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decided: October 12, 1971.


Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 2060, in case of Commonwealth of Pennsylvania v. Barry Marabel.


F. Emmett Fitzpatrick, Jr., with him Joseph Michael Smith, for appellant.

Edward G. Rendell, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Eagen

[ 445 Pa. Page 437]

This is an appeal from the judgment of sentence imposed by the court on the appellant, Barry Lee Marabel, following his conviction by a jury of murder in the second degree. The sole question presented is whether constitutional due process was violated at trial by the evidentiary use (over objection and after a timely motion to suppress) of oral admissions and a recorded and executed inculpatory statement given by Marabel to the police.

The record discloses the following pertinent facts.

On May 4, 1968, the State Liquor Store on Torresdale Avenue in Philadelphia was robbed. Three clerks were present at the time of the robbery and their wallets were also stolen. During the perpetration of the felony, one clerk, John Bucykowski was shot by the felon and shortly thereafter died as a result of this wound.

Eyewitnesses at the scene of the crime (three young girls) told the investigating officers that a new red or maroon sports car (either a Camaro or Mustang) was parked up the street from the State Liquor Store with

[ 445 Pa. Page 438]

    its motor running just before the crime. The witnesses also informed the police that one occupant of this vehicle went into the store just before nine o'clock p.m., and they saw him leave the store on a run about five minutes later.

The police instituted an investigation of the crime and learned that appellant was the owner of a vehicle that matched the description given by the witnesses. The police also had information, through an informer, that appellant was in some way involved in the crime. On May 6th, appellant was picked up at his home and taken to police headquarters. (The police contend that this was merely a routine investigation of all people they could locate who owned vehicles matching the description given by the eyewitnesses, and appellant was just one of many people brought in who owned new red sports cars.) Appellant was questioned for six hours about his activities on the night of the robbery murder and he was also given a polygraph test. He admitted ownership of a new sports automobile similar to the one described by the young girl eyewitnesses, but denied any knowledge of the crime. At no time on the 6th of May was appellant advised of his constitutional rights. After being detained for six hours, he was released.

On May 15th, the appellant was again escorted to police headquarters. He was questioned for three hours about the "whole job", again without being advised of his constitutional rights. He still insisted that he knew nothing about the crime, but he did tell the police that he was with George Kenney on the night of the robbery and murder. (George Kenney was the man who actually robbed the store and killed the clerk.)

Appellant was again taken to police headquarters on the 17th of May, and, for the first time, was then advised of his Miranda rights. After extensive questioning by five officers, as well as a lie detector test,

[ 445 Pa. Page 439]

    he gave an oral confession and ultimately signed the written confession that is now in issue. (The police contend that the only reason he was picked up on the 17th was the result of statements that incriminated him that were taken from other people who had knowledge of the crime.)

Issues Presented

(1) Should appellant have been given the warnings required by Miranda on May 6th and 15th before being subjected to police questioning?

(2) If so, did the failure to do so taint his subsequent oral admissions and written confessions on May 17th?

May 6th

Initially, to determine whether appellant should have been given the Miranda warnings, one must decide if there was "custodial interrogation". The United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966) stated: "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S. Ct. at 1612.

The first question that must be confronted when determining if there was custodial interrogation is whether the appellant was a suspect. See Commonwealth v. Sites, 427 Pa. 486, 235 A.2d 387 (1967). When appellant was picked up on this occasion, the police were aware that he was the owner of an automobile matching the description given by the eyewitnesses to the felony. Moreover, an informer had apprised the police of the fact that appellant was somehow involved in the crime. With this knowledge, despite

[ 445 Pa. Page 440]

    protestations to the contrary, it is difficult to believe that the police viewed appellant as anything other than a suspect. Cf. Commonwealth v. Bennett, 439 Pa. 34, 264 A.2d 706 (1970). In Bennett, the facts indicated that the police were informed that a man who worked on a green and white garbage truck might have been in the neighborhood on the night of the killing. The defendant was questioned on the job along with other workers, and on the following day he was taken to the police station. On these facts, we ruled that the defendant was a suspect and he was entitled to his constitutional warnings before being questioned. See also Commonwealth v. Banks, 429 Pa. 53, 239 A.2d 416 (1968). The same conclusion is dictated here.

The next question that must be analyzed is whether the atmosphere where appellant was questioned gave rise to "custody" or "depriving him of his freedom in any significant way." Clearly, when questioning takes place in a police station there can be custody. See Miranda v. Arizona, supra. On the occasion under discussion, appellant was taken to a police station and questioned for a period of six hours. This is the type of atmosphere which leaves the individual questioned no freedom of choice and is inherently coercive, Commonwealth v. Banks, supra.

An issue that is interwoven with this question is what elements must be weighed to determine if there was custody or deprivation of freedom. It has been suggested that the state of mind of the questioning officer is controlling, or the reasonable belief of the one questioned, or a straight objective test should be employed. In the instant case, appellant suggests that we employ the "objective test" as set forth in United States v. Hall, 421 F. 2d 540 (1969), cert. denied 397 U.S. 990, 90 S. Ct. 1123 (1970). The Hall Court stated in pertinent part:

[ 445 Pa. Page 441]

"The Court [Miranda Court] could scarcely have intended the issue whether the person being interrogated had 'been taken into custody or otherwise deprived of his liberty in any significant way' to be decided by swearing contests in which officers would regularly maintain their lack of intention to assert power over a suspect save when the circumstances would make such a claim absurd, and defendants would assert with equal regularity that they ...

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