Com. v. Schmidt

• Decision Date: 22 November 1966
• Citation: 224 A.2d 625,423 Pa. 432
• Parties: COMMONWEALTH v. George SCHMIDT, Appellant.
• Court: Pennsylvania Supreme Court

Page 625

224 A.2d 625

423 Pa. 432

COMMONWEALTH v. George SCHMIDT, Appellant.

Supreme Court of Pennsylvania.

Nov. 22, 1966.

Rehearing Denied Dec. 26, 1966.

Leo J. Kelly, Pittsburgh, for appellant.

Robert W. Duggan, Dist. Atty., Edwin J. Martin, David O'Hanesian, Asst. Dist. Attys., Pittsburgh, for appellee.

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

OPINION

EAGEN, Justice.

On February 13, 1965, the appellant, George Schmidt, while represented by court-appointed counsel, was convicted by a jury of murder in the first degree and punishment was fixed at life imprisonment. Post trial motions were overruled and sentence imposed as the jury directed. Schmidt filed this appeal.

Two assignments of error are asserted: (1) Incriminating statements given by Schmidt to the police were obtained in violation of his constitutional rights and, therefore, evidence thereof was erroneously admitted at trial; (2) The trial court erred in its charge to the jury.

The case history, as disclosed by the evidence, is briefly this:

Schmidt with one Ken Baurle broke into the Caecilia-Mannerchor Club, located in a building in the north side section of Pittsburgh, about four o'clock a.m. on June 10, 1964, pryed open certain amusement devices therein and stole money therefrom. One Bill Thornton, with full knowledge of Schmidt's and Baurle's intent to burglarize the premises, accompanied them to the scene and waited outside in an automobile.

During the burglary, one Joseph Meier, a tenant in another portion of the building wherein the club was located, aroused by the noise, came to the club rooms to investigate. He was assaulted by Schmidt with a blunt instrument, suffered a broken jaw, a concussion of the brain and other injuries, which subsequently resulted in death.

An arrest warrant issued on June 15, 1964, charging Schmidt with suspicion of burglary and felony-murder. He was taken into police custody the same day. On June 19th, he made statements to the police, admitting his participation in the crime, one of which was tape recorded and another reduced to typewritten form.

After indictment and before trial, Schmidt filed a motion to suppress all evidence of his statements given to the police. A hearing was held thereon by the court, which it was agreed would also serve the purpose of an independent hearing to determine the voluntariness of the statements, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Extensive testimony was heard. Later the court filed a comprehensive opinion detailing its factual findings, and conclusion that the statements of Schmidt were freely and voluntarily given under circumstances devoid of any violation of constitutional rights. The motion to suppress was, therefore, denied. Subsequently, the evidence of Schmidt's statements to the police was admitted against him over objection at trial. The question of voluntariness was left to the jury to resolve under careful instructions of the trial court.

It is admitted that Schmidt made the statements recorded on tape and those reduced to typewritten form, and that he signed the typewritten statement at the end thereof and initialed each page. It is also admitted that at the time Schmidt was without the assistance of counsel. However, other important facts as to the circumstances under which the statements were made and his treatment by the police during custody are in serious dispute. The Commonwealth's testimony on this facet of the case may be summarized as follows:

Schmidt was questioned intermittently by various investigating officers each day from June 15th to June 19th. No extensive periods of questioning occurred, and the interviews were conducted in a reasonable, if not friendly, manner, and without abuse, coercive or overborneing conduct. Before he was initially questioned, Schmidt was warned that he did not have to answer any questions and anything he said would be used against him in court. He was also informed that he had the right to be represented by an attorney of his own choice; to which he replied, he did not wish an attorney at that time.

When first questioned, Schmidt admitted having committed five other burglaries in the north side section of Pittsburgh in recent months, but denied any participation in the Mannerchor burglary. He persisted in this denial until June 19th. About 8:45 p.m. o'clock on that date, he was taken into the presence of Baurle and Thornton, both of whom had previously given formal written statements to the police admitting their part in the Mannerchor burglary, and implicating Schmidt as a co-participant and the assailant of Meier. Upon request, they orally repeated these admissions and accusations in the presence of Schmidt, which statements were recorded on tape. Schmidt was then asked if he had anything to say. He replied that, 'it happened like Kenny I hit the guy.' Then, in answer to questions, he orally related the details of the crime, and his statements were likewise recorded on tape. At or near the end of this questioning, he was advised that he didn't have to make a statement, and unless he consented to the use of his taped statement, it would be destroyed and not used against him. He replied that he wished the recording preserved.

Shortly thereafter he repeated in more complete fashion the occurrence involved. This statement was reduced to typewritten form and when completed, the writing was initialed on each page and signed at the end by Schmidt. Before this formal statement was taken, he was again warned of his right to remain silent and that anything he said would be used against him in court. At no time during the police custody or questioning did he request the assistance of counsel.

During the police custody period from June 15th to June 19th, no one asked to or visited Schmidt, except the pastor of a nearby Catholic church. This visit, in private, on the night of June 18th lasted about one hour.

The evidence submitted by Schmidt conflicted in many ways with that offered by the Commonwealth. In brief, it asserted in relevant part, that Schmidt was never advised of his right to the assistance of counsel during the police questioning; that such assistance was denied despite several requests for it; that he was constantly interrogated by the police during the entire custody period with only necessary interruptions consumed by sleeping and eating; that he was threatened and physically abused by several interrogating officers; and that his mother was denied the opportunity of seeing him during the custody period despite efforts to do so.

At the time of his arrest, Schmidt was seventeen years and two month old, having been born on April 2, 1947. He had a serious police history, and between the ages of ten and sixteen years spent most of his time in three separate juvenile correctional institutions.

After a careful consideration of all of the testimony in the record concerning the circumstances under which the incriminating statements of Schmidt were obtained, it is our studied conclusion that the question of the voluntariness thereof was for the jury to decide. Hence, the court below did not err in admitting the evidence thereof at trial or in refusing to suppress it. The evidence offered by Schmidt, indicating the statements resulted from abusive and overborneing police conduct, did not in itself render the evidence inadmissible. In view of the Commonwealth's testimony, which amply supported the conclusion that the statements were the free and voluntary act of Schmidt and obtained in the absence of physical and psychological coercive circumstances, it was for the jury to assess all of the testimony and determine the true facts. The verdict clearly indicates its findings. Moreover, two judges below who, on separate occasions, heard all of the testimony concerning the circumstances under which the statements were elicited arrived at the same conclusion, namely, that the statements were freely and voluntarily made. Our conclusion is to the same effect.

Nor are we persuaded that the absence of counsel during police questioning constituted a denial of 'the assistance of counsel' in violation of the Sixth Amendment to the United States Constitution, and thus rendered inadmissible at trial evidence of the incriminating statements. ¹

This case was tried subsequent to the announcement of the decision of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), but before the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hence, Escobedo controls, but the rules governing in-custody police interrogation announced in Miranda do not apply. See, Johnson v. State of New Jersey, supra note 1.

Following the announcement of the decision in Escobedo, supra, the courts in many jurisdictions disagreed as to its full impact. See, Commonwealth v. Negri, 419 Pa. 117, 213 A.2d 670 (1965), and cases cited therein. This Court, when first confronted with the problem, concluded that the Escobedo ruling was limited to its own facts, and, in particular, we decided that Escobedo controlled only 'where a request for counsel is rejected and no warning is given of the right to remain silent.' See, Commonwealth ex rel. Linde v. Maroney, 416 Pa. 331, 337, 206 A.2d 288, 291 (1965); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965); Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964); and, Commonwealth ex rel. Storch v. Maroney, 416 Pa. 55, 204 A.2d 263 (1964). In other words, we ruled that evidence of statements freely made by one accused of crime during police questioning in the absence of counsel was not constitutionally tainted and inadmissible at trial, unless the accused had Requested and been refused the assistance of counsel during the questioning, And had not effectively been warned of his right to remain silent.

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