decided: October 4, 1972.
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.
[ 449 Pa. Page 264]
Charged with participating in the armed robbery of a retail variety store in Philadelphia during which the proprietor was fatally shot, the appellant, James
[ 449 Pa. Page 265]
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.
[ 449 Pa. Page 266]
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 impermissible forms of interrogation. In determining this issue all of the attending factors and circumstances must be considered and evaluated. The statements need
[ 449 Pa. Page 267]
not be volunteered to meet constitutional requirements. Likewise, the fact that they result from police interrogation does not in itself proscribe their evidentiary use at trial. However, to be "voluntary" in the constitutional sense the statements must be the free choice of the maker. And if the maker's will was overborne, either through physical or mental pressures, then the statement did not issue from a free choice. Cf. Watts v. Indiana, 338 U.S. 49, 69 S. Ct. 1347 (1949); Commonwealth v. Jackamowicz, 443 Pa. 313, 279 A.2d 7 (1971).
Where, as here, the trial court ruled the statement of the accused was voluntarily given, our review is limited to a consideration of the testimony of the witnesses offered by the Commonwealth and that portion of the testimony for the appellant which remains uncontradicted. So read, the instant record establishes the following facts.
After his arrest, Davenport was taken to the offices of the Homicide Division in the Police Administration Building for questioning. He was first given full warnings of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). From 3:50 p.m. until 8:50 p.m., with the exception of five short intervals of about ten minutes duration, he was subjected to the nearly constant questioning of as many as four police officers, sometimes alternating, sometimes together. During this period one of his hands was continuously handcuffed to a chair which was bolted to the floor. He was not given any food or drink and the chronology sheet prepared by the police doesn't indicate he visited the "rest room."*fn3
Until 8:10 p.m., Davenport steadfastly denied any knowledge of the crimes. Thereafter, while still denying
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any participation in the crimes, he then said he witnessed the robbery through the store window, and subsequently entered the store and took some change from the cash register. About 8:50 p.m. he admitted participating in the robbery, but stated the fatal shot was fired by one of his co-felons.
About 9:50 p.m., while Davenport was still handcuffed to the chair, the taking of a formal statement began and the questions and answers were recorded on a typewriter by one of the questioning officers. This statement was completed at 11:45 p.m. Davenport then read and signed each page at 12:40 a.m. Following this, the statement (the questions by an officer and the answers by Davenport) was read into a tape recording device. However, the tapes could not be found or produced at the suppression hearing.*fn4
Some time between 3 a.m. and 4 a.m. Davenport was found lying on the floor of the interrogation room foaming from the mouth and suffering a convulsion, which caused the police to remove him to a hospital. One of the police officers characterized the condition as an epileptic seizure.
As noted before, many factors must be considered in determining if the statements of one accused of crime are his free choice. One of the most important of these
[ 449 Pa. Page 269]
factors is the accused's mental and physical state at the time. Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968).*fn5 And while the fact that an accused has been drinking does not automatically invalidate his subsequent statements (Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972)), it is a circumstance to be considered in resolving if his will to resist was overcome by overbearing questioning, particularly where the drinking was substantial.
After reading and re-reading the instant record, we have grave reservations concerning Davenport's ability to resist and to make a rational and intelligent choice at the time he incriminated himself. Taking into consideration his physical condition, as evidenced by the record, plus all of the other attending circumstances, we are not persuaded the Commonwealth met its burden
[ 449 Pa. Page 270]
of establishing his incriminations were the product of a free and unconstrained will.
Furthermore, we find that important corroborative evidence as to Davenport's physical and mental state at the time the statement was secured was erroneously excluded at the suppression hearing. At the suppression hearing, Davenport's counsel attempted to introduce testimony to show a relationship between the convulsion suffered by Davenport and his state of mind when the challenged statement was given. This testimony was to be elicited from a graduate-physician who examined Davenport in a hospital on June 26th. At the time of the examination, the physician was an intern in Jefferson Hospital in Philadelphia. At the time of trial, he was serving his residency in the same institution. The hearing court sustained the Commonwealth's objection to this witness's testimony on the basis he was not a qualified expert. The mere fact the witness was not licensed to practice medicine in Pennsylvania did not ipso facto render him incompetent as a matter of law. See Clark v. Horowitz, 293 Pa. 441, 143 A. 131 (1928).
Judgment reversed and a new trial is ordered.
Judgment reversed and new trial ordered.