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COMMONWEALTH v. DESSUS (11/15/66)

decided: November 15, 1966.

COMMONWEALTH, APPELLANT,
v.
DESSUS



Appeal from order of Court of Oyer and Terminer of Philadelphia County, May T., 1966, No. 4971, in case of Commonwealth of Pennsylvania v. Ronald J. Dessus.

COUNSEL

Joseph M. Smith, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Robert N. C. Nix, with him Domenick Vitullo, for appellee.

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

Author: Bell

[ 423 Pa. Page 179]

This is an appeal by the Commonwealth from the Order entered by the Court of Oyer and Terminer which quashed an indictment charging Dessus with murder.

In the early morning of April 3, 1966, Lena Alexandroff, a 79-year-old grandmother living in Philadelphia, and her 44-year-old daughter and her 14-year-old grand-daughter (who lived with her) were raped, and as a result of the bodily injuries received by the grandmother, she died on April 22, 1966. On May 10, 1966,*fn1 a magistrate held Dessus for the Grand Jury, and on the same day defendant was indicted by the Philadelphia Grand Jury for the murder of Lena Alexandroff.

On August 16, 1966, defendant presented a motion to the lower Court to suppress a confession which defendant had given to Detective Timlin, and also a motion to quash the murder indictment because (a) it was based upon hearsay testimony and (b) a denial of defendant's right to challenge the indicting Grand Jury because the extensive and prejudicial publicity about rape in general, and these rapes in particular, may have created a state of mind on their part which prevented them from acting impartially. The lower Court held a hearing on these motions. Detective Timlin testified in open Court that he was the investigating detective in the above-mentioned crimes; that he was the only witness who appeared before the Grand Jury, and that he did not see any of the alleged crimes committed. Timlin further testified that he saw the dead body of

[ 423 Pa. Page 180]

    the grandmother, he examined the house and place where the murder occurred and the physical evidence which was obtained by the police, including the bloody garments of the victims and of the defendant. He also observed the physical condition of the defendant, including blood and scrapes around his knuckles, and likewise the physical conditions of the victims. In addition, defendant gave an oral statement to Timlin.

Detective Timlin testified that prior to taking defendant's statement he informed defendant that he did not have to say anything, and that anything he said could be used for or against him if the case went to Court, and that he could have the advice of counsel. Defendant responded by both nodding his head affirmatively and orally saying that he knew all that. After the hearing, the lower Court, relying on Miranda v. Arizona, 384 U.S. 436, suppressed defendant's statement on the ground that defendant was not informed that if he was indigent he was entitled to have counsel appointed for him by the Court.

On September 28, 1966, after extensive argument -- during which the Commonwealth reiterated its position (1) that the Court could not directly or indirectly inquire into what evidence was presented to the Grand Jury, and (2) that an indictment could be based on hearsay testimony -- the lower Court ordered that the murder indictment be quashed because it was based upon hearsay testimony.

Although there was no evidence that Dessus's statement to Timlin was read by or shown by Timlin to the Grand Jury, and although the Grand Jury proceedings were held and the murder indictment was found prior to June 13, 1966, the date of Miranda v. Arizona, 384 U.S., supra,*fn2 the lower Court assumed that defendant's statement had been submitted by Timlin to the Grand

[ 423 Pa. Page 181]

Jury and held that under Miranda v. Arizona, supra, Timlin's statement was inadmissible not only at the trial of the case but before the Grand Jury. The Commonwealth contends that defendant's statement was, even under Miranda v. Arizona, admissible before the Grand Jury. Since the Commonwealth has not appealed from the suppression of this statement, it is unnecessary for us to pass upon this question.

The Commonwealth has appealed, we repeat, from the Order of the lower Court quashing the indictment of Dessus for murder because it was found and based upon hearsay testimony. It ...


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