Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, No. 622, in case of Commonwealth of Pennsylvania v. Robert Mercier.
Henry Thomas Dolan, with him Fein, Criden, Johanson, Dolan and Morrissey, for appellant.
Milton M. Stein, Assistant District Attorney, with him Michael R. Stiles, 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 O'Brien. Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this opinion.
Robert Mercier was convicted by a jury of murder in the first degree and the punishment was fixed at life imprisonment. Motions in arrest of judgment or for a new trial were denied. From the judgment of sentence then imposed the instant appeal was filed.
The prosecution flowed from the shooting and subsequent death of Samuel Crudup in Philadelphia in 1969. The testimony produced by the Commonwealth at trial established that five males robbed a small corner store, of which Crudup was the proprietor, and during the course of the robbery Crudup was fatally shot by one of the robbers. The testimony also established that three of the males entered the store and two remained outside, up the street from the store, to act as "lookouts". Mercier confessed to the police, without the assistance of counsel, that he was one of the individuals on the street acting as a lookout. The primary question presented on appeal is whether constitutional due process was violated at trial by permitting the evidentiary use of this confession.*fn1
The record reveals the following salient facts.
The robbery and killing occurred during the afternoon of June 25, 1969. The police immediately arrived on the scene, and an investigation was undertaken. On June 27, appellant, Mercier, accompanied by his mother and an aunt, voluntarily went to police headquarters,
and all three were taken to the homicide division. Before any questions were asked of appellant, he was read the required Miranda*fn2 warnings. At this juncture, the record reveals that appellant requested the assistance of counsel and refused to answer any questions until counsel was provided. The two police detectives who had administered the constitutionally required warnings left the room; however, they returned almost immediately and read appellant the statement of one Leroy Washington (one of the five individuals who allegedly participated in the crime) which implicated appellant as one of the perpetrators of the crime. Approximately thirty minutes to one hour thereafter, appellant waived his right to counsel, took a polygraph test, and gave the confession to the police wherein he stated he was one of the lookouts.
The law is clear that if an individual is given the Miranda warnings and responds that he wishes to exercise any of those rights, all interrogation must cease. See Miranda v. Arizona, supra, at 474;*fn3 Commonwealth Page 214} v. Nathan, 445 Pa. 470, 285 A.2d 175 (1971); Commonwealth v. Leaming, 432 Pa. 326, 247 A.2d 590 (1968). Thus, the first question for discussion is, was the reading of the statement of a ...