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COMMONWEALTH v. TAPER (04/23/69)

decided: April 23, 1969.

COMMONWEALTH, APPELLANT,
v.
TAPER



Appeal from order of Court of Oyer and Terminer and General Jail Delivery of Westmoreland County, April T., 1965, No. 4, in case of Commonwealth v. Geraldine Taper.

COUNSEL

Anthony J. Bonadio, Assistant District Attorney, with him Edward B. Doran, Jr., Assistant District Attorney, and Joseph M. Loughran, District Attorney, for Commonwealth, appellant.

Irving M. Green, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones, Mr. Justice Cohen and Mr. Justice O'Brien concur in the result. Mr. Justice Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Justice Roberts.

Author: Bell

[ 434 Pa. Page 73]

This is an appeal by the Commonwealth from an Order of the lower Court suppressing a confession by the defendant.

Robert Houser was shot and killed in the early morning of March 28, 1965. The police were immediately called to the scene where they spoke with Geraldine Taper, aged 17, who stated that the gun (which was Houser's) went off accidentally as she was handing the gun to him. Houser had been the father of one of Geraldine's two illegitimate children.

The police took Geraldine into custody that same morning at approximately 3:30 A.M., at which time she was driven to the police station for questioning. Later on, the police drove her to the scene for a reenactment of the shooting, and at approximately 9:30 that morning, she signed a written statement which implicated her in the shooting.

Prior to her trial, Geraldine engaged counsel, who filed with the lower Court a motion to suppress her written statement on the ground that she had not been afforded her Constitutional rights and protections. A hearing was held before Judge Rial, who denied the motion to suppress,*fn1 without an Opinion or enumerating his reasons. At the trial which commenced on June 7, 1965, Judge Rial denied defendant's renewed

[ 434 Pa. Page 74]

    motion to suppress. During the trial, the written confession was admitted over defendant's strenuous objection. The jury returned a verdict of guilty of murder in the second degree.

A post-trial motion (a) in arrest of judgment was dismissed, but (b) her motion for a new trial was granted by a three-Judge Court. No reasons were given for the grant of a new trial, but the Court en banc ordered that a preliminary evidentiary hearing be held by Judge Keim to determine whether the statement of the defendant was voluntary and whether she had intelligently and knowingly waived her right to remain silent and her right to counsel.*fn2 This hearing was required by Jackson v. Denno, 378 U.S. 368; Commonwealth v. Heckathorn, 429 Pa. 534, 241 A.2d 97; Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295; Commonwealth ex rel. Gaito v. Maroney, 416 Pa. 199, 204 A.2d 758. A hearing was held in May of 1967, as a result of which Judge Keim -- in spite of the fact that Geraldine Taper did not testify -- granted the motion to suppress and stated that it was not to be used at the new trial of the defendant.

The Commonwealth now appeals from the Order granting the motion to suppress. We hold that under the facts in this case, this Order is appealable by the Commonwealth. Gaskins Case, 430 Pa. 298, 305, 244 A.2d 662; Commonwealth v. Fisher, 422 Pa. 134, 221 A.2d 115; Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304.

In Gaskins Case, 430 Pa., supra, this Court said (page 305): "Although, as a general rule, the Commonwealth is not entitled ...


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