Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1966, No. 1613, in case of Commonwealth of Pennsylvania v. Robert Camm.
I. Raymond Kremer, with him Alexander Brodsky, for appellant.
Martin H. Belsky, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Eagen and Mr. Justice Roberts.
This is a direct appeal from a judgment of sentence following a jury trial and a conviction of murder in the second degree.
Appellant Camm, age 21, and one John Bytoff were charged with murder, aggravated robbery, burglary and conspiracy in connection with the death by suffocation of George Koffke, aged 94 in July, 1966. The trials of the two accused were severed, and Camm was tried on the murder charge only.
The primary evidence against Camm was a confession which he gave about 15 hours after Koffke had been found dead in Koffke's home.*fn1 The issues to be
resolved on this appeal all involve the confession in one way or another and are as follows:
1. Should the confession have been suppressed as involuntary?
2. The appellant having taken the stand to deny the voluntariness of the confession, was prejudicial error committed by Commonwealth questioning which went beyond the voluntariness issue, thus causing defendant repeatedly to claim his privilege against self-incrimination?
3. Was the district attorney's comment to the jury that appellant had not testified on the merits a violation of the privilege against self-incrimination, and if so was it prejudicial?
4. Was certain testimony as to the results of a polygraph test, bearing on how the confession was obtained, so prejudicial as to require granting appellant's motion for mistrial?
5. Did the trial court err in its instruction as to a need for unanimity by the jury in accepting the confession as evidence?
We answer these questions in the negative, and affirm the judgment below.
Whether Appellant's Confession Was Voluntary
Appellant asserts that he was not orally given his Miranda warnings, Miranda v. Arizona, 384 U.S. 436 (1966), that the warning he was given by the police officer was inadequate in that appellant was told that anything he said could be used "for or against" him, that he did not effectively waive his constitutional
rights, and that his statement was involuntary in that he was emotionally under par at the time it was given.
There were two pre-trial suppression hearings. The first was in June, 1967, following appellant's motion to suppress. After two days of hearings, Judge Jamieson, the hearing judge, denied the motion. When the case was called for trial, in August, 1967, appellant again moved to suppress, alleging that all statements and physical evidence were the fruits of an illegal arrest. After further hearing, out of the presence of the jury, the motion was denied by Judge Doty, the trial judge. Notwithstanding these rulings, appellant, as was his right, see Commonwealth v. Joyner, 441 Pa. 242, 272 A.2d 454 (1971), again challenged the voluntariness of his confession at trial, and the issue was submitted to the jury.
The record of the suppression hearing and the trial discloses that Detective Krimmel, testifying for the Commonwealth, stated that he gave appellant his Miranda warnings when first engaging him in conversation at the police station, and that appellant orally acknowledged that he knew the meaning of the warnings; that before appellant voluntarily submitted to a polygraph test, he was again orally given his warnings by Officer Kowalczyk; that appellant made an oral statement, at the beginning of which he was again made aware of his Miranda warnings and that appellant then read and signed a typewritten transcription of his statement containing the warnings and a waiver thereof.*fn2
The detective further testified that after the polygraph test had been taken, appellant was told by Officer Kowalczyk that "he was in trouble" and should retain a lawyer, and that appellant had replied that he didn't need a lawyer and would tell the detective "all about it".
The elapsed time from appellant's arrest at his home until the taking of his written statement at the police administration building was just over three hours. He was questioned for about an hour and a half of this period before he confessed, and was, so the policemen testified, calm and stable throughout this period, responsive to questions, and without any indication of intoxication.
Appellant himself testified that after he was arrested and taken to the police administration building, Officer Kowalczyk immediately began to interrogate him. Camm said that he told the officer he had spent the previous evening drinking with John Bytoff. Appellant asserted he was told by Kowalczyk to sign a paper, which the officer only later informed him constituted a written agreement to take a polygraph examination. He further testified that after he took the test, the officer told appellant he was lying. At no time, Camm stated, had he been told of his right to counsel or his right to remain silent; the warnings contained in his written statement had not been read to him or by him.
Dr. Kenneth Kool, a psychiatrist who testified on behalf of appellant, testified that "it seemed improbable to me he [Camm] would be able to give that kind of
sequential presentation", i.e., such as was contained in the written confession. He felt that the appellant, with his limited emotional resources, his premorbidity and schizoid tendency, had, in effect, been "brainwashed" by the isolation, the questioning, and the polygraph test, and that the interrogation "would have a much more profound effect on him than it would on a so-called normal person." This testimony, by itself, was not sufficient to compel a finding of mental incompetence, and in any event did not have to be accepted. See 1 Henry, Pennsylvania Evidence, § 565 at 576-577.
A careful examination of the record fails to demonstrate that the lower court erred at the suppression hearings in not holding as a matter of law that appellant's confession was involuntary, or that the jury erred in not so finding as a matter of fact. The question of appellant's physical or mental coercion was strictly ...