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decided: January 19, 1973.


Appeal from judgment of sentence of Court of Common Pleas of Erie County, May T., 1963, No. 1, in case of Commonwealth of Pennsylvania v. Daniel Roy Biebighauser.


T. Warren Jones, with him MacDonald, Illig, Jones & Britton, for appellant.

Bernard L. Siegel, First Assistant District Attorney, with him R. Gordon Kennedy, District Attorney, for Commonwealth, appellee.

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

Author: Pomeroy

[ 450 Pa. Page 339]

The appellant was convicted by a jury in 1963 of the first degree murder of one Mary Lynn Crotty. No post-trial motions were filed at that time and appellant was sentenced to life imprisonment. In 1970 appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1, 19 P.S. § 1180-1 et seq., asserting that he had failed to appeal his conviction because of fear of the imposition of the death penalty on retrial. After a hearing appellant was permitted to file post-trial motions nunc pro tunc. See Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969). Motions for a new trial and in arrest of judgment having been denied, the present direct appeal from the judgment of sentence was brought. Four issues are presented: (1) whether appellant's confession was voluntary; (2) whether several warrantless searches were proper under the Fourth Amendment; (3) whether voir dire examination was unduly restricted; and (4) whether the introduction into evidence of allegedly inflammatory photographs was so prejudicial as to warrant reversal. Concluding that all four challenges are without merit, we will affirm the judgment of sentence.

Voluntariness of the Confession

At trial the Commonwealth introduced into evidence appellant's nine-page signed confession. This statement described the circumstances surrounding the murder of Mary Lynn Crotty substantially as follows: On Saturday evening, January 19, 1963, appellant was introduced to the deceased by her college roommate, Paulette Cywinski. Miss Cywinski had a date with another person, and the two couples spent the evening drinking and dancing at various night spots in the City of Erie. In the early morning hours of Sunday, January

[ 450 Pa. Page 34020]

, the couples went their separate ways. Miss Crotty asked appellant to take her home stating that she was feeling ill. Biebighauser drove, instead, to a point on East 38th Street in Erie where he stopped the car and proceeded to choke Miss Crotty into unconsciousness. He then placed her in the back seat, and raped her. When Mary Lynn began to regain consciousness, appellant strangled her once again, this time to death. Again he indulged in sexual congress with the now deceased victim. When this was completed, appellant placed the body in the trunk of his car, and returned home.

The following afternoon, according to the evidence, appellant visited the home of the victim's parents. Concerned over their daughter's failure to return home, they had spoken also with Paulette Cywinski and her escort. A friend and neighbor of the Crottys, Detective Penman of the Pennsylvania State Police, was present when Biebighauser called. Biebighauser told Mr. and Mrs. Crotty that he had been with the deceased on Saturday night, had dropped her off near her home early Sunday morning and had not seen her since. After this visit, according to appellant's statement, he drove to a secluded wooded area where he left the body of the deceased in a snow bank and then scattered her clothing along the highway.

The record establishes the following circumstances surrounding the taking of the confession: At approximately 1:00 p.m. on Monday, January 21, 1963, Detective Penman, accompanied by another police officer, went to appellant's apartment to question him further about the disappearance of Mary Lynn Crotty. Appellant agreed to move the interview to the police station, wishing to have it out of the presence of his wife. At 3:00 p.m., after some forty-five minutes of questioning during which he repeated his account that he had left Miss Crotty near her home early Sunday morning, appellant

[ 450 Pa. Page 341]

    suddenly changed his story. He stated that he knew the girl was dead; and that he had killed her. He led the police to the site where he had disposed of the body. From 3:00 p.m. to 8:00 p.m., accompanied by several police officers, appellant retraced his steps of Saturday night and pointed out the location of the body and the clothing of the deceased. There was intermittent questioning of appellant during this period.

At 8:00 p.m., appellant was returned to the police station. He was given a chicken dinner shortly after 9:00 p.m. Starting at 9:30 p.m., and concluding at approximately 1:00 a.m. the next morning (Tuesday, Jan. 22), appellant gave the formal confession which he now challenges.*fn1

The trial of this case took place prior to the decisions of the Supreme Court of the United States in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed.

[ 450 Pa. Page 3422]

    d 694 (1966). Under the standards prevailing before those holdings, a confession to be admissible in evidence must have been voluntary under all the circumstances, i.e., must have been the product of the defendant's free will. See e.g., Commonwealth ex rel. Butler v. Butler, 429 Pa. 141, 149, 239 A.2d 426 (1968). Appellant contends that under this test his statement was involuntary.

Appellant's first assault on the confession is that the above circumstances are substantially the same as in Butler, supra, where we held that a defendant from whom a confession was taken in 1940 "has indeed been overreached, that his will has been overborne, and that his confession is not voluntary." The surrounding circumstances in Butler clearly showed such overreaching. These are summarized thus in our opinion: "Where an individual has been subjected to virtually continuous interrogation by several officers for a period of 10 hours; where he was not warned of his right to counsel and his privilege to remain silent; where he was not taken before a magistrate until a week after he was taken into custody; and where his ability to resist questioning is limited both by his ninth grade education and the wounds he received during his capture, then he has been deprived of the 'free and rational choice' necessary to make a confession voluntary." 429 Pa. at 151.

While the eleven-hour time span from the start to conclusion of police interrogation in this case approximates the ten-hour period in Butler, supra, the similarity ends there. The instant circumstances are more analagous to those in Commonwealth v. Graham, 408 Pa. 155, 161, 182 A.2d 727 (1962), where " there were no long and protracted periods of constant and continuous questioning. On the contrary, there were long and ample periods of rest." (Emphasis in ...

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