No. 551, January Term, 1974, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Indictment No. 1427, November Term, 1970.
Zack, Myers & Atkinson, Nolan N. Atkinson, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Division, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Larsen, J., did not participate in the consideration or decision of this case. Roberts, Justice, filed an Opinion in Support of Reversal. O'Brien, J., joins Part II of this opinion. Manderino, J., joins Parts I and II of this opinion. Nix, Justice, filed an Opinion in Support of Reversal. Manderino, J., joins this opinion.
Messrs. Justice O'Brien, Roberts, and Manderino would reverse the judgment of sentence and grant a new trial because of the refusal of the trial judge to charge the jury on the law of voluntary manslaughter as requested by the defendant.
Messrs. Justice Nix, and Manderino would reverse the judgment of sentence and grant a new trial believing that an effective waiver was not established so as to permit the introduction into evidence of appellant's alleged oral statement.
Mr. Chief Justice EAGEN and Mr. Justice POMEROY would affirm the judgment of sentence for the reasons set forth in the opinions in support of affirmance in Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (1977), parts II and V of the dissenting opinion in Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977), and the Opinion of the Court in Commonwealth v. Myers, 481 Pa. 217, , 392 A.2d 685, 687-88 (1978).
The judgment of sentence is therefore reversed and a new trial is ordered.
Opinion IN SUPPORT OF REVERSAL
Police took an inculpatory statement from appellant Nathaniel Lark while questioning him in violation of an agreement between appellant's counsel and police authorities. This questioning violated the agreement assuring appellant his right of counsel, U.S.Const. Amends. VI, XIV, Pa. Const. art. I, § 9, and thus the trial court improperly admitted the statement into evidence. The trial court also erred in denying appellant's request for a jury instruction on voluntary manslaughter. Appellant is entitled to a new trial on both grounds.
On September 4, 1970, appellant met with his attorney to make arrangements to turn himself in to the authorities. Appellant's attorney made arrangements with the district attorney's office. The district attorney's office agreed that appellant would not be questioned in any way. Appellant's attorney then accompanied appellant to the district attorney's office.
Two police officers, Detective Wade and Sergeant McGill, arrived at the district attorney's office at 12:30 p. m., September 4, to take custody of appellant. In their presence, appellant's counsel said there was to be no conversation with appellant. Wade testified at the suppression hearing that McGill told appellant in the district attorney's office that he was being charged with murder, robbery, and conspiracy, although McGill testified that he could not remember doing so.
Wade and McGill brought appellant to the Police Administration Building. Appellant's attorney did not accompany them. When they arrived at 12:50 p. m., appellant was taken to an interrogation room and handcuffed to a chair. Appellant was kept in the interrogation room until 2:55 p. m. In the interrogation room, McGill questioned appellant to obtain information necessary to fill out three forms: an arrest report, a hearing sheet, and a police information sheet. At 1:05 p. m., McGill told appellant the charges against him, and appellant responded with the incriminating statement used against him at trial. Detective Wade took down appellant's statement on an "interview sheet." Ten minutes later, after appellant's statement had been taken, appellant was asked if he would make a formal statement. Appellant refused, stating that he would not make any statement or sign any papers. McGill then continued to complete the police reports in the interrogation room.
In an effort to get a formal statement from appellant, McGill telephoned the district attorney's office and asked them to contact appellant's attorney. Appellant's attorney came to the Police Administration Building as soon as he was contacted.