Commonwealth v. Turner

• Decision Date: 29 May 1952
• Citation: 88 A.2d 915,371 Pa. 417
• Parties: COMMONWEALTH v. TURNER.
• Court: Pennsylvania Supreme Court

88 A.2d 915

371 Pa. 417

COMMONWEALTH v. TURNER.

Supreme Court of Pennsylvania

May 29, 1952

Argued April 14, 1952

Appeal, No. 97, Jan. T., 1952, from judgment and sentence of Court of Oyer and Terminer of Philadelphia County, June T. 1946, No. 646, in case of Commonwealth of Pennsylvania v Aaron Turner. Judgment reversed.

Indictment charging defendant with murder. Before SMITH, P.J.

Verdict of guilty, with penalty fixed at death, and judgment of sentence entered thereon. Defendant appealed.

The judgment is reversed and a venire facias de novo is awarded.

Edwin P. Rome, for appellant.

Richardson Dilworth, District Attorney, with him Thomas M Reed, Assistant District Attorney, for appellee.

Before DREW, C.J., STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. JUSTICE CHIDSEY

The defendant, Aaron Turner, appeals from his conviction of murder in the first degree committed during the perpetration of a robbery, with sentence of death fixed by the jury. Motion for new trial was denied by the court en banc. This was defendant's third trial for the offense. Each of two earlier trials had the same outcome, but the similar sentences imposed were successively set aside for trial errors. As to the first trial see Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, reversing the decision of this Court reported at 358 Pa. 350, 58 A.2d 61. For the reversal of sentence in the second trial see Commonwealth v. Turner, 367 Pa. 403, 80 A.2d 708.

In reversing the first conviction, the Supreme Court of the United States held that an alleged confession reduced to writing and signed by Turner while in the custody of police was inadmissible because obtained by their coercive influence. This Court in reversing the second conviction felt constrained to hold equally inadmissible for the same reason the admission of guilt made by Turner at a preliminary hearing held during the course of the obtaining of the condemned confession.

At the present trial, in accordance with these rulings of the United States Supreme Court and of this Court, evidence of the confession and admission above mentioned was not adduced and the Commonwealth's case rested solely upon the testimony of a self-confessed accomplice and the testimony of two detectives, members of the Philadelphia police force, as to an alleged statement made by the defendant while in custody but claimed by the Commonwealth to be free from any compulsion.

The Commonwealth produced evidence from which the jury could have found the following facts. In the afternoon of December 15, 1945, Frank Endres, about 63 years of age, and Charles Simmons, about 53 years of age, were in the Ace Broom Factory owned by Simmons and located at 353-55 North Second Street, Philadelphia. At or about five o'clock in the afternoon a police officer by the name of Monaghan who was patrolling the neighborhood to try doors and see whether they were locked, found the factory door unlocked, entered and found the bodies of Endres and Simmons lying on the floor in pools of blood. Both were unconscious and never regained consciousness. There was blood on brooms that were stacked against the wall nearby. The two men were taken to the hospital by the police; Endres died two days later and Simmons on December 21st. Dr. Wadsworth, the coroner's physician, who performed an autopsy, testified that Endres died as a result of a crushed skull, and Simmons of multiple injuries to the head, and that the injuries to both men had apparently been inflicted by a blunt instrument. There was testimony that pockets of the two men were turned inside out. Mrs. Simmons testified that her husband often carried several hundred dollars on his person. There were no eye witnesses to the crime and no one was seen entering or leaving the factory at the time of its perpetration.

On May 24, 1946, the police arrested one Clarence Lofton and on June 3rd arrested the defendant Turner and one Jasper Johnson. The three were charged with the crime and jointly indicted for the murder of Endres. The three trials of Turner were on this indictment. Johnson was separately tried thereunder and convicted of murder in the first degree with sentence of death, but his conviction, upheld by this Court, (see 365 Pa. 303, 74 A.2d 144), was set aside by the United States Supreme Court on November 13, 1950 without opinion in an order citing its decision in the Turner case, 338 U.S. 62, supra. Lofton pleaded guilty and the lower court sentenced him to life imprisonment. Thereafter he testified as a witness for the Commonwealth in the second and third trials of Turner.

At the third of Turner now here for review, in order to connect him with the commission of the crime, the Commonwealth relied upon the testimony of Lofton and that of two police detectives, Thompson and O'Mahoney, who testified that on June 6, 1946 they had secreted themselves in a cell adjoining that occupied by Turner, Johnson and Lofton and overheard the three men talking. Thompson testified, "Turner said he had a hell of a time with the second man. He hit him pretty hard twice and blood came out of his ears." O'Mahoney's testimony is as follows: "A. The voice I heard sounded like Jasper Johnson's voice. He said 'Hey, Tree, [Turner's nickname was "Treetop"] why are the detectives asking all them questions?' There was reference made to something about a broom factory. The answer came back 'I had to hit the second fellow -- Q. Who said that? A. This defendant, Aaron Turner. Q. What did he say? A. He said 'I had to hit the second fellow awfully hard twice and the blood came out of his ears.'".

Defendant's counsel objected to the admission of this testimony by the two detectives on the ground that the alleged utterance by Turner was made during an inherently coercive period of detention, and was just as inadmissible as his written confession and the oral admission made by him at the preliminary hearing, the introduction of which at the earlier trials was condemned on appeal in the cases above cited as a denial of due process under the 14th Amendment of the Federal Constitution. The trial judge overruled the objection. The admission of this evidence is here assigned as error. We cannot agree that the inculpatory utterance by Turner, made in conversation with a friend and fellow prisoner when unaware that the conversation was being overheard, falls into the same category as the written confession and oral admission, both of which were made as the direct result of or in response to police interrogation.

The written confession, condemned by the Supreme Court of the United States, was the direct result of interrogation by relays of police officers. In our opinion declaring the oral admission made at the preliminary hearing inadmissible, we stated that "The only persons present at this hearing were the same police officers who had engaged in... [the] questioning, the magistrate and an assistant district attorney.", and these officers who brought him to the hearing, took him back for the completion of his "confession". We held under these circumstances that since the United States Supreme Court had held that the confession was obtained under coercion, the interlude of the preliminary hearing must be considered also tainted therewith.

While Turner was questioned by the police from the time of his arrest and on June 6th when the challenged utterance was made, he repeatedly denied his guilt until late on the night of June 7th when he admitted the killing. In other words, for a very considerable length of time after the conversation in question between Turner and Johnson, the defendant repeatedly asserted his innocence. The inculpatory utterance therefore clearly was not the result of police pressure but unquestionably a voluntary statement made in supposed secrecy to his fellow prisoner. Necessarily appellant's argument reduces itself to the generality that all statements made by an accused during a period of illegal detention must be excluded regardless of to whom or under what circumstances they are made. For this proposition appellant's argument is based upon Turner v. Pennsylvania, 338 U.S. 62 and Watts v. Indiana, 338 U.S. 49. But neither of these cases in their language or implications go so far.

The gist of the United States Supreme Court decisions in the Turner and Watts cases is that a confession obtained by the police by means of mental torture cannot be used to convict the imprisoned confessor. In the Watts case the United States Supreme Court said "A confession by which life becomes forfeit must be the expression of free choice. A statement to be voluntary of course need not be volunteered. But if it is the product of sustained pressure by the police it does not issue from a free choice. When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is plainly the product of the suction process of interrogation and therefore the reverse the reverse of voluntary." (Emphasis supplied). ^[1] Ashcraft et al. v. Tennessee, 327 U.S. 274, relied upon by appellant, is clearly distinguishable from he present case. In a previous appeal by the same defendant (322 U.S. 143) the Supreme Court outlawed the use of a confession made by the defendant in response to police interrogation, declaring it had been coercively obtained. At the second trial the condemned confession was not used but oral admissions made by the defendant while the confession was being obtained were permitted to be introduced into evidence. It was this error which was corrected by the United States Supreme Court in Ashcraft v. Tennessee, (327 U.S. 274). Mr. Justice BLACK stated at p. 277: "Construing...