COMMONWEALTH of Pennsylvania v. Darryl WEBSTER, Appellant
Supreme Court of Pennsylvania
October 3, 1975
Rehearing Denied March 25, 1976
353 A.2d 372 | 466 Pa. 314
Argued Oct. 4, 1974.
Judgment of sentence affirmed.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, Asst. Dist. Attys., Pittsburgh, for appellee.
Before EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
NIX, Justice.
This appeal arises as a result of appellant‘s conviction of murder in the second degree for his participation in the fire-bombing death of Mrs. Mary Amplo. On the
Before addressing the merits, we deem it appropriate to comment upon the procedure followed in this case. First, immediately after the jury announced its verdict, sentence was imposed. Thereupon the trial court advised appellant of his right to file post-trial motions and in event of the denial of these motions, he was advised of his right of appellate review. The Public Defender was appointed to represent him in these proceedings. This is clearly in violation of our present rules of criminal procedure. The Comment to
“Post-verdict motions must be decided before sentencing, because the appeal lies from the final Order of the trial court, which includes sentence. See Appellate Court Jurisdiction Act,
17 P.S. §§ 211.102(6) ,211.202(1) , and211.302 .”
See
“The sentencing proceeding should not take place until all post-verdict motions have been disposed of, . . . .” (This Rule was adopted July 23, 1973) (Effective date October, 1973).1
Recent decisions of this Court have stressed the importance of post-trial motions to the appellate process. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). We therefore take this opportunity to emphasize the need for trial courts to comply with our rules requiring the disposition of these motions before the imposition of sentence.
Subsequently, post-verdict motions were filed with the trial court. After being directed by the court en banc, to file a brief, appellant‘s counsel sent a letter to the trial judge in which he stated inter alia:
“. . . after studying the Motion and Transcript of said case, it is my opinion there is no legal basis to the Appeal.
Alternately, filing a Brief in this matter said above would probably not convince the Court to reverse said conviction.”2
Thereupon the court en banc entered an order striking the motions for a new trial and in arrest of judgment after finding that these motions had not been properly prosecuted and were therefore abandoned. No appeal was taken from this order.3
On January 15, 1973, Webster filed a petition seeking post-conviction relief and, after a counselled evidentiary hearing, the court entered an order permitting a direct appeal to be entered as if timely filed but rejected the other bases for post-conviction relief. Although Webster alleged ten grounds in support of the prayer of the petition in addition to the alleged denial of his right to appeal in the proceedings below, he subsequently appealed the denial of relief to this Court raising only the issue of
Here again, the procedure followed in the court below is at variance with that suggested by this Court. We have stated that where a post-conviction court determines that a petitioner is entitled to a direct appeal, no decision should then be made on other bases alleged therein for post-conviction relief. See Commonwealth v. Bricker, 458 Pa. 367, 369, n. 2, 326 A.2d 279, 280 (1974). See also, Commonwealth v. Harris, 443 Pa. 279, 278 A.2d 159 (1971); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971). This procedure is preferable since it allows all of the complaints that may be raised to be disposed of in one action.
Further, the court directed that the appeal should be made directly to this Court pursuant to the
In reviewing the testimony, mindful of the principle that on review we will consider only the evidence of the prosecution‘s witness and so much of the evidence for the defense as, fairly read in the context of the entire record, remains uncontradicted, the court‘s findings will not be disturbed where it is supported. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972).
Officer Walton, a member of the homicide division of the Pittsburgh police department after receiving information that Darryl had witnessed the incident, went with a fellow officer to the home of appellant on November 20, 1968, at 11:40 A.M. Darryl was then age 16 and in the tenth grade in high school. Walton testified that he advised Darryl and his mother that they wished to question him about the incident as an informational witness and not as a suspect. After indicating to his mother his willingness to go with the officers, Darryl left the house alone in the company of the police officers, with his mother‘s consent.
The officers testified that upon their arrival at police headquarters, Webster was again advised that he was not under arrest, that he was not obligated to answer any questions and that he could consult with any attorney at any time. Walton also cautioned Darryl that if there was any chance of implicating himself, it would be to his best interest to refuse to answer any questions. Approximately after ten minutes, before appellant had made any incriminatory statements, another team of officers arrived and advised Walton that they had learned Darryl
After the conversation with Mrs. Webster, Darryl was fully advised of his constitutional rights, informed of the nature of the charges that were going to be preferred against him and the probable consequences if he were to be found guilty. According to Walton‘s testimony, Darryl remarked that “If the other boys are going to talk, I better get my side in also. Because they are not going to put everything on me.” Darryl then made a preliminary oral statement, followed by a formal statement which was transcribed by typewriter. The statement contained a detailed account of how Darryl and several other youths had obtained the raw materials for several primitive firebombs; how they had constructed the bombs; and how two of the youths had thrown the bombs at Mrs. Amplo‘s house. At the conclusion of the statement, Darryl corrected one minor factual detail, read the typewritten transcript aloud, initialed each page, and signed it at the end.
Darryl also testified at the suppression hearing and contended that he had fabricated the story because he was afraid that he would be beaten by the police if he did not implicate himself. Although he admitted that he had not been physically abused by the officers, he charged that he was in fact in fear because he had been given a “dirty look” by Officer Walton while they were enroute to police headquarters and that Officer Walton told him “When we get you to the station, you will speak
Interestingly, Mrs. Webster was not called during the suppression hearing although she did testify at the trial where the issue of voluntariness was again raised. During the trial, Mrs. Webster equivocated as to whether she had given permission to the officers to take Darryl to police headquarters. Further, although admitting receiving a call from Officer Walton from police headquarters, she denied that he advised her that her son was to be charged as an accomplice in this crime or that her permission was sought to interview him. She stated that the officer called her for the sole purpose of telling her that they were giving her son lunch.
While appellant‘s argument as to the alleged involuntariness of his confession was framed in general terms upon a theory of psychological coercion, the core of the contention was that we should not find an effective waiver where the suspect was age 16 and was called upon to make such a choice without the benefit of the judgment of counsel or the mature guidance of a parent or guardian. Heretofore, although recognizing the need to scrutinize with special care any incriminating statement obtained from a youth during police custodial interrogation, we have refrained from announcing, as a blanket rule, that a 16-year-old youth is legally incapable of waiving his constitutional rights and confessing to a crime. Commonwealth v. Davis, 455 Pa. 142, 314 A.2d 313 (1974); Commonwealth v. Moses, 446 Pa. 350, 287 A.2d 131 (1971).
A number of our recent decisions are most instructive on this subject. In Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974), we reversed the murder con-
Commenting upon these facts, we stated in that opinion:
“An important factor in establishing that a juvenile‘s waiver of his constitutional rights was a knowing and intelligent one would be evidence that, before he made his decision to waive those rights, he had access to the advice of a parent, attorney, or other adult who was primarily interested in his welfare.” Commonwealth v. Roane, supra at 394, 329 A.2d at 288.
In Roane, supra, we rejected the Commonwealth‘s contention that the fact that the mother was present during
“. . . Mrs. Roane‘s mere presence is not enough. In order to support a finding that Darryl‘s waiver of his rights was knowing and intelligent we believe that the record must indicate that Mrs. Roane had an opportunity to give Darryl the kind of helpful advice discussed in Gallegos, (Gallegos v. Colorado) supra. [370 U.S. 49, 54-55, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325 (1962)] The instant case reveals no such opportunity. Instead, the record makes clear that at no time was Mrs. Roane permitted to talk with her son alone. Rather, when she did try to talk with Darryl, one officer intruded, asking her to speak up so that she and her son could be heard, and another tried to dissuade her from the advice she was attempting to give . . . .” Id. at 395-396, 329 A.2d at 289.4
Similarly, in Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975), where a mother was used by police officials to urge her 14-year-old son to give an incriminatory statement without first being appraised of his rights under the Fifth and Sixth Amendments, we stated:
“Where an informed adult is present the inequality of the position of the accused and police is to some extent neutralized and due process satisfied. However, where the adult is ignorant of the constitutional rights that surround a suspect in a criminal case and exerts his or her influence upon the minor in reaching the decision, it is clear that due process is offended. An uninformed adult present during custodial interrogation presents an even greater liability. The minor in such
a situation is given the illusion of protection, but is in fact forced to rely upon one who is incapable of providing the advice and counsel needed in such a situation.
Unless we require police officers to also advise parents, who are in the position to counsel minor suspects during custodial interrogation, we will not only fail to assure the full benefits sought to be attained by this type of counseling but we will also increase the likelihood that the suspect will be misinformed as to his rights.
Here the first incriminatory statements came only after the mother‘s entreaties that the young man ‘tell the truth . . . .’ Regardless of how laudable the mother‘s motives, we cannot obscure the primary consideration as to whether the minor fully realized that he was not legally required to make any statements which would tend to incriminate him or to respond to questions without the presence of counsel. Where a parent is present we must at least require that parent to be advised of the rights possessed by the minor suspect before that parent may be permitted to influence the decision which the minor must make. Whether the pressure to respond to police questioning flows from the overzealousness of the police or the unadvised entreaties of a well-intentioned parent, the result is equally offensive to our concept of due process and frustrates the protection sought to be provided by our Constitution.” Id. at 188-189, 335 A.2d at 703. (Footnote omitted).
In our most recent pronouncement on this subject in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975) [J-156 of 1975], we held that it was not sufficient when the mother of a 15-year-old youth was brought by police to confer with her son prior to the taking of the formal confession but after he had made oral incriminatory statements.
“The Commonwealth, in an effort to distinguish the instant case from our decisions of Roane and Starkes, supra, argues that appellant‘s confession was voluntary because he did not ask to have his mother present, and that because of his prior experience with the police, he was aware of the consequences of his confession and did not need guidance in deciding whether to confess. We are of the opinion that these arguments do not take this case out of our Roane and Starkes rationale.
In the instant case, the Commonwealth admits that appellant‘s mother was not present when he gave his first informal confession but was only taken in to see appellant when his final confession was taken. Under these facts, it is clear that prior to appellant giving his first confession, which was in essence the same as his later formal confession, appellant, age fifteen, was not given the opportunity to consult his mother before he waived his rights, an opportunity, in our opinion, mandated by our Roane decision.” Id. at 92-93, 343 A.2d at 670. (Emphasis added).
It is clear from these cases that not only may the Commonwealth not interfere with the right of a minor suspect to consult with a parent or guardian throughout the interrogation process, more importantly, police officials must make a reasonable effort to provide an opportunity for the youthful accused to confer with and receive the benefit of counsel or an interested and informed adult guidance before permitting him to elect to waive these important constitutional rights.5
As stated in Starkes, supra, it is not only necessary that the minor offender be afforded a reasonable opportunity to receive adult guidance in making an election to waive his rights, it is equally imperative that the parent or guardian be informed of the rights of a person in such a predicament. The Commonwealth‘s evidence is totally lacking of any testimony that would support a finding that the mother was advised, by police officials, of the rights of an accused prior to or during her conversation
The burden of proving by a preponderance of the evidence, that the accused‘s confession was obtained after a knowing and intelligent waiver is upon the Commonwealth. Commonwealth v. Starkes, supra; Commonwealth v. Goodwin, 460 Pa. 528, 333 A.2d 892 (1975); Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). Giving the Commonwealth‘s testimony full credence and ignoring all contradictions offered by the defense, the testimony fails to establish that the mother was adequately informed to provide the proper assistance and guidance in making the decision to waive the minor‘s constitutional safeguards.8 It would have been a simple matter for Officer Walton, during the conversation with the mother in which he advised her that her son was to be criminally charged in the matter, to have then explained to her the constitutional rights of an accused. The mere conference between an uninformed parent and a child cannot meet the standard announced in our cases in Roane, supra; Starkes, supra; and McCutchen, supra.
Judgment of sentence reversed and a new trial is ordered.
JONES, C. J., took no part in the consideration or decision of this case.
POMEROY, J., filed a dissenting opinion.
EAGEN, J., dissents.
POMEROY, Justice (dissenting).
I
The Court‘s decision today ordering the suppression of appellant‘s confession, in my view, confounds all logic. On the one hand, the Court states that “we do not accept the thesis that all confessions of minor offenders elicited without the benefit of counsel, or an adult confidant must necessarily be rejected.” Opinion of the Court, ante at n. 5 [typewritten copy at 11.]1 Nonetheless, the sole reason for the Court‘s determination that appellant‘s waiver of his constitutional rights was not knowing and intelligent is the fact that appellant‘s mother was not advised of her son‘s constitutional rights prior to conferring with him before his interrogation. This ill-conceived per se rule was first promulgated by the Court in Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698.2 It is, in my opinion, totally without basis in law or logic.
The constitutional rights of a juvenile, like those of any other person, are personal to the individual. Only
At the time of Darryl Webster‘s interrogation by the police for his part in the killing of Mary Amplo, he was 16 years of age, in the tenth grade and apparently of at least average intelligence. There is no indication in the record that he did not fully appreciate his rights and understand what he was doing when he confessed. Upon being advised of his rights as required by Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and being told of his suspected involvement in the firebombing, he replied, as the majority records, “If the other boys are going to talk, I better get my side in also. Because they are not going to put everything on me.” Opinion ante at 378. There is no uncontradicted evi-
II
Another reason compels my dissent in this case. Assuming that the Court is merely following the precedent established in Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698, I see no reason why this appellant should receive the benefit of our decision there. Following his conviction in September 1969, Webster took no appeal. On January 15, 1973, he filed a petition under the
For the aforementioned reasons, I dissent.