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COMMONWEALTH v. SENK (09/27/66)

decided: September 27, 1966.

COMMONWEALTH
v.
SENK, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Columbia County, Jan. T., 1962, No. 2, in case of Commonwealth of Pennsylvania v. Frank Earl Senk.

COUNSEL

Gailey C. Keller, with him Hervey B. Smith, for appellant.

Nicholas B. Piazza, Assistant District Attorney, with him Howard R. Berninger, District Attorney, for Commonwealth, appellee.

Joseph M. Smith, Assistant District Attorney, with him James C. Crumlish, Jr., District Attorney, for intervenor.

George Kerestes, president, District Attorneys Association of Pennsylvania, for intervenor.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen dissents.

Author: Eagen

[ 423 Pa. Page 130]

On April 5, 1962, the appellant, Frank Earl Senk, was convicted, by a jury in Columbia County, of murder in the first degree. Sentence was fixed at death. An appeal to this Court followed, and we affirmed the judgment, 412 Pa. 184, 194 A.2d 221 (1963). Subsequently, the United States Supreme Court granted certiorari, and on June 22, 1964, vacated our order of affirmance and remanded the case to this Court for further proceedings, not inconsistent with its decision in Jackson v. Denno, 378 U.S. 368 (1964). See, 378 U.S. 562 (1964).

On August 25, 1964, acting in accordance with the above mandate, we remanded the record to the court of original jurisdiction with directions to hold a post trial

[ 423 Pa. Page 131]

    hearing, consistent with the requirements of due process, to determine if in-custody incriminating statements, particularly a written confession made by Senk to investigating police officers and used against him at trial, were his voluntary acts. We further directed, that after said hearing, the trial court file a written report of its findings and conclusions with this Court for further consideration.

After remand, counsel for Senk appeared before and advised the trial court, that following full discussion with their client, he had agreed and requested that any further hearing be waived, and that the issue of the voluntariness of the incriminating statements be determined on the existing record.*fn1 Counsel also requested the opportunity to file a written brief and present oral argument. The court approved and followed the procedure requested. Later, it filed an able and comprehensive report with this Court detailing its findings as to the factual circumstances incident to the giving of the incriminating statements involved, and concluded that the evidence thereof was properly admitted at trial and the issue of voluntariness was for the jury to resolve. We have carefully studied this report in conjunction with the trial record. We approve and affirm the factual findings and the pertinent conclusion set forth therein. They are amply substantiated by the record. We are also persuaded that they are true and correct.

Since all of the circumstances incident to Senk's admissions and confession are fully detailed in the lower court's report, they will not be repeated here. However, for the purpose of one question that presently ...


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