Com. v. Moore

• Decision Date: 28 June 1971
• Parties: COMMONWEALTH of Pennsylvania v. Harold MOORE, Appellant.
• Court: Pennsylvania Supreme Court

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279 A.2d 179 443 Pa. 364 COMMONWEALTH of Pennsylvania
v.
Harold MOORE, Appellant. Supreme Court of Pennsylvania. June 28, 1971.

[443 Pa. 366]

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Lawrence Goldberg, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., James D. Crawford, Deputy Dist. Atty., Joseph D. Grano, Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.

[443 Pa. 365] Before BELL, C.J., and JONES, COHEN, O'BRIEN and POMEROY, JJ.

[443 Pa. 366] OPINION OF THE COURT

POMEROY, Justice.

Appellant was convicted by a jury of second degree murder and was subsequently sentenced to a prison term of five to fifteen years. The Court of Common Pleas denied appellant's post trial motions, and Harold Moore has now brought this direct appeal from the judgment of sentence.

The record discloses the following factual background. During the early evening of June 30, 1967, one Robert Whitaker, the

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deceased, left the residence of a friend he was visiting and proceeded to a bar at the corner of 20th Street and Susquehanna Avenue in Philadelphia. At that corner he became involved in a fight with a James Williams, and Williams called for help from his friends (the 'Alkey Gang'). Approximately eight men jumped on the deceased and began beating him. There was eyewitness testimony that appellant was among those striking Robert Whitaker. During the fight, Whitaker was stabbed several times by a Charles Leftenant and was hit in the head with a stick by a James Hill. He died at approximately 12:05 A.M. on [443 Pa. 367] July 1, 1967 from multiple stab wounds to the body. A watch was taken from the deceased during the melee.

In this appeal Harold Moore has raised a number of issues. He contends that the custodial confession he made was involuntary, that the suppression court improperly placed the burden of proof on him to show that the confession was not given voluntarily and that the suppression judge erred in allowing the text of the confession to be read into the record. Appellant next argues that the trial court improperly permitted the Commonwealth to introduce evidence of the corpus delicti after the prosecution had stated that its next witnesses would testify as to the confession and appellant had objected to introduction of evidence of the confession because the corpus delicti had not been proven. Error is further asserted in that the trial court allowed the written confession to go out with the jury. Lastly, appellant argues that the felony murder doctrine should have been totally excluded from the case because the person who inflicted the fatal wound to the deceased was adjudged guilty only of second degree murder.

I.

Appellant argues that his confession was involuntarily given because he was kept 'confused and off-balance' by interrogation over an 11 1/2 hour period, by lack of sleeping quarters, and by the use of relays of police interrogators. He further states that the confession was given only after a lengthy period of confinement and after he had been without sleep for 35 hours. ¹

[443 Pa. 368]

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A close reading of appellant's testimony at the suppression hearing, however, shows the actual basis of his claim that the confession was involuntary to have been his fear of being beaten if he did not give the answers he felt the police wanted. This fear did not develop from the actions of any of the policemen who arrested or questioned him ² but rather from stories he had been told by friends who had been arrested on prior occasions, his own experiences during prior arrests, and his experiences with policemen in his neighborhood. In this respect, appellant has presented a novel question.

In all of the recent decisions of this Court in which we have ruled upon the voluntariness of a confession, the police conduct which allegedly caused the involuntary statement was that of the officers who arrested or interrogated the defendant in connection with the [443 Pa. 369] crime to which he confessed. See e.g. Commonwealth v. Moore, 440 Pa. 86, 270 A.2d 200 (1970); Commonwealth ex rel. Johnson v. Rundle, 440 Pa. 485, 270 A.2d 183 (1970); Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969); Commonwealth v. Frazier, 434 Pa. 36, 252 A.2d 685 (1969); Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1969); Commonwealth ex rel. Joyner v. Brierley, 429 Pa. 156, 239 A.2d 434 (1968); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

In Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961), the United States Supreme Court recognized that this is the usual fact situation.

'The attention of the trial judge should have been focused (when deciding the voluntariness question), for purposes of the Federal Constitution, on the question whether the behavior of the State's law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined * * *.'

See also United States ex rel. Bishop v. Rundle, 309 F.Supp. 312, 317 (E.D.Pa.1970). ³

We have not previously ruled upon the question whether a confession should be excluded because involuntarily given when the stated motivation for the confession is fear of being beaten engendered not by the arresting or interrogating officers but by appellant's and his friends' prior experiences with the police. The Supreme Court of Illinois, however, recently ruled on this exact question and held,

'Nor could defendant's confession be deemed coerced because 'from past experience he knew the police would beat him.' (People v. [443 Pa. 370] Hanson, 31 Ill.2d 31, 39, 198 N.E.2d 815, 819). The State's duty is limited to producing 'all material witnesses connected with the taking of the statement, or explain their absence,' and the State is not required to produce all witnesses in defendant's prior encounters with the police.' People v. Jackson, 41 Ill.2d 102, 242 N.E.2d 160, 165 (1968).

This appears to be the proper result. It is highly unlikely that the defendant or his friends could remember the names of the officers who allegedly mistreated them on prior occasions, and the prosecution would thus have little chance of rebutting such

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testimony. Even if the names of the policemen were known, it is unlikely that they would remember the specific circumstances of arrests or interrogations which may have occurred long before. The suppression hearing record, in consequence, would be heavily weighted in favor of involuntariness of the confession.

Police officers who obtain a challenged confession from an accused whom they have arrested and...