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decided: November 23, 1966.


Appeal from order of Court of Oyer and Terminer of Fayette County, Criminal Docket, 1965, No. 213, in case of Commonwealth of Pennsylvania v. Wilma Eperjesi.


William J. Franks, Assistant District Attorney, with him John R. Hoye, District Attorney, for Commonwealth, appellant.

Peter U. Hook, with him Joseph E. Kovach, for appellee.

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

Author: Musmanno

[ 423 Pa. Page 457]

On July 17, 1965, two small boys, Carl J. Marucci, 7, and Florian Eperjesi, 10, were found dead in a refrigerator in the basement below the two-floor apartment occupied by two women, Mary and Wilma Eperjesi, in the village of Republic, Redstone Township, Fayette County. Florian was the grandson of Mary and the nephew of Wilma. Carl Marucci was Florian's playmate.

The following day Wilma Eperjesi, 38 years of age, was taken into custody by the police as a material

[ 423 Pa. Page 458]

    witness. She was given a lie-detector test which produced answers which absolved her from any association with the fatal affair of the refrigerator. In view of what followed, it would seem that the lie-detector machine, technically called a polygraph, failed to measure up to the claims advanced for it by its sellers, proponents and champions. Wilma was released from custody and she returned to the normal routine of her living with Mary Eperjesi.

Two days later, on July 20, 1965, John K. Kaminsky, a police officer in Redstone Township, visited the Eperjesi apartment to continue with his investigation into the tragic death of the youngsters, seeking to ascertain what set of circumstances had brought about their untimely end. Were those circumstances purely accidental or had some malevolent hand guided them?

While in the Eperjesi apartment, Wilma Eperjesi, who knew Kaminsky well and regarded him as a friend of the family, called him into a room, locked the door and told him that she was the one who had closed the door of the refrigerator in which the two boys perished.

Subsequently testifying to this disclosure, Kaminsky said: "She called me in the room and locked the door with a key and she says 'Sit down', and there was a chair here and there was another chair. She sat down beside me and grabbed both of my hands and said 'Johnny, I want to tell you what happened.' I just listened to her. She said she went to feed the peepies, saw the refrigerator door open, and slammed it shut. I said 'Why did you do it?' She says 'I don't know why I done it.'"

The "peepies" referred to were little chickens in the basement.

When Kaminsky was asked whether Wilma said anything about knowing the children were in the refrigerator,

[ 423 Pa. Page 459]

    he replied: "First she said she didn't know; then about a few minutes later she says 'Well, I might as well tell you the truth; I knew they were in there.' Q. In the refrigerator? A. Frigidaire, she said. She didn't say refrigerator, she said Frigidaire. Q. Now was that in the presence of the State Police or in your presence? A. Just her and I alone."

Later in the day Wilma was taken to the office of Justice of the Peace Nicholas Zoretic in Republic where her utterances were tape recorded. At this hearing, with several people present, including her brother and sister-in-law, State Trooper Tamallo asked Wilma if she was willing to speak and when she replied in the affirmative, the following ensued: "Q. Now, Wilma, before making this statement, I want to advise you that you are entitled to an attorney or any legal counsel to represent you before you make this statement. You understand what I mean? A. Yeah, I know. Q. Do you want an attorney or legal counsel? A. Yes. . . . Q. O.K. You will make a statement after we get you an attorney. A. Yes."

Then Chief Detective Maggioncalda questioned her: "Q. We understand that you want an attorney to represent you. Would you care to tell us what happened last Saturday night now, before an attorney talked to you, or are you going to wait until an attorney comes? A. I want to talk now. Q. You want to talk now? A. Yes. Q. All right, then go ahead and tell us exactly what happened on Saturday night. Q. Well, see, I'm gonna tell you the truth . . ."

On July 22, 1965, Trooper Tomallo with Detective Maggioncalda called on the defendant in the county jail. Maggioncalda testified that he told Wilma "that she didn't have to tell us anything." He said that he was questioning her to find out, provided she wanted to speak, the exact time she said she closed the fatal door of the refrigerator. She replied that it was 6

[ 423 Pa. Page 460]

    o'clock. Maggioncalda then told her that counsel was being appointed for her and that she didn't have to talk if she didn't desire to do so, but there were some questions he wanted to "clear up," and, according to Maggioncalda, "she agreed to answer them." At this questioning, according to Trooper Tomallo, who was with Maggioncalda, Wilma admitted that she knew the boys were in the refrigerator when she closed the door.

We will refer to the statements made by Wilma as (1) the oral declaration in her home to John Kaminsky; (2) the statement made into a tape recording machine at the office of the Justice of the Peace; (3) the oral statement in jail to Tomallo and Maggioncalda.

On December 6, 1965, in pursuance of a petition to suppress confessions filed by Wilma's attorneys, the court conducted a hearing and ordered all of Wilma's statements suppressed. The Commonwealth argues that the court erred in doing so.

We are satisfied that, in the light of the circumstances fully developed at the hearing in court, the court erred in suppressing Statement No. 1. The learned court, in nullifying that statement as evidence, said that when Wilma told Kaminsky she had closed the refrigerator door, it was his "duty and responsibility" to advise her "of her right to remain silent and her right to counsel." There is nothing in the Federal or Pennsylvania decisions which require police, upon hearing a volunteered statement by anyone, to order the volunteer to cease talking.

In the case of Miranda v. Arizona, 384 U.S. 436, one of the most recent freshets pouring into the stream of criminal law on the subject of individual rights as against police investigation, the Supreme Court of the United States specifically stated: "There is no requirement that police stop a person ...

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