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decided: November 12, 1970.


Appeal from judgment of Court of Oyer and Terminer of Dauphin County, March T., 1968, No. 27, in case of Commonwealth of Pennsylvania v. Ben David Darden.


Richard C. Angino, for appellant.

Jerome T. Foerster, Assistant District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in Part I of this dissent.

Author: Eagen

[ 441 Pa. Page 42]

About 9:30 p.m. on Friday, February 9, 1968, following a high school basketball game in the city of Harrisburg, several fights broke out on the parking lot adjoining the gymnasium between groups of black and white boys. In one of these altercations, Frank J. Ament, Jr., a white boy fifteen years of age, suffered contusions of the face and head and a stab wound in the back from a "sharp pointed instrument." The last mentioned wound perforated one of the main arteries

[ 441 Pa. Page 43]

    in the body, the subclavian artery, resulting in massive hemorrhaging in the right pleural cavity and caused almost instant death. Ben David Darden, Jr., born on June 18, 1952, was arrested and charged with Ament's murder. After indictment, he was tried before a jury and convicted of murder in the second degree. This appeal is from the judgment of sentence imposed in the lower court.

At trial, an incriminating oral admission and a stenographically recorded statement made by Darden to the police were admitted in evidence over objection. This is assigned as error on the ground that at the time this evidence was obtained, Darden, allegedly did not "voluntarily, knowingly and intelligently" waive his constitutional rights, and hence its use violated due process.

A pretrial motion to suppress evidence of the recorded statement was timely filed.*fn1 An evidentiary hearing was conducted in accordance with the mandate of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), and the Pennsylvania Rules of Criminal Procedure, after which the motion was denied.

As to the background of Darden's arrest and the attending circumstances of his incriminating admission and statement, the Commonwealth's evidence at the suppression hearing was as follows:

Darden and several friends attended the basketball game involved and left the gymnasium during half-time. About 8:50 p.m., when they sought to return, readmittance was refused at the main entrance, resulting in an altercation between the group and the ticket takers. However, entrance was then gained by the group at another gate. The police were alerted to the above trouble,

[ 441 Pa. Page 44]

    and when the fighting started on the parking lot after the conclusion of the game, several officers were on the scene very quickly. Three black youths were observed running away, and Ament was found on the ground fatally wounded.

From information received, the police were led to believe that Ament's injuries were due to having been assaulted on the head by a wine bottle wielded by a youth named Douglas Sims. However, the police learned that Darden was also a participant in this particular fight, and officers were dispatched to look for him. One of these officers visited Darden's residence, but he was not at home. The officer talked with Darden's mother and requested that she phone the police when he returned.

About 11:10 p.m., Darden was picked up by the police on the street near the Y.M.C.A. and was taken to police headquarters. About 11:45 p.m., on February 9th, he was questioned by a lieutenant of the City Police Department assigned to and in charge of the Youth Special Service Division. Three other police officers, one of whom was a black man, and an assistant district attorney were present at the time. Darden was without counsel. This questioning continued until 1 a.m.

Before the questioning commenced, the lieutenant informed Darden that he was seeking information about the fight on the gymnasium parking lot and the identity of the youth who struck Ament with the wine bottle. The lieutenant then read to Darden from a printed card a warning of all of his constitutional rights required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). After the warning of each specific right was read, Darden was asked, "Do you understand that?" Then there was a pause until Darden answered. In every instance his reply was, "Yes." After the reading of the warning of all rights was completed, Darden was

[ 441 Pa. Page 45]

    again asked if he understood his rights, and again he replied in the affirmative and said that he was willing to answer questions. The questioning that followed dealt with the trouble outside the gymnasium following the game, as well as that at the main entrance with the ticket takers during the game. As the questioning progressed, one of the ticket takers appeared in the room briefly and identified Darden as one of those involved in the fracas at the entrance to the gymnasium following half-time. Since the questioning officer was still under the belief that Ament's injuries resulted solely from being struck with a wine bottle, the questioning did not deal with a stabbing or knives. In fact such were not mentioned. Darden denied that he hit Ament with a bottle and denied knowledge of the identity of the person who did.

About 2 a.m. on February 10th, Darden was lodged temporarily in a cell which contained a bed, a toilet and a water drinking fountain. In the meantime, Douglas Sims and other youths had been taken into custody and were being questioned about the trouble at the gymnasium in various rooms at police headquarters.

About 3 a.m. Darden was questioned by two other police detectives. Before this questioning began, Darden was again read a warning of his rights as dictated by Miranda, supra, and again he said that he understood and was willing to answer questions. After this questioning proceeded for some minutes, the detectives involved were informed for the first time that an examination of Ament's clothing indicated that he had been stabbed, and the questioning then focused on this aspect. Darden then admitted being in the fight with Ament and using a knife. He said that one of his friends was fighting with Ament and hit him over the head with a bottle. Darden then started "swinging it [the knife] wildly" and "didn't intend to cut him

[ 441 Pa. Page 46]

[Ament]" but "somehow cut the boy," and then he noticed blood on the knife. He also informed the police of the identity of the boy to whom he had given the knife after the fight. A female employee of the district attorney's office stenographically recorded Darden's statement, and after it was typewritten it was given ...

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