Com. v. Mamon

• Decision Date: 17 November 1972
• Citation: 297 A.2d 471,449 Pa. 249
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Mary MAMON, Appellant.
• Court: Pennsylvania Supreme Court

Page 471

297 A.2d 471

449 Pa. 249

COMMONWEALTH of Pennsylvania, Appellee, v. Mary MAMON, Appellant.

Supreme Court of Pennsylvania.

Nov. 17, 1972.

Edward C. Connolly, Warminster, for appellant

Ward F. Clark, Dist. Atty., Stephen B. Harris, Asst. Dist. Atty., Kenneth Biehn, Dist. Atty., Doylestown, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

On March 23, 1967, Lorraine Mullery was murdered at approximately 8:30 a.m. at her home on Peony Lane in Levittown, Bucks County. On that morning the victim's husband, oldest son and daughter, Patty, left the home at approximately 7:30 a.m. Some ten minutes later, the appellant, Mary Mamon, was seen walking into the garage of the Mullery home in a man's disguise. Within approximately five minutes, Ethel Markham, whose niece had recently broken off an engagement to marry Robert Mamon, appellant's son, received a telephone call inviting her to the Mullery home, four doors away from where she lived. Approximately twenty-five minutes later Ethel Markham went to the Mullery home, but no one answered her knock. When she returned home, Ethel reported this to her daughter, Nancy, and almost immediately Nancy went to the Mullery home.

Nancy Markham testified at trial that as she approached the door, it opened, she entered and behind the door was a person she first thought to be a man. After she walked in, a voice behind her said, 'Ethel, I have you now.' Then Nancy turned around and a person that appeared to be a man said, 'Carol.' Nancy answered, 'My name's not Carol, my name's Nancy.' Nancy had known Mary Mamon, as they had played games together in the Markham's home on many occasions, and she quickly recognized this 'man' to be Mary Mamon. Nancy testified that she then saw a hammer in Mary's hand and that Mary began to chase her around the house. She chased Nancy into the upstairs, where Nancy tried to get out a window. As Mary came up the stairs, she said, 'Now, Nancy, I have you.' However, Nancy managed to escape and ran downstairs. During the chase, she saw Patty's brother, Donald, in an upstairs bedroom, and his mother in a downstairs bedroom lying on the floor in pools of blood. Appellant trapped Nancy in the hallway on the first floor. Nancy remembered being hit with the first blow of the hammer in the back of the head, and then she became dizzy and passed out.

Between 8:55 and 9:00 a.m., Patty Mullery returned and found Nancy Markham lying on the floor between the downstairs bedrooms with severe head injuries. The police were summoned and they, in turn, found Lorraine Mullery lying dead on her bedroom floor and Donald Mullery in a second floor bedroom suffering from severe head wounds.

The Commonwealth's theory on the events of March 23, 1967, was that the Mullery house had been used as a death trap in which to lure Ethel Markham, whom appellant blamed for the breakup of her son's engagement, as Ethel testified she would not have allowed appellant in her home if, in fact, appellant had gone directly there. According to this theory, Lorraine Mullery, Donald Mullery and Nancy Markham were merely victims of circumstance.

After a jury trial, appellant was found guilty of murder in the first degree and the jury fixed sentence at life imprisonment. After denial of her post-trial motions and imposition of the judgment of sentence, she filed this appeal.

Appellant's principal allegations of error concern evidence seized as the result of what she contends were two unconstitutional searches.

The first search, which occurred on March 24, 1967, occurred after appellant had signed a consent form, which reads as follows:

'I, Mary S. Mamon, having been informed of my constitutional rights to have a search made of the premises hereinafter mentioned without a search warrant and of My right to refuse to consent to a search, I hereby authorize Richard Batezel, Charles Shaw, James Dunn, other police officers of the Township of Bristol and County of Bucks in the State of Pennsylvania to conduct a complete search of my residence and '62 Olds F85 and '64 red Chevelle--located at 71 Queensbridge Road, Levittown, Middletown Township, Bucks County, Pennsylvania. These officers are authorized by me to take from my residence and vehicles any letters, typewriters, papers, materials, clothing, all kinds of footwear, or other property which they may desire from the said residence and attached garage and said vehicles.

'This written permission is being given by me to the above-mentioned officers voluntarily and without threats or promises of any kind.' (Emphasis supplied.)

Appellant contends that this consent should be held to be invalid because it was unlawfully coerced. In arguing that appellant's consent was voluntarily given, the Commonwealth emphasizes the events which immediately preceded the signing by appellant of the consent form.

When the district attorney asked appellant, who had already been given the full Miranda warnings, to sign the consent form, according to the testimony which he gave at the suppression hearing, the following occurred:

'I repeated--I said to her, 'Are you sure that you don't want to call Mr. Connolly (appellant's attorney)? I'm not going to stop you. Certainly you have every right to call him.' And her answer was, 'No, I'll skip it,' and I said 'It's entirely up to you,' and she said, 'If I didn't sign--I'm sorry--let me see--if I didn't sign, would you get a search warrant?' and I said 'We probably could."

Appellant first argues that since the district attorney told her that he 'probably could' get a search warrant if she refused to sign the consent form, this case is controlled by the case of Bumper v. North Carolina, 391 U.S. 543 at 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968), where the court said:

'When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-- albeit colorably lawful coercion. Where there is coercion there cannot be consent.'

However, in Bumper, the authorities claimed to have a warrant authorizing the search. Here, the testimony showed that appellant realized that she faced a decision between consenting to the search or speculating on whether the district attorney could obtain a warrant. Thus, appellant verbalized her knowledge that she was surrendering a right of which she was fully apprised. If the foregoing were all that transpired before appellant signed the consent form, there would be no doubt that her consent was valid. However, appellant also argues that, in considering whether her consent was voluntary, we must also consider the events of the entire evening, including the three-hour period during which she was in custody before she finally consented to the search. According to appellant, the totality of these circumstances constitutes 'coercion' as a matter of law.

The events leading up to appellant's consent to the search on March 24, 1967, began early in the morning of the same date when the police arrived at appellant's home with an arrest warrant for her son, Robert, on disorderly conduct charges. At that time, appellant stated a desire to remain home with her younger son rather than accompany Robert to the police station. Shortly before 3:00 a.m., on March 24, the police returned to appellant's home and requested that she go to the police station. Although they had no warrant for her arrest, or gave her no reason for their request, she accompanied them to headquarters. Upon her arrival, she immediately asked to see her son, but was not permitted to do so. Before any questioning began, the district attorney, who was the principal interrogator, advised appellant of her constitutional rights and told her they were investigating a murder. At that time he did not inform appellant that she was a suspect, although later, in court, he admitted that during that questioning he did consider appellant a suspect. Moreover, the district attorney neither told appellant that she was under arrest nor that she was free to go.

The questioning proceeded for several hours in a room at police headquarters occupied by appellant and at least four or five police officers in addition to the district attorney. At one point during this questioning appellant apparently consented to an examination of her hair, which was performed by one of the police officers present. After a couple of hours, they asked appellant if they could clean her fingernails without advising her that any evidence so obtained could be used against her. Almost immediately after the fingernail scraping, the police asked her if they could take her fingerprints. Appellant, who by this time must have been rather curious, asked why this was necessary, and she was told it was just routine, so she consented. Later, when she returned from the fingerprinting session, the questioning resumed. It was then that she was asked for permission to search her home. Appellant thereupon asked if she could talk to her attorney; however, while the police were searching for the appropriate phone book, appellant changed her mind and decided that she did not want to see an attorney. The district attorney presented her with a consent form, which had been prepared and completed in advance. She signed the form sometime between 5:00 and 6:00 a.m., after about three hours of continuous interrogation, fingerprinting, hair searching, and fingernail scraping.

Appellant claims, and indeed the record fully supports her claim, that, in view of the totality of these circumstances, her 'consent' to waive her constitutional rights under the Fourth Amendment was unlawfully coerced. It has long been recognized that consent to warrantless police searches and seizures is effective only if it is given freely, specifically, unequivocally, and voluntarily. Bumper v. North...