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COMMONWEALTH v. DIAZ (04/28/70)

decided: April 28, 1970.

COMMONWEALTH
v.
DIAZ, APPELLANT



Appeal from judgment of sentence of Court of Quarter Sessions of Chester County, Sept. T., 1966, No. 290, in case of Commonwealth v. Julian V. Diaz.

COUNSEL

William J. Gallagher, for appellant.

A. Thomas Parke, III, Assistant District Attorney, and Norman J. Pine, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Eagen dissents and would remand for the appointment of counsel. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.

Author: Cohen

[ 438 Pa. Page 357]

On June 12, 1967 Julian Diaz, appellant, while represented by counsel was found guilty by a jury of voluntary manslaughter. He filed post-trial motions which were overruled and was sentenced to a term of from four to ten years. No direct appeal was taken. In 1968 he filed a Post Conviction Hearing Act petition alleging he had been denied his right to appeal. Following appointment of counsel and a hearing, Diaz was granted the right to file an appeal nunc pro tunc.

Appellant's counsel has filed what is, in effect, an Anders brief, see Anders v. California, 386 U.S. 738 (1967), in which he concludes that appellant has only one "arguable" issue, which he considers to be frivolous. Although there is no specific request that counsel be permitted to withdraw, it is clear that he finds no merit in the appeal. Further, although the record does not disclose that Diaz was informed of his lawyer's action, he has filed a pro se supplemental brief which raises several issues. Therefore we may properly treat counsel's brief as an Anders brief. Cf. Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). As we are faced with an Anders brief, our obligation is to search

[ 438 Pa. Page 358]

    the record thoroughly to determine whether any legal points are presented which are arguable on their merits and are therefore not frivolous. Anders, 386 U.S. at 744; Commonwealth v. Sparks, 438 Pa. 77, 263 A.2d 414 (1970).

The record discloses that Raymond Rodriquez died shortly after 9:00 a.m. on October 15, 1966 as the result of a stab wound of the chest inflicted following a twenty minute argument with another man. He was found lying in a building at 152 West Gay Street, West Chester. Appellant was arrested shortly thereafter.

The only possibly non-frivolous issue that appears from a reading of the record concerns the admission in evidence of confessions allegedly obtained in violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). This is what appellant raised in his pro se brief, and as to that claim the facts are as follows. What is involved is not one confession but three. The first was uttered just prior to appellant's arrest. The police suspected Diaz of having committed the stabbing and went to his home. After they had gotten out of their car and as they were walking across the sidewalk, Diaz came out of the house with his hands up and said "[s]omething to the effect -- it was broken English -- that I give up, I did it. . . ." The second was uttered after Diaz was under arrest while the two officers were taking him to the police station. The third was given to two different police officers while appellant was at the police station.

Diaz moved to suppress confessions 2 and 3. After a hearing the court suppressed 2 but refused to suppress 3. At that hearing there was no mention at all of the first confession, and even though the suppression order states that statements made to Patrolmen Bell and Shank shall be suppressed (it was Bell who testified at the trial as to the ...


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