Appeal from order of Court of Oyer and Terminer of Northumberland County, Sept. T., 1966, Nos. 1 to 8, inclusive, in case of Commonwealth v. Harold Eugene Bordner.
Vincent B. Makowski, District Attorney, for Commonwealth, appellant.
Roger S. Haddon, with him Robert M. Fortney, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Justice Roberts. Dissenting Opinion by Mr. Chief Justice Bell.
The resolution of the issue raised on this appeal -- the propriety of an order suppressing the use at trial of five statements or confessions of a person accused of murder -- requires a detailed analysis and examination of the factual circumstances under which each statement or confession was given and an application to such circumstances of the guidelines, as to the admissibility of statements or confessions, set forth in recent decisions of both the United States Supreme Court and this Court.
On November 20, 1965, between approximately 10:15 p.m. and 10:30 p.m., after Paul Bordner and Mary Bordner, his wife, had retired for the evening and, while they lay sleeping, a shotgun blast injured both of them, seriously wounding the wife and superficially wounding the husband. Shortly after the shooting, a fire was discovered in the house. Mr. Bordner, mistakenly thinking it was water, threw a bucket of gasoline on the flames, and in the resulting blaze, the home was completely destroyed and seven of the Bordner children perished. The Fire Marshal, after investigation, reported that the initial blaze was of incendiary origin. Harold Eugene Bordner, the eldest child (Bordner), then aged 17 years, was severely burned in the fire and was admitted to Sunbury Community Hospital in the late evening of November 20th.
On November 21st, Bordner's attending physician prescribed one hundred milligrams of demerol for pain and also various dosages of compozene, phenobarbital, tetanus anti-toxin pavalox and akthagel, each of which drugs can affect a person's mental and emotional capacity.*fn1 Two officers, Rudville and Sherosick, attempted to gain permission to speak with Bordner but were refused by the attending physician, Dr. Savidge.
On November 22nd, officer Rudville questioned Bordner in his hospital room, in the presence of officer Sherosick and three hospital patients, after obtaining permission from the attending physician. This interview, which lasted from approximately 3:00 p.m. to 3:50 p.m., took place after the officers had questioned other members of Bordner's family concerning the crime. The questioning commenced with a general preliminary discussion with Bordner as to his home life, and then Bordner inquired as to the type of gun found at the scene of the crime. The officers showed the gun to Bordner who identified it, by touch, as his own. Bordner was then asked if he wished to make a "dying declaration" in view of his condition and if he had anything to say. He was then warned of his right to remain silent, his right to an attorney and that anything he might say may be used against him. Bordner was then asked direct questions as to whether he set fire to his parents' house and whether he shot his parents and Bordner replied in the negative. The first interview was thus concluded.
On November 23rd, the police were interviewing other family members as part of their general investigation. Later on that date, officer Rudville and the county coroner, Dr. Ulrich, interviewed Bordner once again in the hospital room and in the presence of three patients, Bordner was questioned as to some discrepancies
uncovered in the investigation up to that time and, following several minutes of routine questioning, Bordner said: "I did it, what is going to happen to me?"
Officer Rudville asked Bordner if he would talk with his mother and Bordner agreed. Bordner's mother was sent for by the police, although she was still recuperating from her wounds and had not asked to see her son, and the mother subsequently entered the hospital room and identified herself to her son. The coroner then asked Bordner to repeat his confession to his mother which the son then did. Officer Sherosick entered the room at this time in order to hear the confession. Bordner was given no warning by the police.
On the same date, November 23rd, at 6:15 p.m., the district attorney set up a guard system at Bordner's hospital room. Bordner's father entered the hospital room and requested an assistant district attorney to accompany him and the latter official stood by and listened as the father elicited from the son a repetition of self-incriminating statements similar to those previously extracted the same afternoon by officer Rudville and the coroner. A deputy sheriff left his guard-post to come into the room and listen to the conversation. Bordner admitted to his father that he wished to use the insurance money to pay his bills. The father was the only person to ask Bordner questions on this occasion, the father's motive being to assist the police.
On November 24th, the father contacted officer Rudville, advising him that he had spoken with his son the previous evening, and requested that the officer visit Bordner. The father wanted to record a subsequent visit with his son and suggested setting up a "bug" in the hospital room. While the police declined use of a "bug", they did make arrangements to record
a conversation between father and son on November 26th.
On November 26th, officers Rudville and Sherosick and Paul Bordner, the father, visited Bordner at his hospital room, again in the presence of three patients. At this time, a tape recorder was set up which recorded the questions and answers between father and son. Bordner unequivocally admitted the commission of the acts charged and spelled out, with specificity, the corroborating details. Bordner was questioned solely by his father although he was prompted by the police at least 46 times as to which questions to ask his son. Bordner implicated one Eugene Yerger as an accomplice in the crime. He was given no warning at all on this occasion.
On November 27th, at 8:00 p.m., the father, officers Rudville and Sherosick once again visited Bordner in his hospital room, the three patients having been removed. Bordner then admitted to his father that no one else was involved in the crime and that he did it alone. The tape recorder was then set up and, in the presence of the father, Bordner received from the officer an explanation of his constitutional right to remain silent, his right to counsel and the nature of the crime. The questions as to an understanding of Bordner's rights were directed to his father who answered in the affirmative. Bordner then related in detail the manner in which the criminal acts were committed and absolved Eugene Yerger from any participation in the crime, admitting he alone committed the criminal acts.
On November 29th, officer Rudville visited Bordner at the hospital between 11:00 a.m. and 3:30 p.m., for the purpose of obtaining clarification of an earlier statement of November 27th relating to a bucket ...