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COMMONWEALTH v. VIVIAN (09/15/66)

decided: September 15, 1966.

COMMONWEALTH
v.
VIVIAN, APPELLANT



Appeals from judgments of Courts of Oyer and Terminer, General Jail Delivery, and Quarter Sessions of the Peace of Philadelphia County, May T., 1965, No. 667, March T., 1965, No. 712, and August T., 1965, Nos. 751, 752, and 754, in case of Commonwealth of Pennsylvania v. Howard Vivian.

COUNSEL

Howard Gittis, with him Judah I. Labovitz, and Wolf, Block, Schorr and Solis-Cohen, and Defender Association of Philadelphia, for appellant.

Gordon Gelfond, Assistant District Attorney, with him Benjamin H. Levintow and Joseph M. Smith, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Spaulding, JJ. (Hoffman, J., absent). Opinion by Jacobs, J. Hoffman, J., took no part in the consideration or decision of this case.

Author: Jacobs

[ 208 Pa. Super. Page 332]

Howard Vivian appeals from the judgment of sentence imposed on five bills of indictment, one of which (Bill 667) charged assault and battery, aggravated assault and battery, and assault and battery with intent to murder, and the other four of which (Bills 712, 751, 752 and 754) charged assault and battery. Five youths

[ 208 Pa. Super. Page 333]

    were the victims, all on different dates. The twenty-two year old Vivian plead nolo contendere to the four assault and battery bills and was found guilty by the Hon. Edmund B. Spaeth, Jr., sitting without a jury, on the fifth bill, which involved six year old Joseph Carfagno, who was beaten on the head with a stick and pulled by means of a belt around his neck in a wooded area near his home in northeast Philadelphia. The lower court sustained demurrers to nine other bills, charging corrupting the morals of a minor and solicitation to commit sodomy.

Appellant raises four constitutional arguments, the first three of which apply only to Bill 667, the Carfagno beating. We reject all four arguments and affirm the lower court.

I.

Appellant argues that his confession should not have been admitted into evidence because he "was interrogated in total disregard of his constitutional right to counsel and without being warned of his right to remain silent." A rather detailed statement of the facts is necessary to adequately understand the circumstances surrounding the confession.

The beating occurred in the early afternoon on Monday, May 10, 1965. The victim, six year old Joseph Carfagno, was admitted to the hospital, where, on Wednesday morning, May 12th, he identified a picture of appellant as his assailant. After this identification, at about 10:30 a.m., Detective Mullin, with other detectives, went to appellant's home and told his mother that the police were investigating the Carfagno beating and that they wished to speak to her son. Appellant was not home so Mullin requested Mrs. Vivian to call them when he came home. After the detectives left, Mrs. Vivian telephoned the family attorney and told

[ 208 Pa. Super. Page 334]

    him that the police were looking for her son in connection with the Carfagno beating. The attorney told her "not to worry about it . . . it was just a routine investigation."

In the meantime Mullin and his fellow officers found appellant at the Torresdale Country Club waiting for a caddying job. They told him what they were investigating and asked him to accompany them. He did, stating that he knew nothing of the beating. The police took him to the Nazareth Hospital, where the Carfagno boy was hospitalized, and there they allowed appellant to make a telephone call pursuant to his request to call his lawyer or his mother. It was about 11:30 a.m. at this time. Mrs. Vivian, to whom her son had placed this call, talked to him and then told one of the policemen (who said that he was Mullin but was not) that she was going to call her lawyer "and would they wait there until I called back, which would be about five or ten minutes." Mrs. Vivian again called her attorney who advised her that the police had a right to take her son to the hospital and that they "would either have to book him or let him go." He also again advised her, "Don't worry about it." Mrs. Vivian tried to call the police back at the hospital and after about a half hour reached another policeman at the hospital who informed her that Mullin was upstairs. Mullin was conducting a lineup in the Carfagno boy's hospital room.

After the lineup, at which appellant was identified, Mullin took him to police headquarters. At about 12:45 p.m. Mrs. Vivian telephoned Mullin who asked her if she had the clothes worn by appellant on Monday. She said that she did and would turn them over to him. After getting a search and seizure warrant, three police officers went to the Vivian home and brought the clothes and Mrs. Vivian back to police headquarters, arriving there about 3 p.m.

[ 208 Pa. Super. Page 335]

Mrs. Vivian waited in an outer office for a few minutes while Mullin spoke to appellant alone. Mullin then came out to Mrs. Vivian who was "very nervous". She told him that her son "was down here before and he had gone through this" and that she knew "all about the police and that she wasn't going to let him sign anything and that she was going to get him a lawyer." Told by Mullin that "she had all the right in the world to have a lawyer for her son", Mrs. Vivian went into the interrogation room and in Mullin's presence cautioned her son several times not to give any written statements. She and her son were alone in the room for about a half hour while ...


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