Appeal from order of Court of Oyer and Terminer of Philadelphia County, July T., 1968, No. 928, in case of Commonwealth v. Fred T. Bennett.
James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Joseph Alessandroni, Jr., with him Charles L. Guerin, Jr., for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen.
On April 5, 1967, the appellee, Fred T. Bennett, was convicted by a jury in Philadelphia of murder in the first degree, and punishment was fixed at life imprisonment. Subsequently, the court en banc ordered a new trial. The Commonwealth appealed. We affirm.
On March 31, 1966, Richard Gilliam was found in the vestibule of his home shot to death. On May 25th,
in the course of an investigation into the homicide, the police questioned Bennett at his place of employment. On the following day, Bennett was asked to come to police headquarters, which he did. While there, he was questioned as to whether or not he had been in the neighborhood of the Gilliam home on the night the crime was committed, and he gave conflicting answers. Bennett was then asked to subject himself to a polygraph test, to which he assented. But, since the polygraph machine was not then available, Bennett was informed by the police that he could leave and that he would be provided with transportation to police headquarters at a later date.
On May 31, 1966, Bennett was picked up by the police and escorted to police headquarters.*fn1 He was questioned from about 12:15 p.m. to 2 p.m., at which time he agreed to take a polygraph test and signed a consent form. During this test, the following questions, among others, were asked: "Did you yourself shoot Gilliam? Regarding the shooting of Richard Gilliam, were you one of the men who did that shooting? Were you there to see this happen? Do you know for sure who did shoot him?"
After reviewing the results of the test, the administering officer concluded that Bennett was not truthful in his answers. This officer then proceeded, for the first time, to inform Bennett of his rights pursuant to the formula mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). However, he failed to include in these warnings the fact that if Bennett could not afford to have a lawyer present during the questioning, one would be supplied free of charge.
This officer then accused Bennett of lying and of being one of the men "directly ...