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COMMONWEALTH v. FOGAN (11/17/72)

decided: November 17, 1972.

COMMONWEALTH
v.
FOGAN, APPELLANT



Appeals from judgment and orders of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1969, Nos. 1007 to 1010, inclusive, in case of Commonwealth of Pennsylvania v. William Fogan.

COUNSEL

Sheldon S. Toll, with him Montgomery, McCracken, Walker and Rhoads, for appellant.

David R. Scott, Assistant District Attorney, with him Milton M. Stein, 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, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case. Mr. Justice Pomeroy concurs in the result. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 449 Pa. Page 553]

The appellant, William Fogan, following a non-jury trial was found guilty of: (1) voluntary manslaughter; (2) aggravated assault and battery; and, (3) carrying a firearm without a license. After arrest of the judgments or a new trial was denied, he was sentenced on conviction No. 2, supra, to serve imprisonment for a term of eleven and one-half to twenty-three and one-half months. On convictions No. 1 and No. 3, supra, he was ordered to serve terms of probation aggregating ten years.*fn1 From the probation order imposed on the

[ 449 Pa. Page 554]

    manslaughter conviction, an appeal was filed in this Court.*fn2 Appeals from the judgment of sentence imposed on the assault and battery conviction and the order of probation imposed on the firearm conviction were filed in the Superior Court and subsequently certified here. The three appeals were consolidated for argument and will be disposed of in this one opinion.

The only question for decision is whether or not Fogan's right to constitutional due process was violated at trial by the admission of evidence, over objection, of an oral and written statement given by Fogan to the police during custodial interrogation.*fn3

Considering only the testimony of the Commonwealth witnesses, and that portion of the evidence offered by the defense which remained uncontradicted,*fn4 these pertinent facts emerge from the record.

On June 18, 1969, about ten p.m., a gang war broke out on a public street in Philadelphia between the "16th and Wallace Streeters" [Wallace Street] of which Fogan was a member and the "Moroccans." While members of the latter group were pursuing members of the former, one Alfred Jones was fatally shot and Tryee Wesley was wounded in the right arm. Both of these young men were members of the Wallace Street gang.

The police upon learning of the incident immediately undertook to round up all known members of the two gangs for questioning. Fogan and six other members of the Wallace Street gang were picked up ...


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