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.
[ 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 ...