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COMMONWEALTH PENNSYLVANIA v. BERNARD SPARROW (02/28/77)

SUPREME COURT OF PENNSYLVANIA


decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD SPARROW, A/K/A BERNARD JOHNSON, APPELLANT (TWO CASES)

COUNSEL

James J. DeMarco, 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. Roberts, J., filed a dissenting opinion in which Manderino, J., joined. Nix, J., filed a dissenting opinion, in which Roberts, J., joined.

Author: Pomeroy

[ 471 Pa. Page 494]

OPINION OF THE COURT

Following a trial before a jury, appellant was convicted of murder in the first degree and aggravated robbery. He filed timely motions for a new trial and in arrest of judgment which were denied by the court en banc. He was subsequently sentenced to life imprisonment for murder and to a consecutive term of from ten to twenty years imprisonment for robbery. This appeal followed.*fn1 Appellant presents a number of assignments of error, none of which, we have concluded, merits reversal. Accordingly, we will affirm.

The evidence presented at trial, viewed in a light most favorable to the Commonwealth as verdict winner, established the following facts. In the late afternoon of October 15, 1971 one Keith Moore obtained a silver-barrelled .32 caliber pistol from a friend. Shortly thereafter Moore learned from his brother and two others that Bernard Sparrow, the defendant, was looking for him. The four men then left Moore's house and began walking,

[ 471 Pa. Page 495]

Moore taking the gun with him in a paper bag. One member of the group, Erie Boyd, left the others for a short while and returned with two bullets. He thereupon asked for and was given the gun, which he placed in his trousers.

Soon the group was augmented by two other persons, Kenneth Wallace and Jerome Bryant. Bryant informed the others: "We're rumbling white boys at 16th and Morris." He asked if any of the others had a weapon, whereupon the pistol was given to Bryant by Boyd, and loaded. Later Wallace asked for the weapon and Bryant complied. As the group reached the corner of Dickinson and Mole Streets in Philadelphia they were joined by the defendant, who demanded the pistol from Wallace and was given it. Sparrow was then heard to boast: "I'm going to get me a homicide." He made it clear that the object of his remark would be a white person.

Sparrow, Bryant and Wallace, separated from the other members of the group, then proceeded along Mole Street. Sparrow carried the gun underneath his coat and expressed his intention to rob someone. As they were walking, an automobile being driven along Mole Street stopped and a white male alighted. This person, later identified as Joseph Jaworski, opened the car's trunk and began removing some pies. Wallace walked past Mr. Jaworski, but Bryant and Sparrow approached him from opposite directions, the appellant from the sidewalk side and Bryant from the street side. Sparrow waved the gun in Jaworski's face, saying, "You don't think this gun is real, do you?" When Jaworski rejoined that he did believe the gun was real, the defendant ordered, "Give me your money." Jaworski told the defendant he didn't have any money and began calling for help. As he was shouting, the defendant fired the pistol once, killing Mr. Jaworski instantly. Sparrow was subsequently arrested, tried and convicted as detailed above.

[ 471 Pa. Page 496]

At trial, the appellant testified in his own behalf, giving an account of his actions at the time of the shooting which differed from that which he had given to the police during interrogation following his arrest. On cross-examination the prosecuting attorney confronted Sparrow with his testimony at a pre-trial suppression hearing that his statements to the police were true. It is now contended that this use of the suppression record violated Pa.R.Cr.P. 323(g), 19 P.S. (1975 pamphlet).*fn2 We considered and rejected this argument in Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972), wherein we observed: "[W]henever a defendant's credibility is an issue it is in 'the interests of justice' to show that he had testified in a completely contrary manner at an earlier hearing in the same case. To decide otherwise would be tantamount to the condoning of perjury." 448 Pa. at 174, 292 A.2d at 371. See also Commonwealth v. Good, 461 Pa. 546, 552-553, 337 A.2d 288, 291 (1975). There was here no misuse of suppression testimony.

The statements made to the police were themselves also used by the prosecution to impeach Sparrow on cross-examination at trial. Error is assigned to such use on the ground that, although the suppression court had held the statements to be voluntary, they were obtained in violation of appellant's constitutional rights, and therefore could not be used for any purpose.*fn3 See Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975).

[ 471 Pa. Page 497]

The main thrust of this argument is that the confession was involuntary because (among other reasons) of denial of access to appellant's lawyer during the police interrogation.*fn4 The suppression court heard all of the evidence relating to the circumstances under which the statements were obtained, including conflicting testimony on the question whether the defendant had requested and been denied an opportunity to consult with an attorney. The court found that the statements were voluntary and that none of appellant's constitutional rights had been denied him. Under these circumstances, as we have held, "[t]he findings of the trier of fact, supported by the record, may not be disturbed. Commonwealth v. Karchella, 449 Pa. 270, 273, 296 A.2d 732, 733 (1972); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33,

[ 471 Pa. Page 49839]

(1972)." Commonwealth v. Johnson, 457 Pa. 554, 557-58, 327 A.2d 632, 634 (1974).*fn5

[ 471 Pa. Page 499]

Appellant also objects to the latitude allowed the district attorney in the cross-examination of Sparrow's sister, Joan Sparrow. Before trial, Joan made certain threatening remarks to a prosecution witness. After she had testified on behalf of her brother, she was asked by the district attorney if she had made such threats, and whether she had been warned by the district attorney that it was illegal to threaten a witness. The trial court overruled objections to these questions and Joan Sparrow then answered affirmatively. "[T]he scope or limitation of cross-examination is largely within the discretion of the trial court, and its action will not be reversed in the absence of an abuse of such discretion. Commonwealth v. Woods, 366 Pa. 618, 79 A.2d 408 (1951)." Commonwealth v. Cheatham, 429 Pa. 198, 203-04, 239 A.2d 293 (1968); see also Commonwealth v. Page 500} Petrakovich, 459 Pa. 511, 523, 329 A.2d 844, 859 (1974). We find no abuse of discretion here. As this Court said long ago in the case of Commonwealth v. Farrell, 187 Pa. 408, 41 A. 382 (1898): "Whatever tends to show the interest or feeling of a witness in a cause is competent by way of cross-examination." 187 Pa. at 423, 41 A. at 384. See also Commonwealth v. Coades, 454 Pa. 448, 452, 311 A.2d 896 (1973); Commonwealth v. Cheatham, supra; Lenahan v. Pittston Coal Mining Co., 221 Pa. 626, 70 A. 884 (1908); Commonwealth v. Emmett, 74 Pa. Super. 86 (1920). Questioning concerning the witness' alleged threats was obviously designed to bring out the strength of Joan's "feeling" towards her brother; the fact that she made them was a significant factor to be considered by the jury in passing upon her credibility.*fn6

We consider next appellant's argument that the trial court unduly restricted the scope of the voir dire examination and improperly denied several challenges for cause. For the most part, the questions defense counsel was not permitted to ask fell into two categories: first, questions through which counsel sought to ascertain the attitude of veniremen toward the defendant, including why they felt they were not prejudiced against him; second, questions seeking to explore prospective jurors' reactions to the possible failure of the defendant to take the stand or present any evidence on his behalf. Both types of inquiry are foreclosed by our decision in Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). As to the first category of questions, we there said, "The only legitimate inquiry in this area was

[ 471 Pa. Page 501]

    whether or not the juror had formed a fixed opinion in the case as to the accused's guilt or innocence." 427 Pa. at 298, 234 A.2d at 561 (emphasis added). Concerning the second type of questions, we said in Lopinson that such questions are "wholly unwarranted and properly excluded." Id.

As to the challenges for cause which are now claimed to have been improperly denied, we must bear in mind "that the scope of the voir dire examination rests in the sound discretion of the trial judge and his decisions, even in a challenge for cause, will not be reversed in the absence of palpable error." Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A.2d 467, 471 (1953); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). Applying this rule, we find that no abuse of discretion occurred. In each case the record shows that none of the prospective jurors so challenged was possessed of any animus towards the appellant, or entertained a fixed opinion as to his guilt or was for any other reason subject to disqualification for cause.

Finally, in addition to the alleged trial errors we have discussed, Sparrow urges reversal of his robbery conviction (or at least vacation of the sentence for robbery) on the ground that his Fifth Amendment guarantee against double jeopardy was violated when he was sentenced on both the murder and the robbery convictions.*fn7 His theory is that the offense of robbery

[ 471 Pa. Page 502]

    merged into the offense of robbery-murder, and so disappeared as a separate crime for which he could be sentenced.

There was ample evidence in the case (such, for example, as Sparrow's announced purpose, "I'm going to get me a homicide") from which the jury could find that the slaying of Joseph Jaworski was wilful, deliberate and premediated. Were that the basis of the verdict of murder in the first degree, there would be no room for the double jeopardy argument. But the jurors were charged that they could also return that verdict if they determined that the killing occurred during the commission of a robbery. Since there is no way of knowing on which theory the jury proceeded, we must consider appellant's contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable. We conclude that the argument is without merit.

[ 471 Pa. Page 503]

Our decisions on the doctrine of merger are not altogether harmonious. In general, however, the rule has been limited to situations where the offenses involved were in effect merely degrees of the same principal crime and the same facts proved both. The focus has been on the conduct of the defendant; if there is essentially but one criminal act, there can be but one punishment.*fn8 An obvious example is that of an attempt to commit an offense, and the completed offense; the former merges into the latter. See also Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 142 A. 317 (felonious assault with intent to maim and disfigure, merges into felonious assault with intent to murder); Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1941) (assault and battery with intent to commit rape and aggravated assault and battery merge into rape); Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973) (assault and battery in resisting arrest merges into assault and battery). These cases bear out the formulation of the doctrine in Russo, supra, that "where the distinct crimes set forth [in an indictment] grow out of the same transaction, differing only in degree, only one penalty can be imposed after conviction". 293 Pa. at 324, 142 A. at 318.

The test for merger was restated in Commonwealth ex rel. Moszcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) as follows:

"The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are 'successive steps in

[ 471 Pa. Page 504]

    the same transaction' but it is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny . . . . When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both." 343 Pa. at 104, 21 A.2d at 921 (emphasis in original).

See also Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973); Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953). It is true, of course, that the offense of murder in the first degree, when based on the concomitant commission of a different felony, "necessarily involves" that other felony in the sense that the felony supplies the essential ingredient of malice. The language above quoted from Moszcynski, however, is not to be given so literal an interpretation. In that case, the defendant had been convicted and sentenced for bank robbery, breaking and entering with intent to commit a felony and a felonious attempt to kill. The Court held that although these several crimes arose from the same continuous episode, no one of them was a necessary ingredient of the others, and no merger occurred. The Court was there concerned to disapprove a line of cases which had held that all that was necessary to invoke the merger doctrine was the fact that "'two or more of the things forbidden are but successive steps in the same transaction,'" Commonwealth ex rel. Ciampoli v. Heston, 292 Pa. 501, 503, 141 A. 287, 288 (1928); it was in no way considering a felony-murder situation, which bears but a superficial similarity to those circumstances in which merger has been found.

"As applied in Pennsylvania, common law felony-murder 'is a means of imputing malice where it may not exist expressly . . .'" Commonwealth v. Yuknavich, 448 Pa. 502, 506, 295 A.2d 290, 292 (1972), quoting from Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 224-25,

[ 471 Pa. Page 505261]

A.2d 550, 553 (1970).*fn9 This degree of commonality, and the circumstance that both crimes were committed in the course of a single "episode", cannot obscure the obvious fact that robbery is not a lesser degree of murder; it is a totally discrete offense.*fn10 Both our common law and statutory law has said that when an unjustified killing occurs in the course of the commission of a robbery (or other specified felony) the killing is not simply an unfortunate accident or manslaughter or even murder in the second degree, but is murder in the first degree. It is a simple matter of definition of the crime involved in one type of wrongful killing: if the killing is committed in the course of committing another specified type of crime, the homicide is murder in the first degree. The societal interest behind such a doctrine is the preservation of human life, so often casually forfeited in the commission of crimes of violence. That purpose would be ill-served by a rule which would say to a felon that "if you happen to kill the victim of your robbery (or your rape, or burglary, or kidnapping or arson) you will not be punished for the underlying crime." Sparrow committed two distinct crimes, robbery and murder; one was a stealing, the other a killing. There was no merger of

[ 471 Pa. Page 506]

    these crimes, and he cannot complain that he was sentenced for both.*fn11

[ 471 Pa. Page 507]

Having concluded that the merger doctrine is inapplicable to the facts of this case because separate offenses are involved, we are satisfied that no double jeopardy problem is posed under the Constitution of the United States. Cf. Turner v. Arkansas, 407 U.S. 366, 92 S.Ct. 2096, 32 L.Ed.2d 798 (1972); Wells v. Missouri, 419 U.S. 1075, 95 S.Ct. 665, 42 L.Ed.2d 671 (1974) (Opinion of Mr. Justice Brennan, joined by Mr. Justice Douglas and Mr. Justice Marshall dissenting from the denial of certiorari).

Judgments of sentence affirmed.

[ 471 Pa. Page 508]

ROBERTS, Justice, dissenting.

The majority does not apply the proper standard for review of the voluntariness of appellant's admission. It treats the trial court's determination of voluntariness purely as a question of fact and, as a result, fails to make the necessary inquiry into appellant's claim. I dissent.*fn1

It is clear from our previous cases that we must independently determine whether a confession is voluntary. Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). This procedure is constitutionally required. "It is our duty in . . . cases dealing with the question whether a confession was voluntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness." Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); see Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). Moreover, when psychological coercion is alleged, a particularly close analysis of the surrounding circumstances is necessary. Commonwealth v. Alston, 456 Pa. 128, 133-34, 317 A.2d 241, 244 (1974); Commonwealth v. Eiland, supra at 574, 301 A.2d at 654; Commonwealth ex rel. Butler v. Rundle, supra at 149, 239 A.2d at 430.

[ 471 Pa. Page 509]

In making this determination, we may:

". . . 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.' Culombe v. Connecticut, 367 U.S. [568, 604], 81 S.Ct. [1860, 1878, 6 L.Ed.2d 1037 (1961)]."

Commonwealth ex rel. Butler v. Rundle, supra at 149-50, 239 A.2d at 430.

The majority uses a much more restricted standard of review. It contends that the suppression "court found that the statements were voluntary" and that this finding "supported by the record, may not be disturbed." This is a clearly mistaken standard which unnecessarily abdicates our obligation on review.

The suppression court's "finding" of voluntariness, like its "finding" that appellant "received the benefit of procedural and substantive safeguards set forth by the United States Supreme Court," is not simply a finding of fact. Rather, these "findings" involve inferences made from the facts, and the application of legal principles to those inferences. See Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1058 (1961) (Opinion of Frankfurter, J.). Such findings must not be insulated from review. If such findings are treated as pure questions of fact, this Court abdicates its responsibility to review alleged violations of constitutional rights. "[W]here necessary to the determination of constitutional rights, [this Court must] make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental -- i. e., -- constitutional -- criteria established by this Court have been respected." Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963); accord Fiske v. Kansas, 274 U.S. 380, 385-86, 47 S.Ct. 655, 656-57, 71 L.Ed. 1108 (1927) ("this Court will review the findings

[ 471 Pa. Page 510]

    of facts by a State court . . . where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts."). See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 574-620 (2d ed. 1973).

Thus, Justice Frankfurter in his opinion in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), recognized that a "finding" of voluntariness was not simply a finding of fact, precluding further review by appellate courts if supported by the record:

"The notion of 'voluntariness' is itself an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes. Since the characterization is the very issue 'to review which this Court sits,' Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (opinion of Frankfurter, J.), the matter of description, too, is necessarily open here. See Lisenba v. People of State of California, 314 U.S. 219, 237-238, 62 S.Ct. 280, 290, 86 L.Ed. 166; Ward v. State of Texas, 316 U.S. 547, 550, 62 S.Ct. 1139, 1141, 86 L.Ed. 1663; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224; Malinski v. People of State of New York, 324 U.S. 401, 404, 417, 65 S.Ct. 781, 783, 789, 89 L.Ed. 1029.

No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially -- that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply by declining to draw inferences which the historical facts compel."

Id. at 604-05, 81 S.Ct. at 1880. Clearly, the suppression court's "finding" of voluntariness does not relieve this

[ 471 Pa. Page 511]

Court of its responsibility to review the voluntariness of appellant's confession in the totality of the circumstances.

Justice Frankfurter recognized three phases of inquiry, although he also recognized that in practical application these phases become interwoven. First, the raw "historical facts" must be determined. Next, the defendant's psychological state is inferred from these facts. Finally, legal principles are applied to these inferences to determine voluntariness. The passage quoted and relied upon by the majority, to support its assertion that a "finding" of voluntariness must be upheld if it is supported by the record, applies only to the "crude historical facts."

"The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, 'phenomenological' occurrences and events surrounding the confession. Second, because the concept of 'voluntariness' is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, 'psychological' fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.

In a case coming here from the highest court of a State in which review may be had, the first of these phases is definitely determined, normally, by that court. Determination of what happened requires assessments of the relative credibility of witnesses whose stories, in cases involving claims of coercion, are frequently, if indeed not almost invariably, contradictory. That ascertainment belongs to the trier of facts before whom

[ 471 Pa. Page 512]

    those witnesses actually appear, subject to whatever corrective powers a State's appellate processes afford.

This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review -- with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence."

Id. at 603, 81 S.Ct. at 1879. Clearly, the inferences the suppression court draws about the accused's psychological state, and its determination on voluntariness, are not the kinds of factual determinations beyond appellate review.*fn2 The majority completely fails to comprehend Justice Frankfurter's analysis.

Because it applies the wrong standard, the majority fails to analyze the voluntariness of appellant's statements in the totality of the circumstances. Every circumstance

[ 471 Pa. Page 513]

    that may have affected appellant's will must be considered and any admission or confession which was not a product of an essentially free and unconstrained choice by the accused must be suppressed. Commonwealth v. Alston, supra at 131-33, 317 A.2d at 242-43 (1974); Commonwealth v. Eiland, supra at 574, 301 A.2d at 654; Commonwealth ex rel. Butler v. Rundle, supra at 149-51, 239 A.2d at 430-31.

We listed the following factors as crucial to this inquiry:

". . . the 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 ones powers of resistance to suggestion and undermine his self-determination."

Commonwealth v. Alston, supra at 134, 317 A.2d at 244; see Commonwealth v. Purvis, 458 Pa. 359, 364, 326 A.2d 369, 371 (1974); Commonwealth ex rel. Butler v. Rundle, supra at 149, 239 A.2d at 430.

In this case, the following facts are uncontradicted. Appellant was arrested at approximately 4:30 p. m., October 17, 1972, and arrived at the Police Administration Building at 5:00 p. m. From 5:00 p. m. until 9:25 a. m., October 18, 1972, appellant was interrogated by several teams of detectives. He was left alone for various intervals, during which he was manacled in the interrogation room and thus was denied any effective rest. During the first eight hours, appellant consistently denied any involvement in the crime.*fn3 At 12:40 a. m., he made the first statement later used by the Commonwealth. The interrogation based on this first statement lasted until 2:30 a. m. From 2:30 a. m. until 5:00 a. m., appellant was again manacled and left alone. Between 5:00 a. m.

[ 471 Pa. Page 514]

    and 7:00 a. m., appellant made a further admission, adding details to his first statement.*fn4 He was once again manacled and left alone until 9:25 a. m., when he was allowed to confer with his attorney and later allowed to meet with his father. He was again shackled and left alone until 5:00 p. m., October 18, when he was finally arraigned, more than twenty-four hours after his arrest.

Only after eight hours in custody, and seven and one-half hours of interrogation, did appellant make an incriminating statement. Appellant's further admission came more than twelve hours after arrest, and he was not arraigned until more than twenty-four hours after his arrest.*fn5 Given the coercive nature of such an extended

[ 471 Pa. Page 515]

    pre-arraignment delay, I cannot agree that the statements taken from appellant were voluntary.

Appellant's claim that he was denied access to counsel highlights the involuntariness of his admissions. Appellant retained counsel shortly before he was arrested, and counsel instructed him to make no statement unless counsel was present. After appellant's later admission, he read the statement, but declined to sign it, stating that he would sign nothing until he had talked to his attorney. I can only conclude that when appellant made admissions to the police, in disregard of the advice of retained counsel, it was because his will was overborne, especially since appellant still wanted to see his attorney after he made these statements.*fn6

[ 471 Pa. Page 516]

The Commonwealth argues that there was no prejudice in admitting these statements into evidence because they were substantially the same as those testified to by appellant at trial. However, appellant's testimony may have been induced by his earlier admissions while being interrogated and therefore should be suppressed as a fruit of the former illegality. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Commonwealth v. Saunders, 459 Pa. 677, 683, 331 A.2d 193, 195 (1975) (Dissenting Opinion of Nix, J., joined by Roberts, J.).

Nor can I agree with the Commonwealth's contention that the statement was admissible for the purpose of impeaching appellant's testimony. In Commonwealth v. Triplett, 462 Pa. 244, 248-49, 341 A.2d 62, 64 (1975), this Court stated:

"We are of the opinion that any statement of a defendant declared inadmissible for any reason by a suppression court cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf."

Thus, it is clear that an involuntary confession must be excluded for the purposes of impeachment of defendant at trial.

I cannot agree that appellant's admissions were voluntary. I dissent, and would grant appellant a new trial.

NIX, Justice, dissenting.

I share Mr. Justice ROBERTS' view that the majority did not employ the proper standards for appellate review of the voluntariness claim. While it is true, as pointed

[ 471 Pa. Page 517]

    out by the majority, that appellate courts should accept findings of fact of the hearing judge where supported by the record, it is nevertheless the responsibility of the appellate court to examine the inferences drawn from the factual findings and to independently test the conclusions of law derived from those facts and inferences. In the instant case, the majority accepted not only the findings of fact, but also blindly followed the inferences and legal conclusions drawn by the hearing judge from those facts.*fn1a This obviously resulted in a denial of appellant's appellate review as to this issue.

Furthermore, I cannot agree with that part of the majority opinion which upholds the imposition of sentence on appellant's conviction for robbery as if it were a separate crime. Appellant was convicted of murder of the first degree as well as robbery. The statute applicable to this case defines murder of the first degree as follows:

"All murder which shall be perpetrated by means of . . . willful, deliberate and premeditated killing, or which shall be committed in the perpetration of . . . any arson, rape, robbery, burglary, or kidnapping shall be murder in the first degree." Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701 (Appx.1973) (emphasis added), now repealed and replaced by, 18 Pa.C.S. § 2502 (Supp.1976-77).

It is impossible to ascertain whether the jury's verdict of murder in the first degree was premised on a finding that the slaying was willful, deliberate and premeditated, or a finding that the killing occurred during the commission of a robbery, one of the felonies enumerated in the statute. Both theories were submitted to the jury. If the jury's verdict of murder in the first degree was

[ 471 Pa. Page 518]

    based on a felony-murder theory it would, in my judgment, constitute double punishment to sentence appellant independently on the underlying enumerated felony. In such a case, the defendant is not only subjected to a penalty under the separate robbery conviction, but he is also subjected to an enhanced penalty on the murder charge as a result of the underlying enumerated felony of robbery. Such a result violates the double jeopardy provisions of both the federal and state*fn2a constitutions and accordingly, I dissent.

It should first be noted that the majority has chosen not to analyze the problem arising in this case in accordance with double jeopardy principles,*fn3a but instead relies on a cursory application of this jurisdiction's merger doctrine to determine that robbery and murder are separate crimes, which do not merge, so that separate sentences are proper. In so holding, the majority not only misapplies the merger doctrine,*fn4a but reveals that it misperceives the issue raised on this appeal. The issue is not, as the majority has framed it, whether the separate

[ 471 Pa. Page 519]

    penalty imposed on the robbery conviction comports with this jurisdiction's merger rules. Rather, the question requires a decision as to whether the sentence can pass constitutional muster. The majority's approach is even more inexplicable in light of its concession that we have not decided "[whether] our 'merger' decisions might satisfy the requirements of federal double jeopardy law." Ante at 718, n. 8.

The Double Jeopardy Clause of the Fifth Amendment provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . ." In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Supreme Court concisely set forth the well-established parameters of the protection afforded by the clause.

"'[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.'" Id. at 343, 95 S.Ct. at 1021, quoting from, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (emphasis added).

The prohibition of the Double Jeopardy Clause against "multiple punishments" has been recognized by this Court as well. See Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).*fn5a It is clear under this principle that if a particular offense serves as the basis,

[ 471 Pa. Page 520]

    in whole or in part, for the imposition of a sentence, any further infliction of punishment for the same criminal conduct would violate the constitutional guarantee.

The 1939 Penal Code, in failing to define the crime of murder, incorporated the common law definition of that crime. In setting forth the elements of common law murder in this jurisdiction, this Court stated in the landmark case of Commonwealth v. Drum, 58 Pa. 9 (1868), that "[t]he distinguishing criterion of murder is malice aforethought." Id. at 15.

"With this 'criterion' as the basis, the doctrine of felony-murder became firmly imbedded in the common law. As applied in Pennsylvania, common law felony-murder 'is a means of imputing malice where it may not exist expressly. Under this rule, the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.' Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 224-25, 261 A.2d 550, 553 (1970)." Commonwealth v. Yuknavich, 448 Pa. 502, 506, 295 A.2d 290, 292 (1972).

The 1939 Penal Code did, however, divide murder into "degrees." Under the statute, all murder was deemed murder of the second degree, unless the killing was "willful, deliberate and premeditated," or it occurred in the perpetration of any "arson, rape, robbery, burglary, or kidnapping," in which case it was murder of the first degree.*fn6a Because the legislature determined that certain types of murder were more heinous than others, it imposed a more severe sanction on the actor if the killing was accompanied by one of the "aggravating circumstances" enumerated in the statute. This being so, the

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    commission of an enumerated felony not only serves to impute the malice from the illegal act to any death caused during its commission, in accordance with the common law rule, but it also provides by operation of the statute the additional aggravating circumstance necessary to raise the crime to murder of the first degree. The presence of the enumerated felony, such as robbery, operates to raise the degree of the crime of murder, thereby enhancing the penalty accorded. Restated, where common law murder rises to the first degree because of the accompanying underlying enumerated felony, then the felony itself becomes an essential element of the statutory crime of murder in the first degree. Therefore, the allowance of a separate sentence to be imposed upon the robbery indictment would be violative of the double jeopardy prohibition against multiple punishment.

Finally, it should be emphasized that the failure of the majority to distinguish between the role of all felonies under the common law felony-murder doctrine and the function of one of the enumerated felonies under the statutory felony-murder provision precipitated its erroneous application of the merger doctrine in this case.*fn7a

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Under the common law felony-murder doctrine, the felony provides the basis for imputing the malice necessary to raise a killing to murder. In this instance, as the majority correctly notes, the felony itself is not in fact an element of the murder, but rather it supplies the basis for the finder of fact to infer the requisite state of mind at the time of the killing. The majority confuses this concept with the function of the enumerated felony under/the statutorily defined crime of murder in the first degree. There, the express language of the statute prescribes the presence of one of the underlying enumerated felonies as an integral part of the crime. Thus, the felony itself must be considered an essential element of the composite crime of murder in the first degree.*fn8a

In my judgment, the proper application of our merger test yields the conclusion that robbery is a necessary ingredient for the crime of murder of the first degree in the felony-murder context. Thus, the separate sentence imposed under the robbery indictment was violative not only of the constitutional double jeopardy prohibitions, but also our rules as to merger.


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