Com. v. McLean

• Citation: 213 Pa.Super. 297,247 A.2d 640
• Parties: COMMONWEALTH of Pennsylvania v. Lester Joseph McLEAN, Appellant.
• Decision Date: 14 November 1968
• Court: Superior Court of Pennsylvania

Page 640

247 A.2d 640 213 Pa.Super. 297 COMMONWEALTH of Pennsylvania
v.
Lester Joseph McLEAN, Appellant. Superior Court of Pennsylvania. Nov. 14, 1968.

[213 Pa.Super. 298]

Page 641

Mervyn R. Turk, Defender, Media, for appellant.

Vram Nedurian, Jr., Asst. Dist. Atty., Appeals Division, Ralph B. D'Iorio, Asst. Dist. Atty., Chief, Appeals Division, Stephen J. McEwen, Jr., Dist. Atty., for appellee.

[213 Pa.Super. 297] Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN and HANNUM, JJ.

[213 Pa.Super. 298] JACOBS, Judge.

In April 1968, appellant Lester Joseph McLean was convicted by a Delaware County jury on charges of rape, assault with intent to ravish, carrying a concealed deadly weapon, robbery, and aggravated assault and battery. Following denial of motions for a new trial and in arrest of judgment, sentence was imposed on the rape conviction and suspended on the other indictments. This appeal followed.

We are asked to decide whether the trial judge, following an advance determination that appellant's oral confession was admissible at the trial, erred in failing to submit the issue of voluntariness to the jury under appropriate instructions.

The crimes involved occurred in Newtown Square, Delaware County, Pennsylvania, on July 21, 1967. From the description given by the victim and subsequent investigation, the Newtown Township police were [213 Pa.Super. 299] able to ascertain the identity and where abouts of the appellant. On August 1, 1967, appellant was interrogated by two officers from ascertain the identity and whereabouts of in the State of Delaware awaiting trial for an offense alleged to have been committed in that jurisdiction. According to the police officer's testimony McLean was given the full list of Miranda warnings prior to any questioning and was neither mistreated nor offered any inducements to make a statement. The officer further testified that appellant then admitted a number of important details of the crimes which took place in Delaware County. No. written statement was taken. Later in the interview, appellant requested an attorney and the officers terminated the interrogation immediately.

Before trial, appellant made timely application to the court to suppress the oral confession on the grounds that he was not adequately advised of his constitutional rights and that the confession was not made voluntarily. The court held an independent pre-trial hearing in chambers and found that the appellant's confession was voluntary, that he was given proper constitutional warnings, and that he had voluntarily and intelligently waived his rights. Although finding the oral statements to be admissible at trial, the court ruled that 'the defendant may offer evidence on the issue whether they were made voluntarily.' At trial, appellant's counsel appropriately objected to any testimony by the police officers concerning appellant's statements to them on the ground that they were involuntary. Appellant at trial denied committing the crimes, denied ever seeing the victim prior to trial and denied making the admissions. He said that at the time of questioning by the police officers he was nervous and upset because his common-law wife was losing her baby and the police were speaking on both [213 Pa.Super. 300] sides of him. He claimed the police 'hollered' at him and urged him to admit his guilt. He then concluded he might as well say he was guilty because he couldn't do anything, there was no one to help him, he didn't have an attorney at the time and he was scared.

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In his charge to the jury the judge made no mention of the voluntariness of the oral confession, an issue which was clearly raised by appellant's testimony. He did not instruct the jury that if they found that the confession was not voluntarily made they must disregard it. No specific exception was taken to this omission from the charge. However, defendant took a general exception which he claims covers such a basic and fundamental error.

Prior to the decision of the Supreme Court of the United States in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, decided June 12, 1964, the treatment of confessions offered in criminal trials was clearly delineated by the Supreme Court of Pennsylvania. For example, in Commonwealth v. Simmons, 361 Pa. 391, 400--401, 65 A.2d 353, 358 (1949) it is said: '(W)here the Commonwealth's witnesses show that a...