Samuel Kagle, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Albert L. Becker, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Roberts, J., concurs in the result. Eagen and O'Brien, JJ., dissent. Nix, J., did not participate in the consideration or decision of this case.
This is a direct appeal from the judgment of sentence of life imprisonment imposed upon the appellant following his conviction of first degree murder.*fn1
The evidence can be summarized briefly: In the early morning hours of December 14, 1969, Marshall Jones and three other persons agreed to "make some hits" in downtown Philadelphia. They proceeded to the subway station at 30th and Market Streets, where they jumped one Steven Kreloff, beat him badly and robbed him of money and other valuables. Almost immediately thereafter they attacked, beat and robbed one Harry Pollack, and then threw him onto the subway tracks. Pollack subsequently died of the beating and fall. The appellant and his accomplices then scattered, only to regroup about an hour later. At that time, Jones snatched a purse from one Annie Thomas, a pedestrian. Appellant and two of his companions were arrested approximately 10-20 minutes after the purse snatching.*fn2
Early the following morning, appellant signed a nine-page written statement in which he admitted participating in the beatings and robberies and specifically admitted pushing Pollack onto the subway tracks. Appellant's later motion to suppress the confession was denied
following a hearing, and the document was introduced into evidence at trial. At trial, appellant renewed his attack on the confession by offering the testimony of a psychiatrist concerning his, Jones', subnormal mental capacity and lack of verbal facility, and his consequent inability to have given the confession which the Commonwealth attributed to him. The trial court refused to allow this evidence; we have concluded that this exclusion was error and requires a new trial.*fn3
At a side-bar discussion, counsel indicated that the purpose of the offer of proof was an attempt to "minimize the impact of the defendant's confession". The gist of the psychiatrist's testimony, he said, would be that, in light of the defendant's mental capacity, his I.Q. and lack of verbal facility, defendant would have been incapable of giving a statement of the length and continuity of the one allegedly given by the defendant to the police. Counsel indicated that the psychiatrist would testify that in his opinion the interrogating detective had interjected questions which were not reflected in the statement. He further stated that the purpose of the psychiatrist's testimony would be to show that the defendant had an I.Q. of 71 and was a mild mental ...