Appeal from judgment of Court of Oyer and Terminer of Cambria County, June T., 1967, No. 13, in case of Commonwealth v. Michael Francis Simala.
Dino S. Persio, with him William K. Eckel, for appellant.
Ferdinand F. Bionaz, District Attorney, with him William P. Kelly, First Assistant District Attorney, for Commonwealth, appellee.
Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Jones. Mr. Chief Justice Bell joins in this dissent.
On the morning of March 1, 1967, the body of thomas Serenko was found on a country road near the Borough of Portage in Cambria County. An investigation of
the crime was begun by a Corporal Pelesky of the State Police and two other officers. An autopsy performed on the body of the deceased revealed that the cause of death was a bullet wound from a .22 caliber gun.
Some time during the day Corporal Pelesky received a report that appellant had been seen with a .22 revolver the previous day. Pelesky obtained a search warrant for a .22 revolver from Ralph George, who served as mayor and as justice of the peace of Portage. Armed with the warrant, Pelesky and two other officers arrived at appellant's home around 11:00 p.m. on March 1. When asked about the gun, appellant told Pelesky that he had given it to one Robert Kline. Pelesky then called the juvenile probation officer of Cambria County. Since appellant, seventeen years old at the time, was on probation as a juvenile offender, the officer told Pelesky to take him to the juvenile detention center for violating his parole by carrying a gun. Pelesky took appellant to the office of Mayor George in Portage; he did not take appellant to the detention center in Ebensburg because he first wanted to search Robert Kline's home in an effort to recover the gun that night.
Appellant remained with Mayor George while Pelesky and the two officers went to Kline's home. While appellant was sitting in Mayor George's office three other persons were present; Mayor George and two police officers from another municipality who were entirely unconnected with the murder investigation or the search for the .22 revolver. About a half hour after appellant was brought to the mayor's office, Mayor George asked him about the gun, and appellant told him that he got the gun from a person named Ralph who lived in Johnstown.
That which then ensued is critical to the question of the admissibility of an oral statement made by
appellant. All three persons testified substantially to the same effect as to what took place, and appellant's version does not seriously dispute it. The mayor and the two police officers were carrying on a conversation between themselves, and Mayor George looked over toward appellant, who was "sitting there with his head down and looked out of this world." Mayor George said: "What's the matter, Mike, you look kind of down in the dumps; do you want to talk? He [appellant] said, I want to, but I can't. I said, well, if you want to talk, talk." At that point appellant orally confessed to having killed Serenko. Mayor George then notified police officers who were in an ...