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decided: March 18, 1975.



Rudolph S. Pallastrone, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Judith Dean, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Asst. Chief Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and O'Brien, Roberts, and Nix, JJ., concurred in the result.

Author: Manderino

[ 460 Pa. Page 667]


Appellant, Richard Mitchell, was convicted by a jury of voluntary manslaughter and aggravated assault and battery. Post-verdict motions were denied and the appellant was sentenced to four and one-half to ten years imprisonment for voluntary manslaughter and to a concurrent

[ 460 Pa. Page 668]

    one to two year sentence for the aggravated assault and battery. This appeal followed.

Appellant first contends that his pretrial application to suppress a signed formal statement should have been granted because the prosecution, at the suppression hearing, failed to sustain its burden of establishing by a preponderance of the evidence that the statement was voluntary. The appellant correctly states the prosecution's burden. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). We do not agree, however, that the prosecution's evidence failed to meet that burden.

Appellant's contention is based on the fact that the police officer who took appellant's final statement died before the suppression hearing and was thus not available to give testimony about the circumstances surrounding the taking of the formal statement. Without the deceased officer's testimony, argues the appellant, the prosecution could not prove the voluntariness of the statement since only the deceased officer and the appellant were present when the statement was made and signed. Appellant, however, is not correct in stating that only the deceased policeman's testimony could prove the voluntariness of appellant's formal statement. Such testimony would have been direct testimony of voluntariness but circumstantial evidence can also be used to sustain one's burden. We have examined the circumstantial evidence and conclude that the prosecution met its burden.

The appellant presented no evidence at the suppression hearing. The prosecution's evidence at the suppression hearing established the following facts. The appellant called the police late in the evening on May 22, 1971, and said that he thought he had committed a crime. When the police arrived at the address reported, the appellant told them that he was sure he had hurt a couple of his

[ 460 Pa. Page 669]

    friends during an argument earlier in the evening. He added that he was sure he had killed one of them. The appellant then took the police to an apartment at another address where the police found one man dead and another, seriously injured. The appellant was then handcuffed and taken to the police station. At the station, a police officer took appellant to an interview room and removed the handcuffs. Appellant was searched and said "no" when asked if he was injured or wanted anything to eat. The appellant, after being informed of his constitutional rights, wrote answers to written questions indicating that he waived those rights and signed his name at the end of the waiver form. He then gave an oral statement during which a police officer, who was taking notes, asked appellant several times to slow down. The police officer who took the oral statement testified at the suppression hearing about the taking of the oral statement. He said the appellant was not under the influence of any drugs and was not drunk. He further testified that no promises or threats were made to the appellant who volunteered to tell what happened. The taking of appellant's oral statement took about twenty minutes. After the completion of the oral statement, which the officer had reduced to writing, the officer left the interview room. He did not ask the appellant to sign the writing. About fifteen minutes later, another police officer who had been investigating at the scene, returned and was told about appellant's ...

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