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COMMONWEALTH v. MCLEAN (11/14/68)

decided: November 14, 1968.

COMMONWEALTH
v.
MCLEAN, APPELLANT



Appeals from judgments of Criminal Courts of Delaware County, March T., 1968, Nos. 716 to 720, inclusive, in case of Commonwealth of Pennsylvania v. Lester Joseph McLean.

COUNSEL

Mervyn R. Turk, Assistant Public Defender, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, with him Ralph B. D'Iorio, Assistant District Attorney, William R. Toal, Jr., First Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Hannum, JJ. (Spaulding, J., absent). Opinion by Jacobs, J. Wright, P. J., would affirm on the opinion of Judge Bloom.

Author: Jacobs

[ 213 Pa. Super. Page 298]

In April 1968, appellant Lester Joseph McLean was convicted by a Delaware County jury on charges of rape, assault with intent to ravish, carrying a concealed deadly weapon, robbery, and aggravated assault and battery. Following denial of motions for a new trial and in arrest of judgment, sentence was imposed on the rape conviction and suspended on the other indictments. This appeal followed.

We are asked to decide whether the trial judge, following an advance determination that appellant's oral confession was admissible at the trial, erred in failing to submit the issue of voluntariness to the jury under appropriate instructions.

The crimes involved occurred in Newtown Square, Delaware County, Pennsylvania, on July 21, 1967. From the description given by the victim and subsequent investigation, the Newtown Township police were

[ 213 Pa. Super. Page 299]

    able to ascertain the identity and whereabouts of the appellant. On August 1, 1967, appellant was interrogated by two officers from Newtown Township while he was in custody in the State of Delaware awaiting trial for an offense alleged to have been committed in that jurisdiction. According to the police officer's testimony McLean was given the full list of Miranda warnings prior to any questioning and was neither mistreated nor offered any inducements to make a statement. The officer further testified that appellant then admitted a number of important details of the crimes which took place in Delaware County. No written statement was taken. Later in the interview, appellant requested an attorney and the officers terminated the interrogation immediately.

Before trial, appellant made timely application to the court to suppress the oral confession on the grounds that he was not adequately advised of his constitutional rights and that the confession was not made voluntarily. The court held an independent pretrial hearing in chambers and found that the appellant's confession was voluntary, that he was given proper constitutional warnings, and that he had voluntarily and intelligently waived his rights. Although finding the oral statements to be admissible at trial, the court ruled that "the defendant may offer evidence on the issue whether they were made voluntarily." At trial, appellant's counsel appropriately objected to any testimony by the police officers concerning appellant's statements to them on the ground that they were involuntary. Appellant at trial denied committing the crimes, denied ever seeing the victim prior to trial and denied making the admissions. He said that at the time of questioning by the police officers he was nervous and upset because his common-law wife was losing her baby and the police were speaking on both

[ 213 Pa. Super. Page 300]

    sides of him. He claimed the police "hollered" at him and urged him to admit his guilt. He then concluded he might as well say he was guilty because he couldn't do anything, there was no one to help him, ...


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