James Dunworth, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., James Garrett, Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Manderino, J., took no part in the consideration or decision of this case. O'Brien, J., concurs in the result. Roberts, J., filed a dissenting opinion. Nix, J., dissents.
Mervin Bullock was convicted by a jury of aggravated robbery and murder in the first degree. Following the
denial of post trial motions, a sentence of life imprisonment was imposed on the murder conviction.*fn1 This appeal followed.
The sufficiency of the evidence to sustain a conviction of murder in the first degree is not questioned, nonetheless we have studied the record and are completely satisfied the trial evidence was more than ample to warrant such a conviction. From the evidence, the jury could find that on the evening of June 26, 1971, Bullock armed with a .32 automatic pistol robbed and fatally shot one Daniel Taylor in Philadelphia.
Two errors allegedly occurred in the prosecution process, which it is said require a new trial. The first such asserted error is the trial court's refusal to suppress evidence of certain oral admissions and of a recorded incriminating statement Bullock made to the police. It is urged this evidence was obtained in violation of Bullock's right to counsel under the Sixth Amendment. We are not so persuaded. The relevant facts are these.
Shortly before midnight of the day of the crimes, Bullock voluntarily appeared in the North Central Detective Division of the Philadelphia Police Department and told the officer at the desk he was "here to give [himself] up about a shooting." Shortly thereafter, he was transferred to the Police Administration Building by a Detective Brown. On the way to the Administration Building, Bullock, without being asked any questions, spontaneously told Brown that he was involved in the Taylor robbery, but that Taylor was shot when the gun discharged accidentally.
Upon arrival at the Police Administration Building, Bullock produced a card with his attorney's name thereon and requested permission to contact this attorney "before I talk to you." Permission was granted and the attorney's phone number was dialed but contact could not
be made. Detective Brown then asked Bullock, "Do you want to wait until you get hold of your lawyer and try to call him again, or do you want to tell us what took place?" Bullock replied, "I'll tell you what took place and then I'll call my lawyer." Bullock was then advised of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and in answers to questions indicated he clearly understood his right to remain silent and that he was entitled to have the assistance of counsel before and when he talked with the police. Bullock then told Detective Brown he took part in the robbery of Taylor, but insisted Taylor was shot accidentally. Subsequently, a formal or recorded statement was taken. Bullock's version of the robbery and shooting in this statement corresponded with that given previously. However, it was more detailed. Upon its completion, Bullock read and signed the statement on each page. After this, Bullock made another attempt to contact his attorney by phone but was unsuccessful. It is the court's ruling, refusing to suppress and in permitting evidentiary use of Bullock's admissions and recorded statement, made after he told the police he wanted to contact his attorney "before I talk to you," that is the principal assignment of error in this appeal.
The thrust of Bullock's argument in connection with the foregoing is that once the police were informed he wanted the assistance of a lawyer, it was improper and constitutionally impermissible to ask him any questions without a lawyer being present. This position is based on the following language of the Court in Miranda v. Arizona, supra, at pages 444-445, 86 S.Ct. at 1613. "If, however, [the defendant] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." [Emphasis ...