Nolan N. Atkinson, Jr., Zack, Myers & Atkinson, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., John H. Isom, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, O'Brien and Pomeroy, JJ., concur in the result. Jones, C. J., dissents.
This is a direct appeal from a judgment of sentence following a jury verdict of murder in the second degree entered against appellant, Julius Wideman, in the Court of Common Pleas of Philadelphia.
Appellant argues that the trial court committed reversible error when, over objection, it allowed Police Detective John Smith to testify concerning a certain oral inculpatory statement made in his presence by the appellant. Appellant contends that this statement should have been excluded because the prosecution failed to demonstrate that appellant's police interrogators had afforded him an opportunity to exercise his Miranda rights at the point in time when he made the inculpatory statement. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). There is no dispute that the appellant was twice afforded such an opportunity twelve hours prior to that point in time when he made his inculpatory statement. Relying on Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971), appellant argues that the change in circumstances which took place over the twelve hour period between the last Miranda warning and his confession required his police interrogators to afford him a new opportunity to exercise his Miranda rights. He contends that the twelve hour time lapse, the change of physical location between the place where
warnings were given and the place where the inculpatory statement was made, the break in the continuity of interrogation, the change of interrogators, and the material difference between the statements given following the initial Miranda warnings and those given twelve hours later, combine to compel the conclusion that the waiver given after the initial warnings was ineffective as to the statement given twelve hours later. We agree, and reverse appellant's conviction and grant a new trial.
At 1:10 a. m., February 28, 1971, one James Allen was shot and fatally wounded. Because an automobile registration card bearing appellant's name was found on the victim's body, the police went to appellant's home several hours later and told him that he could help them by coming to the Police Administration Building to answer some general questions regarding the decedent. At 5:15 a. m., appellant and his wife appeared at the Police Administration Building. Appellant was not taken into an interrogation room, but was questioned in a large office which houses the Homicide Division.
During questioning, police suspicion was aroused by appellant's statement that he owned a car identical to one that had been reported at the scene of the shooting earlier that morning. At this point, about 5:45 a. m., appellant was given Miranda warnings by Detective Bacher. No further questions were asked, and appellant remained with his wife in the Homicide Division Office until 6:45 a. m. At that time Detective Basmajian rewarned the appellant, and questioned him for about one-half hour. Appellant was not isolated at this time or taken to any interrogation room. He then remained in the Homicide Division Office until 10:30 a. m. He was provided with food and questioned further, but he continued to deny any involvement in the shooting of James Allen.
At 10:30 a. m., appellant was taken from the Homicide Division Office into an ...