Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1969, No. 987, in case of Commonwealth of Pennsylvania v. Kenneth Youngblood.
James D. Crawford, Deputy District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Wilbur Bourne Ruthrauff, with him Spencer Ervin, Jr., and Tate and Ervin, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts and Mr. Justice Manderino concur in the result. Mr. Justice Nix took no part in the consideration or decision of this case.
This is an appeal by the Commonwealth from an order of the Court of Common Pleas granting a new trial to the defendant, Kenneth Youngblood. It presents, inter alia, the question whether a court en banc considering a convicted defendant's motion for a new trial must include the pre-trial suppression judge among its members and have before it the notes of testimony from the suppression hearing. On the merits there is also presented the question whether the court en banc erred in overruling the suppression judge's decision that a confession was voluntarily made and admissible in evidence.
The history of the case is as follows: On April 14, 1969, the defendant, accompanied by his sister Hattie
Bryant, surrendered himself to the Philadelphia police. After several hours in custody the defendant made a statement in which he admitted shooting Hattie's husband, Sidney Bryant. Subsequently, the defendant was charged with murder, to which he pleaded not guilty. Youngblood filed a motion to suppress the confession and after a full hearing the suppression judge denied the motion and ruled the statement admissible. The case then went to trial before a judge and jury. As permissible under Pennsylvania practice, the voluntariness of the confession was again challenged at trial and that issue was submitted to the jury. By its verdict of second degree murder, the jury unquestionably accepted the confession as voluntary. Post-trial motions were filed and argued before a court en banc consisting of the trial judge and two other judges, none of whom was the suppression judge. The court en banc ordered a new trial, ruling unanimously that the defendant had not intelligently waived his right to counsel as required by Miranda v. Arizona, 384 U.S. 436 (1966), and that therefore the confession should not have been admitted into evidence. This appeal followed.
At the outset, we note that the right of the Commonwealth to appeal from adverse decisions in criminal cases is limited to pure questions of law. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). As the three issues raised herein are in that category, the Commonwealth's appeal is proper. Deciding as we do, however, that the first and third questions are without merit, and that the second has been waived, we will affirm the grant of a new trial by the court en banc.
The Commonwealth's first contention is that the court en banc as it was constituted did not have the power to overrule the finding of the suppression judge that the ...