The opinion
*46 Dissenting Opinion bx
Mb. Justice Robebts:
I.agree with the majority that Moody’s written confession does not violate Escobedo. 1 Unfortunately, its resolution of the scope of taint issue is, in my opinion, unsatisfactory, and on. this basis I must dissent.
•' The burden rests' upon the prosecution in situations presenting Fifth Amendment violations to demonstrate that the evidence admitted is not tainted by the prior illegality. Thus, in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 , 79 n.18, 84 S. Ct. 1584 , 1609 n.18 (1964), a case involving the scope of taint where it was alleged that testimony given after a grant of immunity by one jurisdiction had been employed to obtain information used in a prosecution in another jurisdiction, the Supreme Court insisted: “Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of . showing that their evidence is not tainted by establishing that- they had an independent, legitimate source for the disputed evidence.” 2 The Commonwealth here, in my view, had to prove that Moody’s written confession was not tainted by his prior, oral statements obtained under circumstances violative of Escobedo.
*47 Given this burden, I believe that a remand to the trial court is necessary to obtain an adequate record for the disposition of Moody’s claimed denial of his constitutional rights. The court below, as well as counsel for the Commonwealth and the appellant, did not recognize that the dispositive question was whether Moody’s written confession was tainted by his oral statements. 3 The suppression hearing involved only the testimony of the two detectives who procured the statement and this testimony was concerned primarily with the nature of the warnings given Moody. Appellant did not testify at this hearing. The record below is thus defective in two respects: the trial court took no account of the prosecution’s burden to prove that the written confession was not tainted 4 and there are no findings whatsoever as to the possible taint. 5 Furthermore, had defense counsel been aware of what this Court considers the dispositive issue, he might well have decided that appellant should testify. Appellant’s failure to do so is easily understandable in light of the fact that defense counsel believed that the warnings given were insufficient to sustain even the written con *48 fession and that this could be demonstrated by testimony of the detectives alone.
Furthermore, although in view of my belief that a remand should be ordered it is not necessary to express my view on the resolution of the scope of taint problem, since the majority has chosen to resolve this issue on this record, I must note that I have considerable doubt as to the correctness of its resolution. As the majority correctly indicates, its primary authority, Wong Sun, is a decision concerned with a Fourth Amendment violation. However, I believe that Murphy, supra, indicates that the Supreme Court believes that different considerations govern in Fifth Amendment scope of taint situations than those that obtain in Fourth Amendment cases; 6 and this difference, produced by a difference in the nature of Fifth and Fourth Amendment protections, is favorable to the accused. 7
*49 This observation is confirmed by Wong Sun itself. The Court there said (371 U.S. at 486, 83 S. Ct. at 416-17) : “The Government argues that Toy’s statements to the officers in his bedroom, although closely consequent upon the invasion which we hold unlawful, were nevertheless admissible because they resulted from An intervening independent act of free will.’ This contention, however, takes insufficient account of the circumstances. Six or seven officers had broken down the door and followed on Toy’s heels into the bedroom where his wife and child were sleeping. He had been almost immediately handcuffed and arrested. Under such circumstances it is unreasonable to infer that Toy’s response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.”
The majority here offers a similar justification for the lack of taint, i.e., Moody’s statement was “truly voluntary and spontaneous.” Yet the circumstances do not differ sufficiently from Wong Sun to convince me that Moody’s statement was purged of taint. Moody had been arrested and handcuffed; he was seated in a “cell corridor” behind a locked door when detective Allender arrived. In custody, faced with two police officers and having twice admitted that he shot his wife, “it is unreasonable to infer that . . . [Moody’s] response [to questions propounded after the Escobedo warnings were given], was sufficiently an act of free will to purge the primary taint of the unlawful . . . [prior questioning].”
What seems probative to me is the fact that no time elapsed between Moody’s oral statements made under circumstances violative of Escobedo and the reduction of his confession to writing other than that time nec *50 essary to give the warnings and record the third statement. Mr. Justice Jackson, writing for the Supreme Court in United States v. Bayer, 331 U.S. 532, 540 , 67 S. Ct. 1394, 1398 (1947), aptly centers upon the position of the accused in such circumstances: “[Ajfter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.”
However, the Court in Bayer believed that a six month span between Bayer’s first invalid confession and his second valid confession was sufficient to purge the taint. Westover v. United States, 384 U.S. 436 , 86 S. Ct. 1602 (1966), a companion case to Miranda, compels a conclusion that the crucial factor is not whether the prosecution has exploited information gained by a prior illegality (as the majority believes) but whether, where one confession follows another, the second confession is sufficiently removed in time, place and atmosphere that the court can be assured that the second confession was not a product of the same illegality that produced the first. Westover had been questioned by state authorities for 14 hours without having been given any warnings; he was then given to the FBI at which time he was given the requisite warnings. Holding that the statement procured by the FBI was inadmissible, the Court stated (Miranda v. Arizona, 384 U.S. 436, 496 , 86 S. Ct. 1602, 1639 (1966)) : “A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI in *51 terrogation was conducted immediately following the state interrogation in the same police station—in the same compelling surroundings.” Certainly, there can be no contention here that Moody’s written statement was obtained after he had been removed from “the same compelling surroundings” that produced his oral statements.
The Supreme Court has obviously made a distinction between the scope of taint in those cases where a valid confession follows an invalid one and the scope of taint in those where an illegal search or arrest has produced information damaging to the accused. In the confession cases, as demonstrated by Bayer, the focus must be upon the psychological pressures facing an accused and the remedy is to insure that the accused has been effectively removed from those pressures before a second statement is obtained. Where an illegal search leads to additional information the focus shifts to the conduct of the police and their exploitation of a prior illegality; except perhaps where the illegal search or arrest produces a confession, the accused’s state of mind is not relevant.
Finally, I note that the evidentiary use of Moody’s two oral and one-written confession cannot be deemed harmless error. See Commonwealth v. Padgett, 428 Pa. 229 , 237 A. 2d 209 (1968). Although there were three eyewitnesses to the homicide, Moody at trial insisted that he could not remember any of the details of the shooting. .This testimony was obviously designed to impress upon the jury that Moody lacked the specific intent to kill which is a requisite for a first degree murder conviction. However, in Moody’s statement he was able to recall the details of the shooting, a fact which the jury may well have believed cast considerable doubt on appellant’s memory lapse. Under these circumstances, I do not believe that the admission of *52 Moody’s confession was “harmless beyond a reasonable doubt.”
Since I am convinced that at a minimum this record must be remanded, I dissent.
My agreement with the majority on the proper application of Escobedo to these facts is in no way an abandonment of the position taken in my dissenting opinion in Commonwealth v. Schmidt, 423 Pa. 432, 442-45 , 224 A. 2d 625, 630-32 (1966). Since Moody’s statement was obtained on December 31, 1964 and was thus prior to the September 29, 1965 decision of Commonwealth v. Negri, 419 Pa. 117 , 213 A. 2d 670 (1965), the Negri reading of Escobedo would not apply.
The Escobedo Court employed language which clearly has Fifth Amendment roots, see 378 U.S. at 488-90 , 84 S. Ct. at 1764-65 , and we have so interpreted Escobedo. OommonweaUh v. Negri, supra n.5 at 124, 213 A. 2d at 673 . I therefore believe that Murphy is here applicable.
During tbe trial, tbe court below specifically ruled that at the time detectives Allender and Sperling obtained Moody’s first oral statements the point of custodial interrogation had not been reached. The majority, as do I, believe that this ruling was erroneous. However, having so ruled, it was unnecessary for the trial court to reach the scope of taint issue as is evidenced by the trial court opinion: “The defendant’s statement was properly admitted into evidence. When the interrogation took place the police officers were not required to advise him of his right to counsel and' of his right to remain silent.”
If the trial court had been aware of the Commonwealth’s burden, it is possible that the testimony of the two detectives would have received a different evaluation.
The trial court, as noted in footnote 3 of this opinion, was concerned with only two issues: was Moody’s statement voluntary and were the required Escobedo warnings given.
We, too, have indicated that in many situations one rule obtains in Fourth Amendment cases while another obtains in Fifth Amendment problems although on first blush the issue presented would seem to be identical in either case. See Commonwealth v. Padgett, 428 Pa. 229, 232 , 237 A. 2d 209, 210-11 (1968). In fact, the very Comment the majority cites, concludes (114 U. Pa. L. Rev. at 577) : “The Supreme Court’s articulation of an unqualified ‘independent source’ test in Murphy would seem to be an implicit rejection of its two most recent tests [Wong Sun and Nardoné] and a reaffirmation of the original Silverthorne test. This conforms to the analysis that views the fifth amendment exclusionary rule as stricter than the exclusionary rule which sprang from the fourth amendment. Because it is more strict, the fifth amendment exclusionary rule is likely to have a more inhibiting effect upon law enforcement than the Mapp decision had. This, however, would seem a necessary result in light of the different purposes served by the exclusion of evidence under the fourth and fifth amendments.” See also, George, A New Book At Confessions: Escobedo-The Second Round 117-19 (1967).
In United States v. Bayer, 331 U.S. 532, 541 , 67 S. Ct. 1394, 1398 (1947), a situation in which a coerced confession was followed by an allegedly untainted confession, the Supreme Court commented that Silverthorne and Nardone, two Fourth Amend *49 ment eases, “did not deal with confessions but with evidence at a quite different category and do not control this question.5-'