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COMMONWEALTH v. EWELL (05/02/74)

decided: May 2, 1974.

COMMONWEALTH
v.
EWELL, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, Nos. 1876 to 1879, inclusive, in case of Commonwealth of Pennsylvania v. Joseph Ewell.

COUNSEL

Morris Paul Baran, with him Harry D. Sporkin, for appellant.

Benjamin H. Levintow, Assistant District Attorney, with him Milton M. Stein, Assistant 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 Pomeroy. Mr. Justice Nix concurs in the result. Mr. Chief Justice Jones dissents. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this concurring opinion.

Author: Pomeroy

[ 456 Pa. Page 590]

Early on the morning of May 23, 1970, three persons died in a fire which gutted a residence at 40 East Silver Street, Philadelphia. Appellant Joseph Ewell was arrested later that morning and charged with starting the

[ 456 Pa. Page 591]

    fire. That afternoon, Ewell gave a statement to the police admitting responsibility for the blaze. A motion to suppress this statement was denied after a hearing on the issue of its voluntariness, and the statement, along with the corroborating testimony of several witnesses, was introduced at his trial. Appellant was convicted on three counts of first degree murder and one count of arson, and, after denial of post-trial motions, was sentenced to life imprisonment. An appeal to this Court followed.*fn1

[ 456 Pa. Page 592]

We will consider first appellant's contention that his motion to suppress his confession was improperly denied. When a defendant alleges that his confession was coerced, the burden is on the Commonwealth to prove the voluntariness of the statement by a preponderance of the evidence. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). Where the hearing judge has found that a statement was voluntarily given, "our review is limited to a consideration of the testimony of the witnesses offered by the Commonwealth and that portion of the testimony for the appellant which remains uncontradicted". Commonwealth Page 592} v. Davenport, 449 Pa. 263, 267, 295 A.2d 596 (1972); Commonwealth ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A.2d 434 (1968).

Appellant did not testify at the suppression hearing, nor did he present any witnesses in his behalf. The Commonwealth called as witnesses four detectives who had taken part in Ewell's arrest and interrogation. The gist of their testimony was that Ewell was arrested at about 11:15 a.m. on May 23, 1970, the morning of the fire. The arresting officers informed Ewell that the charge was homicide. He was taken promptly to the police station, where he was given the required constitutional warnings by a detective Cleary. Ewell appeared to be normal and not under the influence of alcohol or drugs, and his answers indicated a clear understanding and waiver of his rights to silence and the assistance of counsel. A chronology compiled by Detective Cleary and offered in evidence shows that Ewell was given food, coffee and cigarettes an hour or so after the interrogation began, and received additional cigarettes and water thereafter. Ewell admitted his responsibility for the fire at about 2:20 p.m. After making three telephone calls, using the men's room, and resting and smoking for a while, he dictated, read and signed the formal statement which was introduced at his trial. The credibility of the Commonwealth's witnesses was a question for the hearing judge. On the record before us, the Judge was fully warranted in finding that the confession was voluntary.

The other points raised by appellant all concern the court's charge to the jury. We will limit our consideration to the one point which requires a new trial. In his discussion of appellant's confession, the trial judge instructed the jury that ". . . the burden of proving that the defendant's statement was voluntary and true rests upon the Commonwealth and that burden must be sustained by a preponderance of the evidence " [emphasis

[ 456 Pa. Page 593]

    supplied]. While this is a correct statement of the law on the question of voluntariness,*fn2 it is, of course, not correct with regard to the truth of appellant's statement. The Commonwealth need not prove every specific evidentiary fact in its case in chief beyond a reasonable doubt; this burden attaches only to the elements of the crime charged.*fn3 A defendant's voluntary out-of-court statement is merely another piece of evidence to be considered in resolving the ultimate issue of guilt or innocence, and jurors can attach as much or as little weight to it as they see fit. In the case at bar, the jury might have disregarded Ewell's statement altogether and still have convicted him on the other evidence introduced by the Commonwealth. The difficulty here, however, is that the converse is also true; the statement constituted an admission of every fact necessary to establish appellant's guilt. Since the facts constituting the corpus delicti were undisputed, the confession was in itself a sufficient legal basis for Ewell's conviction. Indeed, the trial judge so instructed the jury when he said, soon after giving the erroneous instruction previously quoted: "Summing up on this issue, therefore, you can find the defendant guilty of felony-murder, if you find this statement which he gave to the police of his participation in the arson was voluntarily given and that it was true; ...


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