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COMMONWEALTH v. LEAMING (11/12/68)

decided: November 12, 1968.

COMMONWEALTH
v.
LEAMING, APPELLANT



Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, May T., 1965, No. 795, in case of Commonwealth of Pennsylvania v. Joseph Leaming.

COUNSEL

Leonard Turner, with him Louis S. Cali, for appellant.

Joseph M. Smith, Assistant District Attorney, with him Benjamin H. Levintow and Michael J. Rotko, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Eagen concurs in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Musmanno did not participate in the decision of this case.

Author: Jones

[ 432 Pa. Page 327]

The appellant, Joseph Leaming, stands convicted of the homicide of Irving Brown which took place on or about February 4 or 5, 1965.

The factual background of this homicide may be briefly stated. On February 4, 1965, at approximately 7:30 p.m., Irving Brown, with some friends, went to a Philadelphia taproom, became intoxicated and openly displayed a roll of $10 bills which he asked a Mrs. Alturo,

[ 432 Pa. Page 328]

    one of his companions, to hold for him but she declined to do so. One Bates, another taproom patron but not in Brown's party, was observed making and receiving telephone calls and he was later joined by two other persons. About 11 p.m., Brown and three friends, including Mrs. Alturo and a Mr. and Mrs. Dutro, went to Dutro's home where Brown was induced to spend the night because of his intoxicated condition. Brown, prior to sleeping on the sofa, gave his money -- $2,000 -- to Mrs. Alturo for safekeeping. Later Mrs. Alturo, accompanied by Mr. Dutro, decided to go to her home and, looking out Dutro's window, noticed Bates and two unknown persons approaching Dutro's home. Within seconds thereafter, the two unknown persons -- one wearing a hood and sunglasses and the other glasses -- entered the Dutro home, said they were "Ferguson's Squad"*fn1 and inquired for Brown. Brown awoke, identified himself and was told he was under arrest for "numbers" and was taken from the home, placed in Brown's car and driven away. Police were notified.

About 11:30 p.m. that same evening, several employees of a business concern located in Dutro's neighborhood parked their cars on a parking lot near their place of business. One of these men saw two men pinning an older man against a car parked nearby and heard the older man shout "Help". At first, believing the incident to be a prank, this employee went to his place of employment and then decided to investigate further. As he approached the parked car, this employee was told to stay away saying "We are police officers making an arrest. If you come any closer, we'll shoot" whereupon the witness ran away and called police. Brown's body was finally located in the late

[ 432 Pa. Page 329]

    afternoon of February 12 near Toms River, New Jersey.

Leaming was apprehended on February 11, 1965 by Camden, New Jersey authorities acting on a request by Philadelphia police and arrested on the pretext of a parole violation although, in actuality, he was then a principal suspect in Brown's disappearance. At the time of arrest, Leaming was 22 years of age and possessed of a seventh grade education. Following his arrest, he was incarcerated at the Camden County, N. J., jail in a maximum security cell where he was held from February 11, 1965 until March 2, 1965. During this period of approximately twenty days, he was repeatedly interviewed and questioned by both Camden and Philadelphia authorities.

On February 11 and 12, through questioning of Leaming, certain facts and information were obtained with the result that, on February 12, Leaming agreed to show the officers the location of Brown's body if he could have an attorney present. Leaming was then allowed to call his sister in the hope of obtaining an attorney although he had previously made the same request and had been denied. Following this phone call, Leaming, in company with several police officers, was taken on an automobile ride to the pinelands in New Jersey near Toms River and Brown's body was pointed out to the detectives by Leaming. Up to this time, Leaming had never been warned of his constitutional rights.

Following Leaming's return to jail and subsequent to the discovery of Brown's body, Joseph Sherman, a New Jersey attorney, visited Leaming. Sherman did warn Leaming of his rights but there was no indication as to exactly what warnings were given although Sherman felt he had ...


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