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decided: October 28, 1977.



Lawrence S. Rosenwald, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Gaele M. Barthold, Philadelphia, for appellee.

Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Nix and Manderino, JJ., concur in the result. Jones, former C. J., and Roberts, J., did not participate in the consideration or decision of this case.

Author: Pomeroy

[ 475 Pa. Page 40]


In this appeal from a conviction for voluntary manslaughter*fn1 the principal issue*fn2 is whether the appellant was deprived of a fair trial on the merits because of the conduct of the judge presiding at the suppression hearing. We find appellant's argument to be without merit, and affirm.


[ 475 Pa. Page 41]

At the suppression hearing, Detective Herbert Winston testified that he read the warnings required by Miranda v. Page 41} Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) to appellant from a standard " Miranda card" and entered her answers on a standard interview sheet. The questions are not reprinted on the interview sheet; instead, seven spaces are provided on the sheet for the recording of the suspect's answers. After appellant had answered the first six questions in such a way as to indicate that she wished to waive her Miranda rights, Detective Winston asked her the seventh and last question: "Are you willing to answer questions of your own free will, without force or fear, and without any threats or promises having been made to you?" To this, Detective Winston testified, appellant answered "yes," but he mistakenly entered "no" on the interview sheet.*fn3 The suppression judge at this point asked several questions to clarify the testimony. Appellant's counsel asked no questions about this matter on cross-examination, but did bring out that there was a second officer, Detective Michael McKay, present during some of the interrogation. When the suppression judge learned in response to his own questions that Detective McKay had also filled out an interview sheet and that Detective Winston had not noted McKay's presence on his chronology sheet, the judge remarked that these circumstances were "a bit unusual in my experience." N.T. (Suppression Hearing) 88.

[ 475 Pa. Page 42]

After a recess, Detective McKay took the stand and testified that he was in the interview room for training and observation purposes, since he had just been assigned to the Homicide Unit, and that he prepared an interview sheet so that he "could compare later and see where I was possibly making mistakes." N.T. (Suppression Hearing) 107. The assistant district attorney did not question Detective McKay about his record or recollection of appellant's answers to the Miranda questions. The suppression judge then began a series of questions, to which appellant's counsel objected. In answer to one question McKay testified that he had recorded Ms. Seabrook's response to the seventh Miranda warning as "yes." The court then asked additional questions concerned with what the detective had heard and the accuracy of his record.*fn4 Appellant argues that this and other conduct of the

[ 475 Pa. Page 43]

    suppression judge reveals his pro-prosecution bias and his advocacy of the Commonwealth's case. We are thus asked to conclude that the court's refusal to suppress the defendant's statement was the product of this bias, and that due process requires a new trial. We disagree.


"The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rare exceptions, looks for guidance, and from whom the litigants expect absolute impartiality." Commonwealth v. Myma, 278 Pa. 505, 508, 123 A. 486, 487 (1924). This statement by Mr. Justice (later Chief Justice) Kephart, speaking for this Court, retains its importance over fifty years later.*fn5 But it does not mean that a judge, especially when he sits as a finder of fact, is to be no more than a mechanical instrument into which the parties feed testimony. An additional passage from Myma, supra, explains the point:

[ 475 Pa. Page 44]

"A judge in a jury trial has a right to interrogate witnesses. It sometimes becomes his duty to do so, even to the point of recalling a witness to supply an omission of proof on a material point [citations omitted]. But a judge may so conduct an examination as to make it an abuse of discretion, requiring a new trial.

"Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination. . . . Judges should refrain from extended examination of witnesses; they should not, during the trial, indicate an opinion on the merits, a doubt as to the witnesses's credibility, or do anything to indicate a leaning to one side or the other, without explaining to the jury that all these matters are for them." 278 Pa. at 507-08, 123 A. at 487.

Here Mr. Justice Kephart anticipated the American Bar Association's Standards Relating to the Function of the Trial Judge ยง 1.1(a) (Approved Draft, 1972):

"The trial judge has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice. The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial."

Thus, in Myma, supra, it was proper for the trial judge to ask questions on facts which "did not appear from either counsel's examination" and which "had a tendency to enlighten the jury." 278 Pa. at 509, 123 A. at 487. See also, Commonwealth v. Miller, 442 Pa. 95, 275 A.2d 328 (1971); Commonwealth v. Brown, 438 Pa. 52, 62-63, 265 A.2d 101 (1970); Commonwealth v. Patskin, 372 Pa. 402, 417-19, 93 A.2d 704 (1953).

[ 475 Pa. Page 45]

In essence, then, the question is whether the trial court has abused its discretion. Commonwealth v. Myma, supra; Commonwealth v. Patskin, supra. "It is always the right and sometimes the duty of a trial judge to interrogate witnesses, although, of course, questioning from the bench should not show bias or feeling nor be unduly protracted." Commonwealth v. Watts, 358 Pa. 92, 96, 56 A.2d 81, 83 (1948).*fn6 A major reason for the restrictions on a trial judge's questioning is the concern that his conduct may lead the jury to conclude that the court has made up its mind on the question of the defendant's guilt, and that the jury should follow the judge's opinion. See, e. g., Commonwealth v. McCoy, 401 Pa. 100, 162 A.2d 636 (1960); Commonwealth v. Claiborne, 175 Pa. Super. 42, 102 A.2d 900 (1953). That consideration, of course, is not present in a bench trial or a suppression hearing. Nevertheless, even in those situations, "questioning from the bench should not show bias or feeling nor be unduly protracted," Commonwealth v. Watts, supra. This is not because of what might be intimated to a non-existent jury but because the parties are entitled to a fair fact-finder who, while not allowing himself to be put in a straightjacket by the adversary system, does not attempt to banish the restraints of that system from the courtroom.

[ 475 Pa. Page 46]


Applying these standards to the record in this case, we cannot say that the suppression judge's conduct constituted an abuse of discretion or manifested bias. The questioning objected to was not "unduly protracted"; it occupied but three and one-half pages in a 107-page record. Similarly, we reject appellant's contention that the suppression judge's questions manifest a desire for a specific answer and show biased behavior. We need not and do not decide whether we would have drawn the inference, as the suppression judge apparently did, that the waiver which Detective McKay recorded was what he actually heard; it is enough that he could rationally draw that inference. And it is hard to see how any finding of bias can be made when the judge immediately followed up certain questions, the answers to which helped the Commonwealth's case, with questions that focused further on the accuracy of Detective McKay's recording, the answers to which did the Commonwealth's case no good.*fn7

Appellant contends that the questioning was improper because it served to produce answers that enabled the Commonwealth to satisfy its burden of proof. Of course, we cannot read the suppression judge's mind as he weighed the evidence, although the record does indicate that he was disturbed by the discrepancies between what was recorded on Detective Winston's interview sheet and what was said in Winston's testimony. But even if the testimony elicited from Detective McKay played an important part in resolving the matter, there was no error in the circumstances

[ 475 Pa. Page 47]

    of this case. As we noted in Commonwealth v. Patskin, supra, 372 Pa. at 402, 93 A.2d at 713: "'The purpose of a criminal trial is to ascertain the truth and it is the business of the Trial Judge to see that this end is obtained even if it necessitates his interrogation of witnesses to clear up some doubtful fact.'" (Emphasis deleted).*fn8 Here the suppression judge acted properly, and indeed commendably, to satisfy himself that appellant's waiver was knowing and intelligent and her statement voluntary.*fn9

In sum, we hold that the suppression judge's conduct of the suppression hearing in this case did not constitute an abuse of discretion or deprive appellant of a fair trial on the merits. We therefore affirm the judgment of sentence.

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