Commonwealth v. Bullard

350 A.2d 797, 465 Pa. 341, 1976 Pa. LEXIS 419

• Court: Supreme Court of Pennsylvania
• Decided: January 29, 1976
• Docket: 610
• Status: Published

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

Appellant Norman Bullard was convicted after a jury trial of murder in the first degree. After post-trial motions were denied, judgment of sentence of life imprisonment was imposed. Appellant contends that statements given to police after he was taken into custody should have been suppressed. We agree, reverse the judgment of sentence and grant a new trial.¹

In all cases of first degree murder this Court is required by statute to “determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” ² In so doing we must consider the record in the light most favorable to the Commonwealth’s case. Commonwealth v. Robson, 461 Pa. 615, 630, 337 A.2d 573, 579 (1975); Commonwealth v. Boyd, 461 Pa. 17, 21, 334 A.2d 610, 613 (1975); Commonwealth v. Murray, 460 Pa. 605, 610, 334 A.2d 255, 257 (1975). Reviewing the record in this light we are persuaded that the jury’s finding of the necessary elements of the offense is supported by the evidence.

The Commonwealth introduced into evidence an eight page signed statement appellant gave to the police admitting his participation in the stabbing. The Commonwealth also introduced the testimony of an eyewitness, Tyrone Raymond, who was present at the altercation and who said that appellant stabbed the victim. At least two other witnesses who saw the stabbing gave testimony implicating appellant. In view of the entire record we are convinced that the jury’s verdict was supported by sufficient evidence.

We must next consider appellant’s claim that his statement should not have been admitted into evidence. The facts surrounding this claim are unusual and indicate an alarming disregard for appellant’s constitutional rights.

Appellant learned that he was being sought in connection with the stabbing of a young man. He feared that he might be harmed when apprehended by police. He expressed this anxiety to James “Country” Robinson, a gang-control worker. Robinson telephoned the Honorable Paul A. Dandridge, a judge of the Philadelphia Municipal Court (now a judge of the Court of Common Pleas), and explained the situation to him.

Judge Dandridge checked with police and learned that a warrant had been issued for appellant’s arrest. He advised appellant to come to his chambers and surrender himself to the police. The judge arranged for Deputy Chief Gilbert Branche of the Philadelphia District Attorney’s detectives to come to his chambers and take appellant into custody. Judge Dandridge apparently believed this arrangement would alleviate any anxiety appellant entertained about being taken into custody.

At about 2:30 p. m., Detective Branche went to Judge Dandridge’s chambers. Appellant was there with “Country” Robinson and a few others. In his suppression hearing testimony, Branche described what transpired:

“Judge Dandridge said to me that ‘This is Norman Bullard, the fellow that we have talked about. He is wanted by the police department.’

“He said, ‘Norman’s family is out trying to obtain a lawyer at this time. I don’t think they have reached one yet.’

“And I think Norman said, ‘No, they haven’t.’

“He said, ‘Well, I want you to take Norman down to the police department, and I don’t want anyone to talk to him until his family obtains a lawyer.’

“I said to the judge, ‘I’ll take him down there and I will relay your message, although they will talk to him anyhow, as their policy. They are going to ask him things about his personal life and also about this crime.’ ”

Detective Branche delivered appellant into the custody of the homicide unit at about 3 p. m. He relayed Judge Dandridge’s directions, that appellant was not to be questioned, to Sergeant Green of the homicide unit.

Appellant was placed in an interrogation room, handcuffed to a metal chair which was bolted to the floor, and interrogated by homicide detectives. At 11:40 p. m. appellant signed an eight page statement admitting his participation in the stabbing. Although the record does not give the exact time,³ appellant was arraigned sometime after 12:15 a. m.

Appellant contends that he did not waive his right to have counsel present while being questioned. He argues that, in view of his apprehensions and Judge Dandridge’s instructions, it was improper for the police to conduct the uncounselled interrogation. Thus, the determinative question is whether appellant made “an intentional relinquishment or abandonment” of his right to counsel and his right to remain silent. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A defendant may indeed waive these rights “provided the waiver is made voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

It is well established that the Commonwealth has the burden of proving by a preponderance of the evidence that the defendant made a knowing, voluntary and intelligent waiver of his rights. See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d (1967); Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). Our review here is aimed at determining if the Commonwealth sustained that burden at the suppression hearing.

It is of no moment whether appellant’s fears about being harmed by police were justified. What is of consequence, however, is that appellant was fearful and sought the assistance of others in connection with his surrender. Through the intervention of “Country” Robinson and Judge Dandridge, appellant received guidance concerning his course of action. The record shows that, through these intermediaries, appellant expressed a clear desire not to be questioned until counsel was obtained for him — as he was constitutionally entitled to do. Miranda v. Arizona, supra; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971). Judge Dandridge conveyed this invocation of appellant’s rights to Detective Branche.

Though this claim of right was conveyed to the officer on duty at the homicide unit, the homicide personnel intentionally disregarded the claim. In his suppression hearing testimony, Sergeant Green, the officer on duty when appellant was taken into custody, details this disregard:

“Q. [Appellant’s counsel] Then why, sir, did you, did the homicide unit, if you know, disregard what Judge Dandridge had stated to Gilbert Branche ?

A. [Sergeant Green] He stated that he did not want the defendant to talk to the homicide detectives. We do talk to defendants when they come into homicide unit.

Q. Did you understand then that your action in talking to Norman Bullard was consistent with Judge Dandridge’s stating that he did not want the boy to talk to homicide?

A. No sir.”

The Commonwealth contends that once appellant was taken to the homicide unit interrogation room “he indicated that he wanted to give a statement to the police.” The only apparent basis for this contention that appellant changed his mind once he was alone with homicide detectives is the series of one word answers appellant gave to the pro forma questions in the Miranda warnings read to him. We find this insufficient to sustain the waiver asserted by the Commonwealth. Nor are we persuaded by the testimony of Detective White, an interrogating officer, that appellant indicated a willingness to talk by “answering the questions.”

On the facts presented here, we do not find that the Commonwealth sustained its burden of proving a knowing, voluntary and intelligent waiver. The Commonwealth must show not merely that appellant acquiesced in the face of interrogation but also that they “scrupulously honored” appellant’s assertion of his rights. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). As the United States Supreme Court explained in Miranda v. Arizona:

“A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed. 2d 70 (1962), is applicable here:

‘Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’ ”

Supra, 384 U.S. at 475, 86 S.Ct. at 1628. We do not find that the mere answering of questions by a man who fears police, given while handcuffed to a metal chair in an interrogation room constitutes the “free choice” described in Miranda, supra at 465, 467, 86 S.Ct. at 1623, 1624.⁴

Though it is possible that one who expresses a desire to exercise fifth or sixth amendment rights may later change his mind and waive the rights, such a conclusion cannot be justified where, as here, police disregard the initial exercise of the rights. Because we cannot find that the Commonwealth sustained its burden of proving waiver, we hold that the admission into evidence of the inculpatory statements was error.

Moreover, we cannot conclude that the error was harmless. Because a confession is the most damning, of all evidence⁵ we cannot say that we are convinced beyond a reasonable doubt that the error did not affect the judgment.⁶

1 . We hear this appeal under authority of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17P.S. § 211.202(1) (Supp.1975).

2 . Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187 (1964).

3 . In this case, as with many others which have been before this Court, the police log indicates with great detail even the least important event during the period following arrest. The final entry, however, the actual time of preliminary arraignment remains unspecified. Thus we rarely can determine the total length of delay between arrest and arraignment. See Commonwealth v. Smith, 463 Pa. 393, 397, 344 A.2d 889, 891 (1975) (dissenting opinion of Roberts, J., joined by Manderino, J.).

4 . The same issue was presented in a similar factual setting in United States v. Slaughter, 366 F.2d 833 (4th Cir. 1966) (en banc). There the accused expressed a desire to have counsel present. Questioning was then discontinued and the accused remained in custody. Investigating officers later resumed questioning and elicited incriminating statements from the accused. The reading of appellant’s rights and his answering questions was held insufficient to support the government’s contention that the defendant had waived the right to counsel he had earlier attempted to assert. We find the reasoning and holding of the Fourth Circuit equally applicable here:

“ . . . appellant manifested his desire to exercise his right to counsel. . [H]e did not initiate additional conversation with agents of the F.B.I. . . His interrogation was initiated solely by the F.B.I. [T]here is nothing in this record to support an express change of mind on appellant’s part of his desire to consult counsel, and a departure from his previously announced desire to exercise his right should not be lightly inferred. A statement that appellant had a right to remain silent, on the facts here, was insufficient to overcome the respect to which his expressed desire to consult counsel was entitled. This statement here followed by a response to interrogation with nothing more, is insufficient to form a basis for waiver.”

366 F.2d at 840-41. See also United States v. Clark, 499 F.2d 802 (4th Cir. 1974).

5 . See generally, Jackson v. Denno, 378 U.S. 368, 376, 84 S-Ct. 1774, 1780, 12 L.Ed.2d 908 (1964); Commonwealth v. Pierce, 451. Pa. 190, 195, 303 A.2d 209, 212 (1973); Commonwealth v. Yount, 435 Pa. 276, 256 A.2d 464 (1969), cert. denied, 397 U.S. 925, 90 S. Ct. 918, 25 L.Ed.2d 104 (1970); Commonwealth v. Simula, 434 Pa. 219, 252 A.2d 575 (1969); People v. Schader, 62 Cal.2d 716, 44 Cal.Rptr. 193, 401 P.2d 665 (1965).

6 . See, e. g., Commonwealth v. Martinolich, 456 Pa. 136, 160 n. 15, 318 A.2d 680, 693 n. 15, cert. denied, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974); Commonwealth v. Davis, 455 Pa. 466, 467, 317 A.2d 218 (1974).