Commonwealth v. Sparrow

ROBERTS, Justice,

dissenting.

The majority does not apply the proper standard for review of the voluntariness of appellant’s admission. It treats the trial court’s determination of voluntariness purely as a question of fact and, as a result, fails to make the necessary inquiry into appellant’s claim. I dissent.1

It is clear from our previous cases that we must independently determine whether a confession is voluntary. 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). This procedure is constitutionally required. “It is our duty in . cases dealing with the question whether a confession was voluntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); see Malinski v. New York, 324 U.S, 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). Moreover, when psychological coercion is alleged, a particularly close analysis of the surrounding circumstances is necessary. Commonwealth v. Alston, 456 Pa. 128, 133-34, 317 A.2d 241, 244 (1974); Commonwealth v. Eiland, supra at 574, 301 A.2d at 654; Commonwealth ex rel. Butler v. Rundle, supra at 149, 239 A.2d at 430.

*509In making this determination, we may:

“. . . 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.’ Culombe v. Connecticut, 367 U.S. [568, 604], 81 S.Ct. [1860, 1878, 6 L.Ed. 2d 1037 (1961)].”

Commonwealth ex rel. Butler v. Rundle, supra at 149-50, 239 A.2d at 430.

The majority uses a much more restricted standard of review. It contends that the suppression “court found that the statements were voluntary” and that this finding “supported by the record, may not be disturbed.” This is a clearly mistaken standard which unnecessarily abdicates our obligation on review.

The suppression court’s “finding” of voluntariness, like its “finding” that appellant “received the benefit of procedural and substantive safeguards set forth by the United States Supreme Court,” is not simply a finding of fact. Rather, these “findings” involve inferences made from the facts, and the application of legal principles to those inferences. See Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1058 (1961) (Opinion of Frankfurter, J.). Such findings must not be insulated from review. If such findings are treated as pure questions of fact, this Court abdicates its responsibility to review alleged violations of constitutional rights. “[W]here necessary to the determination of constitutional rights, [this Court must] make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental — i. e.,— constitutional — criteria established by this Court have been respected.” Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963); accord Fiske v. Kansas, 274 U.S. 380, 385-86, 47 S.Ct. 655, 656-57, 71 L.Ed. 1108 (1927) (“this Court will review the findings *510of facts by a State court . . . where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts.”). See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 574-620 (2d ed. 1973).

Thus, Justice Frankfurter in his opinion in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), recognized that a “finding” of voluntariness was not simply a finding of fact, precluding further review by appellate courts if supported by the record:

“The notion of ‘voluntariness’ is itself an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes. Since the characterization is the very issue ‘to review which this Court sits,’ Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (opinion of Frankfurter, J.), the matter of description, too, is necessarily open here. See Lisenba v. People of State of California, 314 U.S. 219, 237-238, 62 S.Ct. 280, 290, 86 L.Ed. 166; Ward v. State of Texas, 316 U.S. 547, 550, 62 S.Ct. 1139, 1141, 86 L.Ed. 1663; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224; Malinski v. People of State of New York, 324 U.S. 401, 404, 417, 65 S.Ct. 781, 783, 789, 89 L.Ed. 1029.
No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially — that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply by declining to draw inferences which the historical facts compel.”

Id. at 604-05, 81 S.Ct. at 1880. Clearly, the suppression court’s “finding” of voluntariness does not relieve this *511Court of its responsibility to review the voluntariness of appellant’s confession in the totality of the circumstances.

Justice Frankfurter recognized three phases of inquiry, although he also recognized that in practical application these phases become interwoven. First, the raw “historical facts” must be determined. Next, the defendant’s psychological state is inferred from, these facts. Finally, legal principles are applied to these inferences to determine voluntariness. The passage quoted and relied upon by the majority, to support its assertion that a “finding” of voluntariness must be upheld if it is supported by the record, applies only to the “crude historical facts.”

“The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.
In a case coming here from the highest court of a State in which review may be had, the first of these phases is definitely determined, normally, by that court. Determination of what happened requires assessments of the relative credibility of witnesses whose stories, in cases involving claims of coercion, are frequently, if indeed not almost invariably, contradictory. That ascertainment belongs to the trier of facts before whom *512those witnesses actually appear, subject to whatever corrective powers a State’s appellate processes afford.
This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review — with the one caveat, necessarily, that w'e are not to be bound by findings wholly lacking support in evidence.”

Id. at 603, 81 S.Ct. at 1879. Clearly, the inferences the suppression court draws about the accused’s psychological state, and its determination on voluntariness, are not the kinds of factual determinations beyond appellate review.2 The majority completely fails to comprehend Justice Frankfurter’s analysis.

Because it applies the wrong standard, the majority fails to analyze the voluntariness of appellant’s statements in the totality of the circumstances. Every cir*513cumstance that may have affected appellant’s will must be considered and any admission or confession which was not a product of an essentially free and unconstrained choice by the accused must be suppressed. Commonwealth v. Alston, supra at 131-33, 317 A.2d at 242-43 (1974); Commonwealth v. Eiland, supra at 574, 301 A.2d at 654; Commonwealth ex rel. Butler v. Rundle, supra at 149-51, 239 A.2d at 430-31.

We listed the following factors as crucial to this inquiry:

“ . . . the duration, and the methods of interrogation ; the conditions of detention, the manifest attitude of the police toward the defendant, the defendant’s physical and psychological state and all other conditions present which may serve to drain ones powers of resistance to suggestion and undermine his self-determination.”

Commonwealth v. Alston, supra at 134, 317 A.2d at 244; see Commonwealth v. Purvis, 458 Pa. 359, 364, 326 A.2d 369, 371 (1974); Commonwealth ex rel. Butler v. Rundle, supra at 149,239 A.2d at 430.

In this case, the following facts are uncontradicted. Appellant was arrested at approximately 4:30 p. m., October 17, 1972, and arrived at the Police Administration Building at 5:00 p. m. From 5:00 p. m. until 9:25 a. m., October 18, 1972, appellant was interrogated by several teams of detectives. He was left alone for various intervals, during which he was manacled in the interrogation room and thus was denied any effective rest. During the first eight hours, appellant consistently denied any involvement in the crime.3 At 12:40 a. m., he made the first statement later used by the Commonwealth. The interrogation based on this first statement lasted until 2:30 a. m. From 2:30 a. m. until 5:00 a. m., appellant was again manacled and left alone. Between 5:00 a. m. *514and 7:00 a. m., appellant made a further admission, adding details to his first statement.4 He was once again manacled and left alone until 9:25 a. m., when he was allowed to confer with his attorney and later allowed to meet with his father. He was again shackled and left alone until 5:00 p. m., October 18, when he was finally arraigned, more than twenty-four hours after his arrest.

Only after eight hours in custody, and seven and one-half hours of interrogation, did appellant make an incriminating statement. Appellant’s further admission came more than twelve hours after arrest, and he was not arraigned until more than twenty-four hours after his arrest.5 Given the coercive nature of such an extend*515ed pre-arraignment delay, I cannot agree that the statements taken from appellant were voluntary.

Appellant’s claim that he was denied access to counsel highlights the involuntariness of his admissions. Appellant retained counsel shortly before he was arrested, and counsel instructed him to make no statement unless counsel was present. After appellant’s later admission, he read the statement, but declined to sign it, stating that he would sign nothing until he had talked to his attorney. I can only conclude that when appellant made admissions to the police, in disregard of the advice of retained counsel, it was because his will was overborne, especially since appellant still wanted to see his attorney after he made these statements.6

*516The Commonwealth argues that there was no prejudice in admitting these statements into evidence because they were substantially the same as those testified to by appellant at trial. However, appellant’s testimony may have been induced by his earlier admissions while being interrogated and therefore should be suppressed as a fruit of the former illegality. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L. Ed.2d 1047 (1968); Commonwealth v. Saunders, 459 Pa. 677, 683, 331 A.2d 193, 195 (1975) (Dissenting Opinion of Nix, J., joined by Roberts, J.).

Nor can I agree with the Commonwealth’s contention that the statement was admissible for the purpose of impeaching appellant’s testimony. In Commonwealth v. Triplett, 462 Pa. 244, 248-49, 341 A.2d 62, 64 (1975), this Court stated:

“We are of the opinion that any statement of a defendant declared inadmissible for any reason by a suppression court cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf.”

Thus, it is clear that an involuntary confession must be excluded for the purposes of impeachment of defendant at trial.

I cannot agree that appellant’s admissions were voluntary. I dissent, and would grant appellant a new trial.

MANDERINO, J., joins in this dissenting opinion.

. My discussion in this dissenting opinion is directed primarily to the issue of the voluntariness of appellant’s admissions, the determination of which is necessary to the decision of this case. My omission of discussion of the other issues raised by appellant should not be construed as implicit agreement with either the analyses or conclusions in the majority opinion.

. Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974), relied on by the majority, is not to the contrary, Johnson merely stands for the proposition that when there is conflicting testimony, “it is the exclusive province of the trier of facts to pass upon the credibility of witnesses.” Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). Indeed, neither of the cases cited in Johnson, Commonwealth v. Karchella, 449 Pa. 270, 273, 296 A.2d 732, 733 (1972); Commonwealth v. Garvin, supra, involved a challenge to the voluntariness of a confession. Rather, they involved the resolution of conflicting testimony by the trial court. This is the kind of “historical fact” which is upheld if supported by the record.

Although classification is difficult, it appears that the trial court’s finding that “[t]he defendant was warned of his rights on three occasions” is usually such an “historical fact.” It obviously entails a legal conclusion about what rights the accused must be warned of and the form warning must take, however, and thus is not always insulated from review. The finding that appellant was “alert, responsive, normal and not under the influence of drugs or intoxicants” involves a determination of historical facts, but it also involves inferences about his psychological state.

Finally, the conclusion that appellant’s statements were obtained “without fear, threats, brutality or other forms of duress, or in response to any direct or implied promises” involves not only historical facts and inferences as to the accused’s psychological state, but also legal conclusions, in particular, legal conclusions as to what kinds of police interrogation practices tend to overbear the will of the accused.

. Appellant was given Miranda warnings before each of three initial interrogation sessions.

. In its memorandum opinion, the suppression court stated: “The interrogation was not prolonged but rather was interrupted by offers of food, watér, cigarettes and rest.” The majority apparently treats this as a finding that the interrogation was not prolonged, but it is clear that what the trial court meant is that the interrogation was not continuous. The Commonwealth does not contest that appellant was interrogated over a twelve hour period. If the suppression court had made a finding that interrogation was not prolonged, such a finding would clearly not be supported by the record.

. The presence of an unnecessary delay in securing a preliminary arraignment must be considered as an aspect of the voluntariness inquiry. Commonwealth v. Eiland, 450 Pa. 566, 572, 301 A.2d 651, 653 (1973); Commonwealth v. Koch, 446 Pa. 469, 474-75, 288 A.2d 791, 794 (1972).

In Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 155-56, 239 A.2d 426, 433 (1968), this Court, in an opinion by Mr. Justice O’Brien, recognized that pre-arraignment delay is relevant to the voluntariness of any statements taken, even if the delay takes place after the confession:

“We cannot accept the contention that since the confession was made on the day of arrest, the succeeding six days are irrelevant to a consideration of the question of voluntariness of the confession. Haley v. Ohio [332 U.S. 596, 600, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948)], dealt with the question of post-confession improper police tactics: ‘It is said that these events are not germane to the present problem because they happened after the confession was made. But they show such a callous attitude of the police towards the safeguards which respect for ordinary standards of human relationships compels that we take with a grain of salt their present apologia that the five-hour grilling of this boy was conducted in a fair and dispassionate manner. When the police are so unmindful of these *515basic standards of conduct in their public dealings, their secret treatment of a 15-year-old boy behind closed doors in the dead of night becomes darkly suspicious.’ Here, too, the post-confession activity of the police colors the proceedings leading up to that confession.”

Accord, Commonwealth v. Coach, 471 Pa. 389, 370 A.2d 358 (1977).

The record shows no administrative procedure which would justify the pre-arraignment delay in this case. The only possible conclusion is that the delay was for the purpose of extracting a confession from appellant.

. This case highlights the need for a rule that once counsel has undertaken to represent a defendant, the defendant in custody cannot waive his right to counsel unless counsel is present. Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977). (Opinion announcing the Judgment of the Court); People v. Hobson, 39 N.Y.2d 479, 384 N.Y.S.2d 419, 348 N.E.2d 894 (1976); see Commonwealth v. Hawkins, 448 Pa. 206, 220, 292 A.2d 302, 309 (1972) (Dissenting Opinion of Nix, J., joined by Roberts and Manderino, JJ.). Appellant testified that he repeatedly requested to have his attorney present during interrogation. The suppression court rejected this claim, however, and this is the kind of purely factual question which is left to the suppression court. Thus, for the purposes of this appeal, we must assume that appellant did not request counsel until after he made the admissions. It should be apparent, however, that the accused’s right to counsel is inadequately protected if it must depend on the outcome of “the almost inevitable ‘swearing contest’ over what happened behind the closed doors.” Y. Kamisar, W. La Fave & J. Israel, Modern Criminal Procedure 513 (4th ed. 1974). See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (pres*516ence of counsel at line-up is necessary to insure that defense can accurately reconstruct what took place); Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738, cert. denied, 400 U.S. 919, 91 S.Ct. 173, 27 L.Ed. 159 (1970) (same).