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decided: November 22, 1966.


Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, Sept. T., 1964, No. 111, in case of Commonwealth of Pennsylvania v. George Schmidt.


Leo J. Kelly, for appellant.

Edwin J. Martin, Assistant District Attorney, with him David O'Hanesian, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

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

Author: Eagen

[ 423 Pa. Page 434]

On February 13, 1965, the appellant, George Schmidt, while represented by court-appointed counsel, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. Post trial motions were overruled and sentence imposed as the jury directed. Schmidt filed this appeal.

Two assignments of error are asserted: (1) Incriminating statements given by Schmidt to the police were obtained in violation of his constitutional rights and, therefore, evidence thereof was erroneously admitted at trial; (2) The trial court erred in its charge to the jury.

The case history, as disclosed by the evidence, is briefly this: Schmidt with one Ken Baurle broke into the Caecilia-Mannerchor Club, located in a building in the north side section of Pittsburgh, about four

[ 423 Pa. Page 435]

    o'clock a.m. on June 10, 1964, pried open certain amusement devices therein and stole money therefrom. One Bill Thornton, with full knowledge of Schmidt's and Baurle's intent to burglarize the premises, accompanied them to the scene and waited outside in an automobile.

During the burglary, one Joseph Meier, a tenant in another portion of the building wherein the club was located, aroused by the noise, came to the club rooms to investigate. He was assaulted by Schmidt with a blunt instrument, suffered a broken jaw, a concussion of the brain and other injuries, which subsequently resulted in death.

An arrest warrant issued on June 15, 1964, charging Schmidt with suspicion of burglary and felony-murder. He was taken into police custody the same day. On June 19th, he made statements to the police, admitting his participation in the crime, one of which was tape recorded and another reduced to typewritten form.

After indictment and before trial, Schmidt filed a motion to suppress all evidence of his statements given to the police. A hearing was held thereon by the court, which it was agreed would also serve the purpose of an independent hearing to determine the voluntariness of the statements, as required by Jackson v. Denno, 378 U.S. 368 (1964). Extensive testimony was heard. Later the court filed a comprehensive opinion detailing its factual findings, and conclusion that the statements of Schmidt were freely and voluntarily given under circumstances devoid of any violation of constitutional rights. The motion to suppress was, therefore, denied. Subsequently, the evidence of Schmidt's statements to the police was admitted against him over objection at trial. The question of voluntariness

[ 423 Pa. Page 436]

    was left to the jury to resolve under careful instructions of the trial court.

It is admitted that Schmidt made the statements recorded on tape and those reduced to typewritten form, and that he signed the typewritten statement at the end thereof and initialed each page. It is also admitted that at the time Schmidt was without the assistance of counsel. However, other important facts as to the circumstances under which the statements were made and his treatment by the police during custody are in serious dispute. The Commonwealth's testimony on this facet of the case may be summarized as follows:

Schmidt was questioned intermittently by various investigating officers each day from June 15th to June 19th. No extensive periods of questioning occurred, and the interviews were conducted in a reasonable, if not friendly, manner, and without abuse, coercive or overbearing conduct. Before he was initially questioned, Schmidt was warned that he did not have to answer any questions and anything he said would be used against him in court. He was also informed that he had the right to be represented by an attorney of his own choice; to which he replied, he did not wish an attorney at that time.

When first questioned, Schmidt admitted having committed five other burglaries in the north side section of Pittsburgh in recent months, but denied any participation in the Mannerchor burglary. He persisted in this denial until June 19th. About 8:45 p.m. o'clock on that date, he was taken into the presence of Baurle and Thornton, both of whom had previously given formal written statements to the police admitting their part in the Mannerchor burglary, and implicating Schmidt as a co-participant and the assailant of Meier. Upon request, they orally repeated these admissions and accusations in the presence of Schmidt, which

[ 423 Pa. Page 437]

    statements were recorded on tape. Schmidt was then asked if he had anything to say. He replied that, "it happened like Kenny says. I hit the guy." Then, in answer to questions, he orally related the details of the crime, and his statements were likewise recorded on tape. At or near the end of this questioning he was advised that he didn't have to make a statement, and unless he consented to the use of his taped statement, it would be destroyed and not used against him. He replied that he wished the recording preserved.

Shortly thereafter he repeated in more complete fashion the occurrence involved. This statement was reduced to typewritten form and when completed, the writing was initialed on each page and signed at the end by Schmidt. Before this formal statement was taken, he was again warned of his right to remain silent and that anything he said would be used against him in court. At no time during the police custody or questioning did he request the assistance of counsel.

During the police custody period from June 15th to June 19th, no one asked to or visited Schmidt, except the pastor of a nearby Catholic church. This visit, in private, on ...

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