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COMMONWEALTH v. HARMON (10/09/70)

decided: October 9, 1970.

COMMONWEALTH, APPELLANT,
v.
HARMON



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1968, Nos. 1861 and 1862, in case of Commonwealth v. Barry Harmon.

COUNSEL

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

Richard I. Torpey, with him Jeffry A. Mintz, for appellee.

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

Author: Eagen

[ 440 Pa. Page 196]

This is an appeal by the Commonwealth from an order entered below sustaining a motion to suppress a recorded incriminating statement obtained from the defendant, Barry Harmon, during police custody.

After the motion to suppress was filed, an evidentiary hearing was conducted.

The Commonwealth's witnesses testified as follows as to Harmon's arrest and the circumstances under which the suppressed statement was obtained:

On the night of August 22, 1968, Walton Posey was fatally shot in a bar in Philadelphia. About 6:30 a.m. on August 23rd, police officers went to the residence of the defendant, Harmon, awakened the family, took Harmon into custody and transferred him to the Homicide Division in the Police Administration Building. From about 7:30 to 8:15 a.m. Harmon, eighteen years of age, was questioned by Detective Sergeant Funk of the Police Homicide Division concerning the Posey killing, but said nothing of an incriminating nature.

[ 440 Pa. Page 197]

Before this questioning began, the Detective Sergeant read to Harmon from a printed card a warning of the constitutional rights required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), including his right to have counsel present during the questioning and his right to have such assistance supplied if he couldn't afford it. Harmon indicated that he understood these rights and didn't request the assistance of an attorney.

Beginning about 8:30 a.m. Harmon was questioned by Detectives McGill and Brown. At about 9 a.m. Harmon was given, with his consent, a polygraph test by Detective Cullen. At the conclusion of this test, the questioning by Detectives McGill and Brown resumed. About 12:30 p.m. Harmon was given a "coke", his first sustenance of the day, and then the questioning was taken up by a Detective Patterson with McGill and Brown watching the interrogation from an adjoining room through a one-way glass-covered aperture. Shortly thereafter, in answer to Patterson's questions, Harmon admitted that on the night of August 22, 1968, while armed with a shotgun, he entered the bar where Posey was killed and fired a shot. Following this, a second polygraph test was taken. About 3:15 p.m. Harmon was again given a warning of his "Miranda" rights, and the statement which the court below suppressed was taken. The statement, in question and answer form, was recorded on a typewriter and when completed was read and signed by Harmon at about 4:35 p.m.

However, testimony offered on behalf of Harmon at the hearing established the following, which the lower court found to be true and ...


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