Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, No. 618, in case of Commonwealth of Pennsylvania v. James Davenport.
Rudolph S. Pallastrone, with him Peter B. Scuderi, for appellant.
Milton M. Stein, Assistant District Attorney, with him Romer Holleran, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy concurs in the result.
Charged with participating in the armed robbery of a retail variety store in Philadelphia during which the proprietor was fatally shot, the appellant, James
Davenport, was indicted for murder. After trial, the jury returned a verdict of guilty of murder in the first degree and fixed the punishment at life imprisonment. Subsequently, post trial motions were denied and sentence was imposed as the jury directed. This appeal followed.
About 2:30 p.m. on June 25, 1969, three young men were observed leaving the variety store involved in great haste and commotion. When the witnesses entered the store, the proprietor was found slumped on the floor and bleeding from the head.*fn1 The witnesses immediately alerted the police and described the individuals seen leaving the store as black males, about eighteen years of age, and wearing dark clothing. Police in the area were notified of the occurrence and directed to watch for persons fitting the description given. Shortly thereafter, Davenport was taken into police custody several blocks from the crime site. The arresting officer testified he seized Davenport, a young black male, because he appeared "nervous", was perspiring, and was carrying a white jacket over his arm which looked weighted. On inspection about twenty-seven dollars in change was found in the jacket.
At trial a written incriminating statement given by Davenport to the police was introduced in evidence against him, over objection. A timely pretrial motion to suppress this evidence had previously been denied. After carefully studying the record, we are convinced this evidence was the product of sustained police pressure which, under the circumstances, was tantamount to duress and hence its use at trial violated due process. Cf. Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735 (1961).*fn2 Hence, we reverse and grant a new trial.
The burden was upon the Commonwealth to demonstrate by a preponderance of the evidence the challenged statement was given voluntarily, or, in other words, it was the free and unconstrained choice of Davenport. See Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). As Mr. Justice O'Brien pointed out, while speaking for the Court in Butler, quoting from Mr. Justice Frankfurter's opinion in Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860 (1961), there is no "single litmus-paper test" for determining if the statements of one accused of crime are voluntary or if such evolved from constitutionally ...