Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1972, No. 101, in case of Commonwealth of Pennsylvania v. Ronald O'Shea.
John R. Cook, Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
John G. Alford, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Chief Justice Jones and Mr. Justice Pomeroy dissent.
Appellant, Ronald O'Shea, was found guilty by a jury of murder in the first degree. Post-trial motions were denied and a sentence of life imprisonment was imposed. This is a direct appeal from the judgment of sentence.
In the early evening of October 27, 1971, the body of the deceased, Thomas Washington, was found in his bedroom. An autopsy revealed that asphyxiation due to strangulation caused his death. Beer cans, discovered in the bedroom and determined to have been purchased on the day of the murder, were found to contain appellant's fingerprints. The police also discovered that appellant was seen with the victim on the morning of the murder. The police, in the course of investigating the murder, sought to question appellant. When they were unable to locate him they left a message with his girlfriend that they wished to speak with him. In response to their request appellant went to the Public Safety Building at approximately 12:30 A.M. at which time he was taken to a private room and asked if he knew the victim and if he had ever been to or knew where the victim lived. Upon receiving answers contradictory to the information they had previously obtained, the police gave appellant his Miranda warnings for the first time. After confronting appellant with the contradictions between his answers to the initial, pre-warning questions and the evidence of his
fingerprints on the beer cans, appellant waived his rights and made a statement in which he confessed his complicity in the crime. This statement was admitted into evidence.
Appellant contends that the lower court erred in refusing to grant appellant's motion to suppress the confession on the ground that it stemmed from, and was impermissibly tainted by, the initial custodial interrogation which was illegal in that it was conducted without Miranda warnings in violation of appellant's rights against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444-91 (1966); Commonwealth v. Marabel, 445 Pa. 435, 444, 283 A.2d 285, 289 (1971). See also, Commonwealth v. Brittain, 455 Pa. 562, 568 n. 6, 317 A.2d 219, 222 n. 6 (1974); Commonwealth v. Ware, 438 Pa. 517, 265 A.2d 790 (1970). We agree. Although Miranda warnings are not required before interviewing all possible witnesses to the crime, they are required "whenever an individual is questioned while in custody or while the object of an investigation of which he is the focus," Commonwealth v. D'Nicuola, 448 Pa. 54, 57, 292 A.2d 333, 335 (1972) quoting Commonwealth v. Feldman, 432 Pa. 428, 432-33, 248 A.2d 1, 3 (1968). See also, Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974) [J-278 (1973)]. Furthermore, we have held that: "'[I]t is not simply custody plus "questioning," as such, which calls for Miranda safeguards, but custody plus police conduct. . . calculated to, expected to, or likely to, evoke admissions.'" Commonwealth v. Yount, supra at 309, 314 A.2d at 245, quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969).
This case is comparable to Commonwealth v. D'Nicuola, supra where the police, knowing only that D'Nicuola and the victim had failed to appear for an appointment and that a recently fired weapon was found in D'Nicuola's car, proceeded to question D'Nicuola
without warnings while he was confined to a hospital bed. On those facts we held that he was a suspect and any questioning ...