*1 406 A.2d Pennsylvania COMMONWEALTH v. STARR, Jr., Appellant. L. Donald Pennsylvania. Supreme Court May 1979. Argued 1, 1979. Decided Oct. *2 Defender, Chronister, John H. Public appellant. Asst. for Uhler, John Atty. C. Dist. of York County, Sheral Ann Dorney, Asst. Dist. for Atty., appellee. EAGEN, J., O’BRIEN, ROBERTS, NIX,
Before C. LARSEN, MANDERINO and JJ. OF THE
OPINION COURT O’BRIEN, Justice. Starr,
Appellant, Jr., Donald L. was tried aby judge a sitting without jury convicted of murder of the second the degree for death of stabbing during Wilbur Grim robbery. Post-verdict motions were denied and appellant was sentenced to life This imprisonment. appeal followed.
Appellant raises one issue in only appeal. He alleges the trial court refusing pretrial erred in motion to suppress his confession. The facts as are follows.
Once appellant suspect homicide, became in the instant he was asked to go to the state police barracks for purposes of taking a polygraph examination. barracks, Once appellant met with Trooper Kelly, John B. the polygraph examiner. Trooper explained Kelly how the test would be administered, and fully then appellant informed of his appli- cable constitutional As rights. Trooper Kelly testified: “ . form, . . When I I give get into the
third paragraph there deals with the in- polygraph strument specifically. I reiterate I there. read him those And, rights. by way, when I read rights, those I interject the fact that he can will anything says be used him. Polygraph charts in all are cases not used in court. But I him, didn’t want to mislead I and did relate to him there are some circumstances where polygraphs been in stipula- admitted court either by ” tion or court order or as an issue. . . . to take the willing asked if he would be was then Appellant reluctant to take He was somewhat originally examination. as to he why him Trooper Kelly questioned test. When take the examination. reluctant, appellant agreed was examination, indicated to Kelly appellant Following when appellant’s part on deception the results indicated stabbing. in the there- Shortly Grim he denied participation of his constitutional informed after, again appellant killing he He then admitted which waived. rights, robbery. victim the course testified: However, appellant “ case, me about Well, talking . . he started . said, T brought up then he seriousness of it. And —he strongly reacted some you noticed on test your ‘Well, it.' said, upset I’m kind of about yeah, questions.’ into Kelly Then came talking And we little bit. kept of me and of the test in front room and laid the results *3 you’re lying right I see said, you’re lying, T know could on the test differences says, you any here.’ He ‘Do notice see, and I him what I could with the And showed paper?’ then they how read it. And I don’t know about anything said, ‘Well, strong points right here’s your and pointed he were, where here,’ me the questions and showed what me, he them on the Then told they paper. had numbered in ‘Look, me being he ‘as far as involved actually,’ says, in, is the test.’ case, giving this all I was involved is care, ‘But,’ said, say don’t have to really you he T don’t to, I thing point but the is can if don’t want anything you this, here; now, you a and I can tell pro it out I’m at right whether I said And he told me that you’re that lying.’ matter, that he’d be not, it didn’t anything really or ‘And,’ the judge. it to the district and showing attorney them, to listen said, I it to they’re going he ‘when show I I’m a at this.’ they pro what have to because know say, ” there, well, . . . So, got me. right figured, they I the victim. killing He then admitted the test. “When applicable We note the preliminarily prosecution a is challenged, of confession admissibility suppression hearing has the burden of proving that defendant made a knowing intelligent waiver of his when rights being questioned by the police; waiver must be shown of by preponderance the evidence.” [Cita- omitted], tions
“In met, whether deciding burden has been we con- witnesses, sider the testimony prosecution and that portion of the evidence by offered the defense that remains Commonwealth v. uncontradicted.” [Citations omitted]. Jones, 286, 289, (1974). A.2d
Appellant claimed the waiver of his Miranda ineffective because Trooper Kelly’s representations ap- led pellant believe the results of the polygraph examination burden, thus, could be used as evidence him. The prosecution fell to the to demonstrate by preponderance the evidence that no misleading representations were made. court,
The suppression approaching heart the mat- ter, inquired Trooper Kelly:
“Q. [by the Could you have said like something court] which was that testimony, after you showed results of the test to the judge district attorney, they would accept pro word as a your would they know that he was lying? Could you said like something to him? have,
“A. If I would the context of it would have been in the form of telling him for speak charts themselves, be they could checked by anyone, have 100 percent confidence the results of testing, and any- *4 that body reviewed them or checked them would to agree, that qualified and competent.” This equivocating answer by the princi- Commonwealth’s pal witness to question the critical of what precisely repre- sentations were made to appellant falls short of satisfying the burden which adhered to prosecution. espe- This is cially so where it is uncontradicted that some representa- tions, least, at were made to appellant concerning the use to which the results polygraph might be put and effect
534 suppression The record of
which have. they might itsmet burden does not indicate Commonwealth hearing with impinge did not made representations proving of right to understanding his appellant’s such force upon to waive that right his decision silent so as to render remain one. voluntary knowing for a new trial. remanded Reversed and LARSEN, JJ., file dissenting opinions. NIX and Justice, dissenting. NIX, to today’s dissent vigorously register my to am forced mis- entirely The majority Opinion of the Court.
Opinion cite, on the our cases reads, prior fails to accordingly made to a defend- representations issue of nature In Common- a confession. that result allegedly ant and 435, 119, Jones, v. 423, 322 A.2d 126-27 wealth (1974), this Court stated: at we are not convinced
“In the case
bar
confes-
the co-defendant’s
concerning
fabrication
alleged
Nor
untrustworthy
an
confession.
sion was
to cause
likely
the confes-
find
as
invalidate
reprehensible
do we
it so
notions of fairness. The United
sion as offensive
basic
similar
considering
quite
Court
Supreme
recently
States
police
‘The fact
mis-
factual situation observed:
had
the statements
represented
[the co-defendant]
relevant,
is,
insufficient
in our view make
made
while
confession inadmissible.’ Frazier
voluntary
this otherwise
v.
739,
1420, 1425, 22
Cupp, 394 U.S.
731,
89
L.Ed.2d
S.Ct.
306,
Baity,
Pa.
Commonwealth
also,
v.
(1969);
See
Roberts);
315,
(1968)
Mr. Justice
(Opinion
I therefore dissent.
LARSEN, Justice, dissenting. dissent; a new trial is an unnecessary prolongation of
this case.
Assuming appellant’s version of surrounding the facts (namely, confession that immediately confession, to his prior Trooper Kelly told him that “he’d be showing [appellant’s polygraph the district to attorney examination] and the judge”), Trooper Kelly’s statement was not it “likely was to cause an untrustworthy confession” nor was it “so reprehensible as to invalidate the confession as offensive basic notions of fairness.” Common- 423, 435, wealth v. Jones, 126 (1974). A.2d In holding admissible, that appellant’s confession was suppression court found: frankly admitted that he was
[Defendant fully advised of his constitutional rights, including right to refuse to take the test [polygraph] refuse questions silent, answer any to remain both before and after the test was administered and before he made any subsequent statements, coerced, and that he was not intimidated or in any way. mistreated intelli- defendant’s confession
We conclude that complete full and ad- given after voluntarily gently *6 rights, that none vice as to his constitutional is therefore that such confession infringed, were evidence. admissible in and, findings court’s suppression supports
The record
of sentence.
judgment
therefore,
appellant’s
I would affirm