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decided: June 27, 1969.


Appeal from order of Court of Oyer and Terminer of Erie County, Nov. T., 1963, No. 166, in case of Commonwealth v. John Willman.


Vedder J. White, with him Will J. Schaaf, for appellant.

Richard F. Brabender, Assistant District Attorney, with him Michael M. Palmisano, Assistant District Attorney, and William E. Pfadt, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Concurring and Dissenting Opinion by Mr. Justice O'Brien.

Author: Roberts

[ 434 Pa. Page 490]

Appellant was arrested on July 13, 1963 on a charge of assault with intent to ravish. During the initial interrogation appellant was asked about a murder in a different case, committed in 1960, and appellant admitted that he had committed that crime. Appellant on July 13 and 14 gave several oral statements and a written confession admitting the murder. On July 18, appellant was taken to the Erie County Jail. On August 31, 1963, appellant gave another written confession. In the period between July 18 and August 31, appellant was questioned intermittently by police.

On January 17, 1964, after a pretrial suppression hearing, appellant's confessions were ruled admissible. On February 9, 1964, appellant was convicted by a jury of murder in the first degree and was sentenced to life imprisonment. No appeal was taken.

[ 434 Pa. Page 491]

On May 2, 1968, appellant received post-conviction relief. The post-conviction court held the August 31 confession to have been involuntary and thus inadmissible and granted appellant a new trial. The July 13 and 14 statements and confessions of appellant were held voluntary and were admitted at appellant's retrial over objection. On September 23, 1968 a jury convicted appellant of murder in the second degree, appellant's motion for a new trial was denied, and appellant took this appeal.

Since it is conceded that appellant was not given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), before giving the confessions now at issue, appellant argues that those confessions were erroneously admitted at his second trial. Appellant contends that although his first trial took place before Miranda, his retrial took place after Miranda and thus in the second trial, the Miranda rules apply.

Appellant's contention has recently been rejected by the Supreme Court of the United States as a result compelled by the Constitution of the United States as interpreted in Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966), the case which delineated the extent to which Miranda would apply. See Jenkins v. Delaware, 395 U.S. 213, 37 L.W. 4458 (1969). Although both Johnson and Jenkins permit us, as a matter of state law, to apply Miranda more broadly than would the Supreme Court of the United States we choose not to do so.

The opinion in Jenkins indicates that the Court in Johnson was attempting to strike a balance between the need for even-handed administration of justice and administrative burden placed on the law enforcement system by retroactive application. It is not altogether clear, even in light of this, why Johnson utilized a

[ 434 Pa. Page 492]

    date-of-trial test, rather than the date-of-occurrence test used subsequently in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967). It does seem, however, that the Court has wisely chosen in Jenkins to restrict to as great an extent as possible, within the limits of Johnson, the anomalous situation where the police are required to have given Miranda warnings before Miranda had been decided. Since the requirements of Miranda do not go to the validity of the guilt-determining process, it seems fair in striking the balance between individual rights and the administration of criminal justice to limit the retroactive application of the case. See generally Mishkin, Foreward: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56 (1965). This is especially true since the voluntariness test, considering the absence of Miranda warnings as a relevant factor, still provides a mechanism to guard against the infringement of individual liberties. See Comment, The Applicability of Miranda to Retrials, 116 U. Pa. L. Rev. 316, 326-27 (1967).

Appellant here indeed does claim that his confessions were involuntary. Although a hearing was held, and the confession declared voluntary in 1964, the court below correctly ruled that it was necessary to make a new determination of voluntariness under the "evolving" voluntariness test. See Johnson v. New Jersey, supra; Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761 (1966). Even under current standards of voluntariness, we believe that appellant's statements and confession of July 13-14 were properly introduced.

Appellant is concededly a mental defective, with I.Q. around 60. However there is no indication in the record that the police took unfair advantage of appellant's mental state, or coerced or imposed upon him

[ 434 Pa. Page 493]

    in any way. Appellant's questioning began around 10:30 p.m. on July 13, and the original hearing court found that appellant made his initial incriminating statements within 20 minutes of his arrest. He was then questioned until 3:30 a.m. on July 14, when he was given an opportunity to rest. Although appellant now claims that his quarters were inadequate, there is no indication that appellant was unable to sleep, or was at any time exhausted.

Questioning apparently did not recommence until after 1 p.m. on July 14. Appellant was questioned for several hours and was then taken before an alderman to be arraigned on the assault with intent to ravish charge. The murder was not mentioned at the arraignment. After the arraignment, questioning resumed and continued for about 3 1/2 hours until appellant signed a written statement at about 11:30 p.m.*fn*

[ 434 Pa. Page 494]

Although appellant was questioned over a twenty-four hour period, the interrogation sessions were separated so that there is no indication that appellant was mentally or physically exhausted nor was his will overborne by constant questioning. The fact that appellant was allowed to retire long before the police had achieved their desired aims indicates that they did not intend to utilize exhaustion as a mechanism to gain further admissions from appellant. Compare Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202 (1959). Appellant made his initial admission almost immediately, at a time when there is no question that his statements could be anything but voluntary. This, of course, does not necessarily validate his later admissions, see Gallegos v. Colorado, 370 U.S. 49, 54-55, 82 S. Ct. 1209, 1212-13 (1962), but after the first statement, the record indicates that the police were interested in filling in the details, and perhaps in making sure that appellant's original admission was true and not the product of confusion. Certainly appellant could have benefited by the warnings now required by Miranda, and he is probably the type of prisoner who most needs an attorney's aid, but in an atmosphere otherwise free of coercion, the absence of Miranda warnings is certainly not fatal to a finding of voluntariness.

Appellant argues that while the police acted as his friend, their motivation was to induce a confession. Even assuming that on this record, appellant has established that the mental state of the police was as he claims, this is not enough to alone invalidate the

[ 434 Pa. Page 495]

    confession. There is no question that it is perfectly proper for the police to question prisoners in an attempt to elicit confessions or alternatively to solve a crime or perhaps even absolve a suspect. See Cicenia v. Lagay, 357 U.S. 504, 78 S. Ct. 1297 (1958); Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287 (1958). In pre- Miranda cases our inquiry is whether the means used to gain the confession caused the confession to be involuntary. A friendly attitude toward the prisoner is hardly the type of police conduct which leads to a finding of involuntariness. Nowhere in the record is there any evidence that the police were in any way deceptive or dishonest in their treatment of appellant. Rather, by being friendly, the police alleviated the danger of intimidating appellant into making admissions. We certainly cannot condemn that conduct.

In summary we conclude that we will not apply Miranda on retrials of cases where the original trial was held before the decision in Miranda ; and that appellant's confession and statements, evaluated under the post- Miranda voluntariness test, were wholly voluntary.

The judgment of the Court of Oyer and Terminer of Erie County is affirmed.


Judgment affirmed.

Concurring and Dissenting Opinion by Mr. Justice O'Brien:

I concur in the holding that Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), need not be applied to retrials in Pennsylvania. I do so because as a matter of state law, I would not have chosen the date-of-trial test utilized in Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772 (1966), but would have selected the date-of-occurrence test of Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967). Thus, as a matter of

[ 434 Pa. Page 496]

    state law, I would have applied Miranda even less broadly than did the United States Supreme Court.

Nonetheless, I refrain from joining the majority in its endorsement of the wisdom of the decision in Jenkins v. Delaware 395 U.S. 213, 37 L.W. 4458 (1969), which held, as a matter of federal constitutional law, that Miranda need not apply to retrials. That decision sets forth the law of the land, and we must follow it, but we are not required to sing its praises. I am in agreement with the view of Justice Harlan, dissenting in Jenkins, where he stated that it was "quite impossible to discern in the rationale of Johnson any solid basis for the distinction now drawn." If the Court made a mistake in Johnson, as I believe it did, it should have said so, rather than seizing upon distinction without a difference. While we are bound by such a distinction, we need not be so disingenuous as to assert that it is a proper one.

My quarrel with the majority's treatment of the Miranda issue pales in comparison with my disagreement with regard to the voluntariness issue. On the evidence which the majority sets forth,*fn1 I find it impossible

[ 434 Pa. Page 497]

    to agree that the confession was voluntary. Appellant's I Q around 60, the sustained questioning of up to five hours at a time, the lack of warnings that he had a right to counsel (let alone appointed counsel) and that anything he said would be used against him, the delay in any arraignment, with this murder not even being mentioned when he was arraigned, and finally, appellant's being held incommunicado for some four days after the instant confession, can lead only to the conclusion that the confession was involuntary under the totality of circumstances standard set forth in the Pennsylvania cases, see Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968), and the federal cases, see Culombe v. Connecticut, 367 U.S. 568, 601, 81 S. Ct. 1860 (1961).

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