No. 519 Philadelphia 1982, Appeal from the Judgment of Sentence of January 15, 1982, Court of Common Pleas, Bucks County, Criminal Division, No. 0768/1981.
Robert J. Kupits, Doylestown, for appellant.
Wallace H. Bateman, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Hester, Johnson and Popovich, JJ. Popovich, J., files a dissenting statement.
[ 319 Pa. Super. Page 181]
Appellant, Henry Watts, was arrested and charged with various offenses arising from his alleged sexual contact with Serrita Harris, a minor. He filed a pretrial application to suppress both the results of a polygraph examination and a confession given thereafter. The court suppressed the test results but denied the request to suppress the confession. Appellant was tried non-jury before another judge and was adjudicated guilty of rape,*fn1 corrupting the morals of a minor,*fn2 statutory rape,*fn3 indecent assault*fn4 and indecent exposure.*fn5 Post-trial motions were timely filed and subsequently denied by the court sitting en banc. Sentence was imposed and appellant has perfected this appeal.
[ 319 Pa. Super. Page 182]
Appellant has raised seven issues.*fn6 While we agree with the trial court, and will rely on its discussion, that the corpus delicti was established and that the evidence was sufficient, we must reluctantly disagree with the court's failure to suppress appellant's confession. The sole basis for our divergence of opinion is based on appellant's first claim that his confession was a product of an improper agreement to admit at trial the results of the polygraph examination.*fn7 Finding such confession resulted from misrepresentations made prior to the testing and which were not cured, we are constrained to vacate the judgment of sentence and remand for a new trial.
Upon the advice of counsel, appellant freely chose to submit to a polygraph examination. The testing occurred on May 27, 1981. Appellant was advised of his constitutional rights. Prior to the testing appellant and counsel signed an "Agreement and Stipulation For Polygraph." Counsel had reviewed such document with appellant prior to their signing it. Paragraphs five and six of such agreement read as follows:
[ 319 Pa. Super. Page 1835]
. If it is the opinion of the polygraph operator that I am attempting deception when I give answers during the examination, I agree that testimony of the examiner will be presented at my trial in the above-captioned case. I specifically agree that the examiner will testify about the questions I was asked, about the answers which I gave and about his opinions regarding attempted deception on each of these answers and the scientific basis for his opinions regarding attempted deception.
6. I recognize that under the law of the Commonwealth of Pennsylvania, testimony about the polygraph examination might not be admitted at my trial over my objection, however, in view of the fact that the Commonwealth has agreed to dismiss the charges against me if I am found not to be attempting deception, I voluntarily waive my right to exclude such testimony at my trial and agree that the testimony about the polygraph examination and the opinion of the polygraph examiner will be admissible notwithstanding any existing law to the contrary.
At the conclusion of the polygraph test the examiner informed appellant that the test results indicated that he had been deceptive. The examiner then asked several questions pertaining to the alleged criminal incident and appellant gave the inculpatory responses here at issue. Appellant contends that his confession was a result of ...