Joseph N. Bongiovanni, Jr., Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Mark Sendrow, Philadelphia, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. O'Brien, J., concurs in the result because appellant's request for a jury instruction on voluntary manslaughter was denied, but agrees with Nix, J., that the search of appellant's home was valid. Nix, J., filed a dissenting opinion. Eagen, C. J., dissents.
Appellant Ronald Johnson was indicted on charges of murder, rape and conspiracy arising out of the May 9, 1970 killing of Sharon Pruitt. The case was originally brought to trial on March 22, 1972, but ended in a mistrial. The court appointed new counsel, who filed a pre-trial application to suppress. The application was granted as to certain evidence seized by the police, but denied as to a typewritten statement taken from appellant by the police. The case proceeded to trial on January 3, 1973, and the jury found appellant guilty of rape, conspiracy, and murder of the second degree. Post-verdict motions were denied, and appellant was sentenced to concurrent sentences of eight to eighteen years on the murder and rape convictions. Sentence was suspended on the conspiracy conviction. In this appeal*fn1 appellant contends that the statement taken from him was obtained through the exploitation of an unlawful search and should have been suppressed as the fruit of that illegality. We agree,*fn2 reverse judgments of sentence and grant appellant a new trial.
On Sunday, May 10, 1970, the body of the victim, who had been sexually abused, was discovered in the rear yard of a vacant house next door to appellant's house in Philadelphia. The body was next to a fence separating the two houses, and
the police concluded the body had been thrown over the fence from appellant's yard.*fn3 The police entered appellant's house, without first obtaining a search warrant, and found evidence of the crime, including bloodied sheets and female clothing. The police then questioned appellant's neighbors and determined that appellant was the occupant of the house.
Appellant was taken into custody near his house at 5:30 p. m., May 10, 1970. Before taking appellant to the Police Administration Building, the police told him they wanted to question him about the crime, but appellant made no response. Appellant was so intoxicated he was staggering, and apparently had to be helped to the police car.
When he arrived at the Police Administration Building at 6:15 p. m., appellant was placed in an interrogation room and given Miranda warnings.*fn4 The police then told appellant about the evidence of the crime which had been found in his house.*fn5 Appellant responded: "I want to tell you
what I know. I gave a key to somebody last night. I'm not taking the rap for anybody." Appellant said he gave the key to William Holden. At 6:30 p. m. appellant was left alone in the interrogation room to try to sober up."
At 7:30 p. m., appellant was given a sandwich and coffee. He was left alone in the interrogation room from 8:55 p. m. until 10:15 p. m. At 10:15 p. m. appellant's wife arrived at the police station. Appellant's wife and a police detective discussed the crime with appellant from 10:15 p. m. until 11:15 p. m., but obtained no additional information.*fn6 From 11:15 p. m. until 11:50 p. m., appellant and his wife were left alone in the interrogation room. After his wife left, appellant was left alone for 40 minutes, until 12:30 a. m., Monday, May 11, when he was given food and coffee. At 1:10 a. m., appellant was allowed to sleep in a metal chair in the interrogation room.
Appellant was awakened at 9:10 a. m., Monday, May 11, and given a meal. By this time appellant appeared sober. Another interrogation began at 9:45 a. m. Appellant again was told about ...