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decided: November 26, 1975.



Kenneth L. Green, I. P. P., R. B. Mozenter, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Wm. P. Boland, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion in which Roberts, J., joins.

Author: Pomeroy

[ 464 Pa. Page 559]


Kenneth L. Green, the appellant, was adjudged guilty in a non-jury trial of murder in the second degree and of

[ 464 Pa. Page 560]

    carrying a firearm on a public street. Motions for a new trial and in arrest of judgment were denied and appellant was sentenced to a term of one to ten years imprisonment for murder; sentence on the firearms violation was suspended. This direct appeal from the judgment of sentence imposed on the murder conviction followed.

Two principal issues are presented by appellant. Finding no merit in either of them, we will affirm the judgment of sentence.


First, it is argued that the trial judge, sitting as fact-finder, abused his discretion in passing both on the voluntariness of appellant's confession and on his guilt. The salient facts can be quickly stated: Prior to trial, the appellant moved for the suppression of a confession he made to the police on the grounds that it was involuntary and that it had been obtained during a period of unnecessary delay between arrest and arraignment. See Pa.R.Crim.P. 130, 19 P.S. (1975 Pamphlet). The suppression court denied the motion, concluding that the confession had been validly obtained and was therefore admissible at trial. The issue of the voluntariness of the confession was again raised at trial, as permitted by Rule 323(j) of our Rules of Criminal Procedure. The trial judge (a different judge than the one who conducted the suppression hearing) found the confession to be involuntary and stated on the record that he did not consider it in making his determination of guilt.

The principal thrust of appellant's claim appears to be that when the question of the voluntariness of a confession is placed in issue at trial, the judge who passes upon that issue, if he resolves it in favor of the defendant, cannot also determine guilt because the knowledge of the contents of the confession could unconsciously

[ 464 Pa. Page 561]

    color the judge's thinking in the guilt-determining process. In effect appellant is arguing that the mere exposure to prejudicial evidence is enough to nullify a judge's verdict in a case. We cannot subscribe to such a view, for it is of the essence of the judicial function to hear or view proffered evidence, whether testimonial or in exhibit form, and to decide whether or not it should be admitted into evidence, or if admitted initially or provisionally, should later be excluded or disregarded.*fn1 For us to accept appellant's contention would be, in effect, to find disqualification of a judge to be a judge; it would go against the time honored practice in our courts in a myriad of situations, civil as well as criminal, and would add immeasurably to the workload of the trial courts.

The rights of a defendant in this area are, in our opinion, adequately protected by Rule 323 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. (1975 Pamphlet), relating to the suppression of evidence. That rule is modelled after the so-called Massachusetts or "humane" rule approved by the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S.Ct.

[ 464 Pa. Page 5621774]

, 12 L.Ed.2d 908 (1964). It provides that prior to trial, upon motion of the defendant to suppress evidence allegedly obtained unconstitutionally, a hearing shall be held to determine the admissibility of the challenged evidence. If the evidence is found to be admissible, the defendant is foreclosed only from challenging its admissibility at trial; he may still contest the validity of such evidence notwithstanding its admission. For example, in the case of a confession, the challenge to it on involuntariness grounds may be renewed at trial. See Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972); Commonwealth v. Joyner, 441 Pa. 242, 272 A.2d 454 (1971). As detailed above, the present appellant availed himself fully of the rights accorded by this rule.

Appellant contends that Jackson v. Denno, supra, lends support for his claim. In Jackson, the Court held unconstitutional as violative of due process a procedure in the State of New York which permitted the issue of the voluntariness of a confession to be submitted to the same jury which also determined guilt. The Court's holding, however, rested upon the fact that there was no independent evidentiary hearing on the issue of voluntariness alone; the vice in the procedure was in exposing the jury to a questionable confession and permitting the jury to assess conflicting evidence on the question of voluntariness in the first instance at trial. In the present case, in contrast, appellant did have an opportunity to contest the admissibility of the confession at a separate hearing preceding trial and before a judge other than the trial judge.*fn2 The rule appellant seeks to have us adopt would

[ 464 Pa. Page 563]

    seem to require that there be two suppression hearings rather than just one; the trial judge would have to abort the trial if, as here, he concluded that the confession was not voluntary. We cannot think that such a result was contemplated by the Supreme Court in Jackson v. Denno. On the contrary, as noted above, that Court explicitly approved the procedure herein followed when a jury was the factfinder:

"We raise no question here concerning the Massachusetts procedure. . . . Given the integrity of the preliminary proceedings before the judge, the Massachusetts procedure does not, in our opinion, pose hazards to the rights of a defendant. . . . The judge's consideration of voluntariness is carried out separate and aside from issues of the reliability of the confession and the guilt or innocence of the accused and without regard to the fact the issue ...

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