Joseph C. Santaguida, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Marianne E. Cox, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Eagen, J., concur in the result. Roberts, J., filed a dissenting opinion in which Nix and Manderino, JJ., joined.
This appeal arises from the conviction of appellant, John Yates, brother and co-defendant of Stanley Yates,
of murder in the third degree in connection with the beating death of Oscar Ligon. In October, 1974, appellant was tried by a judge and jury and was found guilty of conspiracy and murder in the third degree. Post-trial motions were properly filed and denied by the court en banc. Appellant was sentenced to one and one-half to five years' imprisonment on the murder conviction and received a suspended sentence on the conspiracy conviction. This appeal followed.
The sole issue raised by the appellant is that his confession was obtained in violation of his constitutional rights and was therefore inadmissible at trial. The basis for appellant's argument is that his confession was physically coerced and that he was denied counsel during interrogation.
The facts surrounding the confession are as follows. On May 8, 1974, Oscar Ligon was accosted and beaten by John Yates, Stanley Yates, his brother, and two other individuals. The reason behind the attack was a previous altercation between the decedent and appellant's sister, Ophilia Yates. The beating was observed by Dora Johnson, the owner of the candy store where the beating took place.
On May 15, 1974, at 6:50 a. m., the Philadelphia police, acting upon information received from Dora Johnson, arrested appellant, John Yates, and his brother, Stanley, at their home in Philadelphia. Appellant arrived at the Police Administration Building at approximately 7:10 a. m. Appellant was alone between 7:10 and 7:20 a. m., at which time his interrogation began. Between 7:20 a. m. and 8:30 a. m., appellant was warned of his Miranda rights, which he waived, and he was then confronted with the statement of Dora Johnson, the witness to the beating. After being told of the Johnson statement, appellant admitted his involvement in the beating and he signed a handprinted statement admitting
his involvement at approximately 8:40 a. m. The police officer who conducted the interrogation and obtained the written confession testified that no physical threats or punishment were inflicted on appellant to obtain the confession and that appellant appeared alert, coherent and responsive during the interrogation. Based on the above facts, we are of the opinion that appellant's confession was prompted by his being confronted with an eyewitness statement, and not by police coercion. See Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975).
The second part of appellant's argument is that he was denied access to an attorney during the interrogation. He bases this contention on the stipulation of the district attorney at the suppression hearing that if defense counsel testified, he would testify that appellant's mother contacted him at 7:30 a. m. the day of the arrest to retain his services for her two sons on the murder charges. Further, defense counsel would testify that he attempted to reach appellant at the Police Administration Building at approximately 8:00 that morning, but was informed that appellant had already given an inculpatory statement. The defense counsel attempted a second phone call at 9:30 a. m., but was informed that appellant had already given a statement.*fn1
The district attorney did not stipulate to the truth of the statement, but only that the statement would be the substance of the defense attorney's testimony at appellant's suppression hearing. The Commonwealth produced evidence that appellant orally waived his Miranda rights at the beginning of the interrogation and again when the statement was ...