No. 2363 October Term, 1978, Appeal from the Judgment of Sentence on August 7, 1978, by Judge Leonard Sugerman of the Court of Common Pleas, Chester County, Pennsylvania (No. 017576).
Before Price, Watkins And Hoffman, JJ.
Judgment of sentence affirmed on tne opinion of Judge Sugerman.
IN THE COURT OF COMMON PLEAS OF CHESTER COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA vs HENRY JUNIUS CLARK
CRIMINAL ACTION NO. 017576
The Defendant, Henry Junius Clark, was convicted by a jury on June 23, 1976 of robbery, theft by unlawful taking, and criminal conspiracy*fn1 Post-trial, the Defendant filed timely motions for a new trial and in arrest of judgment, and following the submission of briefs, without argument, the motions were dismissed by Order dated June 28, 1977.
The Defendant was thereupon sentenced upon the robbery conviction to a term of imprisonment of not less than ten nor more than twenty years, and sentence was suspended upon the theft and conspiracy convictions. The Defendant now appeals to the Superior Court of Pennsylvania from the judgment of sentence and in accordance with Pa. R.A.P. 1925(a), we file this Memorandum Opinion in support of our Order dismissing the Defendant's post-trial motions. Although the Defendant's motions assign twelve asserted errors as the basis for relief, he has briefed only three, and has asserted a new ground in his brief. We consider as waived those errors asserted in post-trial motions neither briefed nor argued: Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978). We discuss seriatim the four asserted errors urged by the Defendant as grounds for the grant of a new trial.
Defendant's Drugged Condition
Pre-trial, the Defendant, an admitted heroin addict, filed a motion to suppress a statement given by him to the police some six hours following his arrest, contending that he did not knowingly and intelligently waive his constitutional rights before making the challenged statement as he was then suffering withdrawal symptoms during police interrogation, thus permitting his will to be overcome, and thereby rendering his statement inadmissible. At the suppression hearing, the Defendant also alleged that at the time he made his incriminating statement, he was under the influence of a drug administered at a local hospital.
It is well established that on review from a finding of voluntariness, as a court en banc, we must consider the Commonwealth's evidence and so much of the evidence presented by the defendant as remains uncontradicted. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976). So viewed, the facts developed at the suppression hearing are these:
At approximately 5:30 P.M., on Wednesday, January 28, 1976, two men entered an A & P Market in the Borough of West Chester and walked to the check-cashing counter. As one asked the assistant manager at the counter if he might cash a check, the other withdrew a sawed-off shotgun form his coat and announced a "hold-up". Within a matter of minutes, the two had relieved the assistant manager of the day's receipts of approximately $8,000 and thereupon filed the store. As the two ran to their automobile, they were observed by a witness who notified the West Chester Police Department of the incident.
The West Chester Police Department immediately broadcast a description of the two felons and the automobile in which they departed the store. At approximately 6:00 P.M., the two, in their automobile, were observed traveling through the Borough of Downingtown some eight miles from West Chester, by a Downingtown police officer cruising in a patrol car who had been alerted by the police radio broadcast.
The vehicle was stopped by the Downingtown police officer and the person seated in the passenger seat fled the scene and was not immediately apprehended. The Defendant, seated in the driver's seat, was arrested, taken into custody, given his Miranda warnings and removed to the Downingtown Police Station.
At the station, a Downingtown police officer began to take a personal history from the Defendant and at approximately 6:45 P.M., the two were joined by a Chester County detective who assisted in taking the personal history. During this period, the Defendant appeared to be in good health and mentally alert. In response to the Defendant's request, the group moved to a more private room in the station where they remained until approximately 8:00 P.M.
At this time, the Chester County detective noted that the Defendant began to perspire and become "fidgety", complaining that he was "coming down" from the effect of an unspecified quantity of narcotics taken earlier that day.
The Defendant was then placed in a detention cell at the Downingtown Police Station to await transportation to West Chester. At 9:00 P.M., while in the cell, a West Chester police officer arrived and served a search warrant upon the Defendant authorizing a search of the automobile in which he was found. The Defendant remained in the detention cell while the search warrant was executed, and at approximately 10:20 P.M., Sergeant Canzoneri of the West Chester Police Department arrived at Downingtown to escort the Defendant to West Chester. During the trip, Sergeant Canzoneri said nothing to the Defendant and asked him no questions, and the Defendant said nothing to Canzoneri.
Canzoneri and the Defendant arrived at the West Chester Police Station shortly before 11:00 P.M., and as they reached the rear door of the station, the Defendant told Canzoneri he was "coming down" and then said "I'll tell you what you want to know. Gary Smith was the other guy that was with me.". Following these remarks, Sergeant Canzoneri said nothing to the Defendant and again asked him no questions. Upon entering the station, the Defendant appeared quite nervous and continued to perspire. As handcuffs were removed from him, he was asked if he were ill and answered that he was and asked for medical attention. Responding to the Defendant's request, two officers of the West Chester Police Department took the Defendant to the Chester County Hospital where the drug Vistaril was administered to the Defendant. The medication calmed the Defendant and within the hour he was returned to the West Chester Police Station, arriving at midnight. The Defendant then immediately expressed a desire to speak with the police, was again given his Miranda warnings, and at 12:03 A.M., commenced to give the police an incriminating statement, ultimately reduced to writing and signed by the Defendant.
Pre-trial, the Defendant moved to suppress the statement on the ground that it was involuntary, and following a suppression hearing, the motion to suppress was denied upon a finding by the hearing judge that the statement, and the Defendant's waiver of his constitutional rights were voluntary, knowing and intelligent acts. The Defendant now asserts that the medication administered to him at the Chester County Hospital so diminished his will that neither the waiver not the statement were the products of a rational intellect or a free will, Mincey v. Arizona, U.S. , 98 S. Ct. 2408 (1978).
We begin as we must by noting the familiar principle that although there is no single litmus paper test for determining the voluntariness of a confession, the Commonwealth must establish that the decision to speak on the part of an accused was a product of a free and unconstrained choice, Culombe v. Connecticut, 367 U.S. 568 (1961); Commonwealth v. O'Bryant, 479 Pa. 534, 539-40, 388 A.2d 1059, 1062, cert. denied 99 S. Ct. 589 (1978). The Supreme Court of Pennsylvania has frequently described the guidelines underlying our inquiry:
"... All attending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of the delay between arrest and arraignment; the conditions of detainment; the attitudes of the police toward the defendant; defendant's physical and psychological state; and all other conditions present which may serve to drain one's power of resistance to suggestion or to undermine one's self-determination..." Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976).
And see Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978) and Commonwealth v. Joyner, 475 Pa. 345, 380 A.2d 754 (1977). In the context of the Defendant's argument at bar, the Court has also held that the ingestion of drugs does not of itself prevent one from knowingly or intelligently waiving constitutional rights. See, e.g., Commonwealth v. Pugh, 476 Pa. 445, 383 A.2d 183 (1978); Commonwealth v. Cornish, supra; Commonwealth v. Taylor ; 472 Pa. 1, 370 A.2d 1197 (1977).
Although evidence that an accused was under the influence of drugs bears heavily on the ultimate determination of voluntariness, we are required to engage in a balancing test: the degree of influence may be so pervasive that this factor alone is sufficient to render the confession involuntary; conversely, the evidence of drug influence may be such that the accused's will has not been overborne by that fact alone, and the Court must find evidence of psychological or physical coercion in order to invalidate the confession. Commonwealth v. Watson, 239 Pa. Super. 426, 434-35, 360 A.2d 710, 714, allocatur refused (1976). In order to properly strike the balance, in addition to considering all the attendant circumstances, Commonwealth v. Kichline, supra, we must also consider the type and quantity of the drug in question, the time or times the drug was consumed, and whether an impairment of the accused's faculties ensued, Commonwealth v. Pugh, supra at 450, 383 A.2d at 186.
Within the framework of these principles, then, we have examined the record of the suppression hearing and find adequate support for the determination that the Defendant's waiver and statement were voluntary, knowing and intelligent.
Doctor Pereira-Ogan, a physician called by the Commonwealth at the suppression hearing, testified that the drug Vistaril, known generically as hydroxyzine, is a mild sedative and is clinically administered to persons withdrawing from the effects of alcohol and other drugs, as well as surgical patients. The drug is in general use in emergency rooms and surgical wards as it produces a "calming" effect and diminishes anxiety. Vistaril does not tranquilize, has no effect on brain function, and in fact increases awareness and attention span. Only one dose of the drug was administered to the Defendant at 11:45 P.M., in the quantity of 100 milligrams, considered to be an average dose.
The widespread use of Vistaril in pre-surgical procedures is attributed to a property which, unlike tranquilizers and other sedatives, has no effect upon the cortex of the brain, thereby permitting the patient to remain alert. The drug has no properties similar to sodium amytal or sodium pentothal, the so-called "truth serums", has no effect upon the will, and except insofar as it may alleviate a nervous and anxious state, has no effect upon the ability of the mind to resist.
We do not repeat here all the testimony offered by Doctor Pereira-Ogan concerning Vistaril except to note his response to a question by the suppression court, summarizing the properties of the drug:
"THE COURT: Suppose when he came to you without the effect of any of these drugs [heroin and cocaine], he was reluctant and didn't want to speak to you about a particular subject and you injected or gave him, administered Vistaril...
Would he be more likely to then reveal to you this inner secret?
In other words, I would not be able to elicit from anybody something like, you know, making him do or say something that for reasons such as the safeguard of his own legitimate right not to ...