Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, Nos. 1232 to 1235, inclusive, in case of Commonwealth of Pennsylvania v. Cornelius Cunningham.
E. Rendell, Assistant District Attorney, with him Joseph C. Murray and Steven H. Goldblatt, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Stanley M. Schwarz, P. C., Arthur K. Makadon, and Milton M. Stein, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Manderino concurs in the result. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice Nix join in this dissenting opinion.
This appeal by the Commonwealth presents the narrow question whether statements of a defendant which were volunteered to private citizens at a time when the defendant's mental state was, allegedly, such as to render him incompetent to testify to the subject matter of those statements may be suppressed pre-trial pursuant to Rule 323 of the Pennsylvania Rules of Criminal Procedure.
Appellee, Cornelius Cunningham, is charged with one count of murder and three counts of assault with intent to kill. The testimony at the suppression hearing indicates that, in the early afternoon hours of March 22, 1971, appellee shot and killed one Daryl Coleman in the basement of Temple University Hospital, Philadelphia. On his way out of that institution, Cunningham turned to a group of individuals seated in a hallway and stated, "Your friend's dead. I just killed your friend." Approximately two hours later, Cunningham surrendered himself to a guard in the Raymond Rosen Housing Project. At this time, he handed the guard a gun and stated that he had shot several people. After the shooting at Temple, but prior to his surrender to the project guard, Cunningham allegedly shot and wounded three other people. At approximately 3:00 p.m. on March 22, 1971, appellee was taken into custody by members of the Philadelphia Police Department.
During his in-custody period, he gave several incriminating admissions to the police.
Cunningham filed a pre-trial motion to suppress evidence of his in-custody and out-of-custody statements and the gun. Following an evidentiary hearing pursuant to Rule 323, the court entered an order suppressing the in-custody statements on the ground that the defendant was incompetent to make a valid waiver of his Miranda*fn1 rights; it held under advisement the motion to suppress the physical evidence and the volunteered out-of-custody statements. Upon further consideration, the court ruled the physical evidence admissible but suppressed the statements on the ground that they were made at a time when the defendant's state of mind was such as to render him incompetent to make such admissions. The Commonwealth does not dispute the rulings as to the statements made while in police custody, but contends that the pre-trial suppression of the out-of-custody declaration was improper.*fn2 We agree.*fn3
Rule 323(a) provides: "The defendant or his attorney may make application to the court to suppress any evidence alleged to have been obtained in violation of the defendant's constitutional rights." (Emphasis added.) The comment to Rule 323 explains the purpose and scope of the rule: "The rule ...