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decided: June 17, 1966.


Appeal from order of Court of Common Pleas of Lancaster County, Habeas Corpus Docket No. 5, page 68, in case of Commonwealth ex rel. Richard F. Donnell v. David N. Myers, Superintendent.


James A. Peace, for appellant.

Wilson Bucher, District Attorney, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J. Ervin, P. J., and Wright, J., would affirm the order below.

Author: Jacobs

[ 208 Pa. Super. Page 58]

On June 15, 1961, relator was convicted by a jury of the crimes of burglary, larceny and receiving stolen goods. At his trial a written confession which he had given was admitted into evidence. He denied his guilt and claimed that the confession was forced from him. In accordance with accepted procedure in Pennsylvania at that time, the question of the voluntariness of the confession was submitted to the trial jury. Relator was sentenced to a state institution to serve a term of not less than three (3) years nor more than six (6) years to date from January 31, 1961. No post trial motions were made or appeals taken.

[ 208 Pa. Super. Page 59]

Relator filed a petition for a writ of habeas corpus on November 18, 1964 alleging lack of due process in his trial in that the voluntariness of his confession should have been determined in a hearing separate and apart from the jury, the confession was not voluntary, he was denied the right to counsel and he was not advised of his right to have counsel and remain silent. The petition was handled by the same judge who had tried relator. Following the mandate of Jackson v. Page 59} Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. ed. 2d 908 (1964), which held that the prior practice of submitting contested confessions to trial juries without a prior independent judicial determination of voluntariness failed to afford due process, and Commonwealth ex rel. Butler v. Rundle, 416 Pa. 321, 206 A.2d 283 (1965), he set a hearing to determine the voluntariness of the confession. He appointed Marvin M. Zimmerman, Esq., a member of the Lancaster County Bar, to represent relator. At the conclusion of the hearing on January 26, 1965, the judge found that the confession was voluntary and that relator made no request for counsel at the time of his confession or at the time of his preliminary hearing. He refused the writ and relator appealed to this court.

The evidence in this case does not support the conclusion of the lower court that the confession was voluntary.*fn1 The hearing judge made no findings of fact to support this legal conclusion. Our independent examination of the record, including the testimony at the habeas corpus hearing and the testimony at the jury trial, reveals the following: From the time relator was placed in Lancaster County Prison on January 31, 1961, until he confessed on March 21, 1961, he steadfastly maintained that he was innocent although he was interrogated numerous times by the state police. He was not given a preliminary hearing until March 9, 1961, forty days after he was arrested, at which time he again denied the charges. On March 11th he was

[ 208 Pa. Super. Page 60]

    put in solitary confinement where he remained until his confession on March 21st. During those eleven days in solitary confinement he lived on bread and water and an occasional bowl of soup. He was handcuffed and chained to an iron bar on the wall. Apparently his movement was limited to the distance between his bunk and the toilet. The cell had no windows, was unlighted and cold. Relator could not wash or shave. On March 21st the principal interrogating officer, Detective Sergeant Devlin, came to the cell. Immediately thereafter relator was taken to another room in the jail where his confession was typed and signed. Having given the confession, relator was released from solitary confinement.

Relator's account of the conditions under which he was confined was uncontradicted. It was corroborated in large part by Attorney Zimmerman who was a witness at relator's trial but didn't testify at the habeas corpus hearing, probably because he was court-appointed counsel at that hearing. Besides corroborating relator's description of the cell, Zimmerman said relator looked "extremely exhausted" when he visited relator. Detective Sergeant Devlin also admitted seeing relator handcuffed to a railing against the wall the day the confession was given. The warden stated that relator was put in solitary confinement because he caused a disturbance. Relator denied this and testified that he was told that he would be kept there until trial if he didn't confess. Devlin testified that when he saw relator on March 21st relator told him that he would tell him everything if Devlin could get him out of there.

Regardless of the reason for putting relator in this solitary confinement, we believe that the effect of such oppressive conditions was to render the confession involuntary. In determining the voluntariness of a confession we are bound to follow the ...

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