No. 111 Special Transfer Docket Appeal from Judgment of Sentence of Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, No. 35 November Term, 1976.
Herbert L. Olivieri, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Appeals Division, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 276 Pa. Super. Page 514]
On October 18, 1976, the body of Henry Hudson was discovered by two patrolmen lying on the sidewalk in front of appellant's home. Upon observing blood on the top step of the home, and after the arrival of their superior officer, they rang the door bell and appellant opened the door. When asked if he knew the person on the sidewalk he responded "Yes. I shot the man. He tried to rob me." The officers then entered appellant's home, placed him under arrest and advised him of his Miranda rights. Thereafter, they asked for the gun involved in the shooting, whereupon appellant led the officers to a second floor bedroom where he removed a 38 caliber Smith and Wesson revolver from under a pillow and handed it over. Prior to the discovery of
[ 276 Pa. Super. Page 515]
the body, a friend visiting in appellant's home had heard a knock on the door, heard appellant's common law wife twice tell whomever was at the door to leave, then heard appellant tell the person to leave, following which she heard three shots fired. After removal to police headquarters, appellant made an inculpatory statement.
At the conclusion of a suppression hearing, the suppression judge ordered the statement taken at police headquarters suppressed based upon his finding that appellant did not knowingly, intelligently and voluntarily waive his rights, primarily by reason of appellant's limited ability to read and write; he refused suppression of the oral statement at the home, finding that it was a spontaneous utterance; and he refused to suppress the revolver based upon his conclusion that appellant had voluntarily consented to a search of his dwelling.
At the conclusion of a jury trial, appellant was found guilty of murder in the third degree. Following the refusal of post trial motions, a sentence of ten years to twenty years was imposed. From such judgment of sentence, this appeal was taken. Appellant contends that it was error for the suppression judge to conclude that appellant voluntarily waived his constitutional right not to permit a warrantless search of his dwelling. The second point on which he relies in his appeal is that it was error to admit the revolver from his dwelling into evidence.
In Commonwealth v. Dressner, 232 Pa. Super. 154, 336 A.2d 414 (1975), the Court said, 232 Pa. Super. at 157, 336 A.2d at 415:
". . . despite the fact that the voluntariness of a custodial consent is suspect, no one fact has talismanic significance, and voluntariness may be established by the Commonwealth if all the facts and circumstances indicate that the consent was voluntarily given . . . Furthermore, this Court is properly reluctant to examine the facts and circumstances de novo without giving due weight to the advantages the ...