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decided: March 15, 1968.


Appeals from judgments of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1965, Nos. 809 and 810, in case of Commonwealth of Pennsylvania v. Ellis Banks.


David C. Harrison, and Kramer and Harrison, for appellant.

Martin A. Heckscher, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Musmanno.

Author: Eagen

[ 429 Pa. Page 55]

On January 26, 1966, the appellant, Ellis Banks, was convicted by a jury in Philadelphia County of the crimes of robbery and murder in the first degree. On the murder conviction, the jury fixed the penalty at life imprisonment. Post-trial motions in arrest of judgment and for a new trial were dismissed. Banks was then sentenced to imprisonment for a term of five to ten years on the robbery conviction and to life imprisonment on the murder conviction. Appeals from the judgments of sentence are now before us.*fn1

At trial a typewritten recorded statement of guilt made by Banks to the police was introduced in evidence. In our view this statement was obtained under circumstances which render its evidentiary use a denial of due process of law. For this reason we reverse and order a new trial.

[ 429 Pa. Page 56]

The pertinent facts of record are these:*fn2

At about 7 p.m. on December 31, 1964, George Turk left his place of employment in the city of Philadelphia and proceeded to his automobile parked on a public street nearby. As Turk entered the vehicle, James Lewis also entered it, intending to rob him. Lewis assaulted Turk severely, causing injuries which resulted in his death. A citizen who came upon the scene as the assault and robbery were in progress saw the appellant Banks standing about 30 feet away from the Turk automobile, "looking back and forth." As this citizen went to the aid of Turk, Lewis fled and, as he did so, "kind of waved" to Banks. Banks remained on the scene and assisted in aiding the victim. The police arrived at the site shortly afterwards and Banks, upon being asked "if he had seen what happened." said "no," but then changed this to "yes." He was taken to police headquarters, questioned and released.

On January 3, 1965, two investigating police officers went to the Banks home, informed him that they would like to question him further about the Turk case and asked him to accompany them to police headquarters. The three proceeded via police squad car to the Homicide Headquarters of the police department, located about one-half hour traveling time away. Banks readily answered all questions. His statements were exculpatory in nature and he was allowed to leave. During this questioning Banks stated he was employed

[ 429 Pa. Page 57]

    by a certain business firm in Philadelphia. Through later inquiry, the police learned this was untrue. As a result the two police officers returned to the Banks home at about 2 p.m. on January 4th, "picked up" Banks and drove him in a police car to Homicide Headquarters. Before leaving his home Banks was informed the police desired "to further interview him concerning information he had stated in the first interview."

Banks was then questioned at police headquarters for about two hours or from 2:30 p.m. to 4:30 p.m. He was asked why he made a false statement about his employment when questioned the day before. He "tried to explain that away" but "finally came out and said he was involved in the robbery of Mr. Turk" as "a lookout" and Lewis was the actual robber and assaulter.

The specific time or point in the interview when this admission of guilt was made is not clear from the record. However, it is conceded that before this occurred Banks was not warned at any time of his constitutional rights including the right to remain silent. Following the incriminating admission Banks was immediately placed under arrest and advised for the first time of his right to remain silent.

Shortly thereafter the police officers accompanied by Banks left headquarters and sought out and picked up Lewis. Both men were then questioned at headquarters. Beginning about 8:35 p.m., Banks in answer to questions made an incriminating statement in line with his previous admissions, which was recorded on a typewriter and when completed was signed by him. It is this statement which was introduced in evidence at trial.

The instant trial occurred subsequent to Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), and whether or not the constitutional rights of Banks were

[ 429 Pa. Page 58]

    adequately protected at the time the statement involved was obtained must be determined in the light of that decision. Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967); Johnson v. New Jersey, 384 U.S. 719 86 S. Ct. 1772 (1966). Under Escobedo, as explicated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), it is absolutely essential that before an individual is subjected to police custodial interrogation he must at least be first warned of his constitutional right to remain silent. Otherwise, the evidentiary use of any statements stemming therefrom is constitutionally proscribed. Commonwealth v. Jefferson, supra; Miranda v. Arizona, supra.

The Commonwealth argues that up to the moment Banks first admitted his participation in the crime, he was merely being questioned as "a witness" to a crime and it was unnecessary to advise him of his right to remain silent so long as this role continued. With this we cannot agree. The appellation given the individual questioned is not controlling. Otherwise the police could evade the procedural safeguards required by Escobedo, supra, and Miranda, supra, to protect one's privilege against self-incrimination during police questioning by interviewing everyone as "a witness." If questioning is initiated and pursued during custodial interrogation, proper warning of constitutional rights is first required, Miranda v. Arizona, supra. While the courts of other jurisdictions have experienced difficulty in determining whether questioning under certain circumstances constitutes "custodial interrogation,"*fn3 there is universal agreement that if the

[ 429 Pa. Page 59]

    police questioning occurs under an atmosphere or circumstances which leave the individual questioned no freedom or choice and which are inherently coercive,*fn4 this is "custodial interrogation." After considering the circumstances and atmosphere existing when Banks was questioned by the police on January 4th, there is no doubt in our minds that he had little or no freedom of choice and the situation was inherently coercive. Cf. Commonwealth v. Sites, 427 Pa. 486, 235 A.2d 387 (1967).

The final question is whether or not the recorded statement admitted in evidence secured after Banks was advised of his right to remain silent was purged of the original illegality. We conclude not.

As explained in Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409 (1968), a statement or confession made subsequent to another confession or incriminating admission obtained absent a required warning of constitutional rights may not be used as evidence, unless it is first established that the last statement or confession was not the exploitation of the original illegality and was obtained under circumstances sufficiently distinguishing to purge it of the original taint. After a careful consideration of all the attending circumstances, we are not persuaded that the original illegality was dissipated by the subsequent events, or the statement involved was so unrelated to the original questioning as to purge it of the taint thereof.*fn5

Judgments reversed and new ...

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