*1
Supreme Pennsylvania. Court of
Argued April 1976. July 6,
Decided 1976. Rehearing Aug. 24, Denied Eainone, Sebastian M. Philadelphia, appellant. for Fitzpatrick, F. Emmett Atty., Dist. Steven H. Gold- blatt, Asst. Atty., Chief, Appeals Dist. Div., Marrianne Cox, Philadelphia, appellee. JONES,
Before J., EAGEN, C. and O’BRIEN, ROB- ERTS, POMEROY, MANDERINO, NIX and JJ.
OPINION THE OF COURT PER CURIAM.
Judgments of sentence affirmed. J., dissenting opinion
ROBERTS filed a in which MANDERINO, joins. J., (dissenting).
ROBERTS, Justice Appellant jury was convicted after trial of murder degree, my robbery conspiracy. in the second appellant interesting properly view advances a novel question appeal majority on this fails to con- which sider. concerning appellant of- questioned these
When Appellant was fenses he denied that he shot decedent. signed then to take test. He asked police,1 printed Philadelphia form *2 actually taking test, an oral admis- and before made pre-test The during sion interview. what is called the Appel- never administered. examination was sup- lant should have been contends that his confession to pressed agreed to submit it was after he because made being of that of the nature without advised Appellant the use examination. attacks of interrogation process adequacy and the administering prior the “examina- waiver form to adopt excluding urged confes- are to rule tion.” We after a examination sions which are obtained that, prior to unless the Commonwealth establishes “(1) test, agreeing to the accused was advised: take mandatory; (2) taking the re- of the test is not [t]he negative are positive or whether sults examination printed The form as follows: Philadelphia City of EXAMINATION “POLYGRAPH POLICE DEPARTMENT AGREEMENT Polygraph Laboratory voluntarily -, hereby I, and do show, to in order examination willingly, to a lie detector submit statements, hereby my honesty and I possible, the truth and if release the Department all claims Philadephia from Police from, arising out of this examination. resulting Signature Address Date WITNESSES: establishing
inadmissible in a court of law as evidence guilt ; (3) or innocence . . . test a favorable compel result police you does not from a release custody.” appears merit of this contention been rec- have
ognized Judge despite Forer the denial of Judge opinion: motions. Forer wrote in her warnings, “The Miranda in- intended custodial terrogation significant fail to inform the defendant of legal polygraph test, and factual elements involved in a important the most of which are that result of the polygraph test are inadmissible in Common- Court. wealth v. Johnson, 441 Pa. 272 A.2d [467] (1971); Saunders, Commonwealth v. 386 Pa.
A.2d 446
[442]
(1956);
Commonwealth
McKinley,
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Pa.Super.Ct.
181
(1956);
“The inherent a test arise infallibility the of from false scientific which sur- aura technological rounds of such hardware. As use case, unlettered, unsophisticated young often the apt are more to be deceived ‘scientific tests’ such sophisticated suspect. than and well-counselled considering general principle ‘to- “Under the of tality determining of whether a sus- circumstances’ pect knowing intelligent has of his made a waiver rights, supra; Commonwealth v. Common- Franklin, Eperjesi, Nathan, supra; wealth Commonwealth v. apply a supra, to logically a similar standard should rights respect of test.” with Operations re- The House on Government Committee cently sweeping issued condemnation of use Cr.L. and other lie devices. See 19 detector report Rptr. (1976). The text of the committee states: Department
“The continues maintain Justice position examinations that results of in the evidence Federal would be admitted as adopts position fur- committee courts. *4 are consid- since examinations ther affirms such that evidentiary purposes, there is abso- ered invalid for continuing lutely the such no for use of exami- reason investigatory purposes. nations adopted position the of some if committee “Even the secondary polygraph as a agencies useful that the is poly- technique that results investigatory the never considered conclu- graph alone are examination
379 chilling ef- sive, the inherent finds that committee subject upon to such examinations fect individuals clearly outweighs purported benefit to investi- gative agency.” function of the accused This has seen numerous cases which Court subjected at individuals are examinations put interrogating is The accused the behest of officers. position. the test an If refuses to take untenable he may constitutionally con —as he is to do—he be entitled something. agrees “hiding” If he to take sidered to be safeguards the test there are no that the test is assure accurately in properly is administered or even that he importantly, formed of the test the test results. Most proven has the outcome never been reliable. Whatever l.2 test, it can be used to coerce the individua sum, psycho- become a tool of has logical coercion with that cannot be tolerated consistent guarantees constitutional that one will not forced— be physically indirectly directly or or psychologically, —to safeguards proper incriminate himself. Unless surround test, by ap- suggested administration of the such as those pellant, any through use, confession obtained use, polygraph, threatened of a should be excluded. majority reaching appellant’s avoids the merits of by concluding
claim that is waiver issue presented waived post-trial because it in written motions. The form was attacked oral ly argument at In Common motions. Blair, wealth v. 31, (1975), 460 Pa. A.2d 213 Court presented stated that “henceforth” issues not “Again practice we stress in-custody that modern interro- gation psychologically physically rather than oriented. As before, we 227, have stated Florida, Chambers v. ‘Since 309 U.S. 60 S.Ct. recognized 84 L.Ed. this Court has that coer- cion can be physical, mental well as as and that the blood of only the accused is not the hallmark of an unconstitutional in- ” quisition.’ Arizona, 436, 448, 1602, 1614, Miranda v. 384 U.S. 86 S.Ct. L. (1966).
Ed.2d *5 motions, in with Pa.R. post-trial accordance written practice The 1123(a), considered. would not be Crim.P. issues many had been that parts of the Commonwealth orally were considered. motions raised case January 27, Blair was decided on 1975. system reporter advance reported first in the West Contrary to the 1, sheets the issue of 1975. March or the hold the Bar majority’s inclination, I not would until it responsible ruling in Blair trial courts for the 1975). unreal- reported (March 1, It would be had been are no- istic to Bar conclude that members of we them tice moment decisions from the our decide though actually reported later. even until weeks February case, the trial ended on February 13, Post-trial motions well were filed on published. circumstances, before Blair was In these issue has not been waived. am the the case
Because I view that the merits of reached, should be and because I the contention believe meritorious, judgments would reverse the of sen- I grant I tence dissent. new trial. J., joins dissenting
MANDERINO, opinion. in this