Commonwealth v. Herge
| Decision Date | 09 January 1970 |
| Citation | 260 A.2d 787,436 Pa. 542 |
| Parties | COMMONWEALTH of Pennsylvania v. Irvin Conrad HERGE, Appellant. |
| Court | Pennsylvania Supreme Court |
W. Thomas Andrews, New Castle, for appellant.
Kenneth E. Fox, Jr., Dist. Atty., New Castle, for appellee.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN ROBERTS and POMEROY, JJ.
Appellant Irvin C. Herge is now sixty-five years old. Some twenty-three years ago, he entered a plea of guilty to a charge of murder and was sentenced to life imprisonment. No direct appeal was taken. Since that time, however, he has not ceased his efforts to secure some form of post-conviction relief.
On February 6, 1967, appellant filed the present petition under the Post Conviction Hearing Act. He alleged (1) that he was entitled to a Jackson-Denno hearing on whether his confessions admitted into evidence at his degree of guilt hearing, were voluntary, and (2) that he was unconstitutionally denied his right to appeal. [1] The hearing judge held that he was not entitled to a Jackson-Denno hearing, and, after an evidentiary hearing, that he was not denied his right to appeal. We reverse both determinations.
In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Supreme Court held unconstitutional New York's procedure of submitting, for jury determination at trial, disputed questions of fact concerning the voluntariness of a confession. The Court stated that a proper determination of voluntariness could not be made when the jury is, at the same time, considering questions of guilt, since the jury 'may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession.' 378 U.S. at 382, 84 S.Ct. at 1783. Not only did the Court hold New York's procedure unconstitutional, it further mandated the procedure that must be used to satisfy due process. 'The procedures used in the trial court to arrive at its conclusions on the coercion issue * * * must * * * be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.' 378 U.S. at 391, 84 S.Ct. at 1788.
The instant case differs from Jackson in one important respect--the resolution of the factual dispute over voluntariness was here made by a judge, rather than a jury. Nevertheless, Jackson's insistence on a 'clear-cut determination of the voluntariness of the confession' must be satisfied. We must find that the trier of fact has 'fac(ed) the issue squarely.' 378 U.S. at 390, 84 S.Ct. at 1788. This is fundamentally important because an appellate court must be certain that the trier of fact did resolve disputed facts, and did apply the proper law to these facts. Otherwise, we could not insure a defendant's right to have an involuntary confession entirely disregarded. See Jackson, 378 U.S. at 389, 390, 84 S.Ct. at 1787, 1788.
In the instant case, however, we have no clear-cut resolution of the factual disputes over voluntariness. Compare United States ex rel. Owens v. Cavell, 254 F.Supp. 154 (M.D.Pa.1966). The trial judge made no finding on whether the confessions were voluntary, although it is implicit in his opinion that he believed the confessions were truthful. Nowhere does he assure us that he considered these issues separately, a requirement mandated by Jackson. [2] See also Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961) (Frankfurter, J.) (attention of trial judge must focus on whether confession was 'freely self-determined,' without regard to whether defendant spoke the truth). Thus we are in the same position that the Supreme Court of the United States was in Jackson. '(W)e cannot determine how the * * * (judge) resolved these issues and will not assume that they were reliably and properly resolved against the accused.' 378 U.S. at 387, 84 S.Ct. at 1786.
To make a determination of voluntariness, conflicting testimony must be weighed, and credibility must be assessed. Thus we may not now, as did the hearing court, search the record made at the 1946 degree of guilt hearing to decide the factual question of whether the confessions were voluntary, even if we do apply present-day law. See Commonwealth v. Baity, 428 Pa. 306, 237 A.2d 172 (1968). For example, the Commonwealth's witnesses testified to a somewhat leisurely interrogation and stated that the confessions were completely voluntary; appellant testified that he was questioned for two days, got little sleep, was placed in a very uncomfortable cell, and did not remember what he said or did during those two days (he made numerous contradictory confessions). Further, as the trial judge noted in his opinion, appellant is a borderline case between sanity and insanity, and the Commonwealth's experts all agreed that appellant lacks the ability to stand pressure, is wholly impulsive, and is given to self pity. Under these circumstances, we cannot now possibly determine--from a cold record without any finding as to voluntariness--whether appellant's 'will ha(d) been overborne and his capacity for self-determination critically impaired.' Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) (Frankfurter, J.). Without a negative determination of this issue, 'the use of his confession offends due process.' Id.
There remains one further consideration. The Commonwealth urges, and the hearing court so found, that appellant's trial counsel did not bring to the trial court's attention their desire to object to these confessions on the ground of involuntariness. Clearly, appellant would not now be entitled to relief if counsel had made a choice to not attack the voluntariness of the confessions. See, e.g., Commonwealth ex rel. Smart v. Myers, 424 Pa. 315, 317, 227 A.2d 831, 832 (1967).
But that is not the case here. True, appellant's counsel did not object to every statement, oral and written, which was introduced. He did, however, object specifically to the introduction of several written statements, and his cross-examination of the Commonwealth's witnesses evidences counsel's desire to test the voluntariness of all the confessions. In fact, when he specifically noted, near the beginning of the trial, his objections to the confessions on the ground of involuntariness, the trial court held that the statements were admissions, not confessions, and hence admissible. We do not exalt form over substance, and we do not require counsel to make constant and repetitive objections where, as here, the tainted evidence constituted the bulk of the hearing. We do require that the issue be called to the trial court's attention. That requirement has been met here. See Commonwealth ex rel. Fox v. Maroney, 417 Pa. 308, 313 n. 5, 207 A.2d 810, 813 n. 5 (1965) ().
Appellant not having waived his right to object to the introduction of these statements, we therefore now hold that he is entitled to a Jackson-Denno hearing on their voluntariness.
We next consider appellant's claim to relief under Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). It is now settled law in this Commonwealth that, when confronted by a trial record which is silent on the question of the waiver of the right to appeal, the burden rests on the Commonwealth to prove such a waiver. See, e.g., Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968). In the instant case we cannot say that the Commonwealth has met its burden.
Appellant, under questioning by both the district attorney and his own counsel, stated that in 1946 he did not know of his right to appeal, was indigent, and did not know of his right to have counsel appointed. The original trial judge testified that he did not inform appellant of his right to appeal. Further, appellant testified that his original lawyers, hired by his brother, abandoned him after sentence was imposed. [3] The Commonwealth produced no evidence, but the hearing judge held that appellant had voluntarily and knowingly waived his right to appeal, apparently because of statements made by appellant under questioning by the hearing judge. [4]
The most that can be said about the statements 'contradicting' appellant's testimony on knowledge of his right to appeal is that the statements were given in response to some rather confusing questions. As to the problem of his indigency, no one contends that, in 1946, he was told of his right to free appellate counsel. The Commonwealth does contend, however, that appellant was not indigent and, therefore, did not forgo an appeal because he could not pay for counsel. But there is absolutely no proof that he could afford appellate counsel. At best, the Commonwealth has shown that appellant had a very small amount of money. The Commonwealth has not shown that this money was sufficient to have retained appellate counsel, nor may we speculate that it was. 'Indigency,' in the context of Douglas and Wilson, supra, does not mean total lack of funds; it means lack of Sufficient funds. Thus, on either the ground of lack of knowledge of the right to appeal, or on the ground of lack of knowledge of the right to free appellate counsel, appellant must be given relief, since the Commonwealth has not carried its burden of proof. [5]
Appellant now being entitled to an appeal as though timely filed, we reverse and remand this record to the court below with directions that the court shall appoint counsel for the purpose of filing and arguing post-trial motions and, if necessary, prosecuting an appeal. Since we have also found that appellant's right under Jackson v. Denno, supra, has been violated, we remand for a hearing on that issue...
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