Petition — Pennsylvania v. Starr

Bipreme oot U.&

FILED

DEC 10 1979

DAK, JR., CLERR

IN THE ted

Supreme Court of the United States

October Term, 1979

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

vs. |

DONALD LEE STARR,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

JOHN C. UHLER

District Attorney

DOROTHY LIVADITIS

Assistant District Attorney

Attorneys for the Petitioner

York County Court House

28 East Market Street

York, Pennsylvania 17401

(717) 848-3301, Extension 200

BATAVIA TIMES, APPELLATE COURT PRINTERS Eo

EDWARD W. SHANNON, EASTERN PENNSYLVANIA REPRESENTATIVE

SUITE ELI) PARK TOWNE EASY, 2200 BENJAMIN FRANKLIN PRWY,

PHILADELPHIA, PENNSYLVANIA 19130

PHONE: (218) 5668-7768

TABLE OF CONTENTS.

ee a eEt ss Saba de edocs cecnedee

ee eee

ee ee EEE ces crepescccbie

Constitutional Provisions Involved ..................

Question Presented for Review..................2005.

Statement of the Case.................. eee eee eee

ae wes cwkes sec neerueccses

Whether the polygraph examiner made certain

representations regarding use of the polygraph and

whether those representations rendered the sub-

sequent confession voluntary? ..................

ae eee cece ccccce

Appendix i—Opinion in the Court of Common Pleas of

Pe vnc ccs cccescceces

Appendix ii—Opinion in the Court of Common Pleas of

York County, November 22, 1977.................

Appendix iii—Appeal of Respondent to Pennsylvania

RII YC ORR > TE ee

Appendix iv—Opinion in the Supreme Court of Penn-

a er

II.

TABLE OF CITATIONS.

Commonwealth v. Baity, 428 Pa. 306, 315, 237 A.2d 172

CRs 5k: cos SOIR a hg: sna; o) sn'ne Raed Weald aig Anas ote

Commonwealth v. Hipple, 333 Pa. 33, 3 A.2d 353 (1939)

Commonwealth v. Jones, 457 Pa. 423, 435, 322 A.2d 119

COP PRR cc i565 5p RIS A ol cA ake eee teks tved

Commonwealth v. Starr, .... Pa. ...., 404 A.2d 388

Frazier v. Cupp, 394 U.S. 731, 739 (1969) ............

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16

L.Ed.2d 604 rehearing den. 385 U.S. 890 (1977)....

Oregon v. Mathiason, .... U.S. ...., 97 S.Ct. THI, ....

es I aie ie) bas Nee.

People v. Baretts, 256 Cal. App.2d 392, 64 Cal. Rptr. 211

Page

nN

~

IN THE

Supreme Court of the United States

ccccccccecs Term, 1979

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

vs.

DONALD LEE STARR,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

Opinions by Lower Court

1. May 11, 1976: Opinion of Shadle, P. J., refusing to sup-

press statements of the Respondent.

2. November 22, 1977: Opinion of Shadle, P. J.,

overruling and refusing Respondent’s post-trial motions.

3. October 1, 1979: Opinion of the Supreme Court of

Bre row reported at Commonwealth v. Starr, .... Pa.

, 404 A.2d 388 (1979), two Justices dissenting, reversing

the: conviction of the Respondent on the basis that his con-

fession was involuntarily given.

2

Jurisdiction

The judgment sought to be reviewed was rendered by the

Pennsylvania Supreme Court on October 1, 1979, [Com-

monwealth v. Starr, .... Pa. ...., 404 A.2d 388 (1979)]. Title

28 of the United States Code § 1257(8) confers jurisdiction on

the Honorable Court where the highest court of the state ren-

ders a final judgment where any title, right, privilege or im-

munity is specially set up or claimed under the Constitution

of the United States.

This case was decided by the Pennsylvania Supreme Court,

which is the highest and final appellate court in the Com-

monwealth.

A State Supreme Court decision directing a state Defendant

to be retried is a final judgment from which the state could

appeal to a Federal Supreme Court, since, in the event the

Defendant were successful in obtaining an acquittal on

retrial, the state would have no right to appeal. Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 604,

rehearing den. 385 U.S. 890 (1966). In this regard, the instant

case is directly on point with Oregon v. Mathiason, .... U.S.

..e+y 97SCt. Th, .... L.Ed.2d .... (1977). In that case, a

judgment of sentence was reversed and remanded by the

Oregon Supreme Court. The state appealed on the basis of an

alleged Fifth Amendment violation and writ of certiorari was

issued by the United States Supreme Court.

The instant case involves the invocation of the Fifth

Amendment of the United States Constitution (self-

incrimination) and likewise, the Fourteenth Amendment

(making the Fifth Amendment applicable to the several

states).

3

Constitutional Provisions Invoived

Amendment V:

~““No person shall be . nA compelled in any criminal ,

case to be a witness against himself, nor be deprived of

life, liberty or property, without due process of law,

Amendment XIV, Section 1:

. ., nor shall any state deprive any person of life,

liberty or property, without due process of law; . . .”

U.S.C.S.—Constitution, Amendments 5-End, page 444.

Question Presented for Review

Whether the polygraph examiner made certain represen-

tations regarding use of the polygraph and whether those

representations rendered the subsequent confession volun-

tary?

4

Statement of the Case

The Respondent was charged with Criminal Homicide in

the death of Wilbur Josiah Grim on March 2 or 3, 1975. The

victim died from a stab wound.

The Respondent provided a confession to the Pennsylvania

State Police after he failed a polygraph examination. This

confession was the subject of a suppression hearing held on

May 10, 1976. The court ru:ed that the confession was volun-

tary and could be introduced into evidence against the

Respondent.

The Respondent was convicted of Murder in the Second

Degree in a jury trial. He received a sentence of imprisonment

for life, after post-trial motions were overruled and refused.

He was sentenced on June 2, 1978. An appeal was taken to the

Pennsylvania Supreme Court (Appendix iii). In an opinion

dated October 1, 1979, (see Appendix iv), the Court reversed

the judgment of sentence and remanded the case for a new

trial, having suppressed the confession as involuntary.

a ee

5

ARGUMENT

Whether the polygraph examiner made certain

representations regarding use of the polygraph and

whether those representations rendered the subsequent

confession voluntary?

The Pennsylvania Supreme Court held that the Com-

monwealth did not meet its burden of proving that certain

representations made by a polygraph examiner to the Respon-

dent did not impair his ability to knowingly and voluntarily

waive his right to remain silent. The record of the suppression

hearing does not, however, support such a holding.

Initially, the nature of representations made by the

polygraph examiner must first be addressed. The Respon-

dent’s brief and position in appeals to the lower courts has

been that that polygraph examiner indicated to him that the

results of the polygraph examination could be admissible in

court and could be used against him.

The record, however, does not support such a position. The

Respondent, on direct, testified as follows:

“A. (By Respondent): Then Kelly came into the room

and laid the results of the test in front of me and said, ‘I

know you're lying, I could see you’re lying right here.’ He

says, ‘Do you notice any differences on the test with the

paper?’ And I showed him what I could see, and I don’t

know anything about how they read it. And then he

pointed and said, ‘Well, here’s your strong point right

here,” and showed me what the questions were, where

they had them numbered on the paper. Then he told me,

‘Look actually,’ he says, ‘as far as me being involved in

this case, this is all I was involved in, is giving the test.’

‘But,’ he said, ‘I don’t really care, you don’t have to say

anything if you don’t want to, but the thing is I can point

it out right here: now, I’m a pro at this, and I can tgll you

6

that you’re lying.’ And he told me that whether I said

anything or not, it didn’t really matter, that he’d be

showing it to the District Attorney and the Judge.’ ‘And,’

he said, ‘when I show it to them, they’re going to listen to

what I have to say because they know I’m a pro at this.’

So, right there, I figured, well, they got me.

Q. By this, did you understand them to mean that

they could introduce this in court against you?

A. That’s the way I took it, because as far as I was

concerned, after he said that, I figured, well, they got me

dead to rights.”

(N/T, page 5, lines 15-28, page 6, lines 1-15)

However, in cross-examination by the Assistant District At-

torney, the Respondent testified:

“Q. (By Assistant District Attorney): Did Trooper

Kelly tell you that this polygraph test could be used in a

~ court of law?

A. Not directly.

Q. He didn’t tell you that?

A. Not directly, no, not in that way.”

(N/T, page 14, lines 14-18)

When questioned by the Court, the respondent stated that

when he met with the troopers, they informed him that he

didn’t have to say anything (N/T, page 16, lines 4-6).

“Q. Now, did you, at this time, before the test was

administered, say anything to him about the possible use

of the results of this test in court?

_ A. Yes, sir. When I give the rights form, I get into the

third paragraph there that deals with the polygraph in-

strument specifically. I reiterate there. I read him those

rights. And, by the way, when I read those rights, I in-

terject the fact that anything he says can and will be used

against him. Polygraph charts in all cases are not used in

court. But I didn’t want to mislead him, and I did relate

to him that there are some circumstances where

polygraphs have been admitted in court either by

stipulation or court order or as an issue.

eS RN

eee

7

Q. Now, do you have personal knowledge of the fact

that sometimes polygraph tests will be admitted into

court?

A. Yes, sir, I have.

Q. And what type of knowledge is that?

A. I myself have testified in courts of record on the

findings of polygraph, and my colleagues that I’ve gone

to school with have, on some stipulated matters.”

(N/T, page 20, lines 7-26)

More precisely, when further questioned by Assistant Dictrict

Attorney Jones, the trooper responded as follows:

“Q. (By Mr. Jones): But, then, you did not say

anything of the nature that the results of this test would

be used in court or would be used to influence either the

District Attorney or the Judge’s opinion as to his guilt or

innocence?

A. No, sir.”

(N/T, page 22, lines 18-28, page 23, lines 1-9)

Thus, taking both the testimony of the Respondent and the

polygraph examiner, the record supports the Com-

monwealth’s argument that the polygraph examiner did not

indicate to the Respondent that the results of his particular

polygraph examination could be used as evidence against him

in court.

Even if the Court assumes the Defendant’s allegations

regarding the statements by the polygraph examiner, case law

does not support the suppression of a confession subsequent

to the statements made by the examiner in the instant case.

The courts have consistently held that statements made to a

suspect by a polygraph examiner after the test that he was not

being truthful do not constitute improper coercion. People v.

Baretts, 256 Cal. App.2d 392, 64 Cal. Rptr. 211 (1967); State v.

Clifton, 271 Or. 177, 531 P.2d 256 (1975), Commonwealth v.

Hipple, 333 Pa. 33, 3 A.2d 353 (1939). Such was the thrust of

the statements made by Trooper Kelly.

8

Furthermore, the Courts have held that a trick or

misrepresentation to a defendant does not automatically ren-

der inadmissible statements made thereafter. In the leading

case referred to in the Pennsylvania Supreme Court's

decision, Commonwealth v. Jones, the Supreme Court of Perin-

sylvania set forth the following guidelines

‘In the case at bar, we are not convinced that the alleged

fabrication concerning the co-defendant’s confession was

likely to cause an untrustworthy confession. Nor do we find

it so reprehensible as to invalidate the confessions as of-

fensive to basic notions of fairness.”

Commonwealth v. Jones, 457 Pa. 423, 435, 322 A.2d 119

(1974).

See also Frazier v. Cupp, 394 U.S. 731, 739 (1969), Com-

monwealth v, Baity, 428 Pa. 306, 315, 237 A.2d 172 (1968).

The Court, in Commonwealth v. Jones, goes on to also state:

*. . ,we do not believe that a misrepresentation, even

though intentional, as to the evidence available against

him is the type of information that would so distort the

factual situation confronting him as to render his waiving

unknowingly and unintelligent.”

Commonwealth vy, Jones, 457 Pa. 423, 435, 322 A.2d 119

(1974),

Again, referring to the record from the suppression

hearing, Corporal Corbett, to whom the confession was

made, testified as follows on cross-examination:

“Q. And did he (meaning Trooper Kelly) pass that

information on to Donald Starr? Did he say ‘Here, I can

see right here, you made a reaction; this indicates some

stress, this indicates that perhaps you weren't giving a

true indication of what happened?’

9

A. Yes. He would very clearly indicate such and such

a number, and he would tell Donald to find that number,

and Donald would point it out himself; in other words,

he was assisting Kelly, in agreeing.

(N/T, page 28, lines 18-26)

Q. Now, did trooper Kelly indicate in no unceriain

terms to Mr. Starr that he could tell this both by having

Mr, Starr point it out and by his own conversation with

Mr. Starr?

A. Yes. And, in fact, | remember Mr. Starr making

the remark, after he started to explain and give the

detailed account, that he knew that he was lying himself,

because he could hear the needle hit the top or bottom of

the machine.”

(N/T, page 29, lines 3-10)

Such a reaction by the Respondent is supportive of the

position that the confession was indeed trustworthy.

As to whether statements by the polygraph examiner im-

paired Respondent's ability to knowingly and intelligently

waive his right to remain silent was also addressed by the sup-

pression court, It is important to note that the confession was

made not to the polygraph examiner, but rather Corporal

Corbett, who, after the polygraph examination and the

alleged statements by the examiner, again fully advised the

Respondent of his right to remain silent. The suppression

court summarized Respondent’s testimony as follows:

“[Djefendant frankly admitted that he was fully advised

of his constitutional rights, including the right to refuse

to take the [ polygraph] test and to refuse to answer any

questions and to remain silent, both before and after the

test was administered and before he made any subsequent

statements, and that he was not coerced, intimidated or

mistreated in any way.”

Order, Shadle, Jr., dated May 11, 1976.

10

Such frank admissions by the Respondent are clearly sup-

portive of the conclusion that the confession was intelligently

and voluntarily following advisement of his constitutional

rights again after the test.

The suppression court based its decision on the evidence

before him. Having done so, the decision of the suppression

court was not reversible absent a clear abuse of discretion.

Petitioner submits that the Suppression court properly ad-

mitted the confession by the Respondent.

Conclusion

The Petitioner prays the Honorable Court to issue a writ of

certiorari to the Pennsylvania Supreme Court in that the said

Court improperly suppressed the confession of the Respon-

dent.

Respectfully submitted,

JOHN C. UHLER,

District Attorney,

DOROTHY LIVADITIS,

Assistant District Attorney,

Attorneys for Petitioner.

cn

Appendix i—Opinion in the Court of Common

Pleas of York County, May 11, 1976

IN THE COURT OF COMMON PLEAS

of York County, Pennsylvania

COMMONWEALTH,

vs.

DONALD L. STARR, JR.

Criminal Action

No. 157 of 1976

_

Appearances:

Floyd A. Jones, Esquire, Assistant District Attorney, for

Commonwealth.

John H. Chronister, Esquire, Public Defender, for Defen-

dant.

Defendant seeks to suppress as evidence a confession given

by him to police officers. The basis for his claim is his con-

tention that the statement was induced by erroneous advice to

him by a police officer that results of a polygraph test show-

ing false answers made by him would be used against him.

We find the following facts:

On the day in question defendant requested his probation

officer to accompany him to the State Police Barracks to be

interviewed by the police. Once there, a police officer ex-

plained to him the manner in which the polygraph test would

12

Appendix i—Opinion in the Court of Common

Pleas of York County, May 11, 1976.

be given, advised him of his constitutional rights, and in-

quired whether defendant was willing to take the test. Defen-

dant indicated some reluctance to do so, but when pressed for

a reason, did agree to the test which was administered. He

also signed a paper stating that his participation in the test

was voluntary. It is clear that he did in fact voluntarily submit

to the test.

Thereafter the testing officer showed defendant the result

of the test and pointed out to him that it indicated that some

of his answers to crucial questions on issues of guilt were

false. Either at this point, or at the conversation explaining

the test before it was administered, defendant rather vaguely

quoted the police officer as saying that if defendant gave false

answers, the officer would show the results of the test to the

District Attorney and to the Judge, who would accept his ex-

pertise in establishing that defendant’s answers were false.

Defendant claims that it was because of this representation

that he was induced to give a confession. To the contrary, the

police officer iestified that he advised defendant only that

there were some cizcumstances, such as by agreement of the

parties, under which results of a polygraph test could be ad-

mitted in evidence in court.

It is unnecessary for us to resolve this conflict. Despite

defendant’s affirmative answer to his counsel’s leading

questions, it is perfectly clear, and we so find, that even on

defendant’s version the officer made no false representation

that the result of the test could be offered in evidence against

defendant at the trial of the case in court. On the contrary,

the officer did no more than warn that the falsity of defen-

dant’s answers could be demonstrated by the test to the

District Attorney and a Judge.

ee

y

13

Appendix i—Opinion in the Court of Common

Pleas of York County, May 11, 1976.

Furthermore, defendant frankly admitted that he was fully

advised of his constitutional rights, including the right to re-

fuse to take the test and to refuse to answer any questions and

to remain silent, both before and after the test was ad-

ministered and before he made any subsequent statements,

and that he was not coerced, intimidated or mistreated in any

way.

Finally, it has been clearly and repeatedly held that a trick

or misrepresentation presented to a defendant does not per se

render his confession involuntary, where such action is not

offensive to basic notions of fairness, nor likely to cause an

untrustworthy confession. The situation here does not meet

either category. See Com. v. Hipple, 333 Pa. 33 (1939); Com. v.

Jones, 341 Pa. 541 (1941): Com. v. Baity, 428 Pa. 306 (1968):

Frazier v. Cupp, 394 U.S. 731 (1969). See also Com. v. Jones,

457 Pa. 423 (1974), wherein it is said:

. . we do not believe that a misrepresentation, even

though intertional, as to the evidence available against

him is the type of information that would so distort the

factual situation confronting him as to render his waiver

unknowing and unintelligent.”

We conclude that defendant’s confession was intelligently

and voluntarily given after full and complete advice as to his

constitutional rights, that none of such rights were infringed,

and that such confession is therefore admissible in evidence.

14

Appendix i—Opinion in the Court of Common

Pleas of York County, May 11, 1976.

ORDER

AND NOW, TO WIT: This 11th day of May, 1976, defen-

dant’s application to suppress his confession as evidence is

overruled and refused, and an exception is noted on his

behalf.

The Clerk of Courts shall furnish copies hereof to counsel

for both parties.

BY THE COURT,

ROBERT. I. SHADLE,

President Judge.

15

Appendix ii—Opinion in the Court of Common

Pleas of York County, November 22, 1977

IN THE COURT OF COMMON PLEAS

of York County, Pennsylvania

COMMONWEALTH,

vs.

DONALD L. STARR, JR.

Criminal Action

No. 157 of 1976

Appearances:

Donald L. Reihart, Esq., District Attorney, for Common-

wealth.

John H. Chronister, Esq., Public Defender, for Defendant.

In a trial before the court without a jury defendant was

convicted of murder of the second degree in the commission

of a felony under the Crimes Code. He has filed post-trial

motions which have been considered by the court en banc on

behalf of which this opinion is filed.

By his motion in arrest of judgment and the first three as-

signments in his motion for a new trial, he contends that the

evidence was insufficient to sustain the verdict, and that the

verdict was contrary to the evidence, to the weight of the

evidence, and to the law. In a comprehensive single-spaced

three page opinion filed by the trial judge at the time of his

16

Appendix ii—Opinion in the Court of Common Pleas

of York County, November 22, 1977.

adjudication, he reviewed all the evidence which clearly sup-

ports the determination of guilt. Nothing profitably can be

added to that opinion, which is hereby adopted and in-

corporated herein, and a copy thereof is attached hereto as an

appendix.

By his fourth ground assigned in his motion for a new trial,

defendant contends that the court erred in refusing his pre-

trial application to suppress his confession to the police which

was admitted in evidence at trial. The basis for his contention

is that the police misrepresented to him the admissibility at

trial of the result of a polygraph test given to him prior to his

confession. The results of the test itself, of course, were not

admitted in evidence.

The opinion and order of the suppression hearing judge

filed herein fully considered and disposed of defendant’s

contentions in this regard. Nothing profitably can be added

thereto, the same is hereby adopted and incorporated herein,

and a copy thereof is attached hereto as an appendix.

We conclude that defendant’s post-trial motions are

without merit.

BY THE COURT,

ROBERT I. SHADLE,

President Judge.

Dated: November 22, 1977

SEER

17

Appendix ii—Opinion in the Court of Common Pleas

of York County, November 22, 1977.

ORDER

IN THE COURT OF COMMON PLEAS

of York County, Pennsylvania

COMMONWEALTH,

VS.

DONALD L. STARR, JR.

Criminal Action

No. 157 of 1976

Appearances:

‘Sean L. Reihart, Esq., District Attorney, for Com-

monwealth.

John H. Chronister, Esq., Public Defender, for Defendant.

AND NOW, TO WIT: This 22nd day of November, 1977,

defendant’s motions for a new trial and in arrest of judgment

are overruled and refused, and an exception is noted on his

behalf.

Since the sentence is mandatory, no report of a pre-

sentence investigation is required.

It is ordered that the defendant be presented for sentence

with his counsel before the Honorable Joseph E. Erb, the trial

judge, on such date and time as Judge Erb shall direct.

18

~ _

Appendix ii—Opinion in the Court of Common Pleas

of York County, November 22, 1977 Appendix iii—Appeal of Respondent to

Pennsylvania Supreme Court

nl 0 nrc

The Clerk of Courts shall furnish copies hereof to counsel

for both parties. NO. 24 MAY TERM 1978

Docketed in Supreme Court

BY THE COURT, Jun 6 1978

ROBERT I. SH i Middle District

. SHADLE, :

IN THE COURT OF COMMON PLEAS

President Judge.

of York County, Pennsylvania

COMMONWEALTH OF PENNSYLVANIA,

vs.

DONALD L. STARR, JR.

157 Criminal Action 1976

Criminal Homicide

Notice is hereby given that Donald L. Starr, Jr., Defendant

above named, hereby appeals to the Supreme Court of Penn-

sylvania from the judgment of sentence order entered in this

matter on the 2nd day of June, 1978.

¢ . JOHN H. CHRONISTER,

Received-Filed John H. Chronister,

N Cierk of Courts Assistant Public Defender,

Jun 15 10 23 AM °78 York County Court House,

Court House York, Pennsylvania 17401,

York, Pa. (717) 848-3301 ext. 217.

Record Filed in Supreme Court

Oct 1 1978

Middle District

_— -

20

Appendix iv—Opinion in the Supreme Court

of Pennsylvania, October 1, 1979

[J227]

IN THE SUPREME COURT OF PENNSYLVANIA

Middle District

COMMONWEALTH OF PENNSYLVANIA,

Vv.

DONALD L. STARR, JR.,

Appellant.

No. 24 May Term, 1978

Appeal, in Forma Pauperis, from the Judgment of Sentence

of the Court of Common Pleas. Crimi

; inal of Y

No. 157 C.A. 1976. oe ree

O’BRIEN, J.

Filed: Oct 1 1979

Appellant, Donald L. Starr, Jr., was tried by a judge sittin

without a jury and convicted of murder of the second de ite

for the stabbing death of Wilbur Grim during a robbery i

verdict motions were denied and appellant was sentenced to

life imprisonment. This appeal followed.

Pec sae raises only one issue in this appeal. He alleges

the trial court erred in refusing his pretrial motion to sup-

press his confession. The facts are as follows.

ee eee

21

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

Once appellant became suspect in the instant homicide, he

was asked to go to the state police barracks for purposes of

taking a polygraph examination. Once at the barracks, ap-

pellant met with Trooper John B. Kelly, the polygraph

examiner. Trooper Kelly explained how the test would be ad-

ministered, and then fully informed appellant of his ap-

plicable constitutional rights. As Trooper Kelly testified:

“| When I give the rights form, I get into the third

paragraph there that deals with the polygraph instrument

specifically. I reiterate there. I read him those rights.

And, by the way, when I read those rights, I interject the

fact that anything he says can and will be used against

him. Polygraph charts in all cases are not used in court.

But I didn’t want to mislead him, and I did relate to him

that there are some circumstances where polygraphs have

been admitted in court either by stipulation or court or-

der or as an issue... . ”

Appellant was then asked if he would be willing to take the

examination. He originally was somewhat reluctant to take

the test. When Trooper Kelly questioned him as to why he was

reluctant, appellant agreed to take the examination.

Following the examination, Kelly indicated to appellant

that the results indicated deception on appellant’s part when

he denied participation in the Grim stabbing. Shortly there-

after, appellant was again informed of his constitutional

rights, which he waived. He then admitted killing the victim

in the course of a robbery.

However, appellant testified:

“Well, he started talking to me about the case, the

seriousness of it. And then he brought up -- he said, ‘I

noticed on your test you reacted strongly to some of the

22

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

questions.’ I said, ‘Well, yeah, I’m kind of upset about it.’

And we kept talking a little bit. Then Kelly came into the

room and laid the results of the test in front of me and

said, ‘I know you’re lying, I could see you're lying right

here.’ He says, ‘Do you notice any differences on the test

with the paper?’ And I showed him what I could see, and

I don’t know anything about how they read it. And then

he pointed and said, ‘Well, here’s your strong points right

here,’ and showed me what the questions were, where

they had them numbered on the paper. Then he told me,

‘Look, actually,’ he says, ‘as far as me being involved in

this case, this is all I was involved in, is giving the test.’

‘But,’ he said, ‘I don’t really care, you don’t have to say

anything if you don’t want to, but the thing is I can point

- it out right here; now, I’m a pro at this, and I can tell you

that you’re lying.’ And he told me that whether I said

anything or not, it didn’t really matter, that he’d be

showing it to the district attorney and the judge. ‘And,’

he said, ‘when I show it to them, they’re going to listen to

what I have to say, because they know I’m a pro at this.’

So, right there, I figured, well, they om me. ...”

He then admitted killing the victim.

We note preliminarily the applicable test. “When the ad-

missibility of a confession is challenged, the prosecution at

the suppression hearing has the burden of proving that the

defendant made a knowing and intelligent waiver of his rights

when being questioned by the police: that waiver must be

shown by a preponderance of the evidence.” [ Citations omit-

ted].

“In deciding whether the burden has been met, we consider

the testimony of the prosecution witnesses, and that portion

of the evidence offered by the defense that remains uncon-

tradicted.” [Citations omitted]. Commonwealth v. Jones, 459

Pa. 286, 289, 328 A.2d 828, 829 (1974).

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23

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

Appellant claimed the waiver of his Miranda rights was in-

effective because Trooper Kelly’s representations led ap-

pellant to believe the results of the polygraph examination

could be used as evidence against him. The burden, thus, fell

to the prosecution to demonstrate by a preponderance of the

evidence that no such misleading representations were made.

The suppression court, approaching the heart of the matter,

inquired of Trooper Kelly:

“OQ. [by the court] Could you have said something

mr, os Bona which was that after you showed the

results of the test to the judge and to the district attorney,

they would accept your word as a pro and they would

know that he was lying? Could you have said something

like that to him?

“A. If I would have, the context of it would have

been in the form of telling him that the charts speak for

themselves, they could be checked by anyone, I have 100

percent confidence in the results of the testing, and any-

body that reviewed them or checked them would have to

agree, that was qualified and competent.

This equivocating answer by the Commonwealth’s principal

witness to the critical question of precisely what represen-

tations were made to appellant falls short of satisfying the

burden which adhered to the prosecution. This 1s especially so

where it is uncontradicted that some representations, at least,

were made to appellant concerning the use to which the poly-

graph results might be put and the effect which they might

have. The record of the suppression hearing does not indicate

the Commonwealth met its burden of proving the represen-

tations made did not impinge with such force upon ap-

24

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

pellant’s understanding of his right to remain silent so as to

render his decision to waive that right a knowing and volun-

tary one.

Reversed and remanded for a new trial. Mr. Justice

Nix files a dissenting opinion. Mr. Justice Larsen files a

dissenting opinion.

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25

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

DISSENTING OPINION

{ J-227]

IN THE SUPREME COURT OF PENNSYLVANIA

Middle District

COMMONWEALTH OF PENNSYLVANIA,

V.

DONALD L. STARR, JR.,

Appellant.

No. 24 May Term, 1978

Appeal, in Forma Pauperis, from the Judgment of Sentence

of the Court of Common Pleas, Criminal, of York County, at

No. 157 C.A. 1976.

NIX, J.

Filed: Oct 1 1979

I am forced to vigorously register my dissent to today’s

Opinion of the Court. The majority Opinion entirely mis-

reads, and accordingly fails to cite, our prior cases on the

issue of the nature of the representations made to a defendant

and that allegedly result in a confession. In Commonwealth v.

Jones, 457 Pa 423, 435, 322 A.2d 119 (1974), this Court stated:

“In the case at bar we are not convinced that the

alleged fabrication concerning the co-defendant’s con-

fession was likely to cause an untrustworthy confession.

26

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

Nor do we find it so reprehensible as to invalidate the

confession as offensive to basic notions of fairness.” The

United States Supreme Court recently considering a quite

similar factual situation observed: “The fact that the

police misrepresented the statements that [the co-

defendant] had made is, while relevant, insufficient in

our view to make this otherwise voluntary confession in-

admissible.” Frazier v. Cupp, 394 U.S. 731, 739 (1969):

See also, Commonwealth v. Baity, 428 Pa. 306, 315, 237

A.2d 172 (1968) (Opinion of Mr. Justice Roberts); People

v. Robinson, 31 App. Div. 724, 297 N.Y.S. 2d 82 (1968).

Nor do we believe that this subterfuge precluded the

exercise of a knowing waiver. Of course, an accused must

know the nature of his Constitutional rights and we

caution that any misrepresentation which may cast doubt

upon the accused’s awareness of these rights would

necessarily render the waiver suspect. However, in the

case at bar, we are dealing not with a misrepresentation

of rights, but with a misrepresentation concerning the

amount of evidence against the accused. While we em-

phasize that we do not condone deliberate mis-

representation of facts supplied to an accused at a time

when he must elect to waive a Constitutional right, we do

not believe that a misrepresentation, even though in-

tentional, as to the evidence available against him is the

type of information that would so distort the factual

Situation confronting him as to render his waiver un-

knowing and unintelligent.”

Today’s Opinion stands the law on this issue upside down.

The representations appellant alleges were made are not of

the type or nature that would preclude the finding of a know-

ing or voluntary waiver.

I therefore dissent.

-

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27

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

DISSENTING OPINION

J-227

IN THE SUPREME COURT OF PENNSYLVANIA

Middle District

COMMONWEALTH OF PENNSYLVANIA,

Vv.

DONALD L. STARR, JR.,

Appellant.

No. 24 May Term, 1978

Appeal, in Forma Pauperis, from the Judgment of Sentence

of the Court of Common Pleas, Criminal, of York County, at

No. 157 C. A. 1976.

JUSTICE ROLF LARSEN

Filed: Oct 1 - 1979

I dissent: a new trial is an unnecessary prolongation of this

case.

Assuming appellant’s version of the facts surrounding his

confession (namely, that immediately prior to his confession,

Trooper Kelly told him that “he'd be showing noe Eile

pellant’s polygraph examination] to the district attorney and

the judge”), Trooper Kelly’s statement was not such that it

was “likely to cause an untrustworthy confession” nor was It

28

Appendix iv—Opinion in the Supreme Court of

Pennsylvania, October 1, 1979.

‘so reprehensible as to invalidate the confession as offensive

to the basic notions of fairness.”” Commonwealth v. Jones, 457

Pa. 423, 435, 322 A.2d 119, 126 (1974).

In holding that appellant’s confession was admissible, the

suppression court found:

. . . [D]efendant frankly admitted that he was fully

advised of his constitutional rights, including the right to

refuse to take the [polygraph] test and to refuse to an-

swer any questions and to remain silent, both before and

after the test was administered and before he made any

subsequent statements, and that he was not coerced, in-

timidated or mistreated in any way.

We conclude that defendant’s confession was _ in-

telligently and voluntarily given after full and complete

advice as to his constitutional rights, that none of such

rights were infringed, and that such confession is there-

fore admissible in evidence.

The record supports the suppression court’s findings and,

therefore, I would affirm appellant’s judgment of sentence.

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