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decided: March 18, 1975.



John J. Dean, John R. Cook, Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., John M. Tighe, First Asst. Dist. Atty., Pittsburgh, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case.

Author: Nix

[ 460 Pa. Page 519]


In the instant case, the appellant seeks a reversal of the judgment of sentence on the ground that incriminatory statements made by him to police officials were improperly introduced into evidence at his trial. We disagree with appellant's premise that the statements were improperly admitted, for the reasons that follow, and affirm the judgment of sentence.

Appellant was arrested and charged with the fatal shooting of the deceased, Ms. Sally Mae Whitehead. The Commonwealth's evidence established that appellant had

[ 460 Pa. Page 520]

    left a social gathering and was seen in the company of the deceased between 10:30 and 10:45 P.M. on the evening of February 7, 1973. The appellant was seen on Frazier Street in the City of Pittsburgh, in the company of the victim. The witness testified that he appeared to have had her in a headlock and that she made sounds which resembled groans. Appellant then pushed the deceased into an alley causing her to fall to the ground. The deceased then crawled from the alley to a nearby wall of a flower bed, whereupon the appellant fired a shot which resulted in Ms. Whitehead's death.

Before trial appellant made application to the court requesting the suppression of various items of evidence including a tape-recorded statement which was elicited during the custodial interrogation which followed his arrest. After a hearing the suppression court, although granting a portion of appellant's request, denied the application to suppress the tape-recorded statement. Subsequently, he was tried before a judge sitting with a jury and adjudged guilty of murder in the second degree. Sentence was imposed after the dismissal of post-trial motions. Appellant now raises as his sole basis for relief the failure of the suppression court to sustain his challenge to the tape-recorded statement.

Appellant offers two theories either of which he urges supports his view that the questioned statement should have been found inadmissible. First, he argues that under the "totality of the circumstances" the waiver of his rights to remain silent and to have counsel during police custodial interrogation was not knowing or voluntary. The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) stated that an individual under custodial interrogation, who has been informed properly of his privilege against self-incrimination and the right to counsel, may elect to waive these constitutional rights. However, the Court emphasized that any waiver must be knowing, intelligent

[ 460 Pa. Page 521]

    and voluntary. Miranda v. Arizona, supra at 444, 86 S.Ct. 1602; Commonwealth v. Purvis, 458 Pa. 359, 326 A.2d 369 (1974); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974); Commonwealth v. Simms, 455 Pa. 599, 317 A.2d 265 (1974); Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576 (1973); Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Davenport, 449 Pa. 263, 295 A.2d 596 (1972); Commonwealth v. Koch, 446 Pa. 469, 288 A.2d 791 (1972); and Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

In determining the validity of an alleged waiver, it must be established that the decision was the product of a free and uncoerced decision.

"The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760. The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." (Emphasis added). Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961).

See also, Commonwealth v. Purvis, supra; Commonwealth v. Alston, supra; Commonwealth v. Simms, supra; Commonwealth v. Banks, supra; Commonwealth v. Riggins, supra; Commonwealth v. Eiland, supra; Commonwealth v. Davenport, supra; Commonwealth v. Koch, supra ; and Commonwealth ex rel. Butler v. Rundle, supra.

[ 460 Pa. Page 522]

Further, in determining the voluntariness of the waiver, all attending factors and circumstances must ...

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