No. 80-3-675, Appeal from the Judgment of Sentence dated June 23, 1980, of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 4148-78.
Vincent A. Couchara, Norristown, for appellant.
Joseph A. Smyth, Jr., Dist. Atty., Ronald T. Williamson, Chief, Appeals Div., David M. McGlaughlin, Asst. Dist. Attys., Joseph Hylan, Norristown, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Hutchinson, J., joins and files a concurring opinion. McDermott, J., concurs in the result.
In the early morning hours of September 15, 1978 Glenn Scott was shot and killed in the parking lot of the Holiday Inn in Pottstown, Pennsylvania. William Berkheimer, the appellant, was arrested and charged with Scott's homicide, (murder, voluntary manslaughter and involuntary manslaughter), aggravated assault, recklessly endangering another person, possession of an instrument of crime with intent, and violation of the Uniform Firearms Act. On May 15, 1979 a jury in the Court of Common Pleas of Montgomery County found appellant guilty of voluntary manslaughter, recklessly endangering another person, possession of an instrument of crime with intent, and violation of the Uniform Firearms Act. Post trial motions were filed and denied and on June 23, 1980 appellant was sentenced to five to fifteen years imprisonment. A petition for reconsideration of sentence was filed and denied. This appeal followed.
Appellant asserts that the trial court erred in refusing to grant a petition to reopen the suppression hearing. After trial had begun, defense counsel discovered by looking at sign-in sheets that police agents had visited one Brown in the Montgomery County Prison on September 26, 1978. At the suppression hearing, however, police testified that they met with Brown for the first time on October 2, 1978. Brown was appellant's cellmate and testified against him at trial that appellant told Brown he shot Scott and later disposed of the weapon. Defense counsel's theory in requesting a reopening of the suppression hearing was that police visited Brown on September 26 in order to enlist his aid in questioning appellant about the Scott murder, that Brown agreed to aid police, and that when Brown questioned appellant he was a secret police agent, which meant that Brown's testimony as to appellant's confession must be
suppressed because it was obtained in violation of appellant's Sixth Amendment rights.
The Supreme Court of the United States has held that where an individual acts under instructions as a paid informer for the government, where he presents himself as no more than a fellow inmate rather than an agent of the government, and where the suspect is in custody and under indictment at the time of his questioning by the secret agent, the information secured by the agent must be suppressed. United States v. Henry, 447 U.S. 264, 270-71, 100 S.Ct. 2183, 2186-87, 65 L.Ed.2d 115, 122 (1980). This is so because the agent's questioning, which is attributable to the government, secures information from the accused when counsel is not present in violation of the accused's Sixth Amendment right to counsel. See also Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (Police testimony recounting a statement made by the indicted petitioner to a co-defendant in a parked car and overheard by a police agent through a listening device installed in the car with co-defendant's permission was suppressed as violative of petitioner's Sixth Amendment right to counsel).
The Court in Henry went on to point out, however, that before charges are filed it is permissible for the government to use undercover agents to obtain incriminating statements from persons suspected of crimes but not in custody. Such information is protected by neither the Fourth nor the Fifth Amendments. Id. 447 U.S. at 272, 100 S.Ct. at 2187, 65 L.Ed.2d at 123. But Fourth and Fifth Amendment concerns do not control the case where "the Government has interfered with the right to counsel of the accused by 'deliberately eliciting' incriminating statements." Id. (emphasis added):
The Government argues that this Court should apply a less rigorous standard under the Sixth Amendment where the accused is prompted by an undisclosed undercover informant than where the accused is speaking in the hearing of persons he knows to be ...