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filed: September 14, 1979.


No. 210 Special Transfer Docket, No. 211 Special Transfer Docket, Appeals from the Judgments of Sentence of the Court of Common Pleas of Berks County, Nos. 76130501, A, B, C, D, E, F.


Renald S. Baratta, Easton, for appellant.

Joseph P. Giovannini, Jr., Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Wekselman

[ 269 Pa. Super. Page 487]

While appellant was confined in the Luzerne County jail as a parole violator, two firebombings of the homes of state police officers took place. Appellant, being confined to jail, obviously could not have been involved in those incidents, but law enforcement officials believed that he might know something about them. They visited him in the jail and asked him if he knew anything about those incidents. He indicated to them that he might and that he might be able to help them solve a number of unsolved crimes in the area. Over a period of approximately three weeks, representatives of the Pennsylvania State Police and other law enforcement officials had several meetings with appellant in attempts to secure his cooperation and information relative to crimes that had occurred in the area. During one such meeting, appellant is alleged to have said, "If I am granted immunity, I will tell you about a couple of murders I drove to." As a result of that statement, another meeting was arranged among appellant, several law enforcement officers, and Honorable Patrick J. Toole, Jr., now a judge of the Court of Common Pleas of Luzerne County, Pennsylvania, but then District Attorney of that county. The District Attorney informed appellant of his constitutional rights. He then explained the immunity procedures as they exist under the laws of the Commonwealth. After some additional discussion involving appellant's concern for the safety of his family and his concern over his parole, appellant once again sought a promise of immunity. The District Attorney made a tape recording of his response to appellant's request for

[ 269 Pa. Super. Page 488]

    immunity. The substance of that response was that if the information furnished by appellant proved to be accurate and led to prosecutions, the District Attorney would apply through the Attorney General, on a case-by-case basis, for immunity and that the Attorney General would, in turn, request such immunity from the appropriate Court. He made clear that he could not speak for the Court and could not guarantee that immunity would be granted. Appellant indicated his understanding of the arrangement and the District Attorney left the meeting and interrogation of appellant commenced. Appellant then for the first time disclosed that he had thrown a firebomb into the home of Deputy Sheriff Boyarski of Luzerne County, during which firebombing Boyarski, his wife and three children died. That incident had occurred several months prior to the disclosure made by appellant.

The next day, appellant was informed that a problem had developed. He was transported to the Wyoming State Police Barracks and was there informed by the District Attorney that he had read the statement given by appellant the previous day and that he, the District Attorney, believed that appellant had deliberately misled him. Appellant was then told that under no circumstances would he be given immunity for murders and that he would be arrested, charged with murder and his statement used against him.

At appellant's request, the attorney who was representing him on the probation violation matter was called and he conferred at length with the District Attorney and with appellant and appellant's wife. At the conclusion of those conferences, counsel advised appellant not to give any further statements and not to submit to any further interrogation. Despite that advice, appellant gave further statements with respect to his participation in the Boyarski firebombing. All of the statements which he had given were offered and received in evidence at his subsequent trial. He was convicted of five counts of murder in the second degree, of arson and of criminal conspiracy. His post-verdict motions were denied and he was sentenced to five consecutive terms

[ 269 Pa. Super. Page 489]

    of life imprisonment from which judgments of sentence he now appeals.

Appellant's principal contention of error deals with the admission into evidence of the statements which he made to the investigating officers both before and after the alleged offer of immunity was withdrawn. It is his contention that the statements were involuntary, that they were secured by law enforcement conduct which violates basic notions of fairness and due process, and that statements given in response to a promise of immunity are, per se, inadmissible. He also urges that the representation afforded him by counsel who conferred with him after the withdrawal of the offer of immunity was ineffective and that the trial Court erred in not declaring a mistrial following that lawyer's testimony concerning remorse which may have been felt by appellant. The latter two contentions of error, as ...

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