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COMMONWEALTH v. CANALES (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
CANALES, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 1008, in case of Commonwealth of Pennsylvania v. Raymon Canales.

COUNSEL

Allan I. Steinberg, Neil Carver, and Carver and Steinberg, for appellant.

Linda West Conley, James T. Ranney, and Milton M. Stein, Assistant District Attorneys, 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 Manderino.

Author: Manderino

[ 454 Pa. Page 423]

The appellant, Raymon Canales, was convicted on August 10, 1971, in a jury trial, of first-degree murder for the shooting of Tyrone Wroten on October 9, 1970. Post-trial motions were denied and the appellant was sentenced to a term of life imprisonment. This appeal followed in which we reverse the judgment of sentence.

Shortly after the appellant's arrest around 9:00 a.m., on October 14, 1970, and prior to approximately a half-hour of police questioning, he was informed of the nature of the charges against him and of his constitutional rights. Questioning resumed in a second interview some five hours later, and within minutes the appellant made an oral confession which began with the following statement: "Look man, I am going to give

[ 454 Pa. Page 424]

    you a statement from me to you only. I am not going to sign anything. I am not going to admit anything in the presence of anyone else, and it will be your word against mine." Two or three minutes after the appellant concluded his oral confession, the interrogating police officer left the room and made notes of the confession. The appellant was not asked to sign the notes. Prior to the trial, the appellant unsuccessfully sought to have his oral statement and the officer's notes suppressed.

Appellant first claims that he did not knowingly, intelligently, and voluntarily waive his constitutional privilege to remain silent. He argues that his expressed willingness to give an oral, but not a signed confession, should have alerted the police officer that the appellant was not knowingly and intelligently waiving his privilege against self-incrimination, about which the appellant had previously been informed. The officer, therefore, before listening to the oral confession, would have had a duty to make certain that the appellant understood that any confession, oral as well as signed, could be used against the appellant. Appellant cites Frazier v. United States, 419 F. 2d 1161 (D.C. Cir. 1969). In Frazier, the defendant had been advised of his constitutional rights and was in the process of giving an oral confession when he noticed that the detective was taking notes. The defendant objected saying " Don't write anything down. I will tell you about this but I don't want you to write anything down." Id. at 1168 (emphasis added). The detective ceased taking notes and the defendant continued his oral confession without receiving from the detective any further warning of the consequences of foregoing the privilege not to speak. Frazier concluded that the defendant's statement to the detective gave rise to a strong implication that the defendant thought "his confession could not be used against him so long as nothing was committed to writing."

[ 454 Pa. Page 425]

    certain individuals mentioned by the appellant in his oral confession. The officer stated that he did not ask the appellant to sign the notes because the appellant had already said he would not sign anything.

The police officer testified from present memory about the oral confession during the trial using the notes to refresh his recollection. The notes were marked as an exhibit, but no attempt was made to introduce them into evidence while the police officer was testifying. At the conclusion of the prosecution's case, however, the officer's notes about the appellant's oral confession were admitted into evidence as an exhibit over the objection of the defense counsel. Later, these notes, along with other exhibits, were sent out with the ...


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