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decided: December 30, 1983.


No. 80-3-776, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia, imposed on Information Nos. 542, 543, 546, 548 & 556, October Session, 1979.


Stanford Shmukler, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Maxine Stotland, Asst. Dist. Attys., Philadelphia, for appellee.

Roberts, C.j., and Nix, Larsen,*fn* Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., joins in this opinion. Flaherty, J., filed a concurring opinion. Hutchinson, J., filed a concurring opinion. Zappala, J., filed a concurring opinion. Nix, J., filed a dissenting opinion joined by McDermott, J. McDermott, J., filed a dissenting opinion.

Author: Larsen

[ 504 Pa. Page 104]


David McGrath was found guilty of third degree murder, aggravated assault, criminal conspiracy and a weapons offense by a jury sitting in the Criminal Division of the Philadelphia Court of Common Pleas. Post trial motions were argued and denied and, on September 25, 1980, McGrath was sentenced. A hearing on a petition to vacate and/or reconsider sentence was held and the petition was denied. This direct appeal was filed on October 27, 1980. At issue is whether McGrath's confession, which was introduced as evidence against him at trial, is admissible under

[ 504 Pa. Page 105]

    and that there was a warrant for McGrath's arrest in Philadelphia charging him with homicide and other charges. Lieutenant Macintyre took McGrath through a "rising chain of command", which culminated with Captain Walter Gaskin, the Commanding Officer of "F" Company. (A Marine Corps "Company" consists of five "Series"; thus Captain Gaskin commanded approximately 1300-1500 recruits.)

Captain Gaskin's testimony was that he interviewed McGrath in his office in response to receipt of a memo from the battalion legal division concerning McGrath's "possible fraudulent enlistment." The memo mentioned that McGrath might have a police record (which presumably was not disclosed on the enlistment papers), but did not mention an outstanding warrant. Accordingly, at the time Gaskin interviewed McGrath, he asserted he knew nothing of the warrant or the homicide charges against McGrath, even though Lieutenant Macintyre and other Marine Corps personnel did know of the warrant and the charges. The reason offered for this discrepancy was that Macintyre, being McGrath's immediate superior officer, was given more detailed information from the legal division.

At the interview with Captain Gaskin, which was described as a fairly routine fraudulent enlistment matter, the captain told McGrath that he was being interviewed because of "something" having to do with his past record. He also said that he would have to make a recommendation to the colonel as to whether McGrath should be retained in the marines or discharged, and that if McGrath wanted to explain in order for the captain to have "a clear picture," he could do so. The captain testified as follows concerning what he said to McGrath:

Private McGrath, you're in here because it's been indicated via the Battalion Legal Office that you're some type of fraudulent enlistment. It can be of any variety of reasons. Could have past police record or it could be of child support or any number of matters or reasons why there is a fraudulent enlistment. I am here to help you

[ 504 Pa. Page 107]

    out and of course refer my recommendation to the Battalion Commander or retention.

At this time I said you can tell me what it is about that you know of and maybe something you failed to tell the recruiter at the time of enlistment and if you want to, then I can help you based on the information you give me -- some advice and what I will tell the Battalion Commander concerning retention.

Notes of Testimony of Suppression Hearing (N.T.S.H.) 533. The captain did not give McGrath Miranda warnings*fn1 or the warnings mandated by Article 31(b) of the Uniform Code of Military Justice, 10 U.S.C. ยง 831.*fn2 In response to the captain's questions, McGrath implicated himself in the Philadelphia shootings. The captain and others present at the interview testified at McGrath's criminal trial concerning his inculpatory statements.

Captain Gaskin further testified that when McGrath first made his inculpatory statement, a Lieutenant Dykhuizen was present, as was Lieutenant Macintyre. After McGrath told his story, the essence of which was that he was present at the shootings but had not pulled the trigger, the captain

[ 504 Pa. Page 108]

    called in the Chief Drill Instructor, Master Sergeant Jones, and McGrath then repeated his story three or four times. The captain, who found the story "phenomenal", stated: "I was concerned about what he had said and I asked him to say it again and then I would ask him specific parts about it. [He repeated] the actual whole story maybe twice but different parts of it three or four times." N.T.S.H. 543.

The captain also testified that when McGrath entered his office pursuant to his order, McGrath stood at attention and could not speak unless spoken to. Other testimony indicated that at a later stage of the interview, McGrath stood "at ease" while repeating his statement. Although the captain testified that when he gives an order, he expects to be obeyed, he also testified that McGrath should have known that he did not have to answer the captain's questions under the Uniform Code of Military Justice: "He can refuse. As a matter of fact, in this time I had no reason to offer him rights but I asked him if he wanted me to help him. He could have voluntarily explained to me what had occurred. If he'd have said he didn't, I'd have said very well." N.T.S.H. 547.

Captain Gaskin indicated that when McGrath left his office, he was taken to a holding center, under supervision by drill instructors, to await transfer to the custody of civilian authorities (the Buford County Sheriff's Department). There were no specific orders given to McGrath at that time restricting his freedom of movement, but none were necessary because "from the time a recruit arrives until the time he leaves Paris Island he's under constant supervision. So there was someone with him at all times anyway". N.T.S.H. 557. The captain also testified that he learned of the Philadelphia arrest warrants only after completing the interview with McGrath and that the memo concerning "possible fraudulent enlistment" had, in fact, been a "mistake". That is, the captain later became aware that McGrath's matter was "not a fraudulent enlistment case at all but a warrant". N.T.S.H. 563.

[ 504 Pa. Page 109]

McGrath's testimony was consistent with that of the Marine Corps witnesses. McGrath testified that after his initial encounter with the first drill instructor at which he was told that he was going to jail in Philadelphia because of a shooting, he was interviewed by Lieutenant Macintyre and two or three other drill instructors, including Master Sergeant Jones. One of the drill instructors read the charges to him and the lieutenant questioned him about the charges. He was then taken to pack all of his belongings and was told that he was being taken to Philadelphia. Within two hours of being interviewed by the lieutenant, after he had packed his belongings, he was interviewed by Captain Gaskin. With respect to this interview, McGrath was asked at the suppression hearing, "Were you aware that you had the alternative of not to explain these things to him?" McGrath answered: "No I didn't. I didn't understand it, you know, I had a right to say no to an officer". N.T.S.H. 575. McGrath also testified he believed that if he did not tell the captain about the shooting incident he would go to jail for not obeying an order. When it was pointed out that Captain Gaskin's words were not an order, McGrath replied:

Well, as a Private, anything officer says to you, it's -- I consider it -- I considered an order at the time. I have no social life, you know, with the officers or anything. So, like, what they ...

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