Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, No. 1131 of 1965, in case of Commonwealth of Pennsylvania v. Donald Hardy.
Harold Gondelman, with him Joseph A. Steedle, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen concurs in the result.
Donald Hardy,*fn1 defendant, was arrested for allegedly killing with a gun Anthony Bishop, 33 years of age,
who was found in an automobile on Odessa Way near Lincoln Avenue in the City of Pittsburgh, Pennsylvania, at 12:02 a.m., December 24, 1964. Police interrogated Hardy for approximately four and one-half hours on December 24, 1964, for fifteen minutes on Christmas day, and for three more hours on December 26, 1964, before he orally confessed to the slaying. Shortly thereafter on December 26th, Hardy signed a written admission of the crime, and, on December 27, 1964, permitted the police to make a tape recording of his confession. At no time during these events was defendant represented by counsel.
Before the trial began, defendant's counsel made a motion to suppress Hardy's confession. Pursuant to the mandate of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), extensive testimony, which required two full days to hear, was taken. The trial court subsequently dismissed defendant's motion to suppress. On April 9, 1965, the jury returned a verdict of first degree murder against defendant, and the penalty was fixed at life imprisonment. Defendant then filed a motion for a new trial which was unanimously refused by the trial court en banc on November 17, 1965. From the entry of judgment of sentence defendant has appealed to our Court.
Prior to trial, Hardy pleaded not guilty to the murder of Anthony Bishop. At the trial, his written and his taped confessions which were identical in content were admitted into evidence. In these confessions, Hardy, who alleged he was drunk, claimed that his gun went off while he was attempting to rob the victim. However, upon taking the stand at trial, Hardy contradicted these confessions by denying that he tried to
rob the victim, but rather that the gun went off while he and the victim were arguing about Hardy's failure to fulfill his promise to find a prostitute for the victim.*fn2 This contradiction by Hardy at trial of a vital part of his pretrial confessions puts the issue squarely before our Court whether or not the confessions should have been admitted into evidence by the lower court.
At the pretrial hearing to ascertain whether or not Hardy's confessions should be excluded from trial, there was testimony that on December 24, 1964, before any interrogation had begun, that Hardy was warned of his constitutional rights to be silent and to have counsel: "Q. What did you [City Detective Tercsak] say to him [Donald Hardy when he was first brought to the police station in the late afternoon of Dec. 24, 1964]? A. To which first that he had a right either to make a statement or refuse to make a statement; second, that if he did make a statement it could be used for or against him at the time of his trial; and third, he had the right to be represented by an attorney of his own choice ...