*1 twenty- maximum of a maximum sentence of twenty, process two for interference with the courtroom years cruel and unusual. I note judge insults in Title Three of The Penal Code of entitled “Offenses Public Justice and against Administration”, perjury crimes thirty-one enumerated, only two— breach prison (ten (seven years) years) carry maximum of more than No crime years. sentence five it a approaching carries with category penalty and must dis- twenty-two years given appellant, of that imposition sent from the sentence. Appellant. v. Willman, 1969. Before C. January J.,
Argued Bell, and Pome- Roberts O’Brien, Eagen, Cohen, Jones, JJ. roy, *2 for ap- him Will J. Schaaf, with White,
Tedder J. pellant. Attorney, District F. Assistant Brabender,
Richard At- Assistant District M. Palmisano, him Michael Attorney, E. District Pfadt, and William torney, appellee. 1969: by June Opinion 27, Mr. Roberts, Justice charge on a on July 13,1963 was arrested Appellant in- ravish. During intent assault in a about a murder was asked appellant terrogation ad- appellant and 1960, committed different case, crime. had committed mitted that he a and oral statements several 13 and gave on July On July 18, murder. admitting confession written On Au- Jail. County to the Erie taken appellant confes- another written gave appellant 1963, gust 31, August 31, 18 and July between period In the sion. police. intermittently questioned appellant pretrial suppression 1964, January 17, On were ruled admissible. confessions appellant’s hearing, convicted appellant February 9, On degree first and was sentenced murder jury appeal No was taken. imprisonment. life post-conviction On received May appellant August relief. The court held post-conviction thus and inadmis- involuntary confession have been July granted appellant sible and a new of appellant and confessions statements held were admitted at voluntary September jury On 1968 a objection. retrial over ap- of murder in the second degree, convicted motion for a new trial pellant’s was denied, appeal. given Since it conceded that was not Miranda v. warnings required by Arizona, confes Ct. 1602 giving con those issue, argues sions now *3 admitted second erroneously fessions were at his Appellant contends that first trial took although his after Mi place place before his retrial Miranda, randa Miranda rules and thus second trial, apply. contention been recently rejected has result Supreme Court of United as a States the Constitution of the United
compelled by States v. New 86 interpreted Johnson U.S. 719, ex- case which delineated S. Ct. apply. tent Miranda would See Jenkins v. to which 37 L.W. 4458 Al- (1969). Delaware, permit and Jenkins both Johnson as a mat- us, though Miranda more apply ter of law, broadly state Court of the United we Supreme States would not to so. do choose in Jenkins indicates that Court opinion
The
strike
balance
attempting
between
Johnson was
administration
of justice
even-handed
the need
on the
placed
burden
law enforcement
administrative
It
application.
altogether
retroactive
system
Johnson
light
this, why
utilized a
clear,
date-of-trial
rather
test,
than the date-of-occurrence
subsequently
test used
in Stovall v.
Denno,
(1967).
Appellant here indeed claim does confes- involuntary. Although hearing sions were held, voluntary and the confession declared court correctly necessary below ruled that it was amake determination of new under voluntariness the “evolv- *4 ing” voluntariness test. See Johnson v. New supra; Davis v. North Carolina, Even under current of standards believe that we voluntariness, statements July properly 13-14 and confession were intro- duced. concededly is a mental defective,
I.Q. However there is around 60. no indication in the advantage appel- took unfair that the record imposed upon or coerced or him state, mental lant’s in any way. around questioning began 10:30 p.m. on July court original hearing found that appellant incriminating made his statements within 20 minutes of He was his arrest. then questioned until a.m. on he 3:30 when July 14, was given an appellant to rest. opportunity Although now claims his quarters were there inadequate, no is indication that appellant was or unable sleep, was at time any exhausted.
Questioning apparently not recommence until after on p.m. 14. for July Appellant was questioned several hours and was then taken before an alderman to be on arraigned the assault with intent ravish charge. murder mentioned at the ar After raignment. re arraignment, questioning sumed and continued for ap about hours until 1/2 signed written statement about 11:30 p.m.* * gave appellant signed confession, kept After his he custody periodically questioned July 18, and until when he was County During period, appel- taken to the Jail. members family him, appellant
lant’s asked to see but were told that given psychological psychiatric to be in order to examinations validity determine his confession. was felt that it would possible during pen- be wise to disturb as little as dency appellant’s family apparently examinations, these agreed him. to not see There no indication is re- quested family family his to see or that knew that suggestion accepted to see him. place Although these actions confessions, strictly speaking gave are not relevant voluntary, authority there whether the confessions is that at subsequent police sufficiently grievous, conduct is least where determining police prior germane eliciting attitude in con Ohio, Haley 68 S. Ct. fession. (1948) (Opinion of Mr. Justice Douglas, three other Joined hardly Here, however, say Justices). we can safeguards . attitude . . towards “callous showed ordinary relationship respect of human standards [which] com- *5 twenty- over a Although appellant questioned sepa- interrogation four hour the sessions were period, indication that so that there is no rated will his nor was mentally or exhausted physically that The fact by questioning. overborne constant before the to retire long was allowed not that their indicates they achieved desired aims gain mechanism intend utilize exhaustion as a Spano appellant. Compare from further admissions Ap- v. Ct. 1202 (1959). S. York, New immediate- almost pellant made admission his state- no that a time when there is his question at ly, voluntary. This, could be but anything ments admis- not validate later necessarily does course, Gallegos 49, 54-55, Colorado, see sions, state- but after the first 1212-13 (1962), S. Ct. 1209, inter- record indicates ment, perhaps making filling details, ested admission was true that appellant’s original sure Certainly of confusion. the product now warnings benefited could have who prisoner probably type Miranda, and is atmosphere in an but attorney’s aid, an most needs of Miranda the absence coercion, free otherwise not fatal volun- finding certainly tariness. that while the acted as his argues to induce a confession. motivation was their
friend,
on this
has es-
record,
assuming
Even
mental state
was as
tablished
to alone invalidate
enough
this is
he claims,
present apologia
grain of salt
their
pels
take
that we
dispassionate
in a fair and
[interrogation]
.
was conducted
. .
acting
police here
been
seem have
Rather
Id.
manner.”
way
interest, and
own
no
treated him
part in
least
humanely.
other
*6
confession.
perfectly
There is no
question
an
proper
for the
in
at
question prisoners
a
tempt
elicit
or
to solve
confessions
alternatively
crime or
Cicenia
perhaps
suspect.
absolve a
See
even
Crook
357 U.S.
In summary we conclude that we will not apply Miranda on retrials cases where the trial original was held before the decision in Miranda; ap- and that pellant’s confession and statements, evaluated under the igost-Miranda voluntariness vol- test, wholly untary.
The judgment of the Court of Oyer and Terminer of Erie affirmed. County is
Concurring Dissenting Opinion Mr. Jus- tice O’Brien :
I concur in the holding that Miranda v. Arizona, 86 Ct. 1602 S. need (1966), not be plied to retrials Pennsylvania. I do so because as a matter of I state would law, not have chosen the utilized in date-of-trial test Johnson v. New 384 S. but (1966), would have select- ed the date-of-occurrence test of Stovall v. Denno, Ct. 1967 (1967). U.S. Thus, a matter of state less would have Miranda law, applied than did the Court. broadly Supreme United States I refrain from Nonetheless, joining majority its endorsement of the wisdom decision Jenkins v. Delaware 37 L.W. U.S. 213, of federal constitu- which as matter held, tional that Miranda to retrials. law, need apply That decision forth the and we sets law the land, must follow its sing but we are it, I am in praises. with the view of Justice agreement where he stated dissenting Jenkins, Hablan, *7 it to in rationale “quite impossible discern the Johnson for drawn.” any solid basis the distinction now If the Court I believe made mistake as Johnson, rather upon it should have said did, seizing so, distinction without a difference. While we are bound such a we need be distinction, disingenuous so one. to that it is a proper as assert the My majority’s treatment quarrel with pales comparison with my disagree- Miranda issue ment to the issue. On the regard voluntariness I sets it im- majority evidence which the find forth,1 my properly that mind There is some doubt this evidence is suppression presented hearing in the us. was not petition suppression hearing Although for instant involuntary as well as violative of that the confession assert appellant presented Miranda, no evidence at Escobedo and only hearing to the Escobedo-Miranda is- cross-examined attorney believed, quite appellant’s However, must have rea sue. futility present sonably, exercise in to on it was an evidence that post-conviction proceeding which ulti since voluntariness judge 'Judge here, mately trial, below the new led McClel on the evidence of the voluntariness all land, considered voluntary. Judge here, it to and had held be issue confession opinion light view in the In that below. reasserted McClelland agree majority situation, am inclined to with the I unusual thing all do is consider evidence the fairest regard to voluntariness.
possible to agree the confession voluntary. Q around the sustained questioning up five hours at a lack of time, counsel) had a to counsel right (let appointed alone he said would anything him, be used against delay with this murder any arraignment, mentioned when being he was arraigned, held finally, being incommunicado some instant four can days only lead confession, to the conclusion that the confession was involuntary under the totality circumstances forth standard set in the Pennsylvania cases, see Commonwealth ex rel. v. 429 Pa. Bundle, Butler 239 A. 2d 426 (1968), federal see Culombe cases, Connecticut, 568, 601, Appellant. v. Small,