorning on January 21, 1959, Harold Walker was found dead lying in bed in his room at 1101 Sheffield Street, Pittsburgh. The cause of death was shock following contusions of his head, neck, face, back and chest together with multiple fractures of the ribs, injuries which the Commonwealth established were “caused by repeated blows upon the various parts of Walker’s body.”
*361 At approximately 7:30 p.m. on January 23, 1959, the evening which preceded Walker’s death, Alfred Tschudi, a fellow-boarder of Walker, observed Ross and another man on the stairway steps in Walker’s boarding house and one of the men stated they were going to see a party named Stiles. Upon being informed no. such person lived in that house, Ross and his companion left the premises. Tschudi then also left the house and returned approximately 25 minutes later. Upon Tschudi’s return, he noticed Ross’ companion at Walker’s bedroom door placing a handkerchief on his face and Ross at the door to the bathroom in the upper hall. Tschudi went to his own room and, while there, heard things being thrown about in Walker’s apartment. Tschudi directed the attention of Mrs. Kramer, the housekeeper on the premises, to this disturbance. Mrs. Kramer went to Walker’s room and, as she pushed open the door she was pulled into the room. Tschudi then saw Ross coming from Walker’s kitchen; upon Ross observing him, Ross chased him, threatening to shoot him, and then left the premises. 2
Mrs. Kramer testified that, in the early evening of January 23rd, she saw Houlahan at the foot of the hall stairway and two other men on the stairway and noticed that Ross departed at the same time as Tschudi. Later in the evening, having been alerted by Tschudi, she went to Walker’s room and, as she pushed open the door, Houlahan pulled her into the room and threw her on Walker’s bed. The only persons then in the bedroom were Walker, Houlahan and Mrs. Kramer. Walker was bound hands and feet and lying flat on the bed. Houlahan left the room and, “immediately” thereafter, Walker told her “[t]hey tried to kill me” and “[t]hey wanted more money”. A doctor was summoned *362 and gave Walker medical attention. Walker refused the doctor’s suggestion that he be hospitalized. Mrs. Kramer stated that “Everything [in the bedroom] was disrupted and all the drawers and things were emptied on the bed. The same way, everything in the kitchen torn up.”
After the alleged assault, a neighbor of Walker stayed with him until approximately 2 a.m. No one else saw Walker until Mrs. Kramer found him dead in his bed approximately eight and one-half hours later.
Nine days after Walker’s death, Ross was apprehended at the home of a Mr. and Mrs. Robert Hoffman, 4626 Kincaid Street, Pittsburgh, the arrest taking place at two o’clock in the afternoon. Five and one-half hours later, while in police custody, Ross signed a written confession acknowledging his complicity in the assault upon Walker.
The Commonwealth’s theory is that Walker, in some manner involved in the numbers racket, was known, at least to Ross, to have large sums of money, either on his person or in his living quarters, and that Ross, Houlahan and Chester went to Walker’s home to rob him. According to Ross’ confession, some money was actually taken from Walker’s pocket.
Ross assigns various reasons why his conviction should be set aside: (1) that the confession was obtained by duress and coercion and before he had been given a preliminary hearing; (2) that his failure to complain of the manner in which the confession had been obtained did not give rise to an inference that the confession was voluntarily given; (3) that, inasmuch as the confession should not have been received in evidence, it was error to permit the reception of evidence of Ross’ subsequent conduct; (4) that the Commonwealth at the time the confession was received in evidence had not proven the corpus delicti; (5) that the trial court magnified the Commonwealth’s case and *363 minimized Ross’ case; (6) that Walker’s statements to Mrs. Kramer and certain photographs were erroneously received in evidence and (7) that the prosecuting attorney in his closing argument made highly improper and prejudicial remarks.
In
Rogers v. Richmond,
With this principle in mind, we examine the factual background upon which Ross presently claims that his confession was the product of duress and coercion and, therefore, erroneously admitted in evidence.
At the time of Ross’ arrest he was suffering from a toothache for which he had been taking medication. Ross testified 3 that he informed Captain Flynn, one of the arresting officers, of his toothache and Captain *364 Flynn instructed the' other officers to take Ross to a dentist. Ross then stated: “I thanked Captain Flynn but told him that I could tell him nothing because of it. Captain Flynn became angry and he rescinded the order to take me to the dentist.” According to Ross, several times he renewed his request to be taken to a dentist bub received no response and it was not until the next morning, after the confession, that he was taken to a dentist who then removed two badly decayed teeth. 4 Ross also stated that an officer named Nestor told him that the Hoffmans — in whose home Ross was arrested — were in a police station and would be held as material witnesses unless Ross confessed and that, likewise, Ross’ niece would be arrested for having an abortion. On cross-examination, Ross admitted that it was he who suggested to Captain Flynn that he would tell the police exactly what happened if the Hoffmans were not arrested.
Leonard Monti of the homicide squad testified that Ross, when arrested, had toothache medicine in his room which he was allowed to take with him, that Ross did complain of a toothache, that he did not ask Captain Flynn to be taken to a dentist but he was told that, after the questioning, he would be taken to a dentist to which Ross replied: “Oh, I have to cooperate to get my teeth pulled”, a remark which made Captain Flynn angry. Before the confession was taken Monti tried to reach Dr. Corsello, a dentist, to treat Ross but was unable to locate him. The next morning Monti took Ross to that dentist.
Several incidents should be noted. After Ross’ visit to the dentist on the day following the confession, Ross’ confession was read in the presence of both Ross and *365 Ms codefendant, Houlahan. At that time and, in fact, lip until tlie time of trial Ross made no complaint that the confession had been involuntarily obtained. Furthermore, two days after signing the confession, Ross took the police officers over the route he and his two companions traveled en route to the Walker home, on the night of the assault.
Ross claimed at trial and now claims that Ms confession was obtained by impermissible methods, i.e., that he was induced to make the confession by reason of the pain arising from his teeth and.the threats .of the police to arrest Hoffmans as material witnesses and his niece for an abortion. 5 At trial, upon the request of Ross’ counsel, the court, outside the presence of the jury, held- a hearing at which both Monti and Ross testified; after such hearing, the court decided that the question of the voluntary nature of the confession was one of . fact to -be determined, under appropriate. instructions, by the jury. The court in its instructions to the jury carefully and adequately outlined for the jury Ross’ contention that the confession was impermissibly obtained. Implicit in the verdict of the jury is a finding that the confession, was voluntarily given.
We have carefully scrutinized this record, particularly to determine whether in passing upon the voluntary nature of Ross’ confession both the trial court and the jury, under proper and adequate instructions, correctly applied standards permissive under the due process clause of the Fourteenth Amendment. We are fully ■satisfied that the attention of the trial court was focused “for purposes of the Federal Constitution, on the question whether the behavior of the State’s law enforcement officials was such as to overbear [Ross’] *366 will to resist and bring about confessions not freely self-determined . . .” On tbe state of this record both the trial court and the jury acted with propriety in finding that Ross’ confession was not obtained through duress or coercion and such confession was properly received in evidence and considered in determining Ross’ guilt. There is no merit in this, contention.
Ross’ next objection is to the failure of the trial court to charge: “If you find that [Ross’] signed statement was made to the police while [Ross] was. in their custody and before he had been given any kind of preliminary hearing for the purpose of advising Mm of the charges against him and of his right to refuse to give testimony wMch might incriminate Mm, then you must disregard [Ross’] statement.” This instruction would be tantamount to a statement that a confession obtained prior to a preliminary hearing is inadmissible. That is not the law in this Commonwealth. In
Commonwealth v. Agoston,
Ross next urges that the trial court should not have permitted the Commonwealth to show Ross’ conduct subsequent to making the confession, i.e., Ross’ failure, when the confession was read in Houlahan’s presence, to repudiate the confession or make complaint of the means employed to induce the confession and Ross’ reenactment for the police of the route taken by himself and his two companions en route to the Walker home on the night of the crime. It is Ross’ position that, while he made only one written confession, his subsequent conduct, which was interpreted by the Commonwealth as incriminating and in the nature of an admission or confession, was the “fruit of the . . . [confession].”
(United States v. Bayer,
Ross next contends that the Commonwealth failed to establish the corpus delicti and, therefore, the confession should not have been received in evidence. The rule which governs this situation is set forth in
Commonwealth v. Turza,
The trial court stated to the jury that the evidence of the Commonwealth, if believed by the jury, was sufficient to convict Ross even without his confession. Ross now argues this statement of the trial court,- con- ' sidered in conjunction with the detailed recital of the Commonwealth’s testimony contained in the court’s charge, ■ overemphasized the Commonwealth’s case and, ‘in effect, withdrew the issue of the voluntary nature of the confession -from consideration by the jury. A • reading of the court’s charge in its entirety together with the context in which the court made the attacked ■statement to the jury completely shatters this argument. A trial court must neither magnify the evidence on one side nor belittle it on the other:
Commonwealth v. Watts,
Mrs. Kramer testified that “immediately” after the alleged assault Walker told her that “[t]hey tried to kill me” and “[t]hey wanted moré money”. Ross contends these statements were inadmissible on the authority of
Commonwealth v. Fugmann,
Photographs of the deceased lying on his bed depicting the scene in the bedroom when the body was discovered were admitted in evidence; their reception is now assigned as error. The court en bane’s opinion well covered this contention: “It is next contended that the Court erred in admitting photographs taken of the deceased lying in bed the morning after the assault, and shortly after his death was discovered. In the first place the photographs of the deceased were not inflammatory. ... It was testified that the deceased was suffering from tuberculosis, as well as having a heart condition, and that there was some evidence of syphilis. The question then arose for the jury’s determination as to what was the cause of the death. Dr. Helm bold, a pathologist of great experience, stated that in his opinion death resulted because of shock from the severe beating administered. We believe that the photographs were helpful to the defendant upon the issue of the cause of death. When objected to the jury was instructed as follows: ‘The Court: Overrule the objection with this admonition to the jury, that you must not al
*371
low these photographs of the body to prejudice you or inflame you in any way. They are only offered for the purpose of showing where this bed was in the room, and the Commonwealth, according to the opening of the District Attorney, is going to show that at least this deceased was thrown there, and I don’t think they are inflammatory, nothing to inflame you, but if they should in any way inflame you, you; must be very careful not to allow anything of that character to arise in your minds.’ ” It is interesting to note that, although objection was made to the photographs taken in the bedroom showing deceased'on the bed, no objection was made to two photographs of deceased in the morgue. In
Commonwealth v. Novak,
After the prosecuting attorney completed his closing argument to the jury, Ross’ counsel moved for the withdrawal of a juror on the ground that the prosecuting attorney had referred “to the failure to deny the confession” and that this remark constituted a direct reference to the failure of the defendant to take the stand. The court did not recall the statement and the exact remarks of the prosecuting attorney are not of record.
Commonwealth v. Bolish,
We have carefully examined this entire record; from such examination we are of the opinion that the court committed no trial errors, that Boss received a fair and impartial trial throughout which his rights, assured both by the Federal and State Constitutions, were fully protected and that his conviction was fully justified under the law and the evidence.
Judgment of sentence affirmed.
Notes
After separate jury trials, Houlahan was convicted of voluntary manslaughter and Chester of first degree murder with the penalty fixed at life imprisonment.
Ross claims Tschudi’s testimony in this respect conflicted with his testimony given at the coroner’s inquest.
Boss did not take the stand at the trial. However, he did testify at a hearing before the court, in the absence of the jury, held for the purpose of preliminarily determining the voluntary nature of the confession.
The dentist testified at the trial that the teeth which he extracted were badly decayed and that, in his opinion, such teeth were productive of pain.
In Rogers v. Richmond, supra, the court did not pass upon the question “whether the circumstances of the interrogation and the manner in which it was pressed barred admissibility of the confessions as a matter of federal law”.