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COMMONWEALTH PENNSYLVANIA v. KEITH O. SMITH (07/06/76)

decided: July 6, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH O. SMITH, APPELLANT (TWO CASES)



Appeal Nos. 474 and 475 January Term, 1975 from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 167, 169, and 170 June Term, 1974; Lois G. Forer, Judge.

COUNSEL

Sebastian M. Rainone, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Marrianne Cox, Philadelphia, for appellee.

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

Author: Per Curiam

[ 468 Pa. Page 375]

OPINION OF THE COURT

Judgments of sentence affirmed.

ROBERTS, Justice (dissenting).

Appellant was convicted after a jury trial of murder in the second degree, robbery and conspiracy. In my view appellant properly advances a novel and interesting question on this appeal which the majority fails to consider.

[ 468 Pa. Page 376]

When appellant was questioned concerning these offenses he denied that he shot decedent. Appellant was then asked to take a polygraph test. He signed the printed waiver form used by the Philadelphia police,*fn1 and before actually taking the test, made an oral admission during what is called the pre-test interview. The polygraph examination was never administered. Appellant contends that his confession should have been suppressed because it was made after he agreed to submit to a polygraph without being advised of the nature of that examination. Appellant attacks the use of the polygraph in the interrogation process and the adequacy of the waiver form used prior to administering the "examination." We are urged to adopt a rule excluding confessions which are obtained after a polygraph examination unless the Commonwealth establishes that, prior to agreeing to take the test, the accused was advised: "(1) [t]he taking of the test is not mandatory; (2) the results of the examination whether positive or negative are

[ 468 Pa. Page 377]

    inadmissible in a court of law as evidence establishing guilt or innocence . . .; and (3) a favorable test result does not compel ...


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