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February 1, 1972

Samuel Alexander FOSTER, Jr.

Joseph S. Lord, III, Chief Judge.

The opinion of the court was delivered by: LORD, III

JOSEPH S. LORD, III, Chief Judge.

 Defendant seeks to suppress (1) confessions given to the F.B.I. and the Philadelphia Police and (2) an out-of-court identification. Hearings were held in these matters on April 30, 1971 and August 26, 1971.

 On August 26, 1970 at or about 9:40 a.m., a robbery took place in the Community Federal Savings and Loan Association, 3628 N. Broad Street, Philadelphia, Pa. The robber made his escape south on Broad Street in a Yellow cab. Two Philadelphia policemen, having heard the description of the robber and the taxicab over their radios, halted the cab in which the defendant was riding. The defendant jumped from the cab and was pursued by the police for several blocks. During the course of the chase, the defendant was shot in the arm. He was taken to Temple University Medical Center.

 Mrs. Flythe, a teller at the bank, who was working there at the time of the robbery, furnished a description of the robber minutes after the robbery. The police informed her immediately after the defendant was shot that a suspect had been shot, and she was taken by an officer to Temple University Medical Center for a possible identification. *fn1" She actually arrived at the hospital before the defendant, and saw him as he was brought in for treatment by two policemen. Mrs. Flythe identified Mr. Foster as the robber. This confrontation took place approximately a half hour after the robbery.

 After his wound was dressed, defendant was taken to the Police Administration Building for questioning at or about 11:00 a.m. He was advised of his rights by a Philadelphia detective and by an FBI agent. The defendant stated that he wished to waive his rights, and he signed a formal waiver presented to him. The defendant then made a complete confession concerning the robbery to the FBI agent and made a similar statement to the Philadelphia police later that afternoon.


 Defendant seeks to suppress both confessions on the ground that the waiver and confessions were not voluntary. Defendant claims that he was in pain as a result of the gunshot wound when he arrived at the Police Administration Building and that he asked to return to the hospital. Defendant claims that he was told that he would be taken to the hospital only after he was questioned and that "things would go easier for him" if he cooperated. The defendant also testified that he asked to see a lawyer and was told a lawyer was on his way to see him. Defendant claims that he signed the waiver and made the statement only in order to get back to the hospital.

 Both the detective and the FBI agent denied that any promises or threats were made concerning return to the hospital. The FBI agent testified that the defendant was "nervous and rational" when the interview began and did not complain of any pain. About midway through the questioning, the defendant first complained of pain but did not ask that the interview be terminated or that he be taken to the hospital. The agent testified that he did not observe any change in the defendant's responses or demeanor. On the agent's own initiative, the defendant was taken back to the hospital at or about 12:30 p.m. where he received an injection for pain. He was then returned to the Police Administration Building for further questioning at or about 1:15 p.m. Both agents also testified that defendant never asked to see a lawyer and that they did not tell him a lawyer was coming to see him.

 The first issue we must resolve is whether the defendant's physical condition was such that the statements he made were not freely given or the product of a rational mind. The Second Circuit has rejected the theory that "a serious gunshot wound must be presumed to render its victim incapable of exercising free volition and making rational choices." United States ex rel. Cronan v. Mancusi, 444 F.2d 51, 54 (C.A. 2, 1971). The defendant presented no evidence concerning the nature of his wound or possible side effects. We are persuaded that the defendant was not seriously wounded by the fact that Temple Medical Center released the defendant so shortly after he was shot and treated. Moreover, the testimony of those present at the questioning indicates that the defendant was alert, responsive and intelligent. We therefore conclude that the defendant's gunshot wound did not render him incapable of exercising free volition or making rational choices.

 We must next consider whether the waiver and confession were "the product of compulsion, subtle or otherwise." Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694 (1966). If a statement is taken without an attorney being present after the Miranda warnings have been given, "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id., at 475, 86 S. Ct. at 1628. We find that the government has met this burden. We believe that the rapid sequence of events between the robbery and shooting and the confession supports the testimony of the police officers that both the waiver and confession were freely given.

 The robbery occurred at or about 9:40 a.m. and within one and one-half hours, the defendant had been pursued and shot by the police, taken to the hospital and treated, and brought to police headquarters. He claims that he was in pain when he arrived at police headquarters and that he asked to return to the hospital. However, there is no evidence that immediately before his arrival he complained of pain to the medical attendants at the hospital or requested to remain there for further treatment. There is uncontradicted testimony that the defendant signed the waiver forms at 11:24 a.m. We find it difficult to believe that an individual just released from a hospital would be in such great pain that within the span of twenty-four minutes the police could coerce him into waiving his rights by threatening to withhold medical treatment. We find as a fact that the defendant did not complain of pain in his arm when he arrived at police headquarters or ask to see a lawyer, and the police did not make any threats or promises to the defendant to induce or coerce him to waive his rights or confess. Furthermore, we find that although the defendant did complain about pain at some point during the interrogation, he did not request or indicate in any other manner that the interview be terminated. We have noted that the fact that the defendant was in some pain when he confessed is not sufficient evidence in itself to render the confession involuntary. We conclude that the defendant knowingly and intelligently waived his rights, including his right to counsel, and that the confession given in the morning was voluntary.

 Having found that the first confession was voluntary, we need not consider defendant's further argument that the second confession is invalid as being the product of the first. We therefore deny ...

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