Com. v. Smith

• Decision Date: 20 January 1967
• Parties: COMMONWEALTH of Pennsylvania v. William SMITH, Jr., Appellant.
• Court: Pennsylvania Supreme Court

Page 691

225 A.2d 691

424 Pa. 9

COMMONWEALTH of Pennsylvania v. William SMITH, Jr., Appellant.

Supreme Court of Pennsylvania.

Jan. 20, 1967.

Rehearing Denied March 8, 1967.

Harry C. Elsesser, Jr., and Thomas H. Reed, York, for appellant.

J. F. Rauhauser, Jr., Dist. Atty., John T. Miller, First Asst. Dist. Atty., and Nevin J. Trout, Asst. Dist. Atty., York, for apellee.

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

OPINION OF THE COURT

MUSMANNO, Justice.

At about 4 a.m. on August 28, 1964 Mary Louise Green was found in a horribly mutilated and dying condition in a vacant lot in the city of York. She was taken to the York Hospital and died the following day. About 6 a.m., on the same morning of August 28th, Wm. M. Smith, Jr., the defendant in this case, was taken by police of York to the York City Detective Bureau. About 8:30 a.m. he was questioned by Detective Inspector Landis who reduced the questions and answers to writing. About 10:30 a.m. the defendant signed the statement embodying the interrogation. The statement began:

'Following is the voluntary statement of William (NMN) Smith, Jr. age 28 yrs. of 333 E. King St. York, Pa. This statement is in reference to the assault reported on Louise Mary Green of 138 E. Newton St. This assault occured on the College Campus Playground located at the old Y.J.C. Building at College and Duke Sts.

Q. William are you willing to give a voluntary statement about this assault, knowing that this statement will be used in Court if this case should come to trial and also knowing that you have right to counsel?

A. Yes.

Q. William do you understand that you are entitled to an Attorney?

A. Yes.

Q. William you do understand that you are not compelled to make a statement without consulting an Attorney?

A. Yes.

Q. Are you willing to make a statement without consulting an Attorney?

A. Yes.'

The admissions which appeared in the statement regarding the defendant's association with Mary Louise Green, together with other evidence produced at the trial, resulted in Smith's being convicted of second degree murder and his being sentenced to imprisonment for a term of not less than 10 years nor more than 20 years.

The defendant has apealed, alleging trial errors. He states that his statement should not have been admitted in evidence because it was obtained in violation of his constitutional rights, citing Miranda v State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Supreme Court of the United States declared in Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, that the Miranda decision was not retroactive. Since Miranda was decided June 13, 1966, and the trial occurred in August, 1965, obviously the statement does not come within the chronological limitation of Miranda.

Moreover, after police inform a person in their custody that he is entitled to an attorney and that he is not required to speak in the absence of an attorney, and the potential interrogatee understandingly waives the right to have an attorney present, the police are not compelled to demand that an attorney appear, nor refuse to listen to what the person voluntarily relates. Of course, if it appears that the police employed artifice or coercion in getting desired answers, the statement must be suppressed.

Smith's statement ended with this clearly expressed proposition:

'I have made this statement of my own free will and accord, without any threats being made to me or any force used. I have not had any promises made to me and I have also been advised that if this case should go to court it may be used against me as evidence. After reading this statement and finding the facts as I have stated them I am willing to sign same.'

The two detectives and police officer present at the questioning of the defendant testified that Smith read the statement before affixing his signature. Detective Landis testified that the defendant, as he himself admitted on the witness stand, was not intoxicated when questioned and that he appeared normal throughout the examination. Landis stated he informed the defendant that he would be charged with assaulting the victim, who had not yet died from the wounds inflicted on her.

In his charge to the jury the judge enunciated and reiterated almost to the point of repetitive monotony that if the jury found the defendant had been tricked or coerced into making the statement, the statement was to be disregarded. He emphasized further: 'If you entertain any reasonable doubt as to the voluntary character of the alleged statements, it is your duty to resolve that doubt in favor of the defendant.'

We find from the record that the defendant's rights were wholly protected in connection with the introduction of his statement in evidence.

When the victim of the homicide was taken to the hospital she gave a description of her assailant that fit the defendant; she made other statements damaging to his defense. These statements were admitted at the trial under the heading of dying declarations. In Commonwealth v. Plubell, 367 Pa. 452, 80 A.2d 825, this court announced the well-known rule:

'It is well settled that the sense of impending death which the dying person must have had in order to render a dying declaration made by him admissible in evidence may be inferred from the nature of the wound or the state of his illness without any expressed declaration to show that he was sensible of impending death.'

The defendant contends that Mary Green did not know she was dying because, when found on the empty lot, she said: 'Take me home.' This hardly accords with realities. It is not unreasonable to assume that the victim was merely asking that she be taken away from the scene of the horrible aggression which had been visited upon her. The nature of her injuries was such that the jury could logically conclude that she k...