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decided: October 28, 1977.



D. M. Masciantonio, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., John DiDonato, Philadelphia, for appellee.

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

Author: Manderino

[ 475 Pa. Page 3]


Appellant, Willie Lewis Perry, was convicted of murder in the second degree, possession of an instrument of crime, carrying firearms on a public street, and unlawfully carrying a firearm without a license. Post-verdict motions were heard and denied, and the appellant received a sentence of five to ten years imprisonment for the murder conviction. This appeal, involving only the murder conviction, followed.

The appellant asks that judgment of sentence be reversed and a new trial granted. He argues that his confession should have been suppressed because at the time of the interrogation, which produced the confession, his mental and

[ 475 Pa. Page 4]

    physical condition were such so as to render the statement involuntary. We agree and thus reverse the judgment of sentence and award a new trial. Our decision makes it unnecessary to consider the merits of appellant's argument that oral admissions and signed statements were obtained by the police during an unnecessary delay between arrest and arraignment in violation of Pennsylvania Rule of Criminal Procedure 130.

At 8:00 p. m., on February 15, 1974, the appellant and a friend arrived at the home of Leonard Moore to visit Moore's daughter and her friend who was visiting her. A short time after appellant's arrival, Leonard Moore returned home and ordered appellant and his friend out of his home. Moore accompanied the two men outside the house.

Moore's wife testified that her husband was shot by appellant as he turned to return to his home. Appellant testified that he thought Moore had a pistol and was about to shoot him. Moore died at 3:10 a. m., on February 16, 1974. The cause of death was gunshot wounds of the trunk area.

At 8:30 p. m., shortly after the shooting, police officers, who had received a call reporting the incident, saw appellant three blocks from Moore's home. The officers called to appellant, and as he fled he suffered an accidental, self-inflicted, gunshot wound. The appellant was immediately arrested and taken to the emergency ward of Methodist Hospital in Philadelphia. He had a gunshot wound in the chest. From the emergency ward he was taken to the x-ray department where x-rays of his chest and abdomen were taken. He was then returned to the emergency ward where his wound was administered to, although the bullet lodged in appellant's chest was not removed. Appellant was then transferred to a small cubicle located within the intensive care unit of the hospital. Throughout the night medical personnel monitored appellant's vital signs. A police guard was stationed nearby.

Around 4:00 a. m., after complaining of pain, appellant was given fifty milligrams of demerol, a pain killing drug

[ 475 Pa. Page 5]

    whose effects last about four hours. Around 9:00 a. m., appellant was given an antibiotic, tetracycline. At that time he was also given a tetanus toxoid shot. Sometime between 9:00 a. m. and 9:55 a. m., a detective requested and received permission from a nurse to question the appellant. At 9:55 a. m., on February 16, approximately thirteen hours after his arrest, the detective informed appellant of his constitutional rights and appellant indicated that he would give a statement. The interrogation continued for about one hour and twenty minutes, until 11:15 a. m. During this time appellant gave and signed an incriminating statement.

During the interview appellant was lying in bed and was alone in the room with the interrogating detective. During the interview he complained to the detective of pain and was experiencing discomfort from a catheter inserted through the penis into the bladder in order to monitor for any abnormal bleeding indicating injury to the bladder, urinary tract or kidney. At one point during the interview, when the appellant complained of pain, he asked the detective to call the nurse. When the nurse arrived, the appellant informed her that he was in pain and wanted some type of medication. Medication, however, was refused. Throughout the interview, appellant was being fed through an intravenous tube. The catheter remained in the appellant for over two days and the intravenous feeding continued constantly for about four days. At one point during the interrogation, appellant was asked by the detective if he wanted to continue the interrogation and the appellant answered that he "didn't care."

In Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 176-77, 220 A.2d 628, 630 (1966), we stated:

"It is a basic and fundamental principle of constitutional law that a defendant in a criminal case is deprived of due process if his conviction is founded, in whole or in part, upon an involuntary confession. Jackson v. Denno, 378 U.S. 368, 375, 376, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908 (1964); Rogers v. Richmond, 365 ...

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