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decided: January 24, 1979.


No. 56 January Term 1978, Appeal from the Order under the Post Conviction Hearing Act of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at No. 1657 February Term 1972.


Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty., Robert B. Lawler, Chief, Appeal Div., Paul S. Diamond, Asst. Dist. Attys., for appellant.

James J. Phelan, Jr., Philadelphia, for appellee.

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

Author: Eagen

[ 483 Pa. Page 373]


On February 9, 1973, John Holly was convicted of murder of the first degree by a jury following trial in the Court of Common Pleas of Philadelphia. After denial of post-verdict motions, judgment of sentence of life imprisonment was imposed. A direct appeal resulted in affirmance of the

[ 483 Pa. Page 374]

    judgment of sentence by an equally divided court.*fn1 Commonwealth v. Holly, 463 Pa. 142, 344 A.2d 465 (1975) (Nix, J., absent).

On June 3, 1976, Holly filed a petition seeking post-conviction relief pursuant to the Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1978-79) [Hereinafter: PCHA]. Counsel was appointed, and an amended petition was filed. A hearing was scheduled on the petition, but Holly chose not to offer any evidence. Following oral argument on the petition, the PCHA court ordered the judgment of sentence vacated and granted a new trial. This appeal by the Commonwealth from that order followed.

In granting relief, the PCHA court ruled the admission into evidence at trial of an incriminatory statement given by Holly to police constituted reversible error because it was obtained in violation of the mandate of Pa.R.Crim.P. 130 as interpreted in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), and, alternatively, because it was not a voluntary act by Holly. Additionally, the court ruled that the foregoing issues had not been "finally litigated" under Sections 3(d) and 4 of the PCHA, 19 P.S. §§ 1180-3(d) and 4 (Supp.1978-79), because on direct appeal this Court affirmed by an equally divided court, and that both issues were cognizable under the PCHA because each is of constitutional dimension.

We will affirm the order of the PCHA court granting a new trial because we agree with its conclusion that Holly's incriminating statement was obtained under coercive circumstances and hence, should have been suppressed pretrial.*fn2 The Commonwealth does not dispute that Holly challenged the voluntariness of the statement at each stage

[ 483 Pa. Page 375]

    of the proceedings during which such a challenge could be made. This being so, the issue was not waived. Section 4(b) of the PCHA, 19 P.S. § 1180-4(b) (Supp.1978-79). Further, since, on direct appeal, we affirmed by an equally divided court, the issue has not been finally litigated. Section 4(a) of the PCHA, 19 P.S. § 1180-4(a) (Supp.1978-79); Commonwealth v. Righthour, 469 Pa. 107, 364 A.2d 927 (1976) (plurality Per Curiam and Dissenting Opinions in accord as to this). Accordingly, the issue is properly before us.*fn3

Since the suppression court concluded the challenged statement was voluntary and refused to suppress its evidentiary use, we must now accept its findings of fact relevant to this issue where these facts are supported by the record. Commonwealth v. Willis, 483 Pa. 21, 394 A.2d 519 (1978).*fn4 However, we need not accept the conclusions the court arrived at from these facts. The correctness of its conclusions are subject to review on appeal.

The following facts are undisputed in the record.

[ 483 Pa. Page 376]

Holly, sixteen years of age, was taken into police custody without a warrant about 6:25 a. m. on February 4, 1972, in connection with the fatal shooting of one Walter Williams. He was immediately taken to police headquarters, but questioning did not begin until about 8:30 a. m. The questioning continued at regular intervals throughout the day and night; during which time, Holly was without counsel or advice from anyone other than the police.*fn5 Throughout this period, Holly persisted in his innocence. Finally, shortly after midnight or about eighteen hours after the initial custody, Holly, for the first time, admitted his participation in the killing of Leon Pinkney.*fn6 Following this, a polygraph test ensued, and some further police interrogation occurred. The challenged statement, recorded and typewritten between 2:20 a. m. and 3:50 a. m., was signed by Holly at 4:02 a. m. on February 5th.

While Holly was not subjected to or threatened with physical abuse during the period of police questioning, it does not necessarily follow that his self-incrimination was an act of a free will. As realists, we have and will continue to recognize that one's will and self-determination may be overborne without the presence of physical abuse. Psychological coercion or pressures may be just as and even more effective in lessening one's power to resist suggestion. Cf. Commonwealth v. Smith, supra; Commonwealth v. Lopez, 472 Pa. 465, 372 A.2d 785 (1977); Commonwealth v. Irvin, 462 Pa. 383, 341 A.2d 132 (1975); and, Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973). In determining if psychological coercion or pressures impinged upon Holly's will, all of the attending circumstances are important. In view of Holly's age, the fact that he was subjected to periods of interrogation over a span of at least eighteen hours before incriminating himself, and the fact that, during

[ 483 Pa. Page 377]

    this period, he was held incommunicado, we conclude his capacity for self-determination was seriously impaired, and evidentiary use of his incriminating statement offended due process.

Order affirmed.

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