decided: June 5, 1979.
COMMONWEALTH OF PENNSYLVANIA
WILLIAM F. THOMAS, APPELLANT
No. 28 Special Transfer Docket, Appeal from Judgment of Sentence of Court of Common Pleas, Criminal, County of Philadelphia, at No. 525, 1976
Rudolph S. Pallastrone, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Div., for Com., appellee.
Hoffman, Eagen and Hess, JJ.*fn*
Author: Per Curiam
[ 266 Pa. Super. Page 530]
William F. Thomas, appellant, was arrested on December 2, 1976, charged with the murder of his common law wife. Following a suppression hearing, his statement and confession were ruled admissible at trial. After a non-jury trial appellant was found guilty of murder in the third degree. Post-verdict motions were filed and refused, sentence imposed and this appeal was taken. The only issue submitted relates to the question of the voluntariness of appellant's statements.
It is contended that Thomas, when taken into custody, was so far under the influence of alcohol, distraught, nervous and upset that he could not make a free and unconstrained choice to waive his constitutional rights to remain silent and consult with a lawyer. No physical abuse is alleged.
The Commonwealth admits that appellant had been drinking and was excited and perturbed. In fact, the record indicates that the officers were zealous in protecting appellant and afforded him an opportunity to relax and compose himself before questioning him. Furthermore, Thomas himself invited an officer into his residence and volunteered the first information relating to the death of his wife. We are satisfied, as was the suppression court, that appellant, although having consumed a quantity of liquor and being nervous and emotional, had the ability to make a free, unconstrained and understanding choice when he gave the statements implicating himself in the crime. See Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).
*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania and Judge Warren K. Hess of the Court of Common Pleas of Berks County, Pennsylvania, are sitting by designation.