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decided: January 28, 1977.



Joel Every, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., filed a concurring opinion in which Jones, C. J., and O'Brien and Pomeroy, JJ., joined. Nix, J., concurs in the result.

Author: Manderino

[ 470 Pa. Page 537]


Following a non-jury trial, appellant, Walter Walker, was convicted of murder in the third degree and of possession of an instrument of crime. Post-verdict motions were denied, and concurrent sentences of not less than one nor more than two years on the possession charge, and not less than six nor more than twenty years on the murder conviction, were imposed. This appeal is from the murder conviction. No appeal was taken from the weapons offense conviction.

Prior to trial appellant had sought to suppress certain statements made by him to interrogating police officers. His motion to suppress was denied. The sole question raised on this appeal is whether these statements, given to police officers by appellant following his arrest, were made after a knowing and intelligent waiver of his right to remain silent and of his right to the assistance of an attorney, as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

As observed in Commonwealth v. Goodwin, 460 Pa. 516 at 520-521, 333 A.2d 892 at 894 (1975):

"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 and voluntary."

To be valid, any alleged waiver of these constitutional rights must be the product of a free and uncoerced decision of the accused:

"The ultimate test remains that which has been the only clearly established test in Anglo-American Courts for 200 years: the test of voluntariness. Is the confession

[ 470 Pa. Page 538]

    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 (1961). 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, at 602, 81 S.Ct. 1860, at 1879, 6 L.Ed.2d 1037, at 1057 (1961).

See also Commonwealth v. Goodwin, supra, and cases cited therein.

This Court has often stated that before an alleged waiver of constitutional rights will be declared valid, the prosecution must show by a preponderance of the evidence that the waiver was made knowingly and intelligently. See for example, Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth v. Barnette, 445 Pa. 288, 285 A.2d 141 (1971); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). When an accused challenges the validity of an alleged waiver of constitutional rights, the prosecution's duty becomes one of showing that the accused was aware of both the right, and of the risks of forfeiting such right, and that therefore any waiver of these rights was intelligent and knowing. Commonwealth v. Barnette, supra; Spanbauer v. Burke, 374 F.2d 67 (7 Cir. 1966), cert. denied 389 U.S. 861, 88 S.Ct. 111, 19 L.Ed.2d 127 (1967); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, Sections 7.2, 7.3 (Approved Draft 1968). When the prosecution has prevailed, and

[ 470 Pa. Page 539]

    an alleged waiver of constitutional rights has been declared valid by the suppression court, we have stated that the duty of this Court on appeal is to consider only the evidence of the prosecution's witnesses, and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted, and based upon this review, to determine whether the record supports the factual findings of the suppression court and the legitimacy of the inferences and the legal conclusions drawn from those findings. Commonwealth v. Goodwin, supra; Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth ex rel. Butler v. Rundle, supra.

Furthermore, all the attending factors and circumstances must be considered and evaluated when determining the validity of an alleged waiver of constitutional rights. Such factors and circumstances include:

". . . [T]he duration, and the methods of interrogation; the conditions of detention, the manifest attitude of the police toward the defendant, the defendant's physical and psychological state and all other conditions present which may serve to drain one's powers of resistance to suggestion and undermine his self-determination. (Citations omitted.) . . . [W]hen the question of voluntariness passes beyond the realm of physical coercion and into degrees of psychological coercion, ...

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