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COMMONWEALTH v. HERGE (01/09/70)

decided: January 9, 1970.

COMMONWEALTH
v.
HERGE, APPELLANT



Appeal from order of Court of Oyer and Terminer of Lawrence County, March T., 1946, No. 1, in case of Commonwealth v. Irvin Conrad Herge.

COUNSEL

W. Thomas Andrews, for appellant.

Kenneth E. Fox, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Mr. Justice Jones and Mr. Justice Pomeroy dissent. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Roberts

[ 436 Pa. Page 545]

Appellant Irvin C. Herge is now sixty-five years old. Some twenty-three years ago, he entered a plea of guilty to a charge of murder and was sentenced to life imprisonment. No direct appeal was taken. Since that time, however, he has not ceased his efforts to secure some form of post-conviction relief.

On February 6, 1967, appellant filed the present petition under the Post Conviction Hearing Act. He alleged (1) that he was entitled to a Jackson-Denno hearing on whether his confessions, admitted into evidence at his degree of guilt hearing, were voluntary, and (2) that he was unconstitutionally denied his right to appeal.*fn1 The hearing judge held that he was not entitled to a Jackson-Denno hearing, and, after an evidentiary hearing, that he was not denied his right to appeal. We reverse both determinations.

In Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), the Supreme Court held unconstitutional New York's procedure of submitting, for jury determination

[ 436 Pa. Page 546]

    at trial, disputed questions of fact concerning the voluntariness of a confession. The Court stated that a proper determination of voluntariness could not be made when the jury is, at the same time, considering questions of guilt, since the jury "may find it difficult to understand the policy forbidding reliance upon a coerced, but true confession." 378 U.S. at 382, 84 S. Ct. at 1783. Not only did the Court hold New York's procedure unconstitutional, it further mandated the procedure that must be used to satisfy due process. "The procedures used in the trial court to arrive at its conclusions on the coercion issue . . . must . . . be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend." 378 U.S. at 391, 84 S. Ct. at 1788.

The instant case differs from Jackson in one important respect -- the resolution of the factual dispute over voluntariness was here made by a judge, rather than a jury. Nevertheless, Jackson's insistence on a "clear-cut determination of the voluntariness of the confession" must be satisfied. We must find that the trier of fact has "fac[ed] the issue squarely." 378 U.S. at 390, 84 S. Ct. at 1788. This is fundamentally important because an appellate court must be certain that the trier of fact did resolve disputed facts, and did apply the proper law to these facts. Otherwise, we could not insure a defendant's right to have an involuntary confession entirely disregarded. See Jackson, 378 U.S. at 389, 390, 84 S. Ct. at 1787, 1788.

In the instant case, however, we have no clear-cut resolution of the factual disputes over voluntariness. Compare United States ex rel. Owens v. Cavell, 254 F. Supp. 154 (M.D. Pa. 1966). The trial judge made no finding on whether the confessions were voluntary, although it is implicit in his opinion that he believed the

[ 436 Pa. Page 547]

    confessions were truthful. Nowhere does he assure us that he considered these issues separately, a requirement mandated by Jackson.*fn2 See also Rogers v. Richmond, 365 U.S. 534, 544, 81 S. Ct. 735, 741 (1961) (Frankfurter, J.) (attention of trial judge must focus on whether confession was "freely self-determined," without regard to whether defendant spoke the truth). Thus we are in the same position that the Supreme Court of the United States was in Jackson. "We cannot determine how the . . . [judge] resolved ...


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