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COMMONWEALTH PENNSYLVANIA v. DAVID ASH (11/18/78)

decided: November 18, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID ASH, APPELLANT



No. 20 January Term, 1977, Appeal from Order dated July 1, 1976, by the Court of Common Pleas, Criminal Division of Luzerne County at No. 1501 of 1969.

COUNSEL

John P. Moses, Wilkes-Barre, for appellant.

Robert J. Gillespie, Jr., First Asst. Dist. Atty., J. P. Giovannini, Asst. Dist. Atty., Wilkes-Barre, for appellee.

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

Author: Larsen

[ 482 Pa. Page 592]

OPINION

On September 30, 1969, the body of Patricia Emlaw was found in a wooded area in Luzerne County. She had died of knife slashes of the neck. Appellant was indicted for the murder of Miss Emlaw and on March 30, 1970, he entered a general plea of guilty to the charge of murder before Judge Olszewski of the Court of Common Pleas of Luzerne County. After hearing the Commonwealth's case, Judge Olszewski determined that the murder may be of the first degree and pursuant to Rule 1115(b) of the Pennsylvania Rules of Criminal Procedure, elected to secure two additional judges who, after a second hearing, determined appellant's degree of guilt.*fn1 The three-judge panel found appellant guilty of murder in the first degree*fn2 and sentenced him to life

[ 482 Pa. Page 593]

    imprisonment. Appellant's post-trial motions were eventually denied*fn3 and this appeal followed.

The appellant presents three issues for review: 1) he contends that the lower court erred in failing to suppress his confession because the confession was not given voluntarily and intelligently; 2) he contends that Rule 1115(b) (convening the three-judge panel) is unconstitutional because it allegedly places a defendant in double jeopardy of successive prosecutions; and 3) he contends that the judge improperly invoked Rule 1115(b) due to the fact that the evidence presented at the first hearing was insufficient to indicate that the murder may have been of the first degree. We find no merit in any of these contentions.

In determining whether the lower court's failure to suppress the confession is supported by the facts, our review is limited to "the evidence of the prosecution's witnesses and so much evidence of the defense . . . as . . . remains uncontradicted". Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976).*fn4

Given this standard, the facts are as follows: on October 4, 1969, at 3:00 p. m., appellant entered the Wyoming State Police Barracks, by his own choice and for his own protection, after ...


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