At page 344, the District Attorney said Hart told him:
"I want you to know that when I went out there I had no intention of killing that man. He owed me money and I merely wanted to go out there and collect the money that was rightly coming to me for the extra hours that he had kept Patricia in the hotel."
At page 346, the District Attorney testified:
07'He again reiterated to me. He said 'I didn't intent to kill that man. I am positive that when I left that hotel room he was still alive because I could hear him breathing loudly. And not only that he made some moves although he wasn't fully conscious.' He also told me that he didn't intent to rob him and he didn't consider that he was robbing him. That he was merely taking the money that was rightfully due him as the result of the other agreement down at the Naples restaurant as to what he would have to -- Mr. Querey -- would have to pay for the time he would spend with Patricia.'
The District Attorney at page 348 said:
'I merely listened to his story and what I have related here on the stand is his story, as he gave it to me without any suggestion on my part at all.'
The statement so made to the District Attorney was a voluntary confession, and credible because (1) it was related by a reputable public official whose veracity was not questioned, and because (2) it was undenied by the defendant. In fact, the defendant admitted the correctness of the statement as the District Attorney had testified but asserted at the trial that it was made to shield Pat Kister. Under these circumstances, the second conversation with Hart was totally superfluous.
What Judge Hastie, speaking for our Court of Appeals said in United States ex rel. Cassidy v. Yeager, 3 Cir. (1964), 327 F.2d 311, at page 317 is as opposite here:
'It is difficult to understand what proper purpose the police were pursuing when they continued to interrogate Cassidy after his first statement instead of taking him without further delay before a magistrate for a preliminary judicial hearing. In the absence of explanation, the natural inference is that the police, not satisfied with the strong evidence which had already been elicited, were determined to press the prisoner until his account of the crime under investigation should become impressively elaborate. Such determination has marked many cases in which the Supreme Court has upset state convictions obtained through the use of confessions, for it evinces the kind of coercive atmosphere in which otherwise constitutionally innocuous improprieties may assume a threatening quality. See Haynes v. Washington, supra (373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513); Gallegos v. Colorado, 1962, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325; Malinski v. New York, 1945, 324 U.S. 401, 65 S. Ct. 781, 89 L. Ed. 1029; cf. Spano v. New York, supra, 360 U.S. at 323-324, 79 S. Ct. at 1207 (3 L. Ed. 2d 1265). It is our duty to scrutinize the circumstances pertaining to the second and third confessions closely.'
Here, too, the prosecution must have known that it had a strong case against Hart. What purpose could this secondary coversation serve? But even assuming that the secondary confession might serve some purpose, it certainly did not require removing a requested presumed microphone and another microphone for recording the conversations. For repeating the words of Judge Hastie, 'it evinces the kind of coercive atmosphere in which otherwise constitutionally innocuous improprieties may assume a threatening quality.'
From the testimony of the District Attorney, Hart and others, it is obvious that Hart was cognizant of his predicament; that he had fled to New Orleans because of the occurrence; that he could not use his right name in Louisiana because he knew they were looking for John Hart; that the paper said were looking for him and Pat Kister for robbery-murder and suspected them of going to Mexico, or looking to go to Mexico; that if arrested, he and the girl were to state that Querey had beaten or roughed her up; that they would both have the same lawyer; that when he was arrested in New Orleans, he was informed by the police and the F.B.I. that he was being arrested on the charge of murder at Pittsburgh; that he was forcibly being returned from Louisiana to Pennsylvania because of the murder charge; and that there was the impending charge of murder awaiting him upon his return to Allegheny County. In spite of counsel's argument that the Prosecuting Attorney should have advised Hart of the Felony-Murder Rule during his interview with him, it is evident that he was already apprehensive of his position and its seriousness, and he was not deceived by the Prosecuting Attorney.
I have considered the admitted activity of removing a presumed microphone and concealing another during the interview with Hart from every angle and have examined it in the light of its possible prejudicial atmosphere and find that while it comes dangerously close to constitutional infringement under the due process clause of our Constitution, I must conclude that it is saved from infringement only because, by his voluntary confession to the District Attorney, Hart said much more factually what he said then than what he said in the second statement. The damage (if such a word is here appropriate) to Hart came not from the recorded tape (for it was not admitted) nor from the typed statement (for only a part of that was read into evidence and some of it by the defense), but from the confession made to the District Attorney corroborating as it did a solidly built case against him.
Counsel for the defendant at the trial of the case admitted that the Prosecuting Attorney could testify in defense as to the statements made by the defendant with him. Under the circumstances then, there is no merit in the argument of counsel for the petitioner on the admission of the verbal extracts of the transcription taken from the tape recording.
The petition for a Writ of Habeas Corpus will be denied.