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COMMONWEALTH v. NATHAN (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
NATHAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1968, No. 270, in case of Commonwealth of Pennsylvania v. Gregory Nathan.

COUNSEL

Byrd R. Brown, for appellant.

Carol Mary Los, Assistant District Attorney, with her Robert L. Campbell, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

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

Author: O'brien

[ 445 Pa. Page 472]

Appellant, Gregory Nathan, an eighteen-year-old with a ninth grade education, was convicted of first-degree murder and sentenced to life imprisonment. After the denial of his post-trial motions by a court en banc and entry of the judgment of sentence, appellant filed an appeal. Although appellant, in his brief and oral argument, alleged numerous trial errors, because we find that the statement made by appellant to the police should not have been introduced into evidence, we will not deal with appellant's other allegations. The improper introduction of his statement into evidence, by itself, entitles appellant to a new trial.

The circumstances surrounding appellant's statement are as follows:

Early in the morning of August 29, 1968, Joseph Gatalsky was shot on a downtown Pittsburgh street. On August 31, 1968, appellant, having heard that he was the subject of a police search, voluntarily surrendered to the Wilkinsburg Borough police. Appellant was read certain warnings contained in a printed form prepared by the Wilkinsburg Police Department. The suppression court ruled that these warnings were not in conformity with the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), but that ruling does not concern us here, because appellant was given proper warnings, by the Pittsburgh police en route to the City of Pittsburgh Public Safety Building, and the court ordered that any statements made prior to his arrival there should be suppressed. Since the subsequent statements which appellant made to the Pittsburgh police were in no way tainted by the statements appellant had made to a Wilkinsburg police officer, of which statements the Pittsburgh police were not even aware, the inadequate warnings which

[ 445 Pa. Page 473]

    appellant received in Wilkinsburg did not render the later statements inadmissible. Commonwealth v. Marabel, 445 Pa. 435, 283 A.2d 285 (1971), Commonwealth v. Frazier, 443 Pa. 178, 279 A.2d 33 (1971).

After appellant was given the proper warnings by a member of the Pittsburgh Police Department, he requested an attorney. Since appellant had no particular attorney in mind, he was shown a list of members of the Allegheny County Bar who handle criminal cases. From this list, appellant picked Byrd R. Brown, Esquire, and the police officers promptly placed a call to Mr. Brown's office, where they learned from his answering service that he was not in. Once the request for counsel was made, the calls placed and counsel found to be unobtainable, the police did not attempt any interrogation.

Appellant was then removed from the Homicide Bureau to the "bull pen" in another part of the Public Safety Building. The two Pittsburgh police officers who had accompanied the appellant to Pittsburgh from Wilkinsburg and who were present when the warnings were read, and had attempted to reach Mr. Brown, then departed the scene to perform other duties.

A short time later, Detective Terscak, who had been called at home, informed that appellant was in custody, and asked to report to headquarters, came on duty. He promptly went to the "bull pen" and then accompanied appellant back to the ...


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