decided: July 6, 1976.
COMMONWEALTH OF PENNSYLVANIA
THOMAS WILLIAM MOORE, APPELLANT
Appeal No. 435 January Term, 1975, from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, Imposed on Indictment No. 1773, as of October Term, 1974; Paul M. Chalfin, Judge.
Edward G. Rendell, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, 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: Per Curiam
[ 467 Pa. Page 497]
Judgment of sentence affirmed.
MANDERINO, Justice (dissenting).
I cannot agree with the majority's determination that appellant's confession was "the product of an essentially free and unconstrained choice". Commonwealth v. Alston, 456 Pa. 128, 131, 317 A.2d 241, 243 (1974). This Court has previously held that a confession can be rendered involuntary not necessarily as a result of overbearing
[ 467 Pa. Page 498]
police conduct but rather by an appellant's own condition. Commonwealth v. Ritter, 462 Pa. 214, 340 A.2d 433 (1975). In Ritter, a confession was held to be involuntary in that the "appellant was in no condition to knowingly and voluntarily confess . . . [since he was] . . . in dire need of psychiatric help and exhausted." 340 A.2d at 434. In this case, the evidence reveals that appellant was in great pain when he was questioned by the police and that less than an hour later he was unable to respond to a doctor's attempts to communicate with him. In fact the doctor testified that appellant did not respond to the sewing of appellant's wound which indicated the presence of overriding and significant pain.
I must dissent from the majority's opinion. It is clear from the facts that appellant's will was overcome by his physical condition. Therefore, it cannot be said that appellant voluntarily gave the statement or voluntarily waived his Miranda rights.
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