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decided: October 11, 1968.


Appeal from order of Superior Court, Oct. T., 1966, Nos. 381 to 384, inclusive, affirming judgments of Court of Quarter Sessions of Philadelphia County, April T., 1965, Nos. 632 to 635, inclusive, in case of Commonwealth v. Charles Holton.


Bernard L. Segal, First Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

James D. Crawford, 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, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Concurring and Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Musmanno.

Author: Eagen

[ 432 Pa. Page 13]

During the early morning hours of April 5, 1965, an unknown male surreptitiously entered the Philadelphia apartment of a female medical student at Jefferson Medical College, and brutally beat and raped her. Charles Holton was arrested for these crimes and eventually was convicted by a jury of assault and battery, aggravated assault and battery, assault and battery with intent to ravish, rape, and larceny. Post-trial motions in arrest of judgment and for a new trial were denied, following which an aggregate prison sentence of 21 1/2 to 43 years was imposed. On appeal the Superior Court affirmed without opinion. Judge Hoffman filed a dissenting opinion. See 209 Pa. Superior Ct. 22, 223 A.2d 754 (1966). We granted allocatur and now reverse and order a new trial, because we conclude that Holton's trial violated the requirements of due process of law.

Holton was taken into custody by two investigating police officers without a warrant on April 7, 1965, at about 11:30 a.m., and escorted to the police administration building. At about 4:30 p.m., or after a delay of approximately 5 hours, occasioned by the fact that the officers were attempting to ascertain whether the victim*fn1 was physically able to confront Holton, a "formal interrogation" commenced. Within minutes thereafter,*fn2 according to the police officers whose testimony

[ 432 Pa. Page 14]

    was offered by the Commonwealth, Holton spontaneously stated: "Look, I broke into that house, but I don't remember raping that girl." He was immediately warned by one of the questioning officers: "Now I have to advise you anything you say is going to be used either for or against you. Now you don't have a lawyer, so you still don't have to make a statement. But if you want a lawyer you will either get one at a hearing tomorrow morning. . . . If you care not to make a statement now, don't make it." Holton was then taken downstairs to a cafeteria for a cup of coffee and minutes later, upon being returned to the "interview room," he orally admitted his guilt. Evidence of his statement was introduced, over objection, at trial.*fn3

Holton was taken into custody solely on the basis of a tip given to the police by an unidentified informer. This informant concededly was not an eyewitness to the crimes and did not have personal knowledge of Holton's whereabouts at the time of the occurrence. Neither at the hearing on the motion to suppress the evidence of Holton's incriminating statement, nor at the trial itself, did the arresting officers reveal any facts or circumstances disclosed by the informant which led to the belief Holton had committed the crimes involved. Hence, as far as this record is concerned, the arrest was illegal.

An arrest without a warrant must be based on probable cause, i.e., there must be facts available to the officers at the moment of the arrest which "would warrant a man of reasonable caution in the belief" that the individual arrested has committed an offense. Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280 (1925); McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056 (1967). Mere suspicion is not enough and the burden is upon the Commonwealth to show with reasonable

[ 432 Pa. Page 15]

    specificity facts sufficient to establish that probable cause existed. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223 (1964). The instant record is barren of such proof.

The illegality of Holton's arrest does not necessarily preclude the use of his subsequent incriminating statement as evidence. This depends upon a determination of whether or not the statement was the product of the exploitation of the initial illegality or was secured by means sufficiently distinguishable from that illegality to purge it of the primary taint. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963); Commonwealth ex rel. Craig v. Maroney, 348 F. 2d 22 (3d Cir. 1965); and Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). However, since we conclude that the use of Holton's statement was precluded for another equally important reason, we need not resolve this question.

At the suppression hearing and at trial, Holton testified that while he was in custody and questioned by the police, he was "getting the d.t.'s" as an aftermath of prior consumption of too much alcohol; that he was continuously sick and suffered from nausea and pains in the stomach and head; that he was cold, sweaty and shaking all over; that he requested medical assistance which was refused but promised "when it was all over"; that after relentless questioning by several police officers he finally agreed to admit anything they wanted him to in order "to get out of the place for a while . . . and get some fresh air." While the police officers' testimony denied much of the foregoing*fn4 and painted a different picture of Holton's physical condition at the pertinent time, uncontradicted facts in the record

[ 432 Pa. Page 16]

    reveal that Holton's condition was more or less as he himself described.

(1) At the hearing before the committing magistrate on April 12, 1965, when asked a question relating to Holton's condition during the police questioning, the chief investigating officer and interrogator testified as follows: "He [Holton] had problems with his drinking and blackouts in certain areas. And he wasn't very coherent on that day I questioned him;" (2) During the period Holton was in custody he requested and drank an unusually large amount of water; (3) During the period of questioning Holton complained of pains in the stomach and was given an antacid pill by the police; (4) Immediately after he admitted his guilt, Holton was permitted to lie down on the floor for about 30 minutes; (5) Shortly thereafter, Holton was taken via automobile to the place where he told the police he had hidden certain articles stolen from the victim's apartment (but which were not there when the searching party arrived). During the return trip Holton's condition was such that the accompanying police officers stopped at a bar and got him a glass of wine; (6) On the morning of April 8th, a physician at the Detention Center of the Philadelphia Prison system, after examining Holton, concluded that he was "a chronic alcoholic who has had several episodes of d.t.'s" and directed that he be placed on the center's "alcohol withdrawal regime," which included, inter alia, the consumption of medicine three times a day to arrest the withdrawal incidents; (7) On April 9th, a consulting psychiatrist of the Philadelphia Prison system saw Holton and diagnosed and described his condition as follows: "In the state of withdrawal from alcohol . . . . In a withdrawal state but not full-blown d.t.'s . . . exceptionally anxious, nervous, overwrought, gave indications of being somewhat agitated . . . This was possible prodrome to a delirium tremens state."

[ 432 Pa. Page 17]

Due process prohibits the evidentiary use of a criminal defendant's incriminating statements unless it is first established that those statements were "the product of a rational intellect and a free will." Lynumn v. Illinois, 372 U.S. 528, 83 S. Ct. 917 (1963), and Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745 (1963). The determination of whether or not such evidence meets these required standards depends on a consideration of the "totality of the circumstances." Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966); Blackburn v. Alabama, 361 U.S. 199, 80 S. Ct. 274 (1960); Lyons v. Oklahoma, 322 U.S. 596, 64 S. Ct. 1208 (1944); and Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.2d 628 (1966). And the accused's physical and mental condition must be considered, for sickness or ill health may well influence his will to resist and make him prone to overbearing and improper questioning. Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541 (1961). For the inquiry as to the voluntariness of a defendant's incriminating statements cannot be narrowed to a consideration of whether or not the police resorted to physical abuse in procuring them; equally relevant on the issue of voluntariness is the determination of whether or not the accused's will was overborne at the time he made the statements. Reck v. Pate, supra.

After a careful consideration of all the relevant circumstances disclosed by this record, particularly the unchallenged facts related before, we unhesitatingly conclude that Holton's incriminating statement should have been excluded. These words of Mr. Justice Roberts, speaking for a unanimous Court, in Commonwealth ex rel. Gaito v. Maroney, supra, at 179 are most apt: "Our judgment is based not only on the lack of a rational choice on the part of appellant but also on 'a strong conviction that our system of law enforcement

[ 432 Pa. Page 18]

    should not operate so as to take advantage of a person in this fashion.'"

At least one other incident at trial requires discussion.

After the jury had deliberated for 22 hours without reaching a verdict, further instructions were requested "on the identification and alleged statement of the defendant." These instructions were given and then the trial judge finalized his remarks in this manner: "Now, you have taken a long time considering this case. You are citizens of this city, and you are citizens of America, and act as such. You are not living in a foreign country. You are here in a land of freedom where we try to protect people, and that's all the people, not just some of the people, everybody needs protection of the courts. If they don't get protection of the courts, you won't get protection of the courts either when your day comes in court. Remember that. You destroy the principles upon which democracy sits in America by not giving proper and adequate consideration, they won't be existing for you when you have your day in court. I'm not telling you what kind of verdict to bring in, but I'm telling you to stand up like men and women and do what you should do before your God to whom you will answer some day whether you answer to this court or not. You will answer to God some day for the way you conduct yourselves in this case. The chips will be down, and He will know everything you have done. You won't withhold one thing from Him." Twenty minutes later, the jury found Holton guilty.

While we are admiringly aware of the trial judge's intense patriotism and dedication to his religious convictions, it is our view that the portion of his supplemental charge, quoted above, was improper. Judge Hoffman pointedly expressed the sin and prejudicial

[ 432 Pa. Page 19]

    effect thereof in his dissenting opinion. 209 Pa. Superior Ct. 22 at 27: "Appellant contends that this exhortation amounted to binding instructions to the jury to bring in a verdict of guilty. The Commonwealth argues, on the other hand, that this charge suggested to the jury that it should acquit appellant.

"It is not for us to determine the court's intent in making this statement or the jury's inference from it. What is significant is that both interpretations are equally plausible. More importantly, individual jurors might have concluded, as appellant suggests, that the court was threatening them with the wrath of God should they bring in a verdict of not guilty."

The order of the Superior Court and the judgments of the Courts of Oyer and Terminer and Quarter Sessions are reversed and a new trial is ordered.


Order of Superior Court and judgments of courts below reversed and new trial ordered.

Concurring and Dissenting Opinion by Mr. Justice Jones:

I agree with the majority view that the remarks of the trial judge made after giving additional instructions to the jury were "improper" and highly prejudicial.

I disagree, however, with the view expressed in the majority opinion "that Holton's incriminating statement should have been excluded."

Dissenting Opinion by Mr. Chief Justice Bell:

I very strongly dissent. I would affirm the Order of the Superior Court and the Judgment of the lower Court.

Dissenting Opinion by Mr. Justice Musmanno:

The Majority Opinion in this case is legalism run riot, it is conjecture ballooned into theory, theory stretched into assumed facts, imagined facts made the

[ 432 Pa. Page 20]

    basis for non sequiturs, and non sequiturs built into a decision which makes a mockery of the law, a travesty of justice, and one which will cause laymen to wonder if the courts are intended to seek truth or to play charades with the safety of the people. The courts should have but one goal and this is to apply reason to facts and from the amalgam produce a result which vindicates truth.

The decision in this case, however, makes a shambles of truth. No one can read the record and honestly conclude that the defendant was not proved guilty beyond a reasonable doubt, aye, proved guilty beyond the peradventure of hypothetical doubt. And what was he found guilty of? His crime was perhaps the most revolting, next to murder, in the whole calendar of horrendous dereliction. A jury of his peers, after hearing evidence for a week, rendered a verdict that established that the defendant, in the middle of the night, broke into a house, terrified a woman in bed by suddenly appearing before her with a knife which he placed to her neck and threatened to slit her throat unless she submitted to his bestial lust. He violated her carnally, gagged her, and then trussed her up with wire like a sheep prepared for slaughter, stole and made away with valuable articles in the house, leaving his victim in a state which could have caused her death from strangulation or from bleeding. And the most positive assurance of his guilt is that the defendant admitted his guilt. He confessed to his crime freely and voluntarily and without any pressure being applied through coercion, persuasion or other means.

The Majority Opinion says that the defendant's incriminating statements were not the product of "a rational intellect and free will," arguing the defendant was ill at the time the police questioned him.

[ 432 Pa. Page 21]

If ever I saw hyperbole in a Court Opinion, I see it in the Majority Opinion in this case. There is utterly nothing in the record to support the extravagant utterance that Holton did not speak of his own free will and, so far as the limitations of his primitive tendencies were concerned, did not speak with a rational intellect. The disabling infirmity of the Majority Opinion is that it takes its facts from the defendant's account, wholly ignoring that in appeals the appellate court accepts its facts from the side which has predominated in the verdict, here, the Commonwealth. The Majority Opinion astoundingly casts aside what was well said by our Chief Justice Bell in the case of Commonwealth v. Kirkland, 413 Pa. 48: "Defendant relies, as most defendants do in an appellate Court, on the testimony and the inferences which are favorable to her. As we have said very many times, this is not the law. In the recent case of Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157, we said (page 287): '"'. . . "It has become customary for a defendant in his argument before an appellate Court to base his claims and contentions upon his own testimony or that of his witnesses even after the jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, 'we accept as true all of the Commonwealth's evidence upon which, if believed, the jury [or a judge sitting as a jury] could have properly based its verdict: [citing numerous authorities].'"'"'"

A jury of twelve persons, after hearing evidence for some eight days, concluded that Holton was a liar, but the Majority nevertheless lifts him to the pedestal of Uncontaminated Veracity. It does more, it polishes the statue by smoothing over the rough spots of inconsistency and incredulity and makes of the defendant an invalid and a ...

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