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COMMONWEALTH v. FRAMBRO (09/23/74)

decided: September 23, 1974.

COMMONWEALTH
v.
FRAMBRO, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, Nos. 781 and 782, in case of Commonwealth of Pennsylvania v. Harold Frambro.

COUNSEL

Byron Cotter and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

James Garrett, Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 230 Pa. Super. Page 221]

In this appeal, it is contended that the lower court erred in denying a pre-trial motion to suppress statements made to the police while the appellant was incarcerated and awaiting trial.

On February 16, 1972, Detective Theodore Scurry of the Philadelphia Police Department arrested the appellant on charges of burglary, larceny and robbery. At the time of the arrest, appellant was given his Miranda warnings and refused to make a statement without

[ 230 Pa. Super. Page 222]

    the presence of an attorney. At his preliminary arraignment on February 17, 1972, a Public Defender was appointed to represent the appellant. On that date, a preliminary hearing was conducted on some charges but continued with respect to the instant matter because the complainant was not present. Detective Scurry was present during the course of the proceedings on this date. On March 2, 1972, Detective Scurry went to the Detention Center where appellant had been incarcerated since the time of his arrest. He again gave the appellant his Miranda warnings and told the appellant "it would be in his best interest" to give a statement. Despite the fact that appellant had counsel and despite Detective Scurry's knowledge of previous refusals to give statements to the police and the appointment of counsel, no effort was made to contact defense counsel. At this meeting, appellant gave a signed statement implicating himself in the alleged crime. Appellant's subsequent motion to suppress this statement was denied on May 11, 1972. Appellant was convicted on charges of aggravated robbery and burglary, and received consecutive sentences of one to five years. This appeal followed.

This case involves some very serious questions on the right of police to conduct repeated interrogations of an accused after he has refused to make a statement without presence of counsel. This case does not involve the same issue as in Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973), wherein the police had given the appellant his Miranda warnings, and, after he requested the presence of counsel, interrogation continued until a confession had been obtained and the request for counsel "withdrawn". In that case, the Supreme Court noted that the actions of the police were in clear violation of Miranda v. Arizona, 384 U.S. 436, 469 (1966), which required that once the accused "indicates in any manner, at any time prior to or during

[ 230 Pa. Super. Page 223]

    questioning that he wishes to remain silent, the interrogation must cease . . . ."

While in this case, appellant was afforded the right to obtain counsel, knowing that counsel had been appointed, the police reinstituted the interrogation process without informing counsel of the interrogation. The supposed waiver of appellant's right to have counsel present came after the re-initiation of interrogation and the ambiguous comment that cooperation with the police would be "in his best interest." In Mercier, supra at 216, our Supreme Court stated: "For a waiver [of right to remain silent] to be effective, the reversal of the defendant's position must have been initiated by him. This is not a situation where a person in custody, after asserting his rights, indicated a desire ...


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