Petition for Writ of Certiorari — Pennsylvania v. Ware

Supreme Court brief1972

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Text

rN THE

No.

COMMONWEALTH OF PENNSYLVANIA.

oa Peitoner, ay :

PAUL D. WARE, 3

| _° Respondent. — = >

PETITION F OR WRIT OF CERTIORARI TO THE

SUPREME COURT neal PENNSYLVANIA.

_ JAMES T. RANNEY,

'. Assistant District Attorney,

MILTon M. STEIN, :

Assistant District Attorney,

Chief, Appeais Division,

James D. CRAWFORD,

Deputy District Attorney,

RicHArD A. SPRAGUE,

First Assistant District Attorney,

' ARLEN SPECTER,

District. Attorney: aie . .

Room 666, City Hall : 3 ie 7 '

Philadelphia, Pa. 19107

;

Huntzinger Printing Corp., Appellate Printers, Camden, N. J. <> ‘a

I,-The Pennsylvania Supreme Court Has heen.

- erly Held That Decisions of This Court Compel

It To Apply Miranda v.. Arizona, 384 U. S. 436

(1966), To a Case: Where the Questioning Oc-

curred Before the Miranda Decision (Although

the Trial Was Fortuitously Delayed Until After

Miranda) Since:

The “Trial-Date” ‘selina in ‘Johinnein Vv.

New Jersey, 384 U. S. 719 (1966), was Inad-

_ vertent, Unrequired by the Facts of That Case ~

and Not Involved in stata or: oe of

That Case;

Even if This Language Had Been a Considered

Choice Between a “Trial-Date” and’ an “Ac-

tivity-Date” Cut-Off Rule for Retroactivity

Purposes, it Has Never Been Suggested by

Any Court that.a “Trial-Date” Rule of Pro-

spectivity is Constitutionally Required;

. In Later Cases Where This Court Eventually

Did Make a Considered: Choice Between a

“Trial-Date” ‘Rule and an “Activity-Date”

Rule for Setting a Retroactivity Cut-Off Date,

This Court Has Consistently Adopted an “Ac-

tivity-Date” Rule; and

\ -

INDEX

; PAGE

. Opinions Below .:..... [Sweucisewee tas SAS ae ARBRE 2

Jurisdiction av icacc tr iauiener es yer Fa as

Questions Presented ....... Di iciece neat se wake nice. a

Constitutional and Statutory Provisions Inyolved ciao am

Statement of the-Case ............. Tae ences ene

Reasons for ‘Griniine SE WIE Gisigac heeiseeee ks 13

PERLE

EI i a aa

_ INDEX ee

| PAGE

4. An “Activity-Date” Rule is Eminently Prefer- —

_ able in View of (a) the Purposes of Miranda,

‘Which Would in No Way be Furthered by Ap-

plying its Strictures to a 1963 Confession;

(b) the Reliance by Police Officers-(the Very .

Persons Who Must Enforce the Law on a Day- »

to-Day Basis) on Pre-Miranda Law; and (c)

tHe: Demoralizing Effect of Setting Free a

‘Confessed Four-Time Murderer Needlessly

‘and Continuing the Release of Countless

Other Confessed Criminals Due to the Anoma-

lous “TTIRI-DIM” BUMS... oss cnn scccevenses 13

II. As a Result of the Omnibus Crime Control and

Safe Streets Act of 1968, 18 U.S. C. Sec. 3501 (b),

Respondent’s Clearly Voluntary Confessions,

Should Properly Be Admissible At His Trial ... 27

CIES rere ees Pe a De ice WBE aso

"Appendix Pee ee errr eee foie hee recs ree .. &

A. Opinion and Order of the en D. Donald Jamie-

son, Court of Common Pleas, entered December

TA EE ck Eee bed das ede aWeWasd weaee G ore

B. = and Order of the Hon. Robert N. C. Nix,.

' . Jr., Court of Common Pleas, entered June 19, .

es Perr yee eee Pe TT Te ee eee ee ee ee ws “ae

| C. Opinion and Order of the Hon. Robert N. C. ‘Nix,

Jr., Court of Common Pleas, entered November

13, 1970 ...........-.. FIA RIS AA SS oes 44

_D. Opinion and. a ilaiaiienn of the Pennsylvania Su-

preme Court, filed December. 20, 1971 mates. ae

E. Selected Portions of Committee Report, P. . 90-

‘351, Title II, 1968 U. S. Code Congressional and

Administrative News 2112 .......2...--0.-00:. 76

_ INDEX

TABLE sani CITATIONS

PENNSYLVANIA CASES: : ; PAGE

Commonwealth v. Bennett, 439 Pa. 34 (1970) ....16,29

Commonwealth v. Bordner, 432 Pa. 405 (1968) .... 15

- Commonwealth v. Davis, 440 Pa. 3S CSR)... .. 16

Commonwealth v. Dixon, 432 Pa. 423 (1968)'....... 15

Commonwealth v. Leaming, 432 Pa. 326 (1968) .... 15

" Commonwealth v. Robinson, 428 Pa. 458 (1968) ... 15

Commonwealth v. Schmidt, 423 Pa. 432 (1966) .... 16

Commonwealth v. Singleton, 439 Pa. 185 (1970).... 16 .

Commonwealth v. Sites, 427 Pa. 486 (1967) va

. Commonwealth v. Ware, 438 Pa. 517 (1970) ....... 16.

- Commonwealth v. Ware, —— Pa. —— (1971) ..... 16

Commonwealth v. Williams, 432 Pa. 597 (1968) ..15, 16

Commonwealth v. Willman, 434 Pa. 489 (1969) .:.. 16

Commonwealth v. Yount, 435 Pa. 276 (1969) ... 2 ne ee

FEDERAL CASEs: . ore .

Baines v. United States, 426 F. 2d 833 (5th Cir. 1970) -17

Bivens: v. Six Unknown Named Agents of Federal

* Bureau of Narcotics, 403 U. S. 388 bee 31

Bloom v. Illinois, 391 U. S. 194 (1968) ........ ons ae

Bolling v. Sharpe, 347 U. S. 497 (1954) ........... 29

“Camacho v. United States, 407 F. 2d 39 (9th Cir.

1969) ..... Reece Fy pear ere Bee OR ee ee 17-

Chimel v. California, 395 U. S. 752 (1969) ......-.. 19 »

Coolidge v. New: Hampshire, 403 U. S. 443 (1971) .. 31

PROUT TESTaRR eMNY

MERE

bee Po ; PAGE

Desist v, Uritted States, 394 U.S. 244 (1969) 19, 20, 22, 23

DeStefano v. Woods, 392:U. S. 631 (1968) ..:...... 21

Duncan v. Louisiana, 391 U. S: 145 (1968) ...2.... 21

‘Escobedo v. Illinois, 378: U. S. 478 (1964), ...15, 17, 18, 22

Evans v. United States, 375 F. 2d 355 (8th Cir. 1967) 17

Frazier v. Cupp, 394 U.S. 731 (1969) ..... Lares 15

Gilbert v. California, 388 U. S. 263 (1967) .......... 20

Griffin v. California, 380 U. S. 609 (1965) ...../..... 20

Griffith v. Jones, 283 F. Supp. 794 (N. D. Ga. 1967)... 17

Groshart. v. United’ States, 392. F. 2d 172 (9th Cir.

an ee ae ee ee Ae

Grasso v. United States, 390 US S. 62 1968) . ee eron 21°

Harris v. New York, —— U: S. —, 91 S. Ct. 643

is cae

Jenkins v: Delaware, 395 U. S. 213 (1969) 15, 16, 19, 23, 24

eee ‘New Jersey, 384 U. S. 719 (1966)... .13, 14, 15,

- 16,17, 18, 19, 24, 25, 26

Katz v. United States, 389 U. S. 347 (1967) ........ 20

_Linkletter v. Walker, 381 U. S. 618 (1965).. .15, 16, 19, 24

Mackey v. United States, —— U. S. —, 91S. Ct.

°1160.(1971) ..... fe COE Seles ee roar Un Cetin "91

Marchetti v. United States, 390 U. S. 39 (1968) ..... 21

_ Miranda v. Arizona, 384 U.S. 436 (1966) .....2, 5, 7, 9, 11,

13, 14, 15, 16, 17, 18, 19, 21, ‘22,

— 23, 24, 25, 26, 27, 28, 29, 30, 31

Q’ Connor Vv. Ohio, 385 U. S. 92 (1966) .... que eae ee 20

Posey v. United States, 416 F. 2d 545 (5th Cir. 1969)

‘Price v. Georgia, 398 U. S. 323 (1970) ......... sewee BL

A CEE ala — :

Rochin v. California, 342. U. S. 165.(2962) 2. 31

Rolland.v. People of State of Michigan, 320 F. Supp.

1195 (E. D. Mich. 1970) ........ SC heeaea ss boc 17

Rowe v. “Peyton, 383 F. 2d: 709 (4th Cir, 1967); aid,

391 U. S. o4 (1968) 5: ak ALARA Dheeed ee wae ee 20

. Sheer v. United States, 414 F. 2d 22 (5th Cir. 1969)

Smith v. Peyton, 295 F. Supp. 137 (Ww. D. Va. 1968) 17

‘Stovall v. Denno, 388 U. S. 293 (1967) ....... 16, 19; 20

United States v. Chaplin, 435 F. 2d 320 (2d Cir. 1970) VW

United States \ Vv. Dickerson 413 F. 2d 1111 (7th >. ar

WOR ee ee Se 2 Ak 200

United States v. Fox, 403 F. 2d 97 (2d Cir. 1968) . 16° -

United States y. Vanterpoal, 394 F. 2d 697 (2d Cir, ;

oe oe ee es 16

. United States v. Wade? 388 U. S. 218 (1967) ...... i

_ United States v. White, 417 F. 2d 89 (2d Cir. 1969) .. 26

Williams -v. United States, —— U.S. —, 91. S. Ct, -

Bea {2.3 PE re Ne

OTHER os

Clark V. Smith, 1648. E. od 790 (Ga. 1968) Se nheete Cee

. Commonwealth v. Bujnowski, 267 N. E. 2d 924 (Mass. .

App. 1971) ..... wee aot eas a ees 17

Flowers v. State, 168 N, W. 2d 843 (Wis. 1969) ak 18

Guyette v. State, 438 P. 2d 244 (Nev. 1968) ..... ae

"Mora v. People, 481 P. 729 (Colo. 1971) .....:.....0 17

’ Penn vy. Commonwealth, 169 S. E. 2d 427 (Va. 1969).. 18°

People v. Kilduff, 276 N. Y. S. 2d 814 (N. Y. Co. Ct.

er te aE Sern ae nee 18

INDEX -

we wre , PAGE

“People v:P P, 233 N.E. 2d 255 (N.Y. Ae. 1967) ..... 18

" People v. Peacock, 287 N.Y. S. 2d 166 (N. Y. App. .

1968)... ele eeeetee eevee, oesebenecatsess 18

People v. Tucker, 172 N. W. 24.712 (Mich. App. 1969), 18

________People v. Welborn, 82 Cal. Rptr. 845 (Cal. App. 1969) 17 -:

. State v. Anderson, 229 So. 2d 329 (La. 1969) ........ - wet

: State v. Brown, —— A. 2d —-, 279 A. 2d 554 (Conn.

RE ieee oe ampere me pepe ae, 90.

State v. “ButlerS249 N. E. 2a 818 (Ohio 1969) ....... 18

State v. Gannites, 221 A. 2d 620 (R. I. 1966) ........ 19

State v. Knott, 249 A. 2d 421 (R.1: 1969) ..0......0. 18

" State v. Lewis, 164 S. E. 2d 177 (N. C. 1968),........ 18

State v. Mendes, 210 A. 2d 50 (R. I. 1964)... eee 19

State v. Travis, 231 A. 2d 205 (N. J. 1967)... satned 18, 26

'\” State v. Wong, 430 P. 2d 330 (Hawaii 1967) ..-...... 17

Young v. State, 234 So. 2d 341 (Fla. 1970) .......... 17°

~ MISCELLANEOUS:

Fairchild, Limitation of New J testis Law to *

Prospective Effect Only: “Prospective Overrul- —

ing” or “Sunbursting,” 51 Marg. L. Rev. 254

CHOSE © 6 < de cqeses edcatagduvese Petevassbbevese 21

Graham, “Bar Speakers Critical of Warren Court,” _

‘The New York Times, p. 1, col. 3 July 17,1971) 26

Johnson, The Supreme Court of f alifornia, 1967-1968:

Foreword: Retroactivity i —— 56 Cal.

L. Rev. 1612 (1968) «..... en fadacteeteseeedeuee 21

. INDEX

PAGE.

: Mishkin, ‘The Supreme Court, 1964 nat” See

_ The High Court,.the Great Writ, and the Due

_ Process of Time and Law, 79 Harv. L. Rev. ‘56

(1965) (vue ene ke psec ones dasevenoeschs es 21

ty Note, Interrogations in New iii The —o of

. Miranda, 76 Yale L. J. 1519 UOT) 2.020600 ,. “.28, 29

-Omnibus Crime Control and Safe. Streets Act of 1968,

18 UL SC. $3501€b)....... oot ads becca Secaeeake ee 3,27.

Robinson, Police and. Prosecutor Practices ind. At-

titudes Relating to Interrogation as Revealed by

Pre- -and Pest-Miranda Questionnaires: A Con-

struct of Police sc Stead to Comply, 1968 Duke

i SM Ricncctabere shen beniaawerreneaeuee: 25

_ Rosenberg, Competency for Trial—Who Knows Best,

OG. L: Bal. STPUGIO | oi. Arc cc exc ceces 27°

Schaefer, The Control of “Sunbursts”: Techniques of _

Prospective Overruling, N. Y. U. L. Rev. 631 —

a ee aero ea eh aay Seer Fy

Schwartz, Retroactivity, Reliability, and Due Process:

Se 0 Se Ses 33 U. Cal. L. Rev. .

Wee GU Ga cccescatskastocnincsdivia ae tavn 21,23

Stephens, Police Interrogation and ‘the Supreme

Court: An Inquiry Into the Limits of ‘Judicial

Policy-Making, 17 J. Pup. L. 241 (1968) ........ 25

1968 U. S. Code. Congressional and Administrative

BUNUN, DP. BEIBGS Secicccccccocscnselescsicce , 26.

ee | INTHE : 7

SUPREME COURT OF THE UNITED STATES

October Term, 1972. _

No.

CoMMONWEALTH OF PENNSYLVANIA,

. Petitioner,

vs.

Paut D. Ware,

Respondent. ;

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA.

The Commonwealth of Pennsylvania, through the District

Attorney of Philadelphia, respectfully requests that a writ

of certiorari issue to review the judgment of the Supreme

Court of the State of Pennsylvania entered in the above- -

entitled case on December 20, 1971,

_ OPINIONS BELOW.

The opinion of the Court of Come Pleas of Philadel-

phia County in support of its order of December 11, 1969,

removing a nolle prosequi is unreported and is printed as

Appendix A attached hereto, The opinion. of the Court of

_ Common Pleas of June 19, 1970, vacating an earlier order -

of suppression and allowing a rehearing is unreported and

is printed as Appendix B attached hereto. The opinion of

the Court of Common Pleas of November 13, 1970, denying

_ the motion to suppress is unreported and attached as Ap-

pendix C. The opinion of the Pennsylvania Supreme Court

reversing this order is reported at ——- Pa. —— (1971) and

_is set out in Appendix D. |

JURISDICTION.

The opinion of the Pennsylvania Supreme Court issued

on December 20, 1971. The jurisdiction of this, Honorable

Court is invoked under 28 U. S. C. section 1257(3).

QUESTIONS PRESENTED. |

1. Must Miranda v. Arizona, 384 U. S. 436 (1966), be ap-

plied to a case where the confessions occurred prior to

Miranda but the trial will fortuitously occur post-Miranda?

2. Does not the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U. S. C. Sec. 350t(b) dictate that respond-

ent’s clearly voluntary confessions be held properly admis-

sible at trial? .

Se “CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED.

The Fifth Amendment to the United States Constitution

provides, in pertinent part, that: “no person . ... shall be

compelled in any Crimean case to be a witness against him-

self.”

. The Omnibus | Crime Control and Safe — Act of.

' 1968, 18 U. S.-C. Sec. 3501(b) provides as follows:

ADMISSIBILITY OF CONFESSIONS.

(a) In any criminal prosecution brought by the

_ United States or by the District of Columbia, a confes-

sion, as defined in subsection (e) hereof, shall be ad-.

missible in evidence if it is voluntarily given. Before

such confession is received in evidence, the trial judge .

shall, out of the presence of the jury, determine any

issue as to voluntariness. If the trial judge determines -

that the confession was voluntarily made it shall be

admitted in evidence and the trial judge shall permit the

jury to hear relevant evidence on the issue of voluntari-

ness and shall instruct the jury to give such weight to .

‘the confession as the jury feels it deserves under all

_the circumstances.

_-(b) The trial judge in determining the issue of vol-

untariness shall take into consideration all the circum-

stances surrounding the giving of the confession, in-.

cluding (1) the time elapsing between arrest and

arraignment of the defendant making the confession, if

it was made after arrest and before arraignment, (2)

whether such defendant knew the nature of the offense

with which he was charged or of which he was sus-

pected at the time of making the confession, (3)

- Whether or not such defendant was advised or knew

that he was not required to make any statement and’

that any such statement could be used against him,

(4) whether or not such defendant had been advised

prior to questioning of his right to the assistance of-

counsel; and (5) whether or not such. defendant was

without the assistance of counsel when questioned _

_ when giving such confession.

The presence or absence of any of the above- '

- mentioned factors to be taken into consideration by the

judge need not be conclusive on the issue of voluntari-

. ness of the confession. ; all

STATEMENT OF THE CASE.

A. Procedural History.

Appellant Paul Ware was arrested on September 27, 1963,

in the midst of an apparent attempted burglary’ (N. T. 11-

14). Because he matched a description in a wanted circular

issued in connection with a homicide case, Ware was later

questtoned about this homicide and others and, on October

3, 1963, he confessed to being the perpetrator of four sepa-

rate robbery-murders in which his modus operandi had

been to gain entrance, while dressed in a formal black suit

with bow tie, dark hat and sunglasses, to the homes of very

elderly persons on some pretext, then rob his victims and

kill them in such a way that the deaths almost appeared

_ aecidental (two were shoved down basement stairways;

one was crushed under a heavy dresser) N. T. 14-15, 94,

97-98, 117, 145-47, 154-57). ah

On December 12, 1963, after being indicted, Ware was

declared incompetent to stand trial and was committed to

Farview State Hospital. Slightly mére than three and a

half years later, on July 19, 1967, he was determined to be.

SRA Rating AUT ED

‘competent, after a full staff hearing at which members of

the Farview medical: staff, the department of psychology,

the social work department and others were present (N. T.

8, 9, 129).

- On May 23, 1968, the case came before the Hon. Robert

N. C. Nix, Jr. for a hearing on defendant’s motion to sup- °

press. The motion was granted: on the ground that defend-

ant had not received the full warnings set forth in Miranda ——

- v. Arizona, 384 U.S. 436 (1966). On December 12,1968; the

Philadelphia District Attorney petitioned the Hon. D. Don-

ald Jamieson for the entry of a nolle prosequi.on the homi-

cide bills for the reasor? that without defendant’s statements

the Commonwealth could not prove its case. Defendant

offered no objection and Judge Jamieson approved. the nolle

proséqui.

- . On August 11, 1969, the Commonwealth moved for re-

moval of the nolle prosequi and on December 11, 1969,

Judge Jamieson granted the request, rejecting a speedy trial

claim raised by defendant at that time ‘(see Appendix A).

The Commonwealth then petitioned Judge Nix to vacate

his suppression order and. allow .a rehearing. This motion

was granted on June 19, 1970 (see Appendix B), and a sup-

pression hearing was held on June 25 and 26, 1970. On No-

vember 13, 1970, Judge Nix held that the confessions were

voluntarily made-and-not-barred by Miranda v. Arizona

(see Appendix C). The Pennsylvania Supreme Court al-

lowed an interlocutory appeal after the hearing judge certi-

fied that an important question of law was involved, this

certification being made on December 1, 1970, upon the joint

petition. of respondent and petitioner. On December 20,

1971, the Pennsylvania Supreme Court reversed the lower

court on the ground that Miranda must be applied to re-

spondent’s 1963 confessions.

B. Factual History.

On September 27, 1963 at about 12:30 P.M. officer John.

Park was walking south on Ridge Avenue from 33rd Street

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when he was told that a woman in the 3200 block was look-

ing for'a policeman (N.T. 11-12). He proceeded to the 3200

block of Dakota Street and met a woman who told him

- that a young Negro male wearing a white shirt and bow tie

with a soft hat and sunglasses had just attempted to break

‘into her home (N. T, 12). Then another woman a half block

away shouted, “He’s: here again,” and as defendant Paul

Ware sought to flee the officer grabbed him, the woman all

__the while screaming “That's him”. (N, T.12-13). Ware spon-—_—

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taneously told the officer he was there for a cleaning job |

- (N. T. 13)- : | . |

Ware was taken into custody and transported to the 22nd

District at about 1:00 P.M. Officer Park informed Lieuten-

ant Brown that Ware closely fit the description on a wanted

circular which described a person who wore a bow tie, black

suit, white shirt, dark soft hat, and sunglasses (N. T. 14-16).

‘As a result, Ware was transferred upstairs.to th North

Centra! Detective Division. He was questioned at this time

by Detective Roberts, a Negro, who greeted him as a Muslim

and said, ‘““You don’t have to talk to me, but if Allah will it

_ that you be here it must be for a purpose, so therefore we

can talk” (N. T. 27-28, 200). Detective Roberts questioned

Ware only about the incident for which he had been ar-

rested; defendant made no admissions and repeated his

_ story about being at the home for a cleaning job (N.: T.

29-30). :

At about 4:00 P. M. Wats was taken to the Homicide Unit — -

at the Police Administration Building by Officer Park and

Detective Roberts, arriving at 4:20 P.M. He was turned

over to Sergeant Green, who was told that Ware was a

suspect in the murder of Daniel Gandy, the subject of the

wanted circular (N. T. 17, 32-33). Green talked to Ware for

about an hour and a quarter, first talking mostly of back-

‘ground matters—where defendant lived, his relatives, what

he did for a living. Then the officer began to- talk about

the Gandy. homicide. Ware denied any knowledge of the

matter (N. T. ®.

Sergeant Green then left the room, leaving. Ware unhand- .

cuffed but with the door locked. Green arranged for finger-

printing, which was done upstairs in the Police Administra-

tion Building at the Mobile Crime Detection Unit between

6:00 P.M. and 6:25 P.M. (N. T. 35-36). Ware was again

left by himself while arrangements were made for“a lineup

“a ‘persons and viewed through a two-way mirror in

the interview room by Mrs. Gandy. Mrs. Gandy was ques-

tioned for about an hour and a half but was unable to make

an identification (N. T.:38). Defendant was not questioned

at this time nor was he questioned further until about

10:30 R.M., when he was asked to take a polygraph test

(N. T. 38, 40), He signed an agreement to take the test but

‘was not given any Miranda warnings (N. T. 50-51).. The

résults of the test. were considered by the detectives to be ’

. negative, indicating that defendant did not kill Gandy

(N. T. 42-43), although the polygraph did show some reac-

tion when defendant. was asked if he knew who threw

Gandy down the cellar steps and whether he had intended ~

to rob the occupants of the home where he was. arrested

(N. T. 54). The testing terminated at 11:56 P.M. and the

examiner spoke with Ware briefly, simply to relax him after

the test (N. T. 57). Ware was then left alone in the room

until about 1:00 A.M. while the test resulfs were explained

‘to Sergeant Green (N. T. 57). Since Ware was no longer

considered a suspect in the Gandy case, he left the Homi-

cide Unit in Detective Roberts’ custody (N. T..42-44).

Ware was not questioned further and had no personal

contact with the police until his preliminary hearing on the

burglary charge the next morning; a Saturday, September .

28, 1963 (N. T. 19). He was held without bail for court .

(N. T, 30). Detective Roberts then returned Ware to the -

‘robbery unit of the Police Administration Building and,

together with officer William J. Connally, questioned him

from about 11:00 A.M. to 12:00 noon regarding unsolved

burglaries in the North Central area which were listed in

a a masciel journal” ” T. 63-65). Ware was cooperative

-37). He was then placed-in-a-lineup with three: |

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and very: calm, not being handcuffed at this time (N. T.

67-68). He talked for about a half hour and then said that ~

if the officers wanted to he would go’ with them-to-point ~~~

out the places he had entered (N. T. 65-67, 79). So Detec-

tive Roberts and Detective Connally took defendant on a

tour’ lasting until about 4:30 P.M. during which Ware

pointed out twelve locations that he had burglarized (N.T.

| 69). He was also able to describe the homes and the people

involved in some detail, details. which were later corrobo-

rated. (N. T. 188). Although he told the officers there were

other places, they decided to wait until the next week due

to the late hour (N. T. 73). Upon returning to the Police

Administration Building, formal statements were taken on

the twelve burglaries and completed by about 7:00 P.M. At

7:20 P.M., Ware was placed in an emergency wagon to be

returned: to Holmesburg prison (N. T. 189).

- Ware remained at Holmesburg until October 1, 1963,

_ when he had a preliminary hearing on five of the burglaries

which he had admitted committing (N..T. 20-21). After

the hearing he agreed to take the police on another tour of.

the locations he had burglarized (N. T. 71, 191-92). He first

wrote a letter to his aunt (delivered to Detective Roberts)

< in which he stated, “I am going to level with the police and

I’m going to tell them all I have done in the past three years.

This is the only way. out” (N. T. 196-98). On his second

trip, Ware pointed out twenty-four places in the course of

- about four hours (N. T. 74, 192). He was again very calm

and cooperative; no promises of any kind. were made as to _

what would happen if he showed them the places (N. T. 75).

. Defendant was brought back to the Police Administration

Building at about 9:00 P.M. and a written statement was

taken on each of the twenty-four burglaries and on three

more which Ware then recalled. Some time before mid- —

night: Ware was sent back to Holmesburg (N. T. 192-95).

The next day, October 2, 1963, a writ was obtained from

Judge Guerin permitting Detective Albert Krimmel to.

‘ bring Ware to the homicide division of the Police Admin- .

istration Building for questioning regarding the homicide

RYE Re abe 2 Spe eee:

of Dr. James Kalbach. Detective Krimmel, who was as- |

signed to the Kalbach homicide, sought to question Ware

because he had been admitting to robbing elderly people.

Defendant was picked up at 1:00 P.M. and interviewed at

about 1:40 P.M. by Detective Krimmel. Detective Krimmel -

told Ware he was being questioned in regard to the Kalbach

~ homicide; he did not give defendant the warnings Jater set

forth in Miranda-v. Arizona, 384 U. S. 436 (1966) (N. T.

87-91).

Defendant was at first ic cee toward Detective Krimmel

because of his rate, saying all white people were deceivers

and oppressors of the black man. Ware declared that he

was a practicing Muslim (N. T. 92). For most of the ques-

tioning period involved (1:40. P.M. to 4:00 P.M.) Ware

talked of his philosophies of the relation between blacks |

and whites in America. The detective expressed sympathy

with. some of these views and Ware’s hostility subsided

(N. T. 92-93, 100). :

_ Ware then began by telling how he selected his victims,

that he was able to pick elderly white persons by examining

their homes and noticing the lack of recent paint, the posi-

tioning of the drapes, the shades pulled, etc. He added that

he took-only money and never any objects which could be

traced. The detective said that this was very clever (N. T.

' 94-96). Defendant then became very friendly. Asked about

some plane aid bus tickets to various cities which had been

found at his residence, he explained that he had visited .

Muslim mosques in these cities (N. T. 96). Detective Krim-

mel then questioned Ware specifically about the Kalbach

- homicide. Ware at first denied it, but wherr reminded of the -

similarities between the burglaries he had already admitted

to and that of Dr. Kalbach, Ware said that he did not mean

to harm the man, only to rob him, that he had placed a

large dresser over the doctor only to make good his escape

(N. T. 97-98). This ‘confession was corroborated by the fact

that the victim’ had been wedged under a dresser when he

was-found. However, the dresser was not partially leaning

- -against the wall, as steted in Ware’s confession, but had

' rather been slammed down on the 92-year-old deceased,

causing his eventual death (N.T. 97-99; N. T. Prelaminary

Hearing of Oct. 3,1963 at 7). _

From 4:09 P.M. to 4:20.P.M. Ware wrote a short synopsis -

of his statement and then had a drink of water and went to

the mey’s room. At 4:35 P.M. he ate (N. T; 102-109). ‘This

‘rest period continued until 5:02 P.M. (N. T. 108-111). .

At this time Detective Krimmel and Captain Golden de-

cided to question Ware regarding the homicide of Mr. -

-Gandy. Ware again started by denying any knowledge of

the case (N.°T. 110, 112). He was again initially somewhat

hostile and talked for some forty-five minutes to an hour

about his Black Muslim philosophy (N. T. 113-116). When

confronted with the similarity in the offenses (Mr. Gandy, _

aged 87, N. T.S. H. of 12/12/68 at 2, was shoved to his death

down a steep cellar stairway), Ware confessed, accurately _

describing the Gandy residence in great detail (N. T. 117-

118). After the oral statement, Ware made a short written

statement (from 7:12 P.M. to 7:31 P.M.). From 7:32 P.M.

to 7: 45 P.M. he Had a rest period in which he was given two

ES SE Se Ce. Seen 0 WH somene in The lenge

main homicide room (N. T. 141).

At 7:45 P.M. Detective Krimmel decided that °Ware

should be questioned concerning a third homicide, that of

Mrs. Grauley, a very elderly white lady pushed to her death

at the foot of her basement stairway on July 12, 1963 (N. T.

143). Detective Krimmel again did the questioning while

Detective Roberts and Detective Kinsey sat in. Ware was -

' this time a bit hostile toward even the Negro detectives who

had “sold out” to the establishment (N. TF. 144). But his

hostility subsided. He explained that he attacked elderly

white people not only. because of his Muslim religion but

also because they would be easy to.overcome (N. T. 147).

By about 9:00 P.M. he admitted the Grauley homicide and

gave a detailed oral statement. After a handwritten state-

ment which was finished at 9:50 P.M. he rested and was

permitted to walk around the large room for exercise. He

was given water and allowed to go to the toilet; he refused

a meal (N. T. 145, 151-52).

Finally, at 10: 1l P.M. Detective "Krieame! started to

question Ware about the death of a Mr. Leonard Clark, age

92 years old (N. T. Preliminary Hearing at 9). There was

this time less hostility and shortly: Ware confessed, ._

vivid details of the inside of the home (N. T. 152-57).

tween 11:00 P.M. and 11:15 P.M. Ware made a Secaheeilinan

_ Statement covering this fourth murd€fr (N. T. 155-57). He

was allowed to rest and offered food, but asked only for

two more cartons,of milk (N. T. 158).

_ At about 11:40 P.M. Ware was asked if he would be will-

ing to give a formal typewritten statement on each of the

four homicides and he said he would. A stenographer then

took the statements. Ware was first told, before each state-

ment, that anything he said could be used agaixst him at

trial. He said he understood and was willing to make a

voluntary statement. He was not given the full set of warn-

ings now known as Miranda warnings (N. T. 1 . Dur-

ing the taking of the statements Ware initialed photographs. °

of the scenes as being the locations where the homicides

occurred (N. T. 167). Between 2:40 A.M. and 4:20 A.M. he’

made corrections in each statement, read them aloud into a

’ tape recorder, and signed each one (N. T. 164-66). He was

then photographed to show his condition (N. T. 168).

_ Ware was then taken to the scenes of each of the homi-

cides and in each instance, a few blocks from the area, he

was asked to direct the way to the homes of the victims

and he did (N. T. 170-72). Ware was brought back to the

23rd police district at 5:30 A.M. and Assistant District At-

_torney Richard A. Sprague asked to talk to him about the

charges and about his treatment by the police. Defendant

told Mr. Sprague that he had been treated fine (N. T. 172-

76, 207). Ware was then slated in the 23rd district’at 5:35

. AM. and returned to Holmesburg (N. T. 175). :

- Ware was.never struck or threatened in any way and he

was never denied any requests he made (N. T. 175-76). .

- Ware’s school records were introduced by the Common-

wealth, indicating*that he had attended Catholic high

schools through the first half of his senior year and had

Sette,

attended Lincoln Prep High School for one month (N. T.

216).

‘Dr. Bernard Willis, clinical director and assistant’ super-

intendent of Farview State Hospital (where Ware was com-

mitted in December of 1963), testified that he could not

with certainty give an opinion as to defendant’s mental con-

dition at the time the statements were given. -While he felt

- that Ware had been suffering from some mental disorder at

that time, he thought it was not as serious then as when

Ware was committed. In answer to questions by the Court,

Dr. Willis said that in his opinion defendant at the time of

his questioning realized that. he was under suspicion for ©

serious offenses, had an intellectual appreciation of the fact

‘that admissions on his part could be used against him by

the authorities and that, whatever Ware’s illness may have

been, it probably had no degree of compulsion with it that

would make ‘him act against his own interests (N. T. 130-37).

._ The hearing j held that defendant’s admissions were

voluntarily made/since defendant was never threatened,

promised anything or otherwise subjected to any improper

influences; he was well fed and exercised and never sub-

jected to long periods of questioning, much of the time being

taken up by defendant's lengthy monologues on his Black

Muslim philosophy; he spent much of the time involved liv-

ing the life of a normal detentioner at Holmesburg and

was brought before a neutral magistrate; finally, “nothing

was educed which might indicate that he did not under-

stand the conséquences of his statement or which would.

compel him to act against his will” (Appendix C at 59).

. REASONS FOR GRANTING THE WRIT.

THE PENNSYLVANIA SUPREME COURT HAS IM-

_ PROPERLY HELD THAT DECISIONS OF THIS

COURT COMPEL IT TO APPLY MIRANDA v. ARI-

ZONA, 384 U. S. 436 (1966), TO A CASE WHERE

THE QUESTIONING OCCURRED BEFORE THE

MIRANDA DECISION (ALTHOUGH THE TRIAL

WAS FORTUITOUSLY DELAYED UNTIL AFTER

MIRANDA) SINCE:

l. The “Trial-Date” Language in hanes v..New Jersey.

384 U. S. 719 (1966), was Inadvertent, Unrequired by

the Facts of That Case and Not Involved in aia

or Argument of That Case;

“2. Even if This Language Had Been a Considered Choice |

Between a “Trial-Date’ and an “Activity-Date” Cut-

Off Rule for Retroactivity Purposes, it has Never Been

Suggested by Any Court that a “Trial-Date” Rule of

Prospectivity is Constitutionally Required:

3. In Later Cases Where This Court Eventually Did Make |

a Considered Choice Between a “Trial-Date” Rule and

an “Activity-Date” Rule for Setting a Retroactivity .

Cut-Off Date, This Court has Consistently Adopted an

“Activity-Date” Rule: and

4. An “Activity-Date” Rule is Eminently Preferable in

View of (a) the Purposes of Miranda, Which Would in

No Way be Furthered by Applying its Strictires to a

1963 Confession: (b) the Reliance by Police Officers

(the Very Persons Who Must Enforce the Law on a

Day-to-Day Basis) on Pre-Miranda Law: and. (c) the

Demoralizing Effect of Setting Free a Confessed Four-

Time Murderer Needlessly and Continuing the Re-

_lease of Countless Other Confessed Criminals Due to .

the Anomalous “Trial-Date” Rule.

Paul Ware is ready to go to trial for four murders. How-

ever, essential to the case against him are his confessions —

made in 1963, which were held by the Pennsylvania Su-—

preme Court to be inadmissible because of the supposedly

“controlling and unambiguous” decision of this Court in

Johnson v. New Jersey, 384 U..S. 719 (1966). The Court

rejected any attempt to limit Johnson to its facts or to con-

sider later cases by this Court which the Commonwealth

claimed had in effect supplanted the “trial-date” rule with

an “activity-date” rule: “We need not, however,’ fo gyn

to the Commonwealth’s views as to what ‘should be’:

put it quite simply, the matter is no longer a an open ae

tion” (Appendix D at 3).

The general question of whether Miranda v. Arizona, 384

" U.S. 436 (1966), should be applied retroactively has already

been decided in the negative by this Court in Johnson, de-

cided only a week after Miranda. Unfortunately, however,

this Court in Johnson, in an undoubtedly inadvertent state-

ment; preceding:a lengthy -discussion of why Miranda

should be applied prospectively, set the relevant cut-off

* date as follows:

We hold . . : that Miranda applies only to cases

in which the trial began after the date of our decision

of one week ago.

384 U.S. at 721. Since, in Johnson, both the questioning

and the trial occurred “long before” Miranda (Id.), there

‘was no need to.discuss the question raised in the instant

case. Indeed, there was no discussion of the question.’ All

1As stated by the suppression hearing judge, “It would be most

unjust and intellectually dishonest to ascribe to the Johnson Courta -

blanket approval of retroactivity to those ‘cases yet to be tried when

the entire decision was devoted to'a scholarly and meticulous explana-

tion of why Miranda should be denied retroactive application. It is

our view that Johnson’s holding simply stated that Miranda doesn’t

\ apply to trials beginning prior to June 1966. We must reject the con-—

tention that it supports the proposition that requires its application in

all trials subsequent to that date” (Appéndix'C at 65).

This Court itself has acknowledged, in a somewhat different con-

text, that statements in,its opinions unnecessary to the actual disposi-

15 ©

that the Court said in Johnson concerning the question of

the appropriate cut-off date for applying Miranda was that

there were “no jurisprudential or constitutional obstacles”

(384 U. S. at 733) to a different cut-off point than that |

initially selected in Linkletter v. Walker, 381 U. S. 618

(1965), where the Court looked at the date on which a de-

fendant’s conviction became “final.”

Thus, the Commonwealth contends that the basic ques-

tion: involved in this case has not yet been considered by

this Court.*

tion of the case cannot be regarded as controlling. Thus, in Harris v.

New York, —— U. S. ——., 91 S. Ct. 643, 645 (1971), the. Court stated

that, “discussion of that issue was not at all necessary to the Court’s

holding and cannot be regarded as controlling.” (Emphasis added.)

Also cf. Jenkins v. Delaware, 395 U. S. 213, 216 (1969): “That there is

language in Johnsen supporting the positions of both petitioner and’

respondent demonstrates what some courts and commentators have

readily recognized: in that decision, we did not consider the applica-

bility of Miranda to retrials. The issue simply was not presented. ws

See also Frazier v. Cupp, 394 U. S. 731 (1969), limiting the decision in

Escobedo v. Illinois, 378 U. S. 478 (1964), to its facts.

’ 2The Commonwealth fully concedes that the fact that the language

in Johnson appears to have been dicta, in fact, ngt even considered

dicta, has not prevent the vast majority of lower courts from feeling

bound by it; although they have done so either with no discussion

whatever or very grudgingly, often acknowledging the adopted rule’s

great cost to a rational application of the law.

See, in Pennsylvania, Commonwealth v. Sites, 427 Pa. 486 (1967)

_ (confession of December 26, 1965; suppression hearing held April 26,

- 1966; trial was delayed until September 19, 1966);* Commonwealth v.

Robinson, 428 Pa. 458 (1968) (conviction reversed because of the use

of a pre-Miranda confession for impeachment of defendant in a post-

Miranda trial; the Court (Eagan, J.] noted that, “Ironically, the crime

involved occurred on September 3, 1965, and if Robinson’s trial had

commenced prior to June 13, 1966, the date of the Miranda decision,

the evidentiary use of the confession would not be constitutionally

proscribed since all of the warnings of constitutional rights required

by Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758 (1964), were given.”

' Id. at 460 n. 1); Commonwealth v. Leaming, 432 Pa. 326 (1968) (pre-

Miranda confession of February 12, 1965; trial on September 27, 1966);

Commonwealth v. Bordner, 432 Pa. 405 (1968) (November ‘23, 1965

confession; post-Miranda trial); Commonwealth v. Dixon, Kontos, 432 .

_ Pa. 423 (1968) (confessions of March 14 and 15, 1966); Commonwealth

16.

v. Williams, 432 Pa. 557 (1968) (tacit admission of May 6, 1966; trial .

August 9, 1966); Commonwealth v. Yount, 435 Pa. 276 (1969) (April

29, 1966 statement. At 279 [Roberts, J.]: “The case before us illustrates

the difficulty for the Commonwealth which Johnson can cause. Al-

though appellant appears to have received almost all the warnings

required by Miranda, he was not told that he was entitled to free

counsel if he could not afford his own attorney. * * * Thus the Com-

monwealth failed to give all the warnings necessitated by Miranda,

and this it was required to do even though Miranda had not yet been

decided.” Also see the concurring opinion of Justices Jones and Pom-

eroy, id. at 281-82); Commonwealth v. Ware, 438 Pa. 517 (1970) -(Feb-

ruary 1; 1966 statement); Commonwealth v. Bennett, 439 Pa. 34 (1970)

(May 31, 1966 statement); Commonwealth v. Singleton, 439 Pa. 185

(1970) (April 29, 1966 statement; trial February 20, 1967); Common-

wealth v. Davis, 440 Pa. 123 (1970) (April 4, 1966 statement) and Com- ~

monwealth v. Ware, Pa. (1971) (October 3, 1963 confession).

Also cf. Commonwealth v. Schmidt, 423 Pa: 432, 445 (1966) (Roberts, J., .

dissenting on a different point) (“Since the essential rationale of

[Miranda] seems to be deterrence of improper police practices I can

see no sensible reason for making the trial date the determinative

one. See Linkletter v. Walker, at 637, 85 S. Ct. at 1742. In my view

the crucial date ought to be the date the confession was elicited and I ©

would judge its admissibility according to the standards judicially an-

nounced at that time”) and Commonwealth v. Willman, 434 Pa. 489

(1969) (Roberts, J. at 491-92: “It is not altogether clear * * * why

Johnson utilized a date-of-trial test; rather than the date-of-occur-

rence test used subsequently in Stovall v. Denno, 338 U. S. 293, 87 S-

Ct. 1967 (1967). It does seem, however, that the Court has wisely

chosen in Jenkins to restrict to as great an*extent as possible, within

the limits of Johnson, the anomalous situation where the police are

required to have given Miranda warnings before Miranda had been

decided.” O’Brien, J., concurring at 495-96: “. . . I would not have

chosen the date-of-trial: test utilized in Johnson v. New Jersey, 384

U. S. 719, 86 S. Ct. 1772 (1966), but would have selected the date-of-

occurrence test of Stovall v. Denno, 388 -U. S. 293, 87 S. Ct. 1967 (1967).

_*.* * If the Court made a mistake in Johnson, as I believe it did, it

should have said so; rather than seizing upon a distinction without a

difference.”).

See also United States v. Vanterpool, 394 F..2d 697, 699-700 (2d Cir.

1968) (Judge Waterman, concurring) (“. . . I do not agree with my

brothers that the interrogation of March 1 complied with the above-

quoted guideline laid down three and one half months later. I would

wish that it had, tor the United States Attorney does not seem to

have been overreaching here and if he had known what the Miranda

holdings were to be, I am sure he would have complied with them.

Therefore, one is indeed sorely tempted, even though the accused’s

trial began after Miranda, and was therefore governed by the Miranda

postulates, tq hold that the interrogation, having been conducted pre-

Miranda, ought to be construed to have complied with Miranda guide-

lines.”); United States v. Fox, 403 F. 2d 97, 100 (2d Cir. 1968). (pre-

‘Miranda confession; post-Miranda trial . Miranda applied); United

States v. Chaplin, 435 F. 2d 320, 322 (2d Cir. 1970) (held Miranda ap-

plicable to a pre-Mirande confession, but held that since the ques-

‘tioning officers “were not forewarned of this simple expedient” [telling

an accused of his right to court-appointed counsel] “where Miranda’

is applied to pre-Miranda statements, this court will make an ex post

facto inquiry into financial ability to determine whether a defendant,

who has not been fully warned of an indigent’s right to assigned

counsel, has suffered prejudice.”); Smith v. Peyton, 295 F. Supp. 1379,

1382 (W. D. Va. 1968) (dicta following Johnson dicta; held, surpris-

ingly, no “custody”); Sheer v. United States, 414 F. 2d 122 (5th Cir.

1969) (dicta following Johnson dicta; held, without quoting the -warn--

ings given, that the testimony supported the conclusion that defendant

had received “substantially”: the same warnings as later required in

Miranda): Posey v. United States, 416 F. 2d 545, 549 (5th Cir. 1969)

(dicta following Johnson dicta; held, absolutely unbelievably, that

there was no “custodial interrogation”); Baines v. United States, 426

F. 2d 833; 838 n. 6 (5th Cir. 1970) (dicta following Johnson dicta; held

no custodial interrogation); Relland v. People of State of Michigan,

320 F. Supp. 1195 (E. D. Mich. 1970) (first degree murder conviction.

reversed because of use of pre-Miranda confession for impeachment

purposes in post-Miranda trial); Griffith v. Jones, 283 F. Supp. 794

(N. D. Ga. 1967) (struck down 1963 confession where defendant was

given all the Miranda warnings except ag to his right to assigned coun-

sel); Evans v. United States, 375 F. 2d 355 (8th Cir. 1967) (applied

Miranda to 1964 confession); Groshart v. United States, 392 F. 2d 172,

175 (9th Cir. 1968) (defendant warned on April 10, 1966 of right to

silence and to an attorney, but not told of right to free counsel;

Miranda applied); Camacho v. United States, 407. F. 2d 39 (9th Cir.

1969) (dicta following Johnson dicta; held, shockingly, no “taint” and

no inadequacy in warnings in any event; the court even took the trou-

ble to note that trial was originally scheduled for a date preceding

Miranda): People v. Welborn; 82 Cal. Rptr. 845 (Cal. App. 1969) (dicta

following Johnson dicta; held, surprisingly, that since the questioning

was ‘pre-Miranda and thus there was no “direct violation of estab-

lished legal principlés” and no intentional -violation of the Fifth

Amendment, evidence secured “as a direct result of appellant’s ad-

missions” was admissible); Mora v. People, 481 P. 2d 729 (Colo. 1971)

(dicta following Johnson dicta; held that in cases where the question-

ing was pre-Miranda, the failure to fully comply with Miranda by not

telling an accused of his right to a free attorney durihg questioning .

would not be fatal, a more relaxed standard being applied in such

cases); Young v. State, 234 So. 2d 341 (Fic. 1970) (reversed defendant’s

conviction for first degree murder because of the use «7 his pre-

Miranda confession to impeach him at his post-Miranda trial); State

v. Wong, 430 P. 2d 330 (Hawaii 1967) (pre- Escobedo confession, post-

Escobedo trial); State v. Anderson, 229 So. 2d 329 (La. 1969) (Miranda

applied even though suppression hearing held pre-Miranda); Common-

wealth v. Bujnowski, 267 N. E. 2d 924 (Mass. App. 1971) (pre-Miranda

confession’ held insihinteniboe because of failure to warn ‘of right to

court-appointed counsel); People v. Tucker, 172 N,.W. 2d 712 (Mich.

App. 1969) (held that the “fruit of the poisonous tree” doctrine is

totally inapplicable to evidence obtained as a result of a pre-Miranda

confession where the only “illegality” was the failure to give full

Miranda warnings); Guyette v. State, 428 P. 2d 244, 247 (Nev. 1968)

(“The interrogators complied with the law in existence when the in-

terrogations occurred. The rub, of course, arises from the fortuitous

circumstance that this case went to trial‘after Miranda was decided,

and we must, as directed by Johnson v. State of New Jersey, 384 U.S.

719 ... (1966), apply the Miranda doctrine to our consideration of the

matter,” Unbelievably. enough, however, the court found the

Miranda violation harmless error. See id. at 248-49.); State v. Travis,

231 A. 2d 205 (N. J. 1967) (pre-Miranda confession case where

the court upheld the trial court’s finding that the prosecution wit-

nesses’ testimony that they had given Miranda warnings was “vague,

ificonsistent, and lacked candor.”); People v. Kilduff, 276 N. Y. S. 2d

814, 816 (N. Y. Co. Ct. 1966) (“Many cases in this County, the instant

ones among them—Thousands, I presume, when the Nation jis con-

sidered, had had their investigations completed and statements taken

in accordance with the law as it existed before Miranda. Now, we

are told that in all of these cases, which were awaiting trial on June

13, 1966, the statements must. be excluded since the trials had not

yet been held. ”): People v. P, 233 N. E. 2d 255 (N. Y. App. 1967) (dicta

following’ Johnson dicta; held, amazingly, no “custody”); People v.

Peacock, 287. N. Y. S. 2d 166 (N. Y. App. 1968) (remanded the case to

determiné whether evidence used in a post-Miranda trial was tainted

‘by defendant’s pre-Miranda confession); State v. Butler, 249 N. E.

2d 818 (Ohio 1969) (Miranda said to be applicable where confession .

. on November 29, 1965 and trial delayed beyond date of Miranda.

Held, however, that. confession was admissible because used only to

impeach defendant); State v. Knott, 249 A. 2d 421 (R. I. 1969) (ap-

plied Escobedo “with no smiall reluctance” to a pre-Escobedo confes-

sion where the confession was in January of 1963 but the trial was

delayed a year and a half while defendant’s competency was deter-

mined); Penn v. Commonwealth, 169 S. E. 2d 247 (Va. 1969) (dicta

following Johnson dicta; held, unbelievably, that the statement had

been “volunteered”); and Flowers v. State, 168 N. W. 2d 843 (Wis.

1969) (dicta following Johnson -dicta; held confession was “volun-

teered”).

A few jurisdictions have had the courage of their cstinteiiene. and ~

have, without reversal, held that Miranda should be applied prospec-

tively from the date of questioning. See Clark v. Smith, 164 S. E. 2d

790, 795 (Ga. 1968) (trial on June 14, 1966); State v. Lewis, 164 S. E.

-2d-177, 186 (N. C. 1968) (“The date the trial or retrial is commenced

is unrelated to whether the law enforcement officers obtained the evi- —

dence according to constitutional standards upon which they reason-

ably placed re w an As stated by Justice Schaefer, of the Supreme

G6urt of Illin in The Control of ‘Sunburst’: Techniques of Pro-

spective Overruling, op. cit. at 411: “The earlier constitutional stan-

dards were relied upon, not at the moment that the trial commenced,

but at the moment that the interrogation took place.’ In our view,

Miranda should not and does not apply to confessions obtained prior

to that decision, when offered at trials or retrials beginning there-

- after, where law enforcement officers relied upon and complied with

constitutional standards applicable at the time the confessions were

made. /We perceive a trend towards this conclusion in decisions of

the Supreme Court of -the United States discussed “herein.”); and

State v) Gannites, 221 A. 2d 620 (R. I. 1966) (“While we apply the

Johnson) principle of prospective application to Mendes [State v.

Mendes, 210 A. 2d 50 (R. I. 1964), extended Escobedo beyond its pre-

cise factual situation and held that the failure of the police to advise

a defendant of his right to remain silent and to the assistance of coun- -

sel during-his custodial interrogatio:: made his incriminating statement

- inadmissible] we hinge it to the time of the interrogation rather than

to the.date of the commencement of the tria'.”).

The Commonwealth further contends that an “activity-

date” rule of retroactivity is eminently preferable to a

“trial- -date” rule in the Miranda context and in no way

prohibited by anything anywhere in the United States

Constitution. Subsequent cases in the Supreme Court since

Johnson have made it abundantly clear that an “activity-

date” rule is not constitutionally prohibited, but is rather

positively preferred. . See, e.g., Williams v. United States,

—- U. S. ——, 91 S. Ct. 1148 (April 15, 1971) {holding

Chimel v. California, 395 U. S. 752 (1969) applicable only

to searches conducted after the date of Chimel); Jenkins v.

Delaware, 395 U. S. 213, 218 n. 7 (1969), which held Mir-

anda inapplicable ‘to re-trials tried after Miranda: “Our

initial approach to prospective decision-making has under-

gone some modification. Compare Linkletter v. Walker,

381 U. S. 618, 85 S, Ct. 1731, 14.L. Ed. 2d 601 (1965), with ~

Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030 (1969):

With Johnson we began placing increasing emphasis upon

the point at which law enforcement officials relied upon

practices not yet proscribed; and, more recently, we have

selected the point of initial reliance. See, e.g., Desist v.

United States, supra; Stovall v. Denno, supra. In addition

to being more consistent with the fundamental justification

for not applying'newly enunciated constitutional principles

retroactively, this latest approach has obviated at least

one administrative problem, the treatment of retrials.”;

Desist v. United States, 394 U. S. 244, 253 (1969), which

held Katz v. United States, 389 U. S. 347 (1967), applicable

_- only to.wiretaps occurring after Katz: “Both the deterrent

purpose of the exclusionary rule and the reliance of law

_ enforcement officers focus upon the time of the search,’ not

any subsequent. point in the prosecution, as the relevant

date.”; and Stovall v. Denno, 388 U.S. 293, 300-301 (1967),

| which held United States v. Wade, 388 U. S. 218 (1967) and

- Gilbert v. California, 388 U.S, 263 (1967), applicable only

to cases where the confrontatioys occurred after the deci-

' stons in these cases. Also cf. ited States v. Dickerson,

413 F. 24.1111, 1117 (7th Cir. 1 69), which held, in recog-

nition of the above trend, that.a new rule applying Miranda

to questioning of a taxpayer would be applied prospectively

only to interrogations taking place after the date of the de-

cision, and State v. Brown, 279 A. 2d 554 (Conn. 1971),

‘ where the court, recognizing the same line ‘of authority,

held that Griffin v. California, 380 U. S. 609 (1965), would

not.be applied to a defendant’s 1961 trial despite the United

States Supreme Court decision holding that it must be-so

applied since defendant’s conviction was not yet “final”

on the date of Griffin. Cf. O'Connor v. Ohio, 385 U. S. 92

_ (1966)... The court stated that although the O’Connor case ~

had never been expressly overruled, its foundation had

been inexorably wiped out by the later cases and the Su-

preme Court would no longer follow it. The court quoted

the following language from Rowe v. Peyton, 383 F. 2d 709,

” 714 (4th Cir. 1967), aff'd, 391 U. S. 54 (1968):. “This court,

of course, must follow the Supreme Court, but there are

occasional situations in which subsequent Supreme Court

opinions have so eroded an older case, without explicitly

overruling it, as.to warrant a subordinate court in pur-

suing what it conceives to be a clearly defined new lead ~:

Bs Ait SR AUR ANC

‘retroactive the right to jury : ‘

’ set forth in Duncan v. Louisiana, 391 U. S. 145 (1968) and Bloom v. |

_ decisions in Marchetti v. Unit

91 ; : e

from the Supreme Court to a conclusion inconsistent with

an older Supreme Court;case. ”

Thus, the only question remaining is whether an “ac-

tivity-date” rule of prospectivity is not preferable from

every standpoint to a “trial-date” rule in the Miranda con-

text. Every leading commentator has so concluded,‘ and,

indeed, on many occasions the members of even the Penn-

sylvania Supreme Court have uniform)y expressed pre-

cisely this view. See Note 2 supra. Thhs, if, as the Com-

monwealth suggests, a reappraisal is required-in this area.

of the Jaw, it need not be an “agonizing” reappraisai; the

question should, in-fact, be quite easy. For ramos d every

consideration points to the adoption . of an “activity- -date”

rule in this case.

3 Nothing in DeStefano v. dice 392 U. S. 631 (1968) or Mackey v.

United States, ——- U. S. ——; 91 S. Ct. 1160 (1971), suggests that the

Court has eccasionally preferred a “trial-date” rule over an “occur-

rence-date” rule, for in both cases the relevant “occurrence” was the

trial itself. such that the two dates coincided. DeStefano held non-

ial in serious criminal contempt cases

Illinois, 391 U. S. 194 (1968); Mackey held nonretroactive the Court’s

States, 390 U. S. 39 (1968) and Grosso

v. United States, 390 U. S. 62) (1968), which held that, although the

federal gambling tax provisions involved were not unconstitutional

on their face, an accused would have.a valid defense at triak to the

introduction af any such tax returns. Cf. 390 U. S. at 61.

4 See Schaefer, The Control of “Sunbursts”: Techniques of Prospec-

tive Overruling, 42 N. Y. U. L, Rev. 631, 646 (1967) (“A police officer

conducting an interrogation prior to Miranda could have complied

fully with the then applicable’ constitutional standards but still have

failed to comply with the newly added requirements. ‘The earlier con-

stitutional standards were relied upon, not at the moment that the

trial commenced, but at the moment that the interrgation took -

place.”); Fairchild, Limitation of New Judge-Made Law to Prospective

Effect Only: “Prospective Overruling” or “Sunbursting,” 51 Marq. L.

. Rev. 254, 266. (1968); Johnson, The Supreme Court of California, 1967-

1968; Foreword: Retroactivity ‘in Refrospect, 56 Cal. L. Rev. 1612, 1621

(1968); Mishkin, The Supreme Court, 1964 Term—Foreword: The Hig

Court, The Great Writ, and the Due Process of Time and Law, 79

Harv. L. Rev. 56, 96-97 (1965); and Schwartz, Retroactivity, Reliabil-

ity, and Due Process: H’ Reply to Professor Mishkin, 33 ‘U. Chi. L.

Rev. 719, 763-64 (1966).

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Looking, first, at the three basic desiderata used by the ~

United. States Supreme Court in determining the funda-

mantal retroactivity issue: the Court has repeatedly stated

that,

' The criteria guiding resolution of the question im-

plicate: (a) the purpose to be served by the new stan-

dards; (b) the exterft of the reliance by law enforce-

- ment authorities on the old standards; and (c) the

effect on the administration of justice of a retroactive -

application of the new standards. Foremost among

these factors is the purpose to be served by the new

constitutional rule. |

Desist v. United States, 394 U. S. 244, 249 (1969).

The Court in Johnson, in considering the first of the above

elements, had no difficulty in concluding that the purposes

of the new rules in Escobedo and Miranda would not be

meaningfully served by applying them to the past. The

Court emphasized in this respect that the new rulings did

not pertain directly to the reliability of confessions in the

way that their prior rulings on coerced confessions did.

Rather, the decisions were directed at future. police con-

duct. Thus, the purposes of Escobedo and Miranda would

not be advanced by retroactive application since the “mis-

conduct” of the police prior to Escobedo and Miranda had

already occurred and would not be corrected by setting —

free the prisoners involved, since the only police conduct —

which can be deterred is future conduct. The Court next

‘ dealt with the factor of reliance:

Prior to Escobedo and Miranda, however, we had ex-

pressly declined to condemn an entire process of in-

custody interrogation solely because of such conduct by

the police. Law enforcement agencies fairly relied on

these prior cases, now no longer binding, in obtaining

incriminating statements during the intervening years

preceding Escobedo and Miranda. (Citations omitted;

emphasis added.)

384 U.S. at 731. Finally, the Court stated that retroactive

application of Miranda and Escobedo would very seriously -

i Te mem -- e

disrupt the administration of criminal justice. Cf. 384

U. S. at 520-21.

In-light of the above three criteria, then, whst-can be

_ Said as to the relative merits of a “trial-date” rule as op-

- posed to an “occurrence-date” rule? It becomes obvious _

. that a “trial-date” rule bears virtually no relation (or only

a most haphazard relation) to the three criteria used by

the Court in determining the retroactivity question. The

time of trial will often, as iri the instant case, vary fortui-

tously. As stated by Justice Schaefer, “Too many irrele-

vant considerations, including the common cold, bear upon

the rate of progress of a case through the judicial system.”

Schaefer, The Control of “Sunburst:’: Techniques of Pro-

spective Overruling, 42 N. Y. U. L. Rev. 631, 645 (1967).

Under a “trial-date” rule, -the availability of Miranda “will

ultimately depend on, such frustratingly inconsequential “

matters as the congestion of trial dockets and attorney's

schedules; in sore cases codefendants whose trials were

severed will receive radically «different treatment.”

Schwartz, Retroactivity,; Reliability and Due Process, 33 U.

Chi. L. Rev. 719, 764 (1966). These serious inequities are

totally unnecessary. An “occurrence-date” rule will not ~

only fully satisfy the purpose of Miranda, it will also accord

with the “reliance” concept, since the earlier case law was

* relied upon not when the trial commenced, but when the

interrogation took place. See Schaefer, supra, at 646. Also

cf, Desist v. United States, 394 U. S. 244, 253 (1969).

It might be contended that the only “reliance” that

should be considered is that of the prosecution at the time

of trial. But such a position would have several insur-

mountable difficulties: it would neglect the justifiable

reliance of police officers; it would bear no relation what-

ever to the purpose of Miranda, which was designed to con-

trol the future conduct of the police; and finally, it would

run directly contrary to the holding of this Court in Jenkins

v. Delaware, 395 U. S. 213 (1969), which held that Miranda

did not apply to retrials occurring after the date of Miranda.

24 <

For if this Court had been concerned only with the reliance

by the prosecution at the time of trial, then it would have

applied Miranda to retrials: But it did not.*

peals (or trials) may have occurred at the same time. This Court was

not there concerned with the kind of on-going incongruities referred

to here.

from Jenkins, 395 U. S. at 219-20: |

381 U. S. 618, 85 S. Ct. 1731 (1965). As we pointed out, however,

that choice “would [have] impose[{d] an unjustifiable burden on

the administration of justice.” 384 U. S. at 733, 86 S. Ct. at 1781.

ciety's

tained not be necdiessly aborted, we selected the commencement

of the trial. Implicit in this choice was the assumption that, with

few exceptions, the commission and investigation of a crime would

be sufficiently proximate to the commencement of the defendant's

trial that no undue burden would be imposed upon prosecuting

authorities by requiring them to find evidentiary substitutes for

statements obtained in violation of the constitutional protections

afforded by Miranda. (Emphasis added.)

As the suppression hearing judge stated in dealing with this language:

“The recognition of a situation is obviously not synonymous with its

acceptance. It is a non-sequitur to conclude that, because the Court

anticipated that there would in some instances be cases where delay

would create an injustice, this necessarily requires the conclusion that

the Court accepted this result. In the context in which this particular

statement was made the Court was attempting to emphasize the lack

of disruption to the administration of justice rather than consider

those situations where delay had created a problem. Attempting by

torturing the language of Johnson and Jenkins to find a specific an-

‘

Lastly, although the foregoing discussion is more than

sufficient to show that Miranda should not apply where the

questioning occurred pre-Miranda, one final consideration

must be mentioned. And that is the matter of respect for

- law. Although not precisely quantifiable, this is a prob-

lem of increasing concern today and the decision in this

case bears very heavily on this issue. The Commonwealth

submits that the application of a_rule such as Miranda,

which does not deal with the integrity. of the truth deter-

mining process,®. to a case where the officers who are ex-

pected to have acted upon it had no way.of knowing (in

1963) of its existence tends to create disrespect for that

law—disrespect by the police (the very persons who are

expected to uphold the law on a day to day basis),’ by

attempted to explain its departure from its basic premise that the new

rule should be for the benefit of ‘future defendants’ stating that the

compatible with the result urged here by the defense” (Appendix C

at 67-68).

* Cf. Johnson, supra, at 730 and Harris v. New York, —— U. S. ——,

91 S. Ct. 643, 645 (1971): “It does not follow from, Miranda that evi-

dence inadmissible against an accused in the prosecution’s case in “

* chief is barred for all purposes, provided of course that the trust-

worthiness of the evidence satisfies legal standards.” (Emphasis added.)

7 Studies on the impact of Miranda indicate that detectives and -

police already have “a sort of “What's the use’ feeling” as a result of

Miranda, 76 Yale L. J. 1519, 1610 (1967): “Some of the detectives re-

sponded to Miranda by taking a more negative attitude toward their

26 :

lawyers, by everyone, éven: lawmakers.*, In fact, sound

policies of constitutional decision-making rooted in the

very essence of the concept of “rule of law” dictate that an

“activity-date” rule be adopted by this Court. Cf. L. Fuller,

The Morality of Law (1969), p. 39. |

In summary, the Commonwealth respectfully urges that

. this Court act to wipe out an unjust “rule” that has existed

for too long in this nation. There is abundant reason to do

so and virtually none for not doing so.

Further, this Court should not countenance any argu-

ment to the effect that if we abide by the past unjust rule,

we will not be releasing very many confessed mur- -

derers, for just as. this Court and others have been vitally

concerned about the rights of even one individual: in the

face of protests by the state that a. huge financial burden. 7

would be imposed by the recognition of those rights, so too

the fact that only a few murderers or rapists may go free

should not be sneered at, especially when it would all be

A conceivable police reaction to an adverse decision in this case

might well be that, “If we’re wrong even when we're right, then to

heck with trying to act according to the rules; we might as well do

what we feel like and lie about it later at trial.” Cf. State v. Travis,

supra, note 2.

* Congress, in the Omnibus Crime Control and Safe Streets Act of

1968, has. already demonstrated its dissatisfaction with the restraints

that Miranda has imposed and has clearly indicated its intent to sup-

plant the Miranda decision. See 18 U. S. C. §3501(b). Also cf. United

States v. White, 417 F. 2d 89 (2d Cir. 1969). The primary impetus be-

hind this legislation was the testimony of numerous judges, district

attdrneys, and legal scholars that the Miranda decision was. an exces-

sive broadside basef on a misreading of the Fifth Amendment and

was debilitating to proper police efforts to solve an increasingly se-

vere crime problem in the country. See 1968 U. S. Code Congressional

and Administrative News, pp. 2112-38. Another decision setting free

a four-time murderer needlessly can only justifiably exacerbate the

feeling that the American criminal law system is drowning in a “sea of

legalisms.” Graham, “Bar Speakers Critical of Warren Court,” The

New York Times, p. 1, col. 3, 4 (July 17, 1971).

Even jurists have been exasperated by the Johnson dicta and have

reflected this frustration in their interpretations of the law. See some

of the aries rulings cited in footnote 2, supra.

., 27

to no purpose—in no way. furthering the ends of Miranda.

The people of Pennsylvania, and of this nation, have a

_ Vital interest in even one case which is entitled to full

recognition. Moreover, there are indications that defend-

ant’s position is not all that unique. See Rosenberg, Com- .

petency for Trial—Who Knows Best?, 6 Cr. L. Bull. 577,

578 (1970): “It has been projected that in the nation as a

whole ‘at any given time about 15,000 persons are hospital-

ized awaiting return for trial or discharge.’” See also the

numerous cases from 1966 to 1971 where the precise issue

in this case has arisen, including 12 from Pennsylvania

alone (footnote 2 supra).

We cannot now, and never should have, abided the re-

lease of multiple murderers without ( trial and without any

rational reason of law.

Il.

AS A RESULT OF THE OMNIBUS CRIME CONTROL

AND SAFE STREETS ACT OF 1968, 18 U. S. C. SEC.

3501(b), RESPONDENT'S CLEARLY VOLUNTARY

CONFESSIONS SHOULD PROPERLY BE ADMIS-

_ SIBLE AT HIS TRIAL.

The Supreme Court of the United States in Miranda v.

Arizona, 384 U. S. 436 (1966), ruled that no confession

could be introduced into evidence at any trial unless very

detailed warnings were given and waivers obtained in ac-

cordance with that decision.

The Omnibus Crime Control and Safe Streets Act, passed —

by the Congress, signed by the President, and effective on

June 19, 1968, revised the standards for the admissibility

of confessions in Federal Courts, so that a confession can

be introduced into evidence if it is voluntarily given con-

sidering all the surrounding’ facts. P. L. 90-351, Title II,

82 Stat. 210, 18 U. S. C. §3501:

ADMISSIBILITY OF CONFESSION

(a) In any criminal prosecution brought by the

United States or by the District of Columbia, a confes-

sion, as defined in subsection (e) hereof, shall be ad-

missible in evidence if it is voluntarily given. Before

such confession is received in evidence, the trial judge

shall, out of the presence of the jury, determine any

issue as to voluntariness. If the trial judge deter-

mines that the confession was voluntarily made it shall _

be admitted in evidence and the trial judge shall per-

mit the jury to hear relevant evidence on the issue of

voluntariness and shall instruct the jury to give such

weight to the confession as the jury fools it deserves

under all the circumstances.

(b) The trial judge in determining the issue of vol-

untariness shall take nto consideration all the cir-

cumstances surrounding the giving of the confession,

including (1) the time elapsing between arrest and

arraignment of the defendant making the confession,

if it was made after arrest and before arraignment, (2)

whether such defendant knew the nature of the offense

with which he was charged or of which he was sus-

pected at the time of making the confession, (3)

whether or not such defendant was advised or knew

that he was not required to make any statement and

that any such statement could be used against him, (4)

whether or not such defendant had been advised prior

to questioning of his right to the assistance of counsel;

and (5) whether’ or not such defendant was without

the assistance of counsel when questioned and when

giving such confession.

_ The presence or absence of any of the above-men-

tioned factors to be taken into consideration by the

judge need not be conclusive on the issue of volun-

tariness of the confession.

This law in effect seeks to overrule a doctrinaire inter-

pretation of Miranda that has prevailed to this date by

permitting introduction in evidence of clearly voluntary

statements made by an accused during custodial interro-

_ gation without the detailed warnings and waivers. The

new act is in total harmony with the Fifth Amendment

of the United States Constitution, which provides in perti-

nent part that: “no person . _ shall be compelled in any

criminal case to be a witness against himself.” It is also -

in complete accord with the “due process” clause of the

Fourteenth Amendment, which is applicable to the states.

Although the Pennsylvania Supreme Court in the instant

case did not discuss the issue of the applicability of this

legislation, it may be assumed that-that court found it

inapplicable for the reason (stated in a prior case) that

it “relates only to a ‘criminal prosecution brought by the

United States or by the District of Columbia.’” Common- —

wealth v. Bennett, 439 Pa. 34, 39 (1970). But even though

this legislation applies by its terms only’ to federal’ prose-

cutions, it nevertheless expresses the clear idea that Mir-

anda, in terms of the particular strictures there set forth,

is not constitutionally binding on either federal or state

courts. Cf. Bolling v. Sharpe, 347 U. S. 497 (1954). The |

Court in Miranda itself stated:

. [W]e cannot say that the Constitution neces-

sarily requires adherence to any particular solution for

the inherent compulsions of the interrogation process

7 as it is presently conducted.

384 U.S. at 467. ;

The Commonwealth submits that the enactment of the

above 1968 statute creates the opportunity for this Court

to reconsider whether the hypertechnical requirements of

Miranda are indeed constitutionally required by the “due

process” clause of the Fourteenth Amendment. The basic

issue involved is whether a rule of law that has not been

effective in assuring voluntariness of confessions® and that

®Cf. note, Interrogations in New Haven: The Impact of Miranda,

76 Yale L. J. 1519, 1536, 1563 (1967).

has not been accepted as a satisfactory approach to the

problems of confessions by Congress and the general pub-

lic,’ is somehow a necessity of “due process.” - The Com-

monwealth respectfully submits that it is not. As-stated

‘by. this Court in.a different context in United States v.

- Augenblick, 393 U. S. 348 (1969) (Mr. Justice a

writing for a unanimous Court):

But apart from trials conducted in violation of ex-

- press constitutional mandates, ‘a constitutionally un- .

fair trial takes place only where the barriers and safe-

guards are so relaxed or forgotten, as in Moore v.

Dempsey, supra, that the proceeding is more a spec-

tacle (Rideau v. Louisiana, 373 U. S. 723, 726, 83 S.

Ct. 1417, 1419, 10 L. Ed. 2d 663) or trial. by ordeal

(Brown v. Mississippi, 297 U. S. 278, 285, 56 S. Ct. 461,

464, 80 L. Ed. 682) than a disciplined contest.

Id. at 356.

No such breakdown of “due process” occurs when a

clearly voluntary confession is admitted into evidence

against,an accused without the full panoply of “Miranda”

warnings. To apply an exclusionary rule’ to such a case

via the vague contours of the due process clause is to mis-

conceive the appropriate function of that provision.

The Miranda ruling has not worked out well or, at least,

as contemplated. It has not led to fewer cases dealing with

the voluntariness of confessions; rather, it has led to a pro-

liferation of cases dealing with innumerable hypertechni-

cal questions of law, questions of law that have nothing

to do with the true voluntariness of the confession. This

situation is intolerable. To free a confessed four-time

murderer for such’ a ‘technical error (even assuming the

police had been aware of: the Miranda requirements in

1963) is simply preposterous.

Judge Friendly, in a recent article, well summarized the

feeling of many jurists, lawyers, and lawmakers in regard

. i

10 See Appendix E.

Pe 31

' f : -

to exclusionary rules such as Miranda (and Mapp v. Ohio,

367 U. S. 643 (1961)"') which have nothing to do with the

reliability of the truth-determining process or otherwise

concern fundamental due process rights.’*

Legal history: has many instances where a remedy

initially serving a felt need has expanded bit by bit,

without much thought being given to any single step,

until it has assumed an aspect so different from its

- origin as to demand reappraisal—agonizing or not.

Friendly, Is Innocence: Irrelevant? Cqflateral Attack on

‘Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).° *

In short, the Commonwealth respectfully urges this

'. Honorable Court to re-examine its Miranda decision in

light of the new Congressional directive in this area. .

11 Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U. S. 388, 413-20 (1971) (Burger, C. J., dissenting) and

Coolidge v. New Hampshire, 403 U. S. 443, 491-91, 493, 496-500, 510

- (1971) (Harlan, J., concurring; Burger, C. J., dissenting in part and

concurring in part; Blackman, J., id.; and Black, J., id.).

12 Compare, e.g., Rochin v. California, 342 U. S. 165 (1952) and

. Price v. Georgia, 398 U. S. 323 (1970).

CONCLUSION.

- ‘For the foregoing reasons, the petition for writ of certi-

orari should be granted.

"Respectfully submitted,

JAMES T. RANNEY,

Assistant District Attorney,

MILTON M. STEIN, ~—

Assistant District Attorney,

Chief, Appeals Division,

JAMES D. CRAWFORD,

Deputy District Attorney,

RICHARD A. SPRAGUE,

First Assistant District Attorney,

ARLEN SPECTER,

District Attorney.

! APPENDIX “A. wi

IN THE QUARTER SESSIONS COURT OF THE

; COUNTY OF PHILADELPHIA.

- CoMMONWEALTH OF PENNSYLVANIA | December Sessions,

, vs. | 1963.

PauL D. Ware. Nos. 328, 343, 345, 349.

OPINION.

J AMIESON,

_ Before us is the petition of the Commonwealth to remove

the nolle prosequi heretofore entered on four bills of indict-

ment, each charging the defendant with murder.

HISTORY.

On October 3, 1963, shortly following his arrest on Sep-

tember 27, 1963, defendant, by oral and written statements,

implicated himself in four separate murders. On December

12, 1963, after being indicted, defendant was declared in-

competent to stand trial and committed to Farview State

Hospital. Slightly more than three and one-half years later,

around July, 1967, defendant was declared competent.

Court-appointed counsel \Oanker 3 moved to suppress

defendant’s ‘statements of October 3, 1963, on the ground

that they were obtained | in violation of the Miranda rule.

After hearing, the Honorable Robert N. C. Nix, Jr., on May

23, 1968, granted defendant’s motion. ‘Thereafter, on De-

cember 12, 1968, the district attorney moved to nolle ~

)

34 °

the homicide bills for the reason that without de-

fendant's statements, the Commonwealth could not prove

its case. Defendant offered no objection and we approved

the nolle prosequi. |

On August 11, 1969, approximately eight months later, the

district attorney petitioned for removal of the nolle prosequi

on the bills of indictment. The matter was argued before

us on October 24, 1969. All briefs have now been filed and

' the issue is ripe for decision.

DISCUSSION.

The Commonwealth has no recently obtained evidence to

justify. bringing defendant to trial. It is the Common-

. wealth’s contention, however, that the law is now such that

* defendant's confessions should not be suppressed.’ Accord-

ingly, the aim of the Commonwealth is to submit a petition

for reargument of the suppression order to Judge Nix. First,

however, the Commonwealth must overcome defendant's

Since Judge Nix has heard and determined the’ suppres-

sion questian, we will not deal with the merits of the Com-

Sit Cpr Companions So shes to geneead. aleen Sener

Defendant asserts that Klopfer v. North Carolina, 386 U.S.

213 (1967), controls the decision in this case. Klopfer held

that an unjustified postponement of trial through the use

of nolle prosequi of an indictment over defendant's objec-

tion is a viplation of his right to a speedy trial. However,

as will be seen, that holding only applies where the defend-

ant has demanded trial.

The constitutional right to a speedy trial is a right per-

sonal to the accused and may be waived by him. 57 A. LR

2d 307; Danziger v. U. S., 161. F. 2d 299 (9th Cir. 1947),

cert. denied, 332 U. S. 769; Commonwealth v. Smihal, 182

Pa. Super. 232 (1956). A defendant must demand trial or

oppose continuances-to claim the protection of the Sixth

Amendment right, otherwise the defendant will be deemed

to have waived the right. Commonwealth v. Meehan, 198

he did not oppose the entry of the nolle prosequi (N. T.

Dec. 12, 1968, p. 8). Thus, there is no question that the de-

fendant has waived any complaint he may have about denial

of his constitutional right to a speedy trial prior to Decem-

ber 12, 1968. In addition, defendant has not since that time

demanded trial. The right to a speedy trial was not de-

signed to permit an accused to stand idly by when trial is

delayed in the hope that he may never be brought to trial.

See, United States v. Haller, 333 F. a6 687 (28 Ce. 1964),

cert. denied, 379 U. S. 921 (1964).

Even if defendant's inaction since December 12, 1968,

would not be deemed a waiver of his right to a speedy trial.

we hold that his right has not been violated.

“The right of a speedy trial is necessarily relative.

It is consistent with delays and depends upon circum-

stances. It secures rights to a defendant. It does not

preclude the rights of public justice.” Commonwealth

v. Stukes, 435 Pa, 535, at 545 (1969). 4

is pertinent to note that defendant regained his competency

to stand trial while the murder charges were still outstan@l-

ing against him and before his statements were suppressed. |

_ It is contended that the district attorney lacked diligence

in inquiring only once, on March 22, 1965, about defend-

ant’s competency to stand trial while defendant was at Far-

view. If this is correct, it is a fact which defendant

have raised when the nolle prosequi on the four bills was

originally entered, but he did not. On the other hand, if

the district attorney made no inquiry at all, we fail to see

what relevance this would have in determining the Com-

monwealth’s diligence in bringing the case to trial. Defend-

ant’s competency for trial is a matter to be determined by

the Court aided by the expert opinions of the psychiatrists

having defendant in their care.

As we look at this case, the prime issue is whether the

Commonwealth is correct in asserting that there has been a

2 Defendant was transferred from the Maximum Security Facility

at Farview State Hospital to the less restrictive security facility at

Norristown State Hospital in July, 1969.

change in the law. We do not decide this but take only the

preliminary step of determining that it is in the interest of

justice that we vacate the nolle prosequi previously entered

on the bills and give the parties the opportunity to argue

the suppression question. We hold that defendant has not

been denied his right to speedy trial.

If the Commonwealth fails in its efforts before Judge

Nix, defendant can promptly move for dismissal of the

charges. Pa. R. Crim. p. 316.

ORDER.

AND NOW, to wit, tnis 11th day of December, 1969, the

Commonwealth’s Motion to remove the nelle prosequi here-

tofore entered on bills of indictment 328, 343, 345, 349, as

* of December Sessions, 1963, is herewith granted. -

_ BY THE COURT:- :

/s/ D. DONALD JAMIESON,

I HEREBY CERTIFY the foregoing to be a true and cor- -”

post cape Gf Che erlatnall 2... cccccccceccccccce as filed of, .

record in this office. 7

Commoxweatta ©) DECEMBER TERM, 1963

vs. NOS. 328, 343, 345, 349

Paut Ware | CHARGE: MURDER

NIX, J. Filed: June 19, 1970.

x ;

The issue presented for decision is whether the Court has .

the power to vacate its Order of Suppression entered May

23, 1968, and not appealed from, in order to permit the

Commonwealth to present evidence and argument in oppo-

sition to the application for suppression.

‘HISTORY.

On October 3, 1963, the defendant, during custodial inter-

rogation, made, statements implicating ~himself_in four

separate robbery-murders occurring August 81962; No-

vember 29, 1962; April 22, 1963; and~July 12, 1963. On

’ December 12, 1963, after his indictment on the aforemen-

tioned and related charges, the defendant ‘was declared ip-

competent to stand trial and it was directed’ that he be

committed to Farview State Hospital. In October, 1967,

defense counsel filed application for the suppression of all

custodial statements both written and oral. On May 23,

1968, the matter came before this Court for a hearing on

the Application to Suppress. At a side bar conference both

counsel for the defense and the Commionwealth agreed that

the application should be granted in that the statements .

were elicited in violation of the set forth in Mir-

anda v. Arizona, 384 U. S. 436, 86 S. 602 (1966). With

the agreement of counsel this Court entered the Order of

- Suppression without the benefit of testimony. This Court

was assured by counsel that in all probability, from the

medical information available, the defendant’s condition

‘would not improve to the extent that would justify his

release from confinement under the Mental Health Act of

1966. ,

On December 12, 1968, upon request of the Common-

wealth, the Honorable D. Donald Jamieson entered a nolle

prosequi of the four murder-bills in question. On February

21, 1969, Judge Jamieson ordered that the Commonwealth

‘proceed to trial on the remaining burglary\and robbery

charges, after being advised by court psychiatrists that the

defendant was in partial remission and then competent to

stand trial. On April 29, 1969, Judge Jamigson granted the

Commonwealth’s request to nolle prosequi the remaining

bills and the defendant was committed to Farview State

Hospital under a civil commitment:

It was not until August of 1969 that the Commonwealth

first questioned the applicability of the Miranda Rule to the

instant case and moved for the removal of the nolle

prosequi. On December 11, 1969, Judge Jamieson granted

the request. This Court is now being petitioned to vacate

the Order of Suppression and to allow a rehearing or the

Application to Suppress. '

DISCUSSION.

The crucial issue is whether the Court has the power to

grant the request to vacate its Order. In an effort to secure

finality in legal proceedings the common law has long rec- -

ognized the principle that the Court’s power to modify,

amend, or vacate an order, decree, or judgment, ceases with

the expiration of the term*in which the order, decree, or

' judgment was entered. Cariin v. Robinson, 2 Watts 379-80; .

Stephens v. Cowan, 6 Watts 513; Mathers v. Patterson, 33

Pa. 485; Commonwealth v. McCafferty, 124 Pa. 200, 76 Atl.

743 (1889); Commonwealth v. Mackley, 380 Pa. 70, 110 A.

2d 172 (1954). By statute, Act of June 1, 1959 P. L. 342,

No. 70, §1,' this rule was adopted and modified only. slightly -

to extend the period for thirty days from the entry of the’

order, decree, or judgment where the term would have ex-

pired before that period. Commonwealth v. Vivian, 426 Pa.

192, 231 A. 2d 301 (1967); Commonwealth ex rel. Taylor v.

Myers, 208 Pa. Super. 417, 222 A. 2d 472 (1966); Common-

wealth v. Testa, 203 Pa. Super. 201, 197 A. 2d 496 (1964);

' Commonwealth v. Zelnick, 202 Pa. Super. 129, 195 A. 2d

171, cert. denied 377 U. S. 1006 (1963). In addition to

attempting to gain finality in legal proceedings, the rule is

also directed against those who would attempt to nullify the

limits for appeal fixed by statute by reviving the original

action after the appeal period has expired. Philadelphia °

Transportation Co. v. DiFrancisco, 362 Pa. 326, 66 A. 2d 254

(1949): Commonwealth v. Irwin, 345 Pa. 504, 29 A. 2d 68

(1942); Appeal of Claredon V.F.W. Home Assoc., 167 Pa.

Super. 44, 75 A. 2d 171 (1950). However, a pertinent ex-

ception to this rule is that it does not apply to interlocutory

orders. Markofski v. Yanks, 297 Pa. 74, 146 Atl. 569 (1888);

Coy v. Porter, 17 S. & R. 59; 34 C. J. 216.

We, therefore, must determine whether an Order of Sup-

pression is for this purpose a final or interlocutory order.

While it is true that this order was an appealable one,

Commonwealth v. Gaskins, 430 Pa. 298, 244 A. 2d 662

(1968); Commonwealth v. Fisher, 422 Pa. 134, 222 A. 2d

115 (1966); Commonwealth v. Bosurgi, 411 Pa. 56, 190

2d 304, cert. denied 375 U. S. 910 (1963); in our judgment

it is not final within the contemplation of the rule restrict-

ing the amendment of orders and decrees after the term.

The Act of June 1, 1959, supra, clearly did not change the

. prior law as to the orders, decrées, and judgments to be

112 P. S. 1032.

covered by the Section: “In any civil, criminal or equita-

ble proceeding in which the court has heretofore been

‘ vested with the power... to.alter, . . . only during the |

term... .” . :

Although the appealability of an order, without specific

statutory authority, is usually indicative of the fact that

it is final, thre are instances in our law where interlocu-

tory orders are appealable where for ali practical purposes,

they present a somewhat final aspect. Commonwealth v.

Novak, 384 Pa. 237, 120 A. 2d 543 (1956), cert denied 77

S. Ct. 35, 352 U. S. 825. Commonwealth v. Kilgallen, 379°

Pa. 315, 108 A. 2d 780 (1954). Paige v. Smith, 130 Pa.

Super. 536, 198 Atl. 812 (1938). In the Bosurgi decision

supra, the Sup Court recognized that the Order. of’

Suppression was, in fact, not final in the traditional sense,

but permitted the Commonwealth the right ef appeal be-

cause of their limited right of review after verdict. To

deprive the Commonwealth of immediate review of the

Order of Suppression would, in fact, deny appellate’ review

of the Suppression Order in the event of an - adverse

verdict. -

An order is final when: it terminates the litigation be-

tween the parties to the suit. Sinking ‘Spring Water (Co. v. —

Gring, 257 Pa. 340, 101 Atl. 732 (1917); Pennsylvania Steel

Company’s Appeal, 161 Pa. 571, 29 Atl. 294 (1894). Fur-- -

ther, in each instance where the rule was applied in crim-

inal cases limiting the power of the.Court beyond the ex-

piration of the term it concerned a judgment of sentence.

- See e.g., Commonwealth v. Vivian, 426 Pa. 192, 231 A. 2d

301 (1967).* It is, therefore, the opinion of this Court that

the rule is inapplicable in the instant case since the Order —

in question was interlocutory.

Having determined the Court has the power to modify

or vacate its original order, the question now arises as to

2 Commonwealth v. Testa, 203 Pa. Super. 201, 197 A. 2d 496 (1964); ~

Commonwealth v. Zelnick. 202 Pa. Super. 129, 195 A. 2d 171, cert.

denied, 377 U. S. 1006 (1963); Commonwealth ex rel. Taylor v. Myers,

208 Pa. Super. 417, 222 A. 2d 472 (1966).

42 .

whether or not the Court should exercise its discretion in

favor of the Commonwealth’s request. One basis sug-

gested by the Commonwealth for their belated attempt to

question the propriety of the initial order is that in their —

view the Miranda decision, supra, has been significantly

modified by the Omnibus Crime Control and Safe Streets

Act, P. L. 90-351, Title II, 82 stat. 210, 18 U. S. C. §3501..

This contention has been tejected by our Supreme Court in

Commonwealth v. Bennett, —— Pa. ——, 264 A. 2d 706

(1970). Justice Eagan, speaking for the majority, suggests

that the Omnibus Act applies only to criminal prosecution

-in Federal Courts by the U. S. Government or District of

Columbia, and, therefore, not applicable to state prosecu-

tion.’ The secand ground suggested by the Commonwealth

we feel has more merit. They argue ‘that the rule laid

down in Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct.

_¥772 (1966), has been demonstrated to be subject to excep-

tion. See Jenkins v.-Delaware, 395 U. S. 213, 87 S. Ct. -

1677 (1969).** It is the Commonwealth’s contention that

where the statements were elicited prior to the Miranda

decision, supra, and trial was delayed by virtue of the in-

capacity of the defendant until after June 13, 1966, the

defendant should not derive the benefit from this delay.

We,-at this paint, are not called upon to pass on this theory,

we merely recognize that it is a contention with substance

justifying the exercise of discretion to permit the Common-

- wealth to elicit additional testimony to establish for the

record the reason for the delay of the trial.

We are further persuaded to grant the Commonwealth’s

request. because we find no prejudice to the defendant.

2 If, in fact, the Omnibus Crime Control and Safe Streets Act. supra

relaxes the standards for custodial interrogation announced in Mir-

anda. supra, it has yet to be determined whether such relaxation is

in violation of the U. S. Constitution.

4 While the majority in Jenkins, supra, attempted to distinguish be- -

tween “trial” and “re-trials” we are inclined to —— Justice Harlan’s

view that such a distinction is specious.

~~,

Since the original order was entered by agreement without

testimony, this Court will permit a full Suppression Hear-

ing. The defense will be permitted tq introduce testimony

questioning the voluntariness of the statements as well as

the denial of the assistance of counsel. The defendant still

has available to him the allegation of the denial of a speedy

trial if the facts support such a contention. Were we to

rule otherwise, the Commonwealth would be foreclosed

from further prosecution of these most serious charges

without the benefit of having the issues fully litigated.

We are not unmindful of the Commonwealth's original

agreement to the entry of the order and their tardy -re-

quest that it be vacated.* In an action between private

individuals such a record would justify precluding a party

from further litigation of the cause. Here, however, we can-

not and will not penalize the citizens of this community, be-

cause of. the dereliction of their District Attorney. The

seri of these charges demands that the issues in this

-Hitigation # fally aired and that both sides be given a fll

opportunity to exhaust all of their remedies. —

ORDER.

. AND NOW, to wit, this 19th day of June, 1970, the Order

of this Court entered May 23, 1968, is hereby vacated.

Further, it is ORDERED that a Suppression Hearing be

held on the defendant's Application to Suppress on June

25, 1970 at 10:00 A.M. in Room 243, City Hall. Leave is

granted to the defendant to amend their petition to add any

additional grounds for suppression that they wish the Court

to rule upon.

: BY THE COURT:

NIX, «J.

3 The District Attorney at the time of the original application had.

- the opportunity to raise the present objection.

I oo

APPENDIX “C.”

® 0

IN THE COMMON PLEAS COURT OF PHILADELPHIA —

COUNTY, TRIAL DIVISION—CRIMINAL SECTION. ,

COMMONWEALTH December Term, 1963:

vs. ~~ Nos. 328, 343, 345, 349:

PauL WARE. Charge: Murder.

; OPINION.

NIX, J. _* . FILED: November 13, 1970.

_ HISTORY OF CASE.

- On September 27, 1963, Paul Douglas Ware was arrested

. and questioned in connection with a burglary. He then

‘was questioned about some other crimes and on October 3,

1963, during custodial interrogation made statements im-

plicating himself in four separate robbery-murders which

occurred in 1962 and 1963: On December 12, 1963, after

his indictment on the aforementioned and related charges,

the defendant was declared incompetent to stand trial and

it was directed that he be committed to Farview State Hos-

pital. In October, 1967, defense counsel filed application

‘for the suppression of all custodial statements, both written

and oral. On May 23, 1968, the matter came_before this

Court for a hearing on the Application.to Suppress. At

a sidebar conference both counsel for the defense and the ~

mmonwealth agreed that the application should be

ted in that the statements -were elicited in violation of

thestandards set forth in Miranda v. Arizona, 3&§ U. S.

436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). With the

agreement of counsel this court entered the Order of Sup-

pression witheut the benefit of testimony. This Court was.

assured by counsel that in all probability, from the medical

information Sp feo the defendant’s condition would not

improve to the extent that would justify his release from

confinement under the Mental Health Act of 1966.

On December 12, 1968, upon request of the Common-

_wealth, the Honorable D. Donald Jamieson entered a-nolle

prosequi of the four murder, bills iy question. On Febru-

ary 21, 1969, Judge Jamieson ordered that the. Commop-

wealth proceed to trial on the remaining burglary and rob-

bery charges, after being advised by the court psychiatrist _

. that the defendant was in partial remission and then com-

_ petent to stand trml. On April 29, 1969, Judge Jamieson

granted the Commonwealth’s request to nolle prosequi the

remaining bills and the defendant was committed to Far-

view State Hospital under a ‘civil commitment.

In August of 1969 the Commonwealth moved for the

removal of the nolle prosequi and on December 11, 1969,

Judge Jamieson granted the request. This court was then

petitioned to vacate the Order of Suppression and allow a

re-hearing on the Application to Suppress. On June 19,

1970, this court vacated the Order .of °Suppression and

ordered that a Suppression Hearing be held on June 25,

1970, to permit testimony as to the reason for the delay of

~~" the trial, as to the voluntariness of the statements and as to

‘ the absence of warnings of his right to remain silent and to

receive assistance of counsel.** On June 25.and 26, 1970,

the hearing was held with the Commonwealth presenting

ten witnesses and fourteen exhibits and the defense offer-

- ing no testimony.”

*1 See Opinion filed by this Court June 19, 1970,

a chy Na

Sal Spat hia) eanentnitdleans

ww wher.

: by

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ae .

QUESTIONS INVOLVED. |

1. Whether the incriminatory statements made by the de- |

fendant during custodial he eon were voluntary. ~

2. Whether the statements <n by the defendant during

custodial interrogation must be suppressed because of the

failure’ to ‘give the warnings mandated by the Supreme

- Court of the United States in Miranda v. Arizona.:

_ FINDINGS OF FACT.

e While walking his beat on September 27, 1963, at

-approximately 12:30 P. M., Officer Parks was informed that

_ a woman was looking for a policeman. He proceeded to the

“+ 3200 block.of Dakota Street where he met the woman who

- described to him a man who had ee to enter her ©

home (N. T. 12).

2. As Officer Parks jail down the street he heard

. another woman scream—‘He’s here again.”—from the sec-

ond story window of a home .at 2301 North 32nd Street. .

'. As Officer Parks entered that home he came upon the de-

fendant Paul Douglas Ware, who was leaving and he ;

grabbed Ware as. the woman screamed—“That-him!” Ware

told the policeman that. he was there for a ae job

-° and that he was a- Roman Catholic (N. T. 12-13).

3. Officer Parks called for a wagon and todk Ware to

_ the 22nd, District, arriving at approximately 1:00 P.M.

(N. T..14). After consulting with his superior, mentioning

- the resemblance of Ware to the description on a wanted

circular for the Gandy murde, Parks took Ware to the —

North Céntral. Detective . Division, located in _ the same

building, at 1:10 P.M. (N. T. 14-16).

was at. the home for a cleaning job (N. T. '16-18;. 27-30).

—e = 4:00 P.M., September. 27, 1963, Wate wine taken by

6. Ware was turned over to Sergeant William Greeh of |

’ the ‘Homicide Division Headquarters in the P. A. B. He was

aware that Ware was a Possible suspect. in the Gandy

homicide which was his assigned case. Green placed Ware

in an interview. room (N.-T. 32-33).

7. The first and all subsequent interrogations of Ware

in the P. A. B: occurred in interview rooms which are bare

cubicles, approximately nine feet by nine feet, containing |

a table and two chairs with a two-way mirror window. _

one wall for observation from the hallway into ‘the room .

(N..T.33),

him for about one hour to an hour and a quarter concern-

ing the. Gandy homicide. Ware denied any knowledge of

_ the crime (N. T. 34-35). Rees soak

_ 9. Between 6:00 P.M. and 6:25 P.M., Sergeant Green

| took Ware to the Mobile Crime Detection Unit also in the

P. A. B.. where Ware was fingerprinted (N. T. 35-36).

<—

=e Without giving Ware any warnings, Green questioned

FRONT NRE Mae area! WRN tal ERR FOUL TSR te

? . Vs

eA UI Ph ghee

Died malts Marae et hen

48°

10. Between 6:25 P.M. and 7: 00 P.M., Ware was left ;

alone locked in the interview room, ‘but undies no restraint .

' within the room (N. T. 36-37)...

11: Between approximately 7:15 P.M. and 7:30 P.M, a

stand-up was conducted in thesinterview room. Ware and

three other persons were observed through the mirror.

window by Mrs. Gandy, wife of the deceased. Green ques-

tioned Mrs: Gandy’for an hour and a half or two hours,

but she was not able to make a positive identification

(N. T. 37-38).

12. Between 7:30 P.M. and 10:30 P.M., Ware was left

alone locked in the interview room without restraint. At

.10:30 P.M. Green took Ware to the polygraph unit in the

P. A. B. turning him over to Lt. Barron (N. T. 39-40),

Green had told Ware that he wanted him to take a poly-

graph test concerning the Gandy homicide, but did not

— him of his constitutional rights (N. T. 46- a7).

13. ts teaeen took aie of. Ware at 10:35 P.M. and

conducted a pre-test interview. during which he explained

the procedure of the test to Ware. Then he requested that

_- Ware’ sign an agreement (C-PT3) to take the test, which ©

he did, witnessed by Sgt. Green (N. T. 48-50). No warn-

ings of his constitutional rights were. given by Lt. Barron

to Ware at any time (N. T. 99- =}

14. Lt. Barro administered ‘the test asking questions re-

e lating to the bur$lary for which Ware had been arrested

and to the Gandy homicide (N. T. 52). The test indicated

_that Ware had intended to rob the occupant of the home

where he was arrested (N. T. 54), and that: he was not

lying in his responses that he had not committed the Gandy

homicide (N. T. 55-56). The testing terminated at 11:56

P.M. at which time Lt. Barron spoke with Ware for a few

minutes .cuncerning social matters to relax him after the

test. Barron did not give Ware the results of the test

(N. T. 58). Between 12 midnight and 1:00 A.M., Septem- —

49 .

ber 28, Ware was left alone in the examination room while

Lt. Barron analyzed the charts and explained the results ~~

to the investigator, Sgt. Green (N. T. 57). At 1:00 AM,

_ Ware was again turned over to Green. a

15. At 1:00 A.M. Det. Roberts and Sgt. Green took Ware

back up to the Homicide Division. At that time it was

_ decided that Ware was officially no longer a suspect in the

Gandy homicide and he left the’ Homicide Unit in the cus- ._

tody of Det. Roberts (N. T. 42-44). .

16. On Saturday, September 28, at 9:00 A.M., Paul Ware

received a preliniinary hearing on the burglary charge for

which he had been .arrested before Magistrate Mongelluzo

in the 22nd Police District. Headquarters (N. T.

was held without bail for court (N. T. 30).

‘17. Det. Roberts took Ware to the major theft unit, rob-

bery and burglary detail, at the P. A. B.. after the pre-

_ liminary hearing. Between approximately 11:00 A.M. and:

12 Noon, Det, William J. Connolly of that unit and Det.

Roberts questioned Ware in an interview room. They dis-

cussed unsolved robberies and burglaries which had oc- —

curred in the North Central area and were listed in a police

journal (N. T. 63-65; 187). During this questioning, Ware.

was not restrained and appeared calm and cooperative

(N. T. 65, 67, 68). After about one half hour, Ware ad-

. Mitted participating in other burglaries and: since lie could

‘not recall the addresses offered to point out the locations if

tney would take him out on the street (N. T. 66, 67, 79).

18. Between approximately noon and. 4:30 P.M. on Sat-

urday, September 28, Det. Roberts and Det. Connolly drove

Ware around the North Central area. Int the course of that

drive, Ware pointed out twelve locations which he admitted

robbing and gave details of the homes and victims of eack—-

crime. These twelve locations were in fact listed in the

unsolved burglary journal (N. T. 68, 69, 188).

-19). Ware —

—— ee

ei dh Hat let), Melt. abi gh atiMaey ton ofan Cols hiekitines LMM Tone

——

‘ s 7"

—_ eens.

‘ . *

19. On returning to the P. A. B., formal statements con-

cerning the twelve robberies were taken and completed at

approximately 7:00 P.M. At 7:20 P.M., Ware was placed in

a police wagon for eee to Holmesburg Prison (N. T.

189).

20. On Tuesday, October 2, Ware received a hearing on

five additional cases in the 22nd Police District Headquar-

ters (N. T. 21). After the heaxing Det. Roberts told Ware

—“he had all these already on’ him, he might as well get

' rid of the rest of them.” Ware at first said no, but then -

‘ volunteered to point out more locations (N. T. 191-192).

21. At this point, approximately 1:15 P.M., Ware wrote a

letter (C-PT13) to his aunt and gave it to Det. Roberts for

delivery. In the letter Ware wrote: “I am going to level .

with the police and I’m going to tell them all that I have

done in the past three years. This is the only way out”~

(N. T ns8-198). .

22. Ware was again taken for a tour of the North Central

and adjoining areas where he pointed out twenty-four addi- |

tional locations he had burglarized. This trip extended

from the early afternoon to early evening. Between 9:00

P.M. and approximately midnight,.a formal written state-

ment was taken covering the twenty-four burglaries plus -

' three more which Ware then recalled. Shortly before mid-

_ night Ware was sent back to en Prison (N. T.

74-75; 192-195).

23. On Wednesday, October 2, 1963, Det. Albert Krimmel

obtained a writ permitting him to bring Ware from Holmes-

burg Prison to the Homicide Division at the P. A. B. for

questioning in relation to the homicide of Dr. James Kal-

bach. Det. Krimmél was motivated by a feeling that the

- Kalbach homicide was a crime with characteristics similar

to those of the crimes which Ware had admitted. Krimmel |

and two other detectives picked Ware up. at Holmesburg

$ QSARRNS See atta 5

ioe

: F F i a ; [i ce

at 1:00 P.M. and on arrival at the P. A. B. at 1:40 P.M.,

placed him in an interview room Ae . T. 87-90).

24, There had been no interrogation dition the ride from

Holmesburg. The interrogation commenced at 1:40 P.M.

. in the interview room. with no warning of constitutional —

‘rights given first. Det. Kinsey.and Det. Sergner were also

present, but only Det. Krimmel conducted the interroga-

.tion (N. ‘T.-90-91). .

45. The interrogation lasted from 1:40 P.M. to 4:00 P. M.

Det. Krimmel told Ware that he was being questioned in

regard to the Kalbach homicide. é The first half of the

period was primarily taken up by a discussion of Ware’s

' social philosophies and Muslim religious beliefs: Ware did

‘- most of the talking and this period was marked by Ware’s

hostility toward Krimmel as a caucasian. Krimmel] sym-.

pathized with Ware’s statements and: the hostility pro-

encased subsided (N. T. 92, 93, 95). -.

26. The topic of the conversation: shifted ‘toward the.

crime as Krimmel asked Ware how. he had piéked the vic-

_tims of the burglaries he had’ admitted. Ware explained

that by the appearance of the home and other factors he

could tell if the residents were elderly white people in the

predominantly negro neighborhoods-and that he only took

money or other objects which could: not be traced. Krim-

mel commented that Ware was clever and Ware’s hostility

continued to diminish. Ware also explained that he used

the money that he had stolen to take trips to visit Muslim |

mosques in other cities (N. T. 93-96).

27. Krimmel specifically asked Ware if he was respon-

. Sible for the Kalbach death and Ware denied it. Then ‘at

about 3:25 P.M. Ware admitted entering the Kalbach home

to steal money, not to kill, and placing a dresser above the

victim to afford himself time to escape. This explanation

was consistent with the facts of the case except that the

52. .

victim had actually been wedged in‘by-the dresser lying on -

_his body whereas Ware said that the victim had room td

move and that the dresser was leaned against the wail

above the victim. Ware also accurately described the scene

of the crime. This discussion ended at 4:00 P.M. (N. T.

a | om) Tres

- 28. At. the request. of Det. Krimmel, Ware ‘isthe a hand-

written statement, two pages in length, detailing the ad-

missions he had already made orally concerning the death

of Dr. Kalbach. This took place between 4:00 P.M. and .

4:20 P.M, (N. T.-102-108). e a

29. Between 4:20 P.M. and 4:35 PM. Ware . was per-

mitted to get a drink of water, go to the men’s room and

walk around. At 4:35 P.M. Ware was given a meal consist-

_ing of a platter, two containers. of milk and a pie. This

rest period continued until 5:02 P.M. (N. T. 108-111). —

_ 30. At 5:02 P.M, the interrogation resumed as Krimmel

' told’ Ware that they were going to question him aboyt the ©

death of Daniel Gandy of which Ware then denied having

any knowledge. The pattern was much the same as in the ©

Kalbach interrogation. Ware was initially very hostile and

the first forty-five minutes to an hour was consumed by’:

- discussion of. his, philosophy.. Then the topic shifted to

' Krimmel’s: feeling that the Gandy-crime was similar to

those which Ware had already admitted and that Ware had -

also committed that crime. At about 6:30 P.M. Ware indi-

_eated he had been involved. The coriversation continued

“until 7:12 B.M. as- Ware described the scene and circum-

stances of the crime. The interrogator, Det. Krimmel, had

+ no knowledge of the details, but later learned that they

were accurate (N. T. 111-118). Between 7:12 P.M. and

.7:31 P.M. Ware made a handwritten statement of the same

ie nature as that-taken concerning the Kalbach death ( nN. 7.

118- 123).

31. Between 7:32 P.M. and 7:45 P.M. Ware was allowed

to walk around in the large main room and was given two

cartons ‘of'milk (N. T. 141).

32. At 7:45 P.M. Det. Krimme] commenced questioning

concerning the death of Florence Grauley. This death was

_ at the time listed as accidental by the. Medical Examiner,

but ‘the circumstances were similar to those in the crimes -

admitted by. Ware, so the Suspicions of the police were

aroused (N. T* 142-143).

. 33. Between 7:45 P.M. and 9:00 P.M. the conversation

was marked by Ware’s hostility toward Det. Roberts and

Det. Kinsey for being negroes who had aligned themselves

with the law enforcement establishment.’. The police sym-

pathized with him and the hostility: reduced. The discus-

sion progressed from Ware’s anti-white philosophy into-his-

modus operandi. He said that his choice of elderly victims. .

was motivated by the consideration that he would meet less

resistance and the crime would be easier. At about 9:00

P.M. he first admitted complicity in the Grauley crime and

between then and 9:30 gave a detailed factual statement

orally (N. T. 142-148). Between 9:30 P.M. and 9:50 P.M. .

Ware made a handwritten statement similar in nature to

_ the other ones he had made (N. T: 148-50). : .

34. Between 9:50 P.M. at 10:11 PM. Ware was rested.

‘He was permitted to exercise by walking around the large

room. He was given water and went to the men’s room.

He was offered a meal but declined it (N. T. 151-152).

35. At 10:11 P.M. Det. Krimmel began the -questioning

of Ware in the presence of Det. Roberts and Det. Kinsey,

concerning the death of Leonard’Clark. The circumstances

‘of this crime were similar to those in the other crimes

except that this one took place in another part of the city. .

The period of hostility was shorter and less intense this

time. Ware allowed the topic to shift to the specifics of the

ie ee ANN A Pa Bata pti hse 0,

Clark ‘death at.about 10:30 P.M. when he began giving

details of the interior of the Clark home and otherwise

admit complicity. Again, Det. Krimmel was not familiar

with the details of the crime so he could not possibly have

. been leading Ware or in any way suggesting the facts

which Ware was admitting, all of which were later cor-

_roborated (N: T.. 152- 155). At 11:00 P.M. Krimmel felt

‘he had enough factual information and asked Ware to .

make another handwritten statement which he did be-

tween 11:00 P.M. and.11:15 P.M. (N..T. 155-157).

36. Between 11:15 P.M. and 11:40 P.M, Ware was rested

again. He was offered food, but requested ‘only milk and

- was given two cartons (N.:‘T. 158).

.37. The police asked Ware if he would give a formal

statement which would be typewritten and. he readily

-agreed (N. T. 160). Det. Krimmel did the questioning in

the presence of Det. Roberts and Det: Kinsey, and the state-.

ment was recorded by Miss Serody, a police stenotypist:

(N. T. 160-161). In each statement Ware indicated that he’ ~

' knew why he was being questioned (N. T. 162), and that

he was-willing to give a voluntary statement concerning

his knowledge of the crime (N. T. 163).’ He was informed

each time that. anything he might say could. be used

against him at trial and he responded that he understood

and that he still was willing to make’a voluntary statement

(N. T. 163). Ware then narrated: essentially the same

description he had given previously in the interrogations -

and handwritten statements. The taking of the formal

statements began at 11:40 P. M. , Wednesday, October 2, and

“was completed at 2:40 A.M., Thursday, October. 3. Be-

tween 2:40 A.M. and 4:20 A.M. Ware made. corrections,

read each. statement aloud, his voice being recorded on

- tape, and signed each one (N. T: 164-166)..

38. During the ae when the formal atone were

being taken from 11:40 P.M. to 4:00 A.M.'there was no _

prolonged rest period, however, there were numerous short

breaks occasioned by practicalities such as changing the

paper in the typewriter. Thus, the interrogation was far ,

from continuous (N. T. 166).

39. As each formal iaeetoent ‘was taken photographs

were shown to Ware and he was asked to identify them as_ > °

‘to whether they were the scene. he was describing: On

identifying each of the four, Wafe ‘initialed ws pictures

. (N. T. 167). |

40. Between 4:02 A.M. and 4:05 A.M. after the entire

process of interrogation and statement taking was complete,

Ware was taken into the large main room where a full

length photograph (C-PTS8) was taken of him (N. Z-

168-169).

‘41. Between 4:05 AM. and. 5: 30 A.M. Ware was.driven |

around and he directed the police ‘to each of the four crime «|

| - scenes and arco them (N. 'T. 170- sights i

42. At . 30 AM. the police c caravan arrived at the 23rd | |.

Sprague of the Office of the District Attorney desired to

speak to Ware concerning the charges and police treat- |

ment of the defendant. Ware insisted on the presence of’

a member of his own race and ‘Sgt. Johnson, who had no -

previous contact with the case, was brought in. Sprague

- informed Ware that he was being charged with the mur- .

der of the four people and inquired of his treatment by

’ the police. Ware said that he understood the charges and

that he had been treated without force, abuse or violence

and that the statements were not the product of force,

threats or promises AN. ‘T. 172-174; 207; 212).

43. At 5:35 A.M. Ware was slated on'the charges in the

= Police District and at 5:40 A. M. Detectives Krimmel,

: _ Roberts and Kinsey’. took Ware from .the police station for °

~ return to Holmesburg Prison mm, T. 175):

‘es 44. Dr. Bernard Willis of Farview State Hospital, where.

e ‘Ware has been.committed since-December of 1963, testified.

. that he could not with certainty:give an opinion as to

Ware's mental condition at the time the statements were .

: given. He did feel that Ware had been suffering from some =

ee mental disorder’ at that time, but not as sérious as when _

__ » he first examined Ware in December of 1963. ' He described '

_ the situation, as one of rapid deterioration. In answer to

; questions by’ the Court, Dr. Willis expressed the opinion

) that Ware would have realized he was under suspicion

for serious offenses, that he would at least have had intel- —

lectual appreciation of the fact that admissions on his part -

could be used by the authorities agdirist him, and that: his

illness, whatever it was, probably had no degree of com-

pulsion with it that would make —_ act e cgpnst his own

interests (N.T. 170-137).

angina

1. The Statements Both Oral and Written Were Made

; Voluntarily. :

It has been long recognized that the fourteenth amiend-

* ment to the United States Constitution prohibits the use

of an involuntarily given confession to convict a defendant.

’ Fikes v. Alabama, 352 U. S. 191, 77 S. Ct. 281, 1 L. Ed. 2d 246 |

(1957); Watts v.-Indiana, 338 U.S. 49, 69 S. Ct. 1347, 93 L.

Ed. 1801 (1949); Brown v. State of Mississippi, 297 U. S.

278, 56 S. Ct. 461, 80 L. Ed. 682 (1936). _The United States

’. Supreme Court has undertaken to réview the voluntariness

of confessions used in state presecutions since Brown v.

State of Mississippi, supra, in 1936. “The standard of vol-

untariness which has evolved under the Due Process Clause

of the Fourteenth Amendment is the same general standard

which ap; vlied in federal prosécutions—a standard grounded

in the policies of the privilege against self-incrimination.”

Malloy v. Hogan, 378 U,, S. 1, 6-8, 84 S.-Ct. 1489, 1492-3, 12..

L. Ed. 2d 653 (1964) ; Davis v. State of North Carolina, 384

_ U.S. 737, 740, 86.S. Ct. 1761, 1764, 16 L. Ed.2d 895 (1966).

Ours being an accusatory not an-inquisitorial system, the

concern is not primarily that the involuntary ‘statement

______will -be-untrue,but that the right of the individual not to

>on

convict himself out of his own mouth may be violated.

_ Miranda, supra; Chambers v. State of Florida, 309 U. S.—

227, 235-8, 60 S. Ct. 472, 476-7, 84 L. Ed. 716 (1940).

With this orientation toward the problem, the inquiry is

centered on the suspect, and on the police only so far as

- their -conduct affects the méntal and physical state of the ~

suspect. Thus, ‘any given police activity, be it shockingly. - ~.

. improper or scrupulously circumspect, is not the sole meas-

ure of voluntariness of the confession. Malloy v. Hogan,

_ supra; Bram v. United States, 158 U. S. 532, 18 S. Ct. 183, .

42 L. Ed. 568 (i1897)- The focus is the state of the suspect,

which is the result of many factors of which police con-

duct is only one. In making this subjective determination

of voluntariness the range of judicial inquiry is broad and

the judgment must be based upon consideration of the

totality of the circwmstances. Reck v. Pate, 367 U. S. 433,

81 S.°Ct. 1541, 6 L. Ed. 2d 948 (1961); Bla kburn v. Ala-

bama, 361 U. S. 199, 206, 80 S. Ct. 274, 280, 4 L. Ed. 2d 242 .

(1960); Fikes v. Alabama, supra; Commonwealth ex rel.

Corbin v. Myers, 423 Pa. 243, 223 A. 2d 738 (1966); Com-

monwealth v. Cheeks, 423 Pa. 67, 223 A. 2d 291 (1966);

Commonwealth ex rel. Gaito v. Maroney, 422 Pa. 171, 220 A.

2d 628 (1966); Commonwealth v. Brown, 309 Pa. 515, 164

A. 2d 726 (1933). “The nature of the question presentéd

is such that ‘no single litmus-paper test for constitutionally

impermissible interrogation has been evolved : . .’ Culombe

v: Connecticut, 367 U. S. 568, 601, 81 S. Ct. 1860, 1878, 6 L.

Ed. 2d 1037, 1057 (1961).” Commonwealth ex rel. Gaito v.

. Maroney, supta. Thus, the ultimate factual determination

- is a conclusion as to whether any one, or all the factors

together, resulted in the overbearing of the suspect’s will

such that the confession was-not the result ‘of a free and ~

voluntary self-determination to speak. Lynuman v. Illinois,

372 U.S. 528, 83 S. Ct. 917, 9 L. Ed. 2d 922 (1963); Malloy

v. Hogan, supra; Townsend v. Sain, 372 U. S. 293,83 S. Ct.

745, 9 L. Ed. 2d 770 (1963); Columbe v. Connecticut, supra;

Rogers v. Richmond, 365.U. S. 534; 81 S. Ct. 735, 5 L. Ed. 2d.

760 (1961); Blackburn v. Alabama, supra; Bram. v. United.

States, supra; Commonwealth ex vat. Gaito v. Maroney,

supra.

The court is' free to consider any factor which it believes

might have had some effect on the physical and mental

_ State of the suspect at the time the confession was made.

‘The cases reveal a- wide range of the potentially infinite

number of factors which might contribute to the atmos-

phere, environment, or, as the courts have called it, the -.

totality of circumstances in which the statement was made..

Among them are: whether the suspect was warned of his

constitutional rights; the length of the interrogation period

both as to continuous hours in one day and as to the num-

ber of days in which interrogation occurs; physical abuse by

the authorities; granting of sufficient nourishment, water,

rest and sleep and access to sanitary facilities; the num-

ber of police officers performing the interrogation and the

environment of the questioning, such as size and lighting

of the room; the presence of or opportunity to see-friends,

relatives or legal counsel; the making of threats or promises

such as withholding rest or rights or.assuring that a rela-

tive will be-left out of it, until a confession is made; the

existent mental and physical health of the suspect at the

. time of the confession; the psychological tactics and ae

_ sures applied by the authorities. .

. A review of the testimony elicited at the suppression

. hearing yields a ‘picture of the “totality of the circum-

stances” in this case. At no time was Ware effectively |

warned of his constitutional rights (F. F. 4, 8, 12, 13; 24).

59°

. At no time were any threats, promises or other improper

influences brought to bear upon Ware. ‘At all times Ware

. ducted the interrogation. (F. F. 24). There were four days:

during which interrogation occurred Spaced out over a

six day period with a combined total of approximately |

' twenty hours of questioning. A large proportion of the

time was consumed by Ware’s own rambling monologues’

concerning his beliefs. .No single uninterrupted period of

quest to transmit a letter to an aunt was promptly satisfied

(F. F. 21). Nothing adverse about his physical condition

act against his wil] (F. F. 44).

‘The totality of circumstances in this Case, as outlined in

the previous paragraph, does indicate the kind. of potential

for compulsion which concerned the Supreme Court in —

Yi al

bility of a confession, but was not in itself conclusive. Davis ,

v. North Carolina, supra; Johnson v. State of New Jersey,

r Haynes v. Washington, 373 U. S. 503, 83 S. Ct. 1336, 10

L. Ed. 2d 513 (1963); Spano v. New York, 360 U. S. 315,

bd S. Ct. 1202, 3 L. Ed. ~ 1265 ( aoe d. Sanne v.

" ex rel uated + v. “Cavell, 493 Pa. "280, 293 A. "2d 852

(1966); Commonwealth ex rel. Corbin v:. Myers,’ supra;

Commonwealth v. Cheeks, supra. No case has ever decided

_ the voluntariness issue solely on the basis of the absence

of the warnings. Miranda has made that factor absolutely

‘controlling for all. cases covered by that decision but did

so as a prophylactic measure. The intent was not to de-

clare that the existence of that factor was enough to de-

clare the statement involuntary. The court there said that

the confessions it was invalidating therein might well be

voluntary in the traditional sense. Thus, in considering’

the voluntariness of a confession aside from the Miranda

rule, the absence of warnings is merely one of the many

factors in the panoramic view. .

“There is no doubt that the mental state of the accused

is a.relevant factor in determining voluntariness, as it bears

- on his ability to resist questioning.” Commonwealth v.

Walker, 433 Pa. 124, 127, 249 A. 2d 283, 286 (1969). Condi-

tions of interrogation hot alone negating voluntariness may’

be sufficient when combined with a mental state of the

accused which makes him susceptible to pressure which

would not overcome the will of a man ‘of normal mental

‘faculties. In Blackburn v. Alabama, supra, the accused .

was subjected to the pressures of an interrogation for a

sustained period of eight or nine hours in a tiny room filled

with police officers without the benefit of the presence of

a friend, relative or legal counsel. ‘The evidence estab-

lished the strongest probability that Blackburn was insane

and incompetent at the time of the confession. This Court

was most concerned and sensitive to-the factor of Ware’s

61 es wee \

mental state as it related to the conditions of his interro-

gation and ultimately tp the voluntariness of his confession.

However, the record is devoid of testimony which might

allow us to find that Ware’s admittedly -defective mental

state had any effect on his ability to resist questioning or

that it caused him to be particularly susceptible to the pres-

‘ his ability to understand the consequences of his making

sent any such testimony it had available but limited itself

to the cross-examination of Dr. Willis which indicated that

the mental defect present in Ware would not have impaired

the confessions and would not have caused him to act’ con-

_trary to his own will or personal interest (F. F. 43), We

must decide the issue only on the basis of the testimony

before us and we find that the record is insufficient to sup-

port a finding that the mental state of Paul Ware was a

substantial factor tending to show that the confessions were.

involuntary.

In this case we find that the totality of circumstances

indicates that the confessions were ‘voluntary. The con-

ditions under which Ware was interrogated seem eminently

fair and far from the extreme treatment evident_in cases

where the courts have invalidated confessions.*? All police

interrogations take place in what the Miranda court called

a “police dominated atmosphere”, but here, where only one

officer did the questioning, the suspect was allowed to speak

at length, third degree methods were not employed, and

the periods of interrogation were of reasonable length, the

situation was not one which ‘the courts have traditionally

found as one overbearing the will of the suspect.

*? Contrast this situation to that in Fikes v. Alabama, supra, where

the accused was removed to a prison eighty miles from his home and

his father and lawyer refused permission to see him; to Lynumn v.

Illinois, supra, where the accused was coerced by the threat that her

children would be taken from her; and _to Haynes v. Washington,

supra, where the accused was denied his persistent requests to con-

tact his wife or attorney.

eT rae een a

susasueh veslivins was

e circl Wmstances” “we

must conclude that the statements, both oral and written,

‘ were voluntary.

2. The Miranda - Decision Is Not. Applicable to: the Case.

At Bar.

Having determined the statements of this defendant dur-

ing custodial ; interrogation to have been voluntary it. is

scant fs | carmenmentteaiionsc(Boin ia sight Serie faly Qawali

_now incumbent upon us to determine the applicability of

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S.

Ct. 1602 (1966). -

The Supreme Court of the United States departed from

the Blackstonian view that all constitutional decisions must

apply retroactively to all who still have standing to liti-

gate the issue and determined that in criminal litigation as

to rules of procedure reaching constitutional stature “the

- Court may in_the interest of justice_make the rule—pre-——

spective where the exigencies of the situation require such

an application.” Linkletter v. Walker, 381 U. S. 618, 14 L.

Ed. 2d 601, 85 S. Ct. 1731 (1965); Téhan v. Shott, 382 U. S.

406, 15 L. Ed--2d-453;- 86 S.Ct. 459 (1966). In Johnson v.

New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772

(1966), the Court, in affirming the right to deny retro-

activity stated:

“We stress that the choice between retroactivity and

nonretroactivity in no way: turns on the value of the

constitutional guarantee involved . . . we do not dis-

parage a constitutional guarantee in any manner by

declining to apply it retroactively.” (384 U.S. to 728).

In making the determination as to whether the new rule

is to be given retroactive application the Court in Link-

letter, supra, suggested that the factors to be considered

are: (a) the degree to which the new rule affects.the relia-

bility of the fact finding process; (b) the reliance of law

enforcement officials; and (c) the effect on the administra-

. . 3 63

tion of justice. In Desist v. U. S., 394 U. S. 244, 22 L. Ed.

. 2d 248, 89 S. Ct. 1030 (1969), the Court observed:

The criteria guiding resolution of the question impli-

cate: (a) the purpose to be served by the new stan-

. dards; (b) the extent of the reliance by law enforce-

ment authorities on the old standards, and (c). the

effect on the administration of justice of a retroactive

application of the new standards.. Foremost among

these factors is the purpose.to be served by the new

constitutional: rule. (394 U. S. at 249.) 4

At a later point in the’ame decision, the Court stated:

_It is to be noted also that we have relied heavily on

the factors of the extent of reliance and consequent

burden on the administration of justice only where

the purpose of the rule in question did not clearly _

~ favor either retroactivity or prospectivity. atl U. S.

at 251.)

2 The Johnson court; reflecting u upon the first element of —

that the purpose of the Miranda rule did not clearly favor

retroactivity.

In the light ¢ of these various considerations, we con-

clude that Escobedo and Miranda, like Mapp v. Ohio,

supra, and Griffin v. California, supra, should not be

ri . applied retroactively. (384 U. S. at 732.)

The considerations were that “while Escobedo and Miranda

guard against the possibility of unrealiable statements in

4 _ every instance of in-custody interrogation, they encompass

situations in which the danger is not necessarily as great

as when the accused is subjected to overt and obvious ,

coercion.” The Court stressed that “our case law on coerced

confessions is available for persons whose trials have al-

ready been completed.” . The Court concluded . that al-

though Miranda provided new safeguards “the nonretro-

activity of these decisions will not preclude persons whose

_ trials have already been completed from invoking the same

safeguards as part of an involuntariness claim.”

wiatBibes ‘i PT AC SI LEBER ELEN ABLES MALE EGE SBD. BOLE ALPEN LEEUW PEE BAAD TRAN Ea A PDMS

" 64

In considering the reliance by law enforcement authori-

ties the Court was of the view that this too would sug-

. gest that the new rule should not be applied retroactively:

_ Prior to Escobedo and Miranda, however, we had ex-

pressly declined to condemn an entire process of in-

custody interrogation solely because of such conduct

by the police. Law enforcement agencies fairly relied

‘on these prior cases, now no-longer binding, in obtain-

ing incriminating statements during the intervening

years preceding Escobedo and Miranda. - U. S. at

731.) (Citations omitted. )

The Court was also of the view that retroactive application

_ of the new rules would seriously disrupt the administration |

of our criminal laws.

Having concluded after weighing the accepted standards

that the decision should not be given retroactive applica-

_ tion our instant problem would have been resolved if the

' Court consistent with this reasoning had determined to —

give the new rules purely prospective effect (limiting their

benefits to future defendants excluding even the defend-

ants in the case in which the rule was announced). This

possibility was eliminated by the Miranda decision itself

party litigant. After deciding that Miranda would not ap-.

ply to cases still on direct appeal when it was decided, the

Court ruled that its application should commence: with

trials begun after the decision was announced. Despite

the eloquent and persuasive logic of the ‘majority .of the

Johnson Court in demonstrating the propriety of their de-

cision to refuse retroactive application, experience has re-

vealed that the selection of the date of trial as the crucial

moment produced a significant retroactive aspect.

The defense and the amicus would urge us to look no

further and accept Johnson as a mandate to apply Miranda

to all matters where the trial commenced after that decision

had been announced. Such specious reasoning would only

lead to the transformation of an initially wise and fair de-

cision into an untenable and arbitrary rule. It.would be_

most unjust and intellectually dishonest to ascribe to the

Johnson Court a blanket approval of retroactivity to-those

cases yet to be tried when the entire decision was devoted

to a scholarly and meticulous explanation why Miranda

should be denied retroactive application. It is our view .

that Johnson’s holding simply stated that Miranda doesn’t

_apply to trials“beginning prior to June 1966. We must —

reject the contention that it supports the proposition that

requires its application in all trials subsequent to that date.

_ Some explanation of the decision to select the trial as the

operative event is found in the majority opinion in Jenkins

v. Delaware, 395 U. S. 213, 23 L. Ed. 2d 253, 89 S. Ct. 1677

(1969).

On the other hand, we could have adopted the ap-

proach we took in Stovall and Desist and made the

point of initial reliance, the moment the defendant is

interrogated, the operative event. But, in an effort to

extend the protection of Miranda to as many defend-

ants as was consistent with society’s legitimate concern’

that convictions already validly obtained not be need-

lessly aborted, we selected the commencement of the

trial. (395 U. S. at 219.)

‘The Court was apparently reassured as to the “wisdom

of their’selection laboring under the view that the commis- ~

sion and investigation of a crime would be sufficiently

proximate to the commencement of the trial that, where

necessary, evidentiary substitutes could be obtained by

reopening the investigation.

While it is quite true that the Court envisioned certain

incongruent results from their selection of the trial date,

it is equally true that they were then referring to the possi-

bility that one defendant might benefit from the new rule

- while another may not “solely because of the fortuities

_ that determine the progress of their cases from initial in-

vestigation and arrest to final judgment.” As the Court

- had previously indicated in Johnson its willingness to deny

the benefit of the new rule to all sprung from its view that

ESR Fe SI he i 5 FR SS

Weg NPT CR gpa LS

66 og,

| prior « case law as it. had developed provided adequate r re-_

dress for persons who would not | receive the protections

of the new edict.

Here, our concern is not the disparity of treatment .of .

defendants who commit criminal acts contemporaneously,

. but rather the complete frustration of law enforcement

' Officers who elicit incriminating: statements relying on the |

law then existent. As the Johnson Court recognized that

- there was. adequate safeguards to protect the defendant

who was not protected by.the new rule that same court

realized the havoc the storm of retroactivity would work

on the administration of our. criminal laws Liar v.

New Jersey, supra, at 731).

The defense and the amicus cite the following. passage

as support for their view, that thete should be blanket

coverage for trials after the stated date.. _

‘ In-short, petitioner’s concern for what he rerers to as

“visible imperfection in a judicial’ process” merely

highlights the problems inherent in prospective de-

cision making, ie., some defendants benefit from the

new rule while others do not, solely because of the

progress of their cases from initial investigation and

arrest to final judgment. The resulting incongruities

’ must be balanced against the impetus the technique

provides for the. implemeniation of long overdue re-

forms, which otherwise. could not be praceneny ef-

fected. (395 U. S. at’ 217-218.) —

To construe this language as meaning that the Court had

weighed all of the distortions that might result from the

_ selection of the trial as the operative date.and balanced it «

as suggested in Linkletter and Desist, and then determined

that Miranda must apply in all instances in trials after the

effective date is a clear distortion of the obvious intend-

- ment of the words. This language means simply that the

Court had discounted the fact that certain defendants

-of the need for the new rules and also their desire not to

disturb completed trials.

ek aes

This Court finds that neither Jenkins nor Johnson passed .

upon the applicability of Miranda to trials where delay has —

resulted in removing the possibility of obtaining substitute .

evidence and its application would completely frustrate the

attempt to prosecute the felon. We are not shaken in this

Opinion by the Jenkins Court’s recognition that there would

be exceptions where the commission and investigation of

crime would not be sufficiently proximate to the com-

mencement of the trial to allow for the reopening of the

investigation. The recognition of a situation is obviously

not'synonymous with its acceptance. It is a non-sequitur

to conclude that, because the Court anticipated that there

would in some instances be cases where delay would create —

an injustice, this necessarily requires the conclusion that

thé Court accepted this result. In the context in which

this particular statement was made the Court was attempt-

ing to emphasize the lack of disruption to the administra-

tion of justice rather than consider those situations where

delay had created a problem. Attempting by torturing the

language of Johnson and Jenkins to. find a specific answer —

to our’present concern is quite similar to the vain efforts

of many courts prior to the Jenkins decision to find the

answer concerning retrials‘from the language of Johnson.

There being no U. S. Supreme Court pronouncement on

the subject and from our investigation no other controlling

or compelling appellate decisions on point, we must now

decide the cause attempting to find direction from the gen-

_ eral philosophy the Supreme Court has provided in this |

area. Accepting the Supreme Court’s finding that the pur-

pose of the rule in question favors prospectivity.we must

conclude whether there is any reason or policy that should

dictate the applicability of the new rule to the instant case.

Here, a number of years have intervened between arrest

and investigation and the commencement of trial. The

possibility of reopening the’ investigations and obtaining |

evidentiary substitutes is non-existent. The application

. of the new rule in this instance would in effect release the

defendant albeit his clear involvement in four separate

murder-robberies.

.We cannot at this juncture ignore the fact that the delay

was tn no-.way occasioned by law enforcement agents.

Even though we accept that the defendant cannot be held

accountable for an act of God it is significant in determining —

the effect upon the administration of justice and the effeet

of law enforcement officials’ reliance to note that the delay.

was not the fault of those officials.

In Jenkins, the Court attempted to explain its departure

from its basic premise that the new rule should be for

the benefit of “future defendants” stating that the scope of

retroactivity was iimited to instances where there would

be no betrayal of reliance or frustration of the 2dministra-

tion of justice. A retroactive application in the instant

factual situation would produce the opposite result. We

feel compelled. from the logic of Johnson and Jenkins to

conclude that the philosophy of these decisions is incom-

patible with the result urged here by the defense. Further,

we have been given no logical reason or policy considera-

tion to alter our view. The Court in both Johnson and

Jenkins expressed its confidence tn the case law prior to

Miranda to afford protection to the defendant against the

coerced and involuntary confession. We share this belief.

Applying Miranda in this instance would provide a dam-

aging blow to the atiministration of justice and completely

ignore the welfare and the safety of the citizens of this

community.

For the reasons set forth in this opinion, it is our holding

that the confessions were voluntarily made and are not

barred by Miranda.

ORDER. ae

. ya .

AND NOW, to wit, this 13th day of November, 1970,

it fs ORDERED and DECREED that defendant’s Appli-

cation to Supprtes his written and oral statements is denied.

BY THE COURT:

NIX,

." APPENDIX D. .+ 4

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DistRIct =e

: No. 247 January Term,

CoMMONWEALTH OF PENNSYLVANIA 1971.

Aaigeth teat, Ges Cates

vy... | of the Court of Com-”

mon Pleas of Philadel-

phia, Trial Divisfon,

_ Paut D. Ware, = \\ Criminal. Section at .

Nos. 328, 343, 345, 349

Appellant Jof December Term,

1963.

OPINION OF THE COURT.

ROBERTS, J. _* Filed: December 20, 1971

The Commonwealth in this appeal calls upon this Court

to hold the federal constitutional standards of Miranda v.

Arizona, 384 U. S. 436, 86 S. Ct. 1602 (1966), inapplicable

to.a 1963 confession sought to be introduced in a post- :

Miranda trial. This contention must be rejected. It ignores -

‘ the controlling and unambiguous pronouncements of the

. United States Supreme Court concerning the extent of

Miranda’s retroactivity: These pronouncements have been

scrupulously. followed not only by an unbroken line of de-

cisions of this Court’ but also by virtually every other court

in the nation which has dealt with the issue.*

The procedural’ history of the present appeal is as fol-

lows: On October 3, 1963, appellant Paul Ware confessed

to the commission of four murders. The statements were

elicited from’ him in the course of custodial interrogation

and were not preceded by the warnings of constitutional

rights mandated by Miranda. A murder indictment was .

returned against appellant in December of 1963, but fur-

ther prosecution was postponed as a result of his com-

order declaring him to be mentally incompetent to stand

In July of 1967, appellant was found to have regained

his competency, and his case was listed for trial. However,

on -May 23, 1968, the Philadelphia Court of Common Pleas

ordered the 1963 confessions suppressed for the reason that

they had been-obtained in circumstances violative of

Miranda. In light of the suppression order and the absence

of other independent evidence of appellant’s guilt, the Com-

" 1 See cases cited page 4, infra.

2 See cases cited footnote 5, infra. .

monwealth petitioned for the entry of a nolle prosequi. Ap-

pellant offered no objection, and the court approved the

nolle prosequi.

‘On August 11, 1969, more than one year after the original

suppression order and nine months after the entry of the

nolle proséqui, the Commonwealth changed its position and

moved for removal of the nolle prosequi. The motion was

granted over appellant’s objection, and the Commonwealth

- then petitioned the court to vacate its prior suppression

order and allow a rehearing of the matter. This request

was likewise granted over objection, and a~-suppressi

hearing was held on June 25 and June 26, 1970. On No-

"vember 13, 1970, the court of common. pleas held that the

confessions were admissible in evidence notwithstanding

the conceded absence of Miranda warnings. This appeal

followed.*

‘The Paints argues in defense of the trial court’s

suppression order that the standards of Miranda should not

apply to a confession obtained prior to the date of that de-

cision. We need not, however, respond to the Common-

wealth’s view as to what “should be”: to put it quite

simply, the matter is no longer an open question. ‘

In Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772

(1966), the United States Supreme Court was squarely

confrontéd with the question whether and to what extent

This interlocutory appeal was allowed pursuant to Section 501 (b) |

' Of the Appellate Court Jurisdiction Act of 1970, P. L. ——, No. 223, art.

V, 17 P. S. §211.501(b). Section 501(b) provides in pertinent part as

follows:

“When a court or administrative agency, in making an inter-

locutory order in a matter in which its final order would be

within the jurisdiction of an appellate court, shall be of the

opinion that such order involves a controlling question of law as

to which there is a substantial ground for difference of opinion

and that an immediate appeal from the order may materially

advance the ultimate determination of the matter, it shall so state

in such order. The appellate court may thereupon in its dis-

cretion permit an appeal to be taken from such order.” ~

The certification required by Section 501(b) was made by the court

of common pleas on December 1, 1970 upon the joint es at of -

appellant and the Commonwealth.

apse Geel Reger fe Bmw”

Miranda should be accorded retroactive application. After

carefully analyzing the material considerations,* the Court

concluded:

' in which the trial began after the date of our decision

one week ago.”

Id., at 721, 86 S. Ct. at 1775.

We cannot imagine how the Supreme Court could pos-

a -have spoken more definitively. That Court made it

Clear that the-date of trial is the operative event, and that

therefore the Miranda standards must be applied to all

post-Miranda trials, including those cases such as the pres-

jen one_involving_pre-Miranda confessions. This Court

Fendciieled

— <A

fap stein be Rb wR Matera o> one's il

has not only faithfully honored the United States Supreme

Court’s clear directive, see Commonwealth v. Davis, 440

Pa. 123, 270 A. 2d 199 (1970); Commonwealth v. Singletbn,

439 Pa. 185, 266 A. 2d 753 (1970); Commonwealth v. Ben-

nett, 439 Pa. 34, 264 A..2d 706 (1970); Commonwealth v.

Ware, 438 Pa. 517, 265 A. 2d 790 (1970); Commonwealth

v. Yount, 435 Pa. 276, 256 A. 2d 464 (1969), cert. denied,

397 U. S. 918, 90 S. Ct. 918 (1970); Commonwealth v. Wil-

liams, 432 Pa. 557, 248 A. 2d 301 (1968); Commonwealth v.

_ Bordner, 432 Pa. 405, 247 A. 2d 612 (1968); Commonwealth

v. Leaming, 432 Pa. 326, 247 A. 2d 590 (1968); Common-

wealth v. Robinson, 428 Pa. 458, 239 A. 2d 308 (1968); |

Commonwealth v. Sites, 427 Pa. 486, 235 A. 2d 387 (1967),°

4“We must look to the purpose of our new standards governing

police interrogation, the reliance which may have been placed upon -

prior decisions on the subject, and the effect on the administration

of justice of a retroactive application of Escobedo and Miranda.”

384 U.S. at 727, 86 S. Ct. at 1777.

5 Nor, we might add, has our ‘interpretation of Johnson been unique.

See Posey v. United States, 416 F. 2d 545, 549 (5th Cir. 1969); Sheer v.

United States, 414 F. 2d 122 (5th Cir. 1969); Comacho v. United States,

1968); United States v. Vanterpool, 394 F. 2d 697 (2d Cir: 1968); -

Groshart v. United States, 392 F. 2d 172 (9th Cir. 1968); Evans v.

United States, 375 F. 2d 355 (8th Cir. 1967); Rolland v. Michigan, 320

F. Supp. 1195 (E. D. Mich. 1970); Griffith v. Jones, 283 F. Supp. 794

but we adopt the Johnson position as a matter of state law.

The Commonwealth would have us abandon the fore-

going state and federal case law on the ground that the trial

date language in Johnson was merely “ill-considered” and

“inadvertent” dicta. We are unpersuaded.

In the first place, a state-court is not free.to ignore the

dictates of the United States Supreme Court on federal con-

stitutional matters because of its own conclusion that those

dictates are “ill-considered.” Even if this or any other —

court should disagree with the views of the United States.

Supreme Court on a particular constitutional issue, those

views are’ binding. See, e.g., Commonwealth_v. Williams,

432 Pa. 557, 568 n. 8, 248 A. 2d 301, 307 n. 8 (1968).

In the second place, we do not believe that the Supreme

Court was speaking “inadvertently” when it stated five

separate times in Johnson that Miranda should apply to all

post-Miranda trials. Any possible doubts in this regard

5 ; —

(N. D. Ga. 1967); Commonwealth v. Bujnowski, 267 N. E. 2d 924

(Mass. App. 1971); Young v. State, 234 So. 2d 341 (Fla. 1970); State

v. Anderson, 229 So. 2d 329 (La. 1969); State v. Butler, 249 N. E. 2d

818 (Ohio 1969); State v.. Knott, 249 A. 2d 421 (R. I. 1969); Guyette v.

State, 438 P. 2d 244 (Nev. 1968); People v. Peacock, 287 N. Y. S. 2d

166 (N. Y. App. 1968); State v. Wong, 430 P. 2d 330 (Hawaii 1967);

contra State v. Lewis, 164 S. E. 2d 177 (N. c. 1968) (semble); Clark

v. Smith, 164 S. E. 2d 790 (Ga. 1968).

6 “We hold further that Miranda applies only to cases in which -

the trial began after the date of our decision one week ago.”

* Sd - * * * * * * s a

“All of the reasons set forth above for making Escobedo and

Miranda nonretroactive suggest that these decisions should apply

only rah trials begun after the decisions were announced.”

* * = > = * ?. es

untill application only to trials begun after the. stand-

ards were announced is particularly appropriate here.”

” a > _ * . = = ; 2 * +

_ “In light of these additional considerations, we conclude that

Escobedo and Miranda should apply only to cases commenced

after those decisions were announced.”

= s * * . = - - = s

“ .. and these guidelines [of Miranda] are therefore available

only to persons whose trials had not begun as of June 13, 1966.”

384 U. S. at 721, 732, 733, 734, 86 S. Ct. at 1775,°1780, 1781. (Emphasis

added.)

REE OY OPES Se he

should have been forever put to rest by the Supreme Court’s

subsequent decision in Jenkins v. Delaware, 395 U. S. 213,

89 S. Ct. 1677 (1969), which further clarified and ety ;

reaffirmed the principles of Johnson:

is [W]e could have . . . made the point of initial reliance,

the moment the defendant is interrogated the operative

event. But in an effort to extend the protection of

Miranda to as many defendants as was consistent with

society’s legitimate concern that convictions already

- validly obtained not be needlessly aborted, we selected

the commencement of the trial.”’.

Id. at 219, 89 S: Ct. at 1680-81. -

Finally, we must reject the Commonwealth’s claim that

Johnson has been overruled sub silentio by the Supreme

Court’s more recent retroactivity cases fixing the date of

the alleged constitutional violation rather than the date of

trial as the operative cut-off date.’ There are of course

“occasional situations in which subsequent Supreme Court

-opinions have so eroded an older case, without explicitly

overruling it, as to warrant a subordinate court in pur-

suing what it conceives to be a clearly defined new lead

from the Supreme Court to.a conclusion inconsistent with

an older Supreme Court case.” Rowe v. Peyton, 383 F. 2d

709, 714 (4th Cir. 1967). But this is certainly not such

a situation.: Johnson’s trial date rule has been reaffirmed

by the Supreme Court as recently as April 5, 1971. See

Mackey v. United States; 401 U. S. 667, ——, 91 S. Ct. 1160,

1164 (1971); Williams v. United States, 401 U. S. 646, ——

n. 7, 91 S. Ct. 1148, 1153 n. 7 (1971). Therefore we are

without constitutional authority to adopt a test for the

Tetroactivity of Miranda which is inconsistent with: John-

son. Additionally, we are in agreement with the rationale

7 See, e.g., Williams v. United States, 401 U. S. 646, 91 S. Ct. 1148

(1971), holding Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034

(1968), applicable to searches conducted after the date of Chimel:

Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967 (1967), holding United

. Stdtes v. Wade, 383 U. S. 218, 87 S. Ct. 1926 (1967), applicable only to

cases where the lineup occurred after the decision in Wade.

of Johnson, and we affirm it as a matier’of state law. Cf.

Commonwealth v. Blackman, —— Pa. ——, —~ A. ad ——

(1971).

The order of the Philadelphia Court of Common Pleas is

reversed.

MR. CHIEF JUSTICE BELL did not participate in the

Coenaeation or. decision of this case.

MR. JUSTICE POMEROY did not participate in the con-

sideration or decision of this- case.

MR. J USTICE JONES concurs in the result.

MR. JUSTICE O’BRIEN joins the Opinion of the Court

and files a Concurring Opinion. |

_—_

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT .

CoMMoNWEALTH oF Pen NSYLVANIA Yee hae January Term,

Appellee Appeal from the Order

of the Court of Com-

Vv. - * >mon Pleas, Criminal

Trial Division, - of

PauL D. WaRE Philadelphia at Nos.

328, 343, 345, 349 of

Appellant / December Term, 1963.

Bg Or eee el

CONCURRING OPINION.

O'BRIEN, J. : - Filed: Deeb 2 1971 -.

I concur in the opinion of the majority and join in that |

opinion. In addition, however, I believe that the Common-

wealth has followed a procedure in this matter which pre- —

cludes any result other than the one arrived at by the

majority.

As indicated in ‘the majority opinion, the Philadelphia

Court of Common Pleas entered its suppression order on

May 23, 1968. Since the Commonwealth had no other in-

dependent evidence of appellant’s guilt; the effect of the

suppression order was to put the Commonwealth ott of

court and the order was, therefore, as indicated by many,

many cases, appealable. If the district attorney was un-

-happy. with the suppression order, the proper course of.

action for him was to appeal that order within the time

2 allowed for such appeals. He did not do so. Instead, nearly

fifteen months later, he chose to request a rehearing of the

suppression orcaer in the trial court. I do not believe that

we can countenance such procedures, and in my view the

_ district attorney’s failure to appeal the suppression order

within the statutory time period precludes any further

—— consideration of that order.

APPENDIX “E.”

The Omnibus Crime Control and Safe Streets Act was

passed after extensive congressional hearings which con-

tained testimony, statistics, and other data showing: the

unduly restrictive effects on law enforcement officers re-

sulting from the Miranda decision:

Statistical evidence further indicates the harmful

effects of the Miranda decision. ‘During the subcom-

mittee hearings, Arlen Specter, district attorney of the

City of Philadelphia, revealed a study on the effects

_of Miranda conducted by his office. The results indi-

' cated that prior to the Escobedo case, 90 percent of the

suspects ‘would make a statement, often not incrimi-_

nating on their face, but valuable in investigating the

crime. After Escobedo, only 80 percent would give

statements. After the second circuit Russo case, only

68 percent of suspects would give statements. Then

came the Miranda case in June 1966. For a period

after Miranda, out of 5,220 suspects arrested for serious

crimes, 3,095 refused to give a statement. This is a

percentage of only 41 percent who would give state-

ments, a decrease of 49 percent since Escobedo. These

Statistics are inclined to become more alarming as more

criminals become more familiar with Miranda.

Aaron Koota, district: attorney for Kings County,

__N. Y., conducted a similar survey, indicating that prior

_ to Miranda, approximately 10 percent of the suspects

. involved in serious crimes refused to make statements

or confessions to police. “After Miranda, 41 percent re-

' fused to make statements or confessions. Specifically,

between June and September of 1966, Mr. Koota re-

vealed that: 130 of 316 suspects refused to make any

statement at all. In only 30 of. these 130 cases did

Mr. Koota have sufficient evidence to prosectite apart

from the confession. Mr. Koota was unequivocal . in

stating that confessions are helpful in securing con-

victions. sees

Charles E. Moylan, Jr., State’s attorney for the city

of Baltimore, Md., reports more disturbing statistics.

Mr. Moylan said: | ,

. * ** [W]e used to get * *-* (confessions) in 20 to

25 percent of our cases, and now we are getting * * *

(them) in 2 percent of our cases. The confession as

a law-enforcement instrument has been Virtually

eliminated (hearings, p. 622).

‘

SEB ol ON

Mie yh tear ta OI bp Shai helt

;

Mr. Moylan noted that the Miranda case has en-

couraged criminals, discouraged the police, and disap-

pointed the public that depends on the courts for pro-

tection.

Frank S. Hogan, New York County district attorney,

reported similar findings. In the 6.months prior to

the Miranda case, 49 percent of the nonhomicide felony

‘defendants in New York County made incriminating

statements. In the 6 months after the decision, only

15 percent of the defendants gave incriminating state-

‘ ments. Mr. Hogan characterized it as being most harm-

ful to efforts to convict criminals who roam our streets

’ and assault our citizens.

* BS *

The committee is convinced from the mass of evi-

dence heard by the subcommittee, much of. which is

printed in the transcript of hearings, that the rigid

and inflexible requirements of the majority opinion in

the Miranda case are unreasonable, unrealistic, and

extremely harmful to law enforcement. Instance after

instance are documented in the transcript where the

most. vicious criminals have gone unpunished, even.

though they had voluntarily gonfessed their guilt. The

transcript and ‘subcommittee files contain testimony

and statements from district attorneys, police chiefs,

and other law enforcement officers in cities and towns

all over the country, demonstrating beyond doubt the

devastating effect upon the rights of society of. the

Miranda decision. The unsoundness of the majority

opinion was forcefully shown ‘by the four dissenting

justices, who also predicted .the dire consequences of

overruling what theretofore had been the law of the

land, confirmed in 1896 in Wilson v. U. S., 16 S. Ct.

895, 162 U. S. 613, and in 1912 in Powers v. U. S.; 32

S. Ct. 281, 223 U. S. 303, and in other more recent Su-

preme Court decisions.

The Supreme Court ‘itself Suggests that Congress is

free to enact legislation in this field. The Court’s in-

vitation for Congress to act could stem from a wide-

spread notion that Congress is better able to cope with.

the problem of confessions than is the Court. Senator

Bible, in testifying before the subcommittee, observed

that experience has.taught that» Court decisions are -

too inexact to deal with postarrest problems. The

Honorable J. ‘Appeal Lumbard, Chief Judge of the

, U. S. Court of Appeals for the Second Circuit agrees.

He states: -

In my opinion, it is most important that the Con-

gress should take some action in the important areas

I have. vole The legislative process permits

a wide variety|of views to be screened and testi-

mony can: be taken from those who know fhe facts

and those who ‘bear the responsibility for

forcement. : ) }

The legislative process is far better calculated. to

set standards and rules by statute than is the process

of announcing principles through court decision in

particular cases| where the facts are limited. The’

legislative process is better adapted to seeing the

situation in all its aspects a

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