This is an appeal from judgment of sentence for life imprisonment which was imposed following a jury verdict of First Degree Murder on June 22, 1982. Appellant, William Hines was found guilty of the murder of a seventeen year old girl which occurred on April 1, 1970. He had initially pled guilty when he was fifteen years old to the crime; after a degree of guilty hearing, a court en banc concluded that appellant was guilty of First Degree Murder on October 2, 1970, and he was sentenced to life imprisonment. Post-verdict motions were denied in May 1972, but no direct appeal was taken.
In 1974, appellant filed a petition under the Post Conviction Hearing Act which alleged that the plea of guilty was not entered intelligently and voluntarily. It was denied after a hearing, and on appeal to the Pennsylvania Supreme Court, the denial of relief was affirmed. The court found
Then, in 1979, appellant filed a PCHA petition to withdraw his guilty plea in the court of common pleas. After a hearing and argument, the petition was denied. The Supreme Court reversed and remanded this case for a new trial because there appeared in the colloquy no factual basis for appellant's plea, nor any indication to conclude that appellant understood the nature and elements of the charges against him or the consequences of the plea. Commonwealth v. Hines, 496 Pa. 555, 437 A.2d 1180 (1981).
A suppression hearing on appellant's motion was held; the motion was denied. A jury trial was held on June 19, 1982, and appellant was sentenced to life imprisonment. This appeal followed.
Appellant raises a number of suppression issues concerning his statement to police upon apprehension, the search of his home which police conducted, and the use of prior testimony of witnesses who were unavailable at the 1982 retrial. Additionally, he contends that the trial court erred in refusing to charge the jury that they should view the testimony of one witness with caution as that of an accomplice.
Paramount in our consideration of the issue concerning voluntariness of appellant's statement is the fact that appellant was only fifteen years old when he made it. Appellant was arrested on April 5, 1970, at approximately 11:15 p.m. in the home of a friend.
On the way to the public safety building, appellant talked with the officer. He told him he was fifteen and that he belonged to a "decathlon" organization. The officer explained that he engaged appellant in conversation primarily to determine his level of understanding, whether he was "street wise" or had "street sense." The officer determined that appellant appeared to understand the questions he posed, that he knew where he was and what he was doing; appellant did not appear to be under the influence of drugs or alcohol.
Walton was deceased at the time of the suppression hearing; his testimony which was offered at the degree of guilt hearing on September 30, 1970, was admitted into evidence. According to Walton, appellant apparently requested to talk with him because he was also black. Appellant was told by Walton to remain silent if he had anything at all to do with Eileen Taylor's murder. Walton also told him if appellant did not do it and knew who did, that if appellant gave him the information, the parties would be arrested. Appellant told Walton that he didn't do it, but he knew who did.
Walton explained that while "appellant did not seem like the brightest boy in the world, . . . he seemed to know what he wanted to say and what he was saying."
After the talk with Walton, appellant admitted raping the victim, but he furnished the name of James Jefferson as her murderer. Appellant was taken to a cell with a bed so that he could get some sleep, although there is no evidence that he slept. Around 8:00 a.m., the first officer who had interviewed appellant went to get him. He was placed in a room alone with James Jefferson, whom police had arrested pursuant to appellant's statement. After approximately 25 minutes, appellant gave an eleven page question-and-answer type statement to police, who typed it as he spoke. Each page was initialed by appellant after he checked it for errors.
After the police had interviewed Jefferson and performed tests on his clothing, blood, and hair, they released him, having concluded that he was not involved at all.
The law pertaining to juvenile confessions has been in flux since appellant's confession in 1970 until the present time.
However, it was the change from a totality of the circumstances test to the per se interested adult rule of Commonwealth v. Roane, 459 Pa. 389, 329 A.2d 286 (1974) from which appellant asserts he should benefit. As the court set forth in Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669
McCutchen has already been applied to appellants whose direct appeals were pending at the time of the decision and who had properly preserved the issue for appeal. Commonwealth v. Barnes, 482 Pa. 555, 557 n.2, 394 A.2d 461 n.2 (1978); Commonwealth v. Chaney, 465 Pa. 407, 350 A.2d 829 (1976). See also Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982) (Despite possible applicability of McCutchen rule, appellant failed to preserve said claim for review). However, the instant appellant comes before us, not on direct appeal, nor on appeal nunc pro tunc, but as a result of a successful PCHA appeal to the Supreme Court which resulted in a new trial. This is the appeal from the new trial. Thus, we must decide whether the interested adult rule of McCutchen should be applicable to a post-McCutchen retrial.
While the U.S. Supreme Court and Pennsylvania Supreme Court have not ruled on the precise issue of retroactivity presented for our consideration in this case, in Johnson v.
Thus, the court held that Miranda is not to be applied on retrials of cases where the original trial was held before the decision in Miranda.
We see no reason to refuse to apply this same analysis to the instant case involving whether safeguards additional to Miranda which were found to be mandatory in juvenile confession cases from 1975 until 1983 should be applied to a new trial in 1982 involving a statement elicited
We must next determine whether, under the totality of the circumstances rule of juvenile confessions, appellant's statement was voluntary. Commonwealth v. Moses, supra. All of the attending circumstances must be considered, including the age, maturity and intellect of the individual involved. Id.
Appellant was fifteen years of age. While there is some confusion about what grade appellant reached in school, he himself stated in his confession that he attended eighth grade. Police testified that he appeared to be aware of what was happening and of what his rights were. He conversed freely with police on the way to the station. He initiated contact with the black police officer who advised
Appellant alleges that the trial court erred in admitting into evidence at the trial, the testimony of nine unavailable or deceased witnesses from the degree of guilt hearing which was held in 1970. While appellant acknowledges that the requirements for the admission of former testimony is controlled by statute, 42 Pa.C.S.A. § 5917,
Only if the evidence is sufficient to present a jury question with respect to whether the prosecution's witness was an accomplice, is the defendant entitled to an instruction as to the weight to be given that witness's testimony. Commonwealth v. Thomas, 479 Pa. 34, 387 A.2d 820 (1978). This is not such a case. Therefore, the court properly omitted the corrupt source section of the accomplice instruction with regard to Jefferson's testimony.
Finally, appellant argues that the clothing seized from appellant's bedroom should have been suppressed as seized pursuant to an invalid search warrant. However, we agree with the court below that the search of appellant's home was done with the consent of appellant's mother, despite contradictory testimony by members of appellant's family, including appellant's mother, whose individual testimonies also contradicted each other. The court chose to believe the officers and evidence elicited at the hearing supports the court's findings. We are bound by these factual findings, Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983), and agree with the lower court that consent to search was thereby demonstrated.
Another witness who lived nearby saw a boy struggling with a girl under the street lamp. The girl wore a plaid poncho, but the witness could not describe the clothing worn by the male. Another person heard a girl screaming for help and pounding on someone's door at about the same time, but she did not call the police. She concluded that the victim had been let inside the house.
Appellant was seen by witnesses wearing a trench coat and pink trousers that night. He was also seen later wearing clothes covered with mud and suspected blood.
On April 4, 1970, police took a search warrant to appellant's home, but according to police, appellant's mother gave her consent to search the house. Police recovered heavily soiled men's underpants and a black trench coat from appellant's bedroom. Appellant's mother also responded to police inquiry that the family patronized two particular dry cleaning establishments. At one of the shops, police recovered a pair of heavily stained pink trousers which had been brought in on the day of the murder. Appellant's last name and home address were on the claim check.