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decided: March 20, 1968.


Appeal from judgment of Court of Quarter Sessions of Lancaster County, Sept. T., 1966, No. 118, in case of Commonwealth of Pennsylvania v. David G. Barclay.


John W. Beyer, and Arnold, Bricker, Beyer & Barnes, for appellant.

Clarence C. Newcomer, First Assistant District Attorney, and Wilson Bucher, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, P. J. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissent.

Author: Wright

[ 212 Pa. Super. Page 26]

David G. Barclay was indicted in the Court of Quarter Sessions of Lancaster County on Bill No. 118 September Sessions 1966, which charged the offense of racing on the highway as proscribed by the amendment to The Vehicle Code set forth in the Act of January 8, 1960, P. L. (1959) 2118, 75 P.S. 1041. Barclay entered a plea of not guilty and, being represented by private counsel, was tried before Judge Brown and a jury. Following a verdict of guilty, motions for a new trial and in arrest of judgment were filed and dismissed and sentence was imposed. This appeal by Barclay followed. The factual situation appears in the following excerpt from the opinion of the court below:

"From the record which the court has carefully considered in this matter the evidence shows that on August 24, 1966, at about 3:30 o'clock p.m., Mrs. Mary Libhart was working in her garden along the Colebrook Road northeast of Marietta, Lancaster County, Pennsylvania, when she became aware of a motorcycle and a car coming up over the hill and stopping almost in front of her garden. She testified that the road here is a macadam surface with two lanes of traffic. While there she had observed a roadster type of automobile with a light tan or yellow bottom and black or dark top and a motorcycle which were stopped side by side on the road, with the car in the left lane and the motorcycle in the right lane. She further testified that she heard one of the operators say, 'Are you ready?' and thinking that this sounded odd, she looked up and as

[ 212 Pa. Super. Page 27]

    she did she heard a roaring of motors and screaming of tires and stones flying, and they took off up the hill, and it appeared that the driver was going to lose control of the car; that he swerved and finally straightened out and on up over the hill they went and disappeared over the top of the hill. She said she observed these cars for about a quarter of a mile. She then said she went back to work in her garden and it was just a matter of a few minutes when she again heard roaring engines and tires screaming and she didn't see how it was possible that they could be coming back again, but that is exactly what happened. She looked over the hill and saw them coming back and the car was on the right side returning and the motorcycle on the left side returning, at which time the vehicles were again racing in the opposite direction from the original point of departure. Mrs. Libhart then testified that as the vehicles passed her home both she and John Parker, a fourteen year old boy who was on the other side of the highway, took the license number of the automobile. The description of the automobile and the license number, which were on temporary plates, were given to Chief Marvin Foltz and it appears from the testimony that Foltz located the vehicle answering the description of the one involved in the alleged racing at or about 6:00 o'clock p.m. on the same day at the home of the defendant Barclay. The testimony of John Parker and Carl Libhart, two teenage boys who were standing on the opposite side of the road from Mrs. Libhart, also corroborated her testimony that there was racing on the highway as indicated by Mrs. Libhart".

It is appellant's contention, and this is the sole question involved in the instant appeal, that the trial judge erred in admitting testimony of a police officer as to statements made to him by appellant without any warning of his right to remain silent or to have counsel. The record discloses that, pursuant to information received,

[ 212 Pa. Super. Page 28]

    the police officer called at appellant's home. The conversation which ensued is set forth in the footnote.*fn1 Appellant's contention is based primarily on Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, wherein the United States Supreme Court said: "To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities . . . and is subjected to questioning, the privilege against self-incrimination is jeopardized". Our own Supreme Court has stated in Commonwealth v. Sites, 427 Pa. 486, 235 A.2d 387, that "for a statement obtained from an individual subjected to incustody police questioning to be admissible as trial evidence,

[ 212 Pa. Super. Page 29]

    it is an absolute requirement that the Commonwealth demonstrate, inter alia, that before the questioning began the suspect was clearly informed of his right to have his own legal counsel present during the questioning. And in order to apprise the suspect fully of his rights in this regard, it is indispensable not only that he be warned of his right to have counsel but also that he be advised that a lawyer will be appointed to represent him if he is indigent".

Appellant cites Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765, wherein the defendant made two statements. The first was held to be admissible as "truly a volunteered spontaneous freely-made utterance to general questioning of citizens in the police fact-finding process". The second statement was ruled inadmissible because "the investigation had certainly begun to focus on her as the accused; and, she was certainly not free to leave and at least technically 'in custody'. Custodial interrogation is not limited to police station questioning or that occurring after a formal arrest". The distinction between investigative and custodial interrogation is pointed out in Commonwealth v. Sites, supra, 427 Pa. 486, 235 A.2d 387. No fault was found concerning the original questioning of Sites by investigating officers who were seeking to establish ownership of an automobile seen in the driveway of decedent's home. However, an entirely different situation was presented by the questioning of the officers on the following day when Sites was definitely in custody.

In our view the controlling issue in the case at bar is whether appellant, at the time of questioning by the police officer, had been taken into custody or otherwise deprived of his freedom. We do not equate the present factual situation with that surrounding the interrogation proscribed in either the Jefferson or Sites cases. Cf. Commonwealth v. Eperjesi, 423 Pa. 455,

[ 212 Pa. Super. Page 30224]

A.2d 216. To hold that the instant situation involved a custodial interrogation in violation of appellant's constitutional rights would be an unwarranted expansion and extension of the Miranda case, wherein "the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures". We adopt the following statement from the well considered opinion of the court below:

"The Commonwealth contends in its brief that the defendant Barclay was at no time arrested or taken into custody and the conversation which occurred when Foltz was invited into his home by Barclay's wife, and with his father present, in no sense of the word deprived Barclay of his freedom of action in any significant way. He was free to come or go, to remain with the Chief or order him to leave, or to remain on the sofa where he had been initially, if he wished to do so. At that time and place the officer had no authority to arrest the defendant until he first procured a warrant of arrest from a magistrate's office, and this court feels that no fair or proper application of the principles of Miranda and Escobedo to this case could in any way indicate that Barclay at the time of his conversation with Foltz was either in custody or otherwise deprived of his freedom. The court therefore feels the evidence of this conversation was properly admissible in evidence".

Judgment affirmed.


Judgment affirmed.

Dissenting Opinion by Hoffman, J.:

The majority today finds that the present factual situation differs markedly from that found in Commonwealth v. Jefferson, 423 Pa. 541, 226 A.2d 765 (1967) and Commonwealth v. Sites, 427 Pa. 486, 235 A.2d 387 (1967). On that basis, it holds that the colloquy between defendant Barclay and Chief Foltz, without Miranda warnings having been given, was admissible

[ 212 Pa. Super. Page 31]

    because it was taken during investigative police procedures rather than during custodial interrogation. See Miranda v. Arizona, 384 U.S. 436 (1966). I disagree.

Before noting the similarities between the Jefferson and Sites decisions and the instant case, I feel it imperative to explicate "custodial interrogation," which if found, necessitates the giving of the four-fold Miranda warnings.

As stated in the majority opinion and Jefferson, one need not be in the police station or under arrest before he is entitled to be warned of his rights. If one is not questioned in a police station, Miranda warnings are required when the individual is ". . . otherwise deprived of his freedom of action in any significant way." at 444. This phrase does not mean the person must be formally arrested or that he may not come and go as he wishes.*fn1 Such an interpretation is highly unrealistic. Most citizens, when detained to answer police questions, are afraid to challenge the authority asserted and are, practically speaking, deprived of their freedom. Moreover, this interpretation is not in conformity with a primary purpose of the Miranda decision, that being, to fully accord a suspect sufficient warnings in order to preserve his constitutional rights. Even though a person may freely leave or ask a policeman to leave his premises, he must still be given warnings if he is a focal point in the investigation.

In my opinion, custody occurs, for the purposes of the Miranda decision, when the police are focusing on

[ 212 Pa. Super. Page 32]

    a person as a suspect in an alleged crime, see Commonwealth v. Jefferson, supra, or when a person is lead to believe that he is being deprived of his freedom of action or movement under the pressure of the police.*fn2 A similar approach has been adopted in New York and California. The New York Court of Appeals recently stated: "The test as to custodial interrogation is 'whether the subject is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action is restricted by such interrogation.'" People v. Rodney P. (Anon.), 286 N.Y.S. 2d 225, 233 N.E. 2d 255 (1967). That Court further stated that this form of test ". . . gives effect to the purpose of the Miranda rules; it is not solely dependent either on the self-serving declarations of the police officers or the defendant nor does it place upon the police the burden of anticipating the frailties or idiosyncrasies of every person whom they question."

Applying the above rule and Jefferson and Sites to the instant case, it is my opinion that the answers elicited from Barclay were clearly inadmissible because they were taken without Miranda warnings in a custodial period. In both Sites and Jefferson, the inadmissible colloquy occurred outside of a police station; in Sites the defendant answered questions in his own apartment. In the instant case, the questioning occurred in the living room of defendant's home. In Sites and Jefferson, the investigating officers knew a crime had been committed, and that the person being questioned was highly suspect. The case at bar presents

[ 212 Pa. Super. Page 33]

    an apt example of this point. Barclay lived in a small town where there could not have been many cars fitting the description given by the eyewitness to the race. Chief Foltz testified that it only took him one-half of an hour from the time the complaint was registered to pick out Barclay's car. He knew that Barclay was the owner of this particular car. In fact, he proceeded to question Barclay without checking the license plate against digits given him by the eyewitness. Thus, it is evident from the record that Chief Foltz, upon entering Barclay's house, was reasonably certain that Barclay's car, and therefore Barclay, was involved in this drag race.

Furthermore, Chief Foltz testified that upon entering Barclay's house, "I told the defendant that I had a complaint that he was involved in a drag race that afternoon, . . ." [emphasis added]. The Chief was also asked "Did you in your conversation with him accuse him of racing out on the highway?" The reply was "Yes, I did."

The above facts, in my view, certainly illustrate that the custodial stage as set forth in Miranda, Jefferson and Sites, had been reached. The mere fact that Chief Foltz did not intend to arrest Barclay upon entering the home or that he did not have a warrant for his arrest at that time is of no consequence. Rather, the important circumstances to note are that Foltz had, at the time of the investigation, a fairly clear notion that Barclay had been racing on the highway, and that Barclay knew immediately he was the focal point of the investigation. Thus, the admissions by defendant Barclay to Chief Foltz as to his participation in the drag race were clearly inadmissible because he was at no time given the requisite Miranda warnings.

I would, therefore, reverse defendant Barclay's conviction and order a new trial.

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