Appeals from orders of Court of Common Pleas of Allegheny County, July T., 1962, Nos. 2841 and 2894, in case of Commonwealth ex rel. Frank Gaito v. James F. Maroney, Warden.
Stanley J. Reisman, with him Zigmund L. Dermer, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Dissenting Opinion by Hoffman, J.
[ 206 Pa. Super. Page 113]
Dissenting Opinion by Hoffman, J.:
The Supreme Court of Pennsylvania in Commonwealth ex rel. Gaito v. Maroney, 416 Pa. 199, 204 A.2d 758 (1964), directed that a hearing be held in a lower court, ". . . in the presence of the defendant and consistent with the requirements of due process, to determine the voluntariness of Gaito's oral confession which was introduced in evidence at his trial before that Court for burglary and assault with intent to kill."
[ 206 Pa. Super. Page 114]
After such a hearing, the lower court found that the confession was voluntary and, accordingly, denied the petition. From this denial, petitioner now appeals.
The confession here at issue is based on the following circumstances:
At about 3:00 a.m. on February 28, 1959, petitioner was found outside of Mercy Hospital, Pittsburgh, in a critical condition from a bullet wound. At about 4:00 a.m., he was examined by a resident surgeon who noted that he had a penetrating wound in his abdomen.
A decision was made to operate immediately. Between 4:00 a.m. and 5:45 a.m., petitioner was administered a general anesthetic, pentothal, intravenously. Subsequently, a gaseous anesthetic consisting of a cyclopropane-oxygen mixture was administered continuously for 3 1/2 hours until 9:20 a.m.
Surgery commenced at 5:45 a.m. The patient was in critical condition both before and during the operation. The operating surgeon stated at the time of the operation that he believed petitioner might die.
The bullet had passed through petitioner's upper abdominal wall opposite the ninth costal cartilage on the left side in the epigastric region. It went from there through the left lobe of his liver, through both walls of his stomach, and through the gastro-colic omentum, which is the membrane which joins the stomach to the large bowel. It severed the pedicle of the spleen, went through the diaphragm, went through his left chest and was in the subcutaneous tissues overlying the eleventh or twelfth rib of the left side of his back. The operation required the closing of two holes in petitioner's liver, the sewing up of the anterior and posterior walls of his stomach, and the sewing up of his gastro-colic omentum, ...