Commonwealth v. Alwine

Opinion by

Mr. Justice Eagen,

On July 13, 1959, Richard Wayne Alwine was convicted by a jury in Butler County of robbery and of murder in the first degree. On the murder conviction he was sentenced by the court to life imprisonment as the jury’s verdict directed, and on the robbery conviction a sentence of 10 to 20 years imprisonment was imposed. Appeals were not then entered. However, on January 2, 1968, Alwine filed a petition seeking post-conviction relief under the Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. 1180-3, and, after an evidentiary hearing, the trial court concluded Alwine had not effectively waived his right to appeal, so an order was entered permitting the filing of post-trial motions as if timely filed. Said motions were filed, and subsequently dismissed. This appeal was then entered from the judgment of sentence imposed on the murder conviction. An appeal was not taken from the judgment entered on the robbery conviction.

It is not disputed the trial evidence was sufficient to warrant a finding of guilt of murder in the first degree, and an examination of the record readily manifests why this issue is not pressed. The record demonstrates the Commonwealth’s evidence was ample to. establish beyond a reasonable doubt that, while perpetrating a robbery of a grocery store, Alwine fatally stabbed the proprietor. That Alwine committed the crimes was not denied at trial, but the defense attempted unsuccessfully to persuade the jury he was legally insane at the time involved.

The Commonwealth’s trial evidence included an incriminating statement made by Alwine during police custody. It is claimed this statement was obtained under conditions which rendered it “involuntary” and made its evidentiary use at trial violative of due process. This issue was explored and decided against Al-wine in the 1968 post-conviction proceedings and, after a careful study of the entire record, we conclude the trial court’s ruling was correct.

The robbery and killing occurred between 8 and 9 p.m. on September 24, 1958. About 1 p.m. on the following day, Alwine was taken into police custody and arrived at police headquarters about 1:30 p.m. Before any questioning began, he spontaneously said : “Do what you want with me. I done it. Nobody cares about me.” From then until late in the afternoon, he was questioned about the details of the crimes after which he made the statement now challenged. It was initially recorded in longhand by a police detective and then transposed into a typewritten statement. At one point before the statement was obtained, the questioning was interrupted for at least a half-hour during which period Alwine and his father were alone together.

At the time Alwine was eighteen years of age, had an I.Q. of 85, and a history of prior emotional disturbances. Additionally, he was not warned of his constitutional rights as now required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). On the other hand, the record is convincing he talked freely with the police from the beginning and admitted his guilt without urging or extensive questioning. Moreover, his trial testimony clearly evidences he possessed a mind fully capable of making knowing decisions. Under all the circumstances, the question of whether the statement was freely given, was for the jury. Cf. Commonwealth v. Darden, 441 Pa. 41, 271 A. 2d 257 (1970); and, Commonwealth ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A. 2d 434 (1968).

It is also urged that evidentiary use of the statement should have been denied as a matter of law because it resulted from police questioning which occurred after Alwine indicated he wanted the assistance of an attorney. As to this, the record discloses the following :

Alwine was taken into police custody in front of his residence on the basis of a warrant previously issued by a magistrate. He was immediately escorted into his home by the arresting officers, and he and his father were informed of the reason for the arrest. Al-wine then asked his father for an attorney. The father replied, “definitely see how this comes out first.” Later on in the afternoon after the challenged statement was completed and recorded, Alwine refused to sign it until he consulted an attorney.

Assuming Miranda v. Arizona, supra, or Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), would preclude any police questioning in the absence of an attorney in view of Alwine’s indication to his father that he wanted legal assistance, since his trial commenced many years prior to the effective date of these decisions they do not control. In 1958, even the denial of a request to contact counsel before police questioning commenced was not an infringement of constitutional rights. Cf. Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287 (1958); Cicenia v. La Gay, 357 U.S. 504, 78 S. Ct. 1297 (1958).

The remaining asserted assignments of error have been given careful consideration and are likewise found to be without merit.

Judgment affirmed.