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COMMONWEALTH v. MOSES (12/31/71)

decided: December 31, 1971.

COMMONWEALTH
v.
MOSES, APPELLANT



Appeal from judgment of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1969, No. 166, in case of Commonwealth of Pennsylvania v. Leonard Moses.

COUNSEL

John J. Dean and A. M. Cohen, Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissenting opinion.

Author: Eagen

[ 446 Pa. Page 351]

The appellant, Leonard Moses, was convicted by a jury of murder in the first degree, and punishment was fixed at life imprisonment. After denial of motions in arrest of judgment and/or a new trial, sentence was imposed by the court as the jury directed. This appeal was then filed.

The sufficiency of the trial evidence to support the jury's verdict is not questioned; nevertheless, we have studied the record and are satisfied the evidence is ample enough to sustain a finding of guilt of murder in the first degree. Therefrom, the jury could find the following facts.

About 3 p.m. on April 5, 1968, a group of black youths, including the appellant Moses, were observed placing a white chalk mark on the outside of a house in Homewood, Allegheny County, wherein Mrs. Mary Amplo, a white woman and members of her family resided.*fn1 About 9 p.m., on April 6th, Moses and several other youths, including a William Murphy, returned to the Amplo address and Moses and another youth in the group each threw a homemade firebomb at the house. One of the bombs entered the building through the window of the living room, causing it to be immediately enveloped in flames.*fn2 Mrs. Amplo, who was in the living room watching television, suffered severe burns over fifty-five percent of her body from which complications developed causing her death.

[ 446 Pa. Page 352]

At trial, evidence of oral admissions and an incriminating recorded statement made by Moses to the police was admitted over objection.*fn3 This is the prime assignment of error. The Commonwealth's testimony as to the circumstances under which this evidence came into existence may be summarized as follows.

After the senseless crime involved, the police worked for months in an effort to ascertain its perpetrators. Finally, in November 1968, based on information recently received from one of the youths present at the time of the firebombing, a warrant issued charging Moses with murder. In seeking Moses out, the police learned that he was then a resident of the Auberle Home for Boys in McKeesport, Pennsylvania, and three officers were directed to proceed to the Home to take him into custody. Before traveling to the Home, these officers contacted an authority at the institution by phone and informed him of their intended visit and purpose. When the officers arrived about 11 p.m., they first met with three social workers of the Home and explained the nature of the criminal charge lodged against Moses. The latter was then brought into the room where the officers and the representatives of the institution were gathered. Moses was immediately informed why the officers were there, and one of the social workers, a Mr. Denman, then said he "wanted to question the boy". The officers readily assented, but suggested the questioning occur outside of their presence and hearing in order that no possible violation ensue of Moses' constitutional rights. Mr. Denman and another social worker then took Moses into another room. A few minutes later when they emerged, Moses was taken onto police custody.

[ 446 Pa. Page 353]

Immediately upon entering the automobile which transported the group back to Pittsburgh, one of the officers again advised Moses that he was charged with the arson-murder of Mrs. Amplo and advised him of all of his constitutional rights, including his right to remain silent and his right not to answer any questions unless a lawyer was present to assist him. When the officer started to further "discuss" these rights, Moses said, "I know my rights, I know my rights". During the ride back to Pittsburgh, nothing further was said about the crime involved.

The group arrived at police headquarters in Pittsburgh at 11:42 p.m., and about ten minutes later, after again advising Moses of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), one of the officers, who accompanied him from McKeesport, began to question Moses concerning the Amplo firebombing. Without hesitation, Moses proceeded to tell the officer of the firebombing and the part he played therein.*fn4 At 12:12 a.m., the officer proceeded to have Moses' admissions recorded or to take "a formal statement". The officer's questions and Moses' answers were recorded on a typewriter. When this was completed at 1:42 a.m., Moses read the statement, signed it at the end and initialed each page. At the time, Moses was sixteen years of age and did not have the assistance of counsel.

In challenging the propriety of the evidentiary use of Moses' incriminating oral admissions and written statement at trial, the sole contention of the appellant is that the right to counsel guaranteed by the Sixth

[ 446 Pa. Page 354]

Amendment to the United States Constitution requires "that counsel be present when a juvenile confesses to a capital crime". It is not asserted that Moses was not fully and clearly advised of all of his constitutional rights before he incriminated himself. But, it is argued that a "juvenile lacks the ability" to fully understand and assert his constitutional rights and, hence cannot effectively waive such rights without the advice of a more mature person. We emphatically reject such a prophylactic rule, particularly where a sixteen-year or seventeen-year-old is concerned.

It is true that, in determining whether incriminating statements of an accused were voluntarily given and whether or not he intelligently waived his constitutional rights, all of the attending circumstances must be considered, including the age, maturity and intelligence of the individual involved. See Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970), and Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969). Cf. also, United States ex rel. Loray v. Yeager, 446 F. 2d 1360 (3d Cir. 1971). And where the accused is of tender years, the attending circumstances must be scrutinized with special care. However, to declare as a matter of law that a sixteen-year-old, regardless of maturity and intelligence, is unable to fully understand when he is informed of his constitutional rights and may not by himself waive his right to counsel before being questioned by the police would be to ignore reality and the sophistication of the average sixteen-year-old in these days and times.

In support of his position, appellant cites Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209 (1962), and Haley v. Ohio, 332 U.S. 596, 68 S. Ct. 302 (1948), but these cases did not enunciate the rule appellant advances.

[ 446 Pa. Page 355]

In each of the cases cited, the court ruled that incriminating statements of the defendants were erroneously admitted at trial because the totality of the circumstances compelled the conclusion that the statements were involuntarily given.*fn5 In neither case did the Court state that an uncounseled fifteen-year-old may not waive his right to counsel as a matter of law, nor was it held that due process proscribes the evidentiary use of incriminating statements made by such an individual in the absence of legal counsel or other mature person. While there is language in both opinions which lends comfort to appellant's position, it should not be read out of context or without consideration of the facts these cases presented.

We have carefully scrutinized all of the circumstances attending Moses' incriminating statements and are not persuaded that the trial court committed error in failing to rule this evidence inadmissible as a matter of law. Moses was a tenth-grade student at the time the challenged evidence was obtained and enjoyed at least average intelligence, as indicated by his testimony in the trial court proceedings. He testified during the pretrial suppression hearing and at trial, and in neither instance did he deny receiving warnings of his constitutional rights before incriminating himself, nor did he say he failed to understand these warnings. Whether Moses intelligently waived his right to counsel was for the trier of the facts.

It is next maintained that the evidence was insufficient as a matter of law to establish beyond a reasonable

[ 446 Pa. Page 356]

    doubt that Mrs. Amplo's death was caused by injury suffered in the blaze resulting from the firebombing. This issue was considered and rejected in a co-defendant's appeal. See Commonwealth v. Johnson, 445 Pa. 276, 284 A.2d 734 (1971).

The remaining assignments of error have been considered and found ...


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