Commonwealth v. Ross

• Decision Date: 17 April 1961
• Parties: COMMONWEALTH of Pennsylvania v. Charles ROSS, Appellant.
• Court: Pennsylvania Supreme Court

169 A.2d 780

403 Pa. 358

COMMONWEALTH of Pennsylvania v. Charles ROSS, Appellant.

Supreme Court of Pennsylvania.

April 17, 1961.

H. David Rothman, Louis I. Schwartz, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., George H. Ross and William Claney Smith, Asst. Dist. Attys., Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

BENJAMIN R. JONES, Justice.

Charles Ross James Houlahan and Leo Chester ^[1] were indicted by the grand jury of Allegheny County for the murder of Harold Walker. Ross, tried before Judge J. Frank Graff and a jury was convicted of first degree murder with the penalty fixed at life imprisonment. Motions for a new trial and in arrest of judgment were denied by the court below and judgment of sentence imposed. From that judgment this appeal was taken.

Midmorning on January 24, 1959, Harold Walker was found dead lying in bed in his room at 1104 Sheffield Street, Pittsburgh. The cause of death was shock following contusions of his head, neck, face, back and chest together with multiple fractures of the ribs, injuries which the Commonwealth established were 'caused by repeated blows upon the various parts of Walker's body.'

At approximately 7:30 p. m. on January 23, 1959, the evening which preceded Walker's death, Alfred Tschudi, a fellow-boarder of Walker, observed Ross and another man on the stairway steps in Walker's boarding house and one of the men stated they were going to see a party named Stiles. Upon being informed no such person lived in that house, Ross and his companion left the premises. Tschudi then also left the house and returned approximately 25 minutes later. Upon Tschudi's return, he noticed Ross' companion at Walker's bedroom door placing a handkerchief on his face and Ross at the door to the bathroom in the upper hall. Tschudi went to his own room and, while there, heard things being thrown about in Walker's apartment. Tschudi directed the attention of Mrs. Kramer, the housekeeper on the premises, to this disturbance. Mrs. Kramer went to Walker's room and, as she pushed open the door she was pulled into the room. Tschudi then saw Ross coming from Walker's kitchen; upon Ross observing him, Ross chased him, threatening to shoot him, and then left the premises. ^[2]

Mrs. Kramer testified that, in the early evening of January 23rd, she saw Houlahan at the foot of the hall stairway and two other men on the stairway and noticed that Ross departed at the same time as Tschudi. Later in the evening, having been alerted by Tschudi, she went to Walker's room and, as she pushed open the door, Houlahan pulled her into the room and threw her on Walker's bed. The only persons then in the bedroom were Walker, Houlahan and Mrs. Kramer. Walker was bound hands and feet and lying flat on the bed. Houlahan left the room and, 'immediately' thereafter, Walker told her '[t]hey tried to kill me' and '[t]hey wanted more money'. A doctor was summoned and gave Walker medical attention. Walker refused the doctor's suggestion that he be hospitalized. Mrs. Kramer stated that 'Everything [in the bedroom] was disrupted and all the drawers and things were emptied on the bed. The same way, everything in the kitchen torn up.'

After the alleged assault, a neighbor of Walker stayed with him until approximately 2 a. m. No one else saw Walker until Mrs. Kramer found him dead in his bed approximately eight and one-half hours later.

Nine days after Walker's death, Ross was apprehended at the home of a Mr. and Mrs. Robert Hoffman, 4626 Kincaid Street, Pittsburgh, the arrest taking place at two o'clock in the afternoon. Five and one-half hours later, while in police custody, Ross signed a written confession acknowledging his complicity in the assault upon Walker.

The Commonwealth's theory is that Walker, in some manner involved in the numbers racket, was known at least to Ross to have large sums of money, either on his person or in his living quarters, and that Ross, Houlahan and Chester went to Walker's home to rob him. According to Ross' confession, some money was actually taken from Walker's pocket.

Ross assigns various reasons why his conviction should be set aside: (1) that the confession was obtained by duress and coercion and before he had been given a preliminary hearing; (2) that his failure to complain of the manner in which the confession had been obtained did not give rise to an inference that the confession was voluntarily given; (3) that, inasmuch as the confession should not have been received in evidence, it was error to permit the reception of evidence of Ross' subsequent conduct; (4) that the Commonwealth at the time the confession was received in evidence had not proven the corpus delicti; (5) that the trial court magnified the Commonwealth's case and minimized Ross' case; (6) that Walker's statements to Mrs. Kramer and certain photographs were erroneously received in evidence and (7) that the prosecuting attorney in his closing argument made highly improper and prejudicial remarks.

In Rogers v. Richmond, 81 S.Ct. 735, 739, the United States Supreme Court stated: 'Our decisions under [the Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i. e. the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system--a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. [citing cases]'. Accordingly, if a confession is 'found to be the product of constitutionally impermissible methods in [its] inducement', the reception into evidence of such confession offends the due process clause of the Fourteenth Amendment.

With this principle in mind, we examine the factual background upon which Ross presently claims that his confession was the product of duress and coercion and, therefore, erroneously admitted in evidence.

At the time of Ross' arrest he was suffering from a toothache for which he had been taking medication. Ross testified ^[3] that he informed Captain Flynn, one of the arresting officers, of his toothache and Captain Flynn instructed the other officers to take Ross to a dentist. Ross then stated: 'I thanked Captain Flynn but told him that I could tell him nothing because of it. Captain Flynn became angry and he rescinded the order to take me to the dentist.' According to Ross, several times he renewed his request to be taken to a dentist but received no response and it was not until the next morning, after the confession, that he was taken to a dentist who then removed two badly decayed teeth. ^[4] Ross also stated that an officer named Nestor told him that the Hoffmans--in whose home Ross was arrested--were in a police station and would be held as material witnesses unless Ross confessed and that, likewise, Ross' niece would be arrested for having an abortion. On cross-examination, Ross admitted that it was he who suggested to Captain Flynn that he would tell the police exactly what happened if the Hoffmans were not arrested.

Leonard Monti of the homicide squad testified that Ross, when arrested, had toothache medicine in his room which he was allowed to take with him, that Ross did complain of a toothache, that he did not ask Captain Flynn to be taken to a dentist but he was told that, after the questioning, he would be taken to a dentist to which Ross replied: 'Oh, I have to cooperate to get my teeth pulled', a remark which made Captain Flynn angry. Before the confession was taken Monti tried to reach Dr. Corsello, a dentist, to treat Ross but was unable to locate him. The next morning Monti took Ross to that dentist.

Several incidents should be noted. After Ross' visit to the dentist on the day following the confession, Ross' confession was read in the presence of both Ross and his codefendant, Houlahan. At that time and, in fact, up until the time of trial Ross made no complaint that the confession had been involuntarily obtained. Furthermore, two days after signing the confession, Ross took the police officers over the route he and his two companions traveled enroute to the Walker home on the night of the assault.

Ross claimed at trial and now claims that his confession was obtained by impermissible methods, i. e. that he was induced to make the confession by reason of the pain arising from his teeth and the threats of the police to arrest Hoffmans as material witnesses and his niece for an abortion. ^[5] At trial, upon the request of Ross' counsel, the court, outside the presence of the jury, held a hearing at which both Monti and Ross testified; after such hearing, the court decided that the question of the voluntary nature of the confession was one of fact to be determined, under appropriate instructions, by the jury. The court in its instructions to the jury carefully and adequately outlined for the jury Ross' contention that the confession was impermissibly obtained. Implicit in the verdict of the jury is a finding that the confession was voluntarily given.

We have carefully scrutinized this record, particularly to determine whether in passing upon the voluntary nature of Ross' confession both the trial court and the jury, under proper and adequate instructions, correctly applied standards permissive under the due process clause of the Fourteenth Amendment. We are fully satisfied that the attention of the trial court was focused 'for purposes of...