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decided: February 23, 1979.


No. 2274 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 1517-18, September Session, 1976.


John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 263 Pa. Super. Page 507]

Appeal is taken from the judgment of sentence imposed following appellant's conviction of two counts of aggravated assault, criminal conspiracy, and possession of instruments of crime. The sole issue in this appeal is whether the statement taken from appellant prior to trial was obtained in a voluntary manner. We hold that it was and will therefore affirm.

On the evening of September 13, 1976 at approximately 7:30 p. m., complainants Fryson and Mitchell were at their home at 4210 Wyalusing Avenue in Philadelphia. Appellant, accompanied by an unidentified man, rang the doorbell and asked for a "fictitious name." T.T. 4/26/77, p. 14. When Fryson indicated he did not know the person to whom appellant was referring, appellant produced a sawed-off shotgun and said, "I have one." id. Fryson pulled a knife and stabbed appellant, who responded with a volley of shots wounding Fryson and Mitchell in the head. As appellant and his confederate fled, Fryson called the police, who accompanied the two victims to Presbyterian Hospital.

A short time later, as Fryson was standing in the hospital trauma ward speaking with the police, appellant entered the room, seeking treatment for his wounds. Fryson immediately pointed him out as his assailant, whereupon appellant was arrested and placed in a room in the emergency ward for medical attention.*fn1 He was visited at 10:15 p. m. by Detective Nespoli of the Philadelphia Police Department, who asked appellant his name, address, and date of birth. id. p. 58. Three and one-half hours later, the detective again visited appellant's room, read him the required Miranda warnings, and asked appellant if he wished to make a

[ 263 Pa. Super. Page 508]

    statement. At that time, appellant admitted being at the victims' residence the previous evening in the company of one Zeke Bonds, but denied having a gun or shooting anyone. Mr. Bonds fired the shotgun, appellant explained, in an attempt to "rip off the guy for his gun." T.T. 4/26/77, p. 63. Appellant further stated that "when he went with Zeke, he wasn't going to hurt anyone." id. A pre-trial motion to suppress the statement was denied and it was admitted at his non-jury trial.

It is an established constitutional principle that a defendant is deprived of due process if his conviction is founded, in whole or in part, upon an involuntary confession. U.S.Const. Amends. V, XIV; Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Commonwealth v. Perry, 475 Pa. 1, 379 A.2d 545 (1977); Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.2d 628 (1977). The introduction of such a confession constitutes reversible error even if there is otherwise sufficient evidence to support the conviction. Commonwealth v. Hallowell, 444 Pa. 221, 282 A.2d 327 (1971).

"The ultimate test remains that which has been the only clearly established test in Anglo-American courts for 200 years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne, and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." Culombe v. Connecticut, 367 U.S. 568, at 602, 81 S.Ct. 1860, at 1879, 6 L.Ed.2d 1037, at 1057 (1961). See also, Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977).

[ 263 Pa. Super. Page 509]

In determining voluntariness, the court must consider and evaluate the totality of the circumstances attending the confession.

". . . [T]he duration, and the methods of interrogation; the conditions of detention, the manifest attitude of the police toward the defendant, the defendant's physical and psychological state and all other conditions present which may serve to drain ones powers of resistance to suggestion and undermine his self-determination. [citations omitted]

As we have noted, when the question of voluntariness passes beyond the realm of physical coercion and into degrees of psychological coercion, most careful attention will be afforded to any facts, circumstances or events tending to overbear the will of the accused. Commonwealth ex rel. Butler v. Rundle, supra, 429 Pa. [141] at 149, 239 A.2d [426] at 430."

Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974); Commonwealth v. Purvis, 458 Pa. 356, 326 A.2d 369 (1974). Particularly important in such cases as we have instantly is the accused's physical condition, for sickness and ill health may well influence his will to resist and make him vulnerable to overbearing and improper questioning. Commonwealth v. Holton, 432 Pa. 11, 247 A.2d 228 (1968).

The burden rests with the Commonwealth to show voluntariness of a confession by a preponderance of credible evidence. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Commonwealth v. Moore, 454 Pa. 337, 311 A.2d 620 (1973). Our duty on review is to determine whether the record supports the factual and legal findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we are to consider only the evidence of the Commonwealth's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).

[ 263 Pa. Super. Page 510]

At the suppression hearing, the only witness bearing on the confession was Detective Nespoli. The defense offered no testimony. Nespoli summarized appellant's condition when the statement was taken:

"He was laying on the litter. He told me he was in pain. He said his stomach was hurting, but he answered questions candidly. Everything I asked him seemed to make sense with his answers." S.T. p. 28. Additionally, Nespoli advised appellant of all required Miranda warnings and asked a doctor, present in the room during the interview, if it would be all right to speak with appellant. The doctor replied yes. Appellant indicated he understood his constitutional prerogatives, that he did not want to continue later and that he would talk at that time. Nespoli further stated appellant did not appear to be in a drugged condition and that no promises or threats of any kind were employed to obtain the statement. Appellant offered no testimony at the suppression hearing to rebut the detective's assertions.

Appellant argues that the interrogating officer should have made inquiry as to appellant's medical condition and what medication had been administered to him. In Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977), however, the Supreme Court expressly declined to adopt such a per se rule of inquiry and stated the issue "is one to be resolved by examining the totality of the circumstances." Id., 471 Pa. at 268, 370 A.2d at 297. Similarly, the fact that appellant did not sign a waiver of rights form is not per se dispositive of the issue of voluntariness. "The rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) does not require that a waiver of rights be in writing, but only that it be voluntarily, willingly, and intelligently made." Commonwealth v. Cost, 238 Pa. Super. 591, 604, 362 A.2d 1027, 1033 (1976).

The Supreme Court, has, on a number of occasions, considered the legality of confessions obtained when the accused is suffering from medical infirmities and has found voluntariness based solely on the credible testimony of the

[ 263 Pa. Super. Page 511]

    interrogating officer. See, e. g. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977) (defendant suffering from drug withdrawal; officer's testimony that defendant "appeared to comprehend and understand everything which was said to him", held to establish voluntariness); Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972) (defendant intoxicated; officers testified defendant was "alert and responsive, and at no time failed to understand the nature of the interrogation or the questions asked of him"; Court found confession voluntary); Commonwealth v. Moore, 454 Pa. 337, 311 A.2d 620 (1972) (defendant suffering from heroin withdrawal; officers testified he seemed "normal, alert, and responsive"; Court found voluntariness). Thus, while expert medical testimony would be helpful to the suppression court in determining the accused's physical and mental impairities,*fn2 the foregoing cases demonstrate that credible testimony of the interrogating officers alone can substantiate a finding of voluntariness.

As the Moore court noted, "Here the suppression judge obviously chose to believe the testimony of the two police officers as to [defendant's] condition and ability at the time the challenged statements were given . . . As we observed in Commonwealth v. Smith [447 Pa. 457, 461, 291 A.2d 103, 104 (1972)]:

'An appellate court does not weigh evidence or pass upon the credibility of witnesses, and there is no basis for us to hold as a matter of law that the court's finding of voluntariness of the confession was not adequately supported and well within the court's discretion.'"

Moore, supra, 454 Pa. at 341, 311 A.2d at 622-3.*fn3

The post-verdict court in the instant case reviewed the notes of the Suppression Hearing, assessed Detective

[ 263 Pa. Super. Page 512]

Nespoli's credibility at trial and found him a credible witness. Based upon this record, we cannot upset that court's finding that the confession was voluntary and properly admitted.

Judgment of sentence Affirmed.

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