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COMMONWEALTH PENNSYLVANIA v. LOUIS HERNANDEZ A/K/A JOSE HERNANDEZ (06/29/82)

decided: June 29, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS HERNANDEZ A/K/A JOSE HERNANDEZ, APPELLANT



No. 80-3-624, Appeal from the Order of Sentence entered on January 4, 1974, in the Court of Common Pleas of Philadelphia on Bills of Indictment Nos. 2252, 2253, and 2255, May Term, 1972.

COUNSEL

Donald G. Joel, Michael E. Garner, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div. Asst. Dist. Atty., Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C. J., and Roberts, J., concur in the result.

Author: Nix

[ 498 Pa. Page 408]

OPINION

This case arose out of the death of Michael Kochmanowicz, ninety-one years old, whose body was discovered bound and gagged on his living room floor. The body was tied in such a fashion that the bindings included a connection between the wrist, up the center of the back to a gag. The gag passed under the tongue and forced it backward to where it blocked the passage of air through the mouth and nose. The effect was that if the deceased attempted to ease the pressure of the gag on his tongue, he would cause additional pain to his shoulder and if he attempted to relieve the pain in his shoulder by relaxing his arms, he would cause the gag to become tighter. Mr. Kochmanowicz's death was caused by suffocation and multiple injuries of the head and trunk.*fn1 Appellant took a clock radio when he departed from the house.

Appellant was arrested on April 17, 1972 attempting to flee from another home in the neighborhood occupied by a 77-year old woman who also lived alone. The burglary of April 17, 1972 was committed with an accomplice who was shot by the police in their attempt to escape.*fn2 While in custody for the April 17, 1972 burglary, the appellant was fingerprinted and it was ascertained that his fingerprints corresponded to a print lifted from the broken second floor window of Mr. Kochmanowicz's home. After interrogation, appellant confessed to the burglary of the home of Mr. Kochmanowicz on April 12, 1972 and to causing his death. Appellant was convicted by a jury of murder in the first

[ 498 Pa. Page 409]

    degree, burglary and robbery and was sentenced. Appellant appeals from the judgments of sentence.*fn3

[ 498 Pa. Page 410]

The first question to be considered is whether the introduction of appellant's confession violates the doctrine of this Commonwealth that has become known as the McCutchen rule. This doctrine which was first articulated in Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974); Commonwealth v. Starkes, 461 Pa. 178, 335 A.2d 698 (1975); and Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669, cert. denied 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1975) provides that an accused under 18 years of age may not effectively waive his constitutional rights against self incrimination and the right to counsel without being provided an opportunity to consult with an attorney or with an adult, interested and concerned in the welfare of the juvenile suspect and who possesses the requisite awareness of the rights of the accused. Commonwealth v. Barry Smith, 472 Pa. 492, 372 A.2d 797 (1977). See also, Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1975); Commonwealth v. Riggs, 465 Pa. 208, 348 A.2d 429 (1975); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975); Commonwealth v. Stanton, 466 Pa. 143, 351 A.2d 663 (1976); Commonwealth v. Gaskins, 471 Pa. 238, 369 A.2d 1285 (1977); Commonwealth v. Lee, 470 Pa. 401, 368 A.2d 690 (1977); Commonwealth v. Hailey, 470 Pa. 488, 368 A.2d 1261 (1977); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977); Commonwealth v. Graver, 473 Pa. 473, 375 A.2d 339 (1977); Commonwealth v. Jamison, 474 Pa. 541, 379 A.2d 87 (1977); Commonwealth v. Crenshaw, 475 Pa. 106, 379 A.2d 1305 (1977); Commonwealth v. Markle, 475 Pa. 266, 380 A.2d 346 (1977); Commonwealth Page 410} v. McCloud, 477 Pa. 204, 383 A.2d 894 (1978); Commonwealth v. Walker, 477 Pa. 370, 383 A.2d 1253 (1978); Commonwealth v. Lawson, 478 Pa. 200, 386 A.2d 509 (1978); Commonwealth v. Barnes, 482 Pa. 555, 394 A.2d 461 (1978); Commonwealth v. Hackett, 484 Pa. 43, 398 A.2d 651 (1979); Commonwealth v. Wade, 485 Pa. 453, 402 A.2d 1360 (1979); Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979); Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980); Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1981); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981).

Before we can reach the merits of this contention we are faced with a question of whether the issue was properly preserved. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We first note the fact that the arrest in this case on April 17, 1972 preceded our decisions in Commonwealth v. Roane, Commonwealth v. Starkes and Commonwealth v. McCutchen does not preclude the application of this rule to an appellant whose direct appeal was pending at the time of those decisions. Commonwealth v. Barnes, 482 Pa. 555, 557 n. 2, 394 A.2d 461 n. 2 (1978); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1976). However, the Chaney decision ...


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