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COMMONWEALTH PENNSYLVANIA v. KEITH O. SMITH (03/01/83)

submitted: March 1, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
KEITH O. SMITH, APPELLANT



No. 577 Philadelphia, 1982, Appeal from P.C.H.A. Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 167-170 June, 1974

COUNSEL

Michael A. DeFino, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.

Cercone, P.j., and Cavanaugh and Wieand, JJ.

Author: Wieand

[ 317 Pa. Super. Page 121]

On appeal from an order denying P.C.H.A. relief, Keith O. Smith asks us to review issues which, on direct appeal to the Supreme Court, were not decided, apparently because the issues had not been preserved for appellate review. Appellant makes this request by asking us to hold that contentions regarding the alleged involuntariness of his confession possessed arguable merit and that prior counsel, therefore, must have been ineffective for failing to preserve them for determination on direct appeal.

Smith had been tried and convicted of robbery, conspiracy and murder of the second degree for his part in the holdup of a Philadelphia flower shop and the shooting of the proprietor. On direct appeal to the Supreme Court the conviction was upheld and the judgment of sentence was affirmed per curiam. See: Commonwealth v. Smith, 468 Pa. 375, 362 A.2d 990 (1976). A dissenting opinion, authored by Justice (now Chief Justice) Roberts, suggested that the majority had avoided reaching the merits of appellant's contention that his confession had been coerced by an inadequate understanding of his rights with respect to a polygraph examination because the issue had not been preserved in written post verdict motions. After his direct appeal had been denied, appellant filed a pro se P.C.H.A. petition, alleging that prior counsel had been ineffective for failing to preserve the issue deemed waived by the Supreme Court. Counsel was appointed to file an amended petition, which contained the additional contention that prior counsel had been ineffective in failing to preserve for review the assertion that appellant's confession was involuntary because of undue pre-arraignment delay, in violation of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). At a hearing on the amended petition, the representative of the Commonwealth stipulated that the issues which appellant wished to raise in post conviction proceedings had not been preserved by prior counsel in post verdict motions. However,

[ 317 Pa. Super. Page 122]

    there was otherwise no attempt to show that prior counsel had rendered constitutionally ineffective assistance. The P.C.H.A. court dismissed the petition, and Smith appealed.

After appellant had been arrested and had waived his Miranda rights, he was asked if he was willing to submit to a polygraph examination. Although warned at least twice of his right to remain silent and make no statement, he unhesitatingly agreed to take the examination and signed a written consent form.*fn1 During a pre-polygraph interview, appellant confessed to his participation in the robbery but denied that he had shot the proprietor. No polygraph examination was thereafter conducted. During a pre-trial suppression hearing, in which appellant's confession was found to be voluntary, appellant contended, as he now does on appeal from the denial of P.C.H.A. relief, that the threatened use of the polygraph was coercive and that, therefore, his confession was involuntary and should have been suppressed. He argues specifically that he should have been warned (1) that the taking of the polygraph test was not mandatory; (2) that the results of the test were not admissible as evidence in a court; and (3) that a favorable test result would not necessarily require the police to release him from custody. These instructions, he urges us to hold, must be given in addition to Miranda warnings whenever questioning of a suspect takes place in a polygraph situation.

The polygraph has been acknowledged by the courts of this Commonwealth to be a valuable tool in the investigative process. See: Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982); Commonwealth v. Smith, 487 Pa. 626, 631, 410 A.2d 787, 790 (1980); Commonwealth v. Blagman, 458 Pa. 431, 435-436, 326

[ 317 Pa. Super. Page 123]

A.2d 296, 298-299 (1974). Its use does not per se render a confession involuntary. Commonwealth v. Jones, 341 Pa. 541, 548, 19 A.2d 389, 393 (1941); Commonwealth v. Hipple, 333 Pa. 33, 39, 3 A.2d 353, 355-356 (1939). See: Thompson v. Cox, 352 F.2d 488 (10th Cir.1965); United States v. McDevitt, 328 F.2d 282 (6th Cir.1964). A confession is not involuntary merely because it was made in anticipation of, during, or following a polygraph examination. See: 89 ALR3d 236, and cases there gathered. In Pennsylvania, an inculpatory statement made during a pretest interview was held admissible in Commonwealth v. Cain, 471 Pa. 140, 146, 369 A.2d 1234 (1974) (Opinion of Eagen, J., in support of affirmance). Other decisions have impliedly found Miranda warnings adequate, for they have permitted evidentiary use of confessions when they have been made voluntarily in polygraph settings. See also: Commonwealth v. Hernandez, supra; Commonwealth v. Hitson, 482 Pa. 404, 393 A.2d 1169 (1978); Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978) (plurality opinion); Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977); Commonwealth v. Cain, supra; Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Blagman, supra; Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971); Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1320, 31 L.Ed.2d 589 (1972). In Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982), the defendant, a soldier accused of rape, gave an inculpatory statement to investigators after being confronted with the results of a polygraph test showing his answers to be ...


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