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COMMONWEALTH PENNSYLVANIA v. WALTER LOWENBERG (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER LOWENBERG, APPELLANT



No. 69 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered October 28, 1976 at No. CC7502266A

COUNSEL

Richard H. Martin, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Charles W. Johns, Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a dissenting opinion in which Roberts, J., joined.

Author: Nix

[ 481 Pa. Page 246]

OPINION OF THE COURT

On March 10, 1976, appellant was convicted of murder of the third degree. This is a direct appeal from the judgment of sentence of 10 to 20 years imposed thereunder.*fn1

The testimony established that on March 14, 1975, Nevada Bellman, an 82 year-old woman, was found beaten to death in the bathtub in her apartment in the City of Pittsburgh. Police investigation determined that there had been no forced entry. This led them to suspect that someone who was known to the victim was the killer, and also to suspect that it might have been someone residing in the apartment

[ 481 Pa. Page 247]

    house. The police, therefore, questioned the residents of the building. On March 16, 1975, appellant, a 15 year-old boy who lived in the building, was questioned by Detectives Freeman and Gorny when he arrived home after having spent several days at The Meadows, a harness racing track in Washington County. Appellant's mother and brother were present during this questioning. Appellant made no incriminating statements, but acknowledged that he knew the victim and that he had run errands for her in the past. The detectives observed at this time that appellant had scratches on his nose, bruises on his arm and an injury to his thumb.

Shortly thereafter, it was learned that appellant had been seen speaking to Miss Bellman on the night prior to her body being found and it was also learned that appellant had not attended school on the day of the killing. As a result of this information Detective Freeman and another detective returned to the Lowenberg apartment. Appellant was there alone and upon entry into the apartment the officers explained to him that he was suspected of killing Nevada Bellman. He was then advised of his Constitutional Rights, informed that he could have any adult present that he wished while he was being questioned, and then asked if he understood the nature of the offense which was the subject of the investigation. Appellant replied in the affirmative and said he would rather talk to them alone. He then related that he and the deceased had a dispute about an $82.00 check and she called him a thief and threatened to call his mother and the police. When she went to the telephone he struck her with his fist, and she fell to the floor groaning. Appellant then stated that he dragged her into the bathroom, placed her in the tub and struck her about twenty times with a pipe. He said that the pipe was laying in the bathroom and he picked it up. After making this statement, appellant was taken to the Public Safety Building and turned over to Detectives McKay and Stotlemeyer.

Detective Robert W. McKay testified that he took appellant into Interview Room No. 222 for the purpose of making

[ 481 Pa. Page 248]

    up the arrest papers. At that time, appellant began talking about what had occurred on the day of the murder and related essentially the same version he had given to Detective Freeman earlier. After this first statement to Detective McKay, appellant made a second statement to Detective McKay.

On March 24, 1975, a Coroner's Inquest was held. The Coroner held that a prima facie case of Murder had been established against appellant and ordered him recommitted to Juvenile Hall. Following the inquest, appellant met with his attorney who cautioned him not to discuss the case with the police.

Appellant was returned to the Public Safety Building where he was fingerprinted and photographed. He was then transferred to the Shuman Center by Detectives Freeman and Gorny. During the trip appellant requested an ice cream cone and the detectives complied by stopping at Islay's, a dairy store on the way. While inside the store during a casual conversation about The Meadows, appellant again volunteered his confession:

Q. (Assistant District Attorney Fagan) Any conversation take place at that time as far as the accused here is concerned?

A. (Detective Gorny) Yes, sir. The accused and I were discussing the racetrack such as any of the drivers.

Q. Why? Are you interested in the ...


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