Com. v. Hardy

• Decision Date: 15 November 1966
• Citation: 423 Pa. 208,223 A.2d 719
• Parties: COMMONWEALTH of Pennsylvania v. Donald HARDY, Appellant.
• Court: Pennsylvania Supreme Court

Page 719

223 A.2d 719

423 Pa. 208

COMMONWEALTH of Pennsylvania v. Donald HARDY, Appellant.

Supreme Court of Pennsylvania.

Nov. 15, 1966.

Harold Gondelman, Joseph A. Steedle, Pittsburgh, for appellant.

Robert W. Duggan, Dist. Atty., Edwin J. Martin, Asst. Dist. Atty., Pittsburgh, for appellee.

Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION

JONES, Justice.

Donald Hardy, ¹ defendant, was arrested for allegedly killing with a gun Anthony Bishop, 33 years of age, who was found in an automobile on Odessa Way near Lincoln Avenue in the City of Pittsburgh, Pennsylvania, at 12:02 a.m., December 24, 1964. Police interrogated Hardy for approximately four and one-half hours on December 24, 1964, for fifteen minutes on Christmas day, and for three more hours on December 26, 1964, before he orally confessed to the slaying. Shortly thereafter on December 26th, Hardy signed a written admission of the crime, and, on December 27, 1964, permitted the police to make a tape recording of his confession. At no time during these events was defendant represented by counsel.

Before the trial began, defendant's counsel made a motion to suppress Hardy's confession. Pursuant to the mandate of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), extensive testimony, which required two full days to hear, was taken. The trial court subsequently dismissed defendant's motion to suppress. On April 9, 1965, the jury returned a verdict of first degree murder against defendant, and the penalty was fixed at life imprisonment. Defendant then filed a motion for a new trial which was unanimously refused by the trial court en banc on November 17, 1965. From the entry of judgment of sentence defendant has appealed to our Court.

Prior to trial, Hardy pleaded not guilty to the murder of Anthony Bishop. At the trial, his written and his taped confessions which were identical in content were admitted into evidence. In these confessions, Hardy, who alleged he was drunk, claimed that his gun went off while he was attempting to rob the victim. However, upon taking the stand at trial, Hardy contradicted these confessions by denying that he tried to rob the victim, but rather that the gun went off while he and the victim were arguing about Hardy's failure to fulfill his promise to find a prostitute for the victim. ² This contradiction by Hardy at trial of a vital part of his pre-trial confessions puts the issue squarely before our Court whether or not the confessions should have been admitted into evidence by the lower court.

At the pre-trial hearing to ascertain whether or not Hardy's confessions should be excluded from trial, there was testimony that on December 24, 1964, before any interrogation had begun, that Hardy was warned of his constitutional rights to be silent and to have counsel.

'Q. What did you (City Detective Tercsak) say to him (Donald Hardy when he was first brought to the police station in the late afternoon of Dec. 24, 1964)?

A. To which first that he had a right either to make a statement or refuse to make a statement; second, that if he did make a statement it could be used for or against him at the time of his trial; and Third, he had the right to be represented by an attorney of his own choice before saying anything. He said that he understood these things, he did not want a lawyer at this time. The only thing that he did want was a Bible which I gave him.' (Emphasis added)

There was further evidence that, on December 26, 1964, the third day of interrogation, Hardy was asked this question at the beginning of his confession which was reduced to writing for his signature:

'Q. Before going any further I (City Detective McDermott) am now going to advise you of your constitutional rights in which you have the right to either give or refuse to give this statement. It can be either used for you or against you at the time of your trial. At this time you also have the right of an attorney. Will you give a statement? (Emphasis added)

A. Yes.'

At no other time was defendant warned of his rights during the three days of interrogation, and of course, at no time during this time did he have the benefit of counsel. The trial court felt that this factual situation was sufficient to find a knowing and intelligent waiver of counsel: 'In addition, it was determined by the (trial) Court and the (trial) Court found as a fact that the defendant told the interrogating officers that he did not want counsel. Was this an intelligent waiver of counsel? Certainly if it was not, it would be difficult to imagine a case in which you could have an intelligent waiver.' (Emphasis added).

The defendant is an intelligent young man, having graduated from high school with excellent grades. He was a high school football star and was awarded a college scholarship because of his athletic prowess. He attended college for a short time and left because of an argument with his football coach. The (trial) Court, therefore, is of the opinion that, when the defendant's constitutional rights were explained to him and he refused the assistance of counsel, he fully understood what he was doing and his decision not to have counsel represent him when he made his confession was the result of his free will and can be classified as an intelligent waiver, as referred to in the Escobedo case.'

We agree with the court below. Under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the confession of Hardy made during an 'in-custody' questioning when he was without the assistance of counsel, might be held inadmissible. However, Miranda is not presently applicable since the trial of Hardy began and was terminated prior to the effective date of Miranda. See: Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). However, since Hardy was tried subsequent to June 22, 1964--the effective date of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) ³--the guidelines set forth in Escobedo are applicable in the case at bar. That the rules as to 'in-custody' interrogation enunciated in Escobedo differ substantially from the rules enunciated in Miranda is clear. A study of Johnson renders inescapable such a conclusion for otherwise why would the U.S. Supreme Court in Johnson have stated that the Escobedo ruling would apply to cases tried on and after the date of such ruling but that the Miranda ruling would not apply until a date two years later.

Hardy presently contends that the Escobedo ruling invalidates his confession solely because he was without counsel during the 'in-custody' interrogation and not adequately warned of his right to the assistance of such counsel. In Commonwealth v. Coyle, 415 Pa. 379, 403, 203 A.2d 782; Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 335, 336, 206 A.2d 288; Commonwealth ex rel. Johnson v. Myers, 419 Pa. 155, 157, 158, 213 A.2d 359, we rejected such a contention; the Johnson ruling attests to the soundness of such rejection.

In other words, as Johnson demonstrates, Escobedo is limited in its application and, under Escobedo and in those instances wherein Miranda does not apply, a confession is not rendered invalid solely because counsel is not afforded during 'incustody' interrogation, Except where the assistance of counsel is Requested and where the person in custody is not Effectively warned of his constitutional right to remain silent.

In the case at bar, the record reveals that Hardy was warned: (1) that he had a right either to make a statement or to refuse to do so; (2) that, if he did make a statement, such statement could be used against him in court; (3) that he had a right to be represented by an attorney of his own choice before making any statement. Moreover, the record discloses--and the court below so found--that Hardy refused the assistance of counsel and at no time did he Request the assistance of counsel. In such factual posture, since there was no absolute obligation on the part of the police to furnish him with counsel, the failure to do so Per se does not render the confession inadmissible under Escobedo.

Our scrutiny of the instant record indicates that the circumstances under which the instant confession was elicited are not offensive to the principles enunciated in Escobedo. Hardy made a sufficiently knowing and intelligent waiver of counsel to permit his subsequent confession to be accepted into evidence.

Hardy contends, further, the trial court erred in four other respects: (1) in denying Hardy's motion to suppress a camel hair coat and in overruling his objection to its introduction into evidence; (2) in admitting into evidence the report of the finding of the coroner's jury; (3) in instructing the jury on the weight to be given a confession, and (4) in failing to adequately charge the jury in regard to murder committed in the perpetration of, or attempting to perpetrate, certain felonies. We have carefully considered these contentions and find them without merit.

On December 24, 1964, two officers, armed with an arrest warrant for Hardy and a search warrant for a gun, ⁴ went to the house where Hardy lived with his father. This house was owned by the senior Hardy and the defendant simply had a room therein. Hardy was not at home. When asked whether his son owned a gun, Mr. Hardy replied negatively and gave the officers his permission to look through his son's room. Finding nothing in that room, the officers prepared to leave when they noticed...