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filed: July 24, 1989.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, No. 467 CA 1987.


Allen H. Smith, York, for appellant.

Mark A. Bellavia, Asst. Dist. Atty., York, for Com., appellee.

Wieand, Popovich and Hester, JJ.

Author: Wieand

[ 386 Pa. Super. Page 204]

The principal issue in this direct appeal from a judgment of sentence imposed following a conviction for aggravated assault is the effect of a polygraph test, if any, on the voluntariness of appellant's incriminatory statement to the police. We do not perceive therein or in other issues raised by appellant any basis for setting aside the jury's finding of guilt; and, therefore, we affirm the judgment of sentence.*fn1

On the morning of December 30, 1986, nine month old Brandon Ray Silar was left in the custody of Mervin D. Schneider while the child's mother and Schneider's girlfriend, Jennifer Silar, went to work. The child, while in Schneider's custody, suffered a fractured skull and other head injuries and was taken by ambulance to York Hospital. The incident was investigated by State Trooper Robert DeWire, who was told by Schneider that the child had fallen from a bed while Schneider was lifting weights in another room. When the treating physician suggested that the child's injuries were not consistent with a fall from a bed, DeWire advised Schneider of the physician's opinion and asked him to take a polygraph test to aid the investigation. He told Schneider that there was no requirement that he submit to a polygraph and suggested that he consult a lawyer before submitting to the test. Schneider agreed to submit to the test.

[ 386 Pa. Super. Page 205]

DeWire provided transportation for Schneider, and during the trip to Harrisburg for the polygraph he told Schneider that the test would indicate whether he was lying. He did not tell Schneider, however, the use, if any, which could be made of the results of the test. Upon arrival in Harrisburg, Trooper Matthew Brennan, the polygraph examiner, advised Schneider of his constitutional right to remain silent and that he would waive any civil liability in connection with the polygraph test. He also told Schneider that his taking the polygraph test was entirely voluntary and that he could stop the test and would be free to leave at anytime. The results of the test, he said, were admissible evidence in twenty-six states but could not be used in Pennsylvania, although any statements made during the test could be used against him. Brennan also said that if the test showed that Schneider was lying, the results would be given to the investigating officer and to the district attorney. If he was telling the truth, Brennan said, he would stand by Schneider, but if he lied, "he was caught." Schneider agreed to submit to the test and signed a written "waiver" of his rights.

At the conclusion of the test, Brennan concluded that Schneider was lying about the circumstances surrounding the trauma to the child. Brennan confronted Schneider with the results of the polygraph and, according to his subsequent testimony, coaxed Schneider to tell the truth by stressing the importance of the truth and rationalizing the ease with which one could lose patience with children. Schneider ultimately admitted that he had lost patience with the child while changing his diaper and had struck the child, causing him to fall and sustain injury. While DeWire was transporting Schneider back to his home, Schneider gave a similar statement in which he again admitted having struck the child, causing him to fall, whereupon the child hit his head and became unconscious. Schneider was subsequently arrested, charged and ultimately found guilty of aggravated assault.

[ 386 Pa. Super. Page 206]

In reviewing an order denying a motion to suppress evidence, this Court must

     determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa. Super. 386, 451 A.2d 701 (1982).

Commonwealth v. Chamberlain, 332 Pa. Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa. Super. 356, 365, 526 A.2d 383, 388 (1987); Commonwealth v. DiNicola, 348 Pa. Super. 405, 409, 502 A.2d 606, 608 (1985).

In determining the voluntariness of a defendant's' statements made while in police custody, the Supreme Court has established the following guidelines:

Although there is no single litmus-paper test for determining the voluntariness of a confession, it must be established that the decision to speak was a product of a free and unconstrained choice of its maker. See Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Commonwealth v. Ritter, 462 Pa. 202, 340 A.2d 433 (1975); Commonwealth v. Alston, 456 Pa. 128, 317 A.2d 241 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). All attending circumstances surrounding the confession must be considered in this determination. These include: the duration and methods of the interrogation; the length of delay between arrest and arraignment; the conditions of detainment; the attitudes of the police toward defendant; defendant's physical and psychological state; and all other conditions present which may serve to drain one's

[ 386 Pa. Super. Page 207]

    power of resistance to suggestion or to undermine one's self-determination. See Culombe v. Connecticut, supra 367 U.S. at 602, 81 S.Ct. at 1879; Commonwealth v. Boyd, 461 Pa. 17, 30-32, 334 A.2d 610, 617-18 (1975); Commonwealth v. Purvis, 458 Pa. 359, 364, 326 A.2d 369, 371 (1974); Commonwealth v. Simms, 455 Pa. 599, 602-03, 317 A.2d 265, 267 (1974).

Moreover, when . . . the question of voluntariness involves degrees of psychological coercion, "the most careful attention will be afforded to any facts, circumstances, or events tending to overbear an accused's will." Commonwealth v. Simms, supra at 603, 317 A.2d at 267; see Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975); Commonwealth ex rel. Butler v. Rundle, supra 429 Pa. at 149, 239 A.2d at 430 (1968). Defendant may be so emotionally and psychologically distraught or unbalanced that this factor alone may make his confession involuntary. Commonwealth v. Ritter, supra.

Commonwealth v. Kichline, supra 468 Pa. at 279, 361 A.2d at 289-290 (1976). See also: Commonwealth v. Hughes, 521 Pa. 423, 442, 555 A.2d 1264, 1273 (1989); Commonwealth v. D'Amato, 514 Pa. 471, 481, 526 A.2d 300, 304-305 (1987); Commonwealth v. ...

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