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decided: May 27, 1970.


Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, Nos. 2079, 2080, and 2081, in case of Commonwealth v. Marvin Ware.


James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Arthur F. Earley, for appellee.

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

Author: Roberts

[ 438 Pa. Page 518]

In January of 1967 appellee was convicted by a jury of voluntary manslaughter, aggravated robbery and conspiracy. Post-trial motions were then filed, appellee asserting that his confession was obtained in violation of his constitutional rights and therefore should not

[ 438 Pa. Page 519]

    have been admitted at trial. The court en banc agreed with appellee and awarded him a new trial. The Commonwealth took this appeal and we affirm.

The facts surrounding the securing of appellee's confession are as follows: On January 27, 1966, appellee was awakened early in the morning and taken by police to the Police Administration Building for questioning in connection with a robbery-murder which had occurred approximately one month before. He was questioned extensively until late in the day, when police officers took him home. This procedure was again repeated on the next day. On January 31 appellee's sister gave police a statement indicating that appellee had killed a man on the date in question. The next day appellee was again taken to police headquarters. He was questioned from 11:30 A.M. until 5:30 P.M., when he finally made an oral admission. It was at this time that appellee was first warned of his constitutional rights.*fn1 Following the giving of the required warnings, appellee dictated a statement which he then signed. It was this final written statement which was introduced at trial.

The admissibility of the instant confession is controlled by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).*fn2 There the United States Supreme Court held: "To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. . . . He must be warned

[ 438 Pa. Page 520]

    was properly admitted. We agree with the court en banc that this argument is without merit.

The Commonwealth relies primarily on Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409, cert. denied, 393 U.S. 882, 89 S. Ct. 189 (1968). In Moody, which was decided under Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), the accused "unhesitatingly" replied to a general inquiry: "I shot my wife." He was then told he had a right to remain silent, after which he stated: "I want to get it off my chest. I want to tell the truth, I shot my wife." Relying on Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963), we stated that the question was whether the confession had been obtained "'"by the exploitation of that [primary] illegality or instead by means sufficiently distinguishable to be purged of the primary taint."'" 429 Pa. at 45, 239 A.2d at 413. Finding the statement truly voluntary and spontaneous and the product of the accused's "purge of conscience," we held it admissible.

The instant case is clearly distinguishable from Moody, where the confession was not obtained as a result of an illegal interrogation, but was spontaneously given to purge the accused's conscience. This is unlike the instant case, where the confession was obtained only after a three-day period of questioning. Clearly by the third day there was no doubt that the investigation had focused on the accused, and on that day seven hours of custodial interrogation preceded the required warnings. The statement given under such circumstances was a product of an illegal interrogation,*fn4 "'come at by the exploitation of that illegality.'"

[ 438 Pa. Page 522]

    in the instant case the court en banc overruled the findings of fact of the suppression judge. The Commonwealth's assertion is incorrect, however; the court en banc's reversal was based only on a disagreement with the legal conclusions which the suppression judge drew from the facts. As Bonser demonstrates, this is a perfectly proper function of a court en banc.

The Commonwealth also urges that the confession was properly admitted by virtue of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ยง 3501, asserting that this law "in effect overrules Miranda." We prefer to avoid the constitutional problems inherent in such an assertion, see generally Marbury v. Madison, 1 Cranch 137 (1803), by holding that the Act by its very terms only applies to "any criminal prosecution brought by the United States or by the District of Columbia," and hence is not applicable in State courts. Commonwealth v. Bennett, 439 Pa. 34, 264 A.2d 706 (1970).

The order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia is affirmed.


Order affirmed.

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