Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, No. 1907, in case of Commonwealth of Pennsylvania v. John Hannah.
Mark A. Lublin, for appellant.
Bonnie B. Leadbetter, Assistant District Attorney, with her Mark Sendrow 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 Watkins, P. J. Concurring Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this concurring opinion.
[ 231 Pa. Super. Page 523]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County by the defendant-appellant, John Hannah, after conviction before a judge without a jury of burglary, larceny and receiving stolen goods. Post-trial motions were denied and he was sentenced to a
[ 231 Pa. Super. Page 524]
term of one and one-half (1 1/2) to five (5) years in a correctional institution.
The defendant was charged with the burglary of the Delmonico Sound Equipment Warehouse in Philadelphia. At the time of the incident, he was a Philadelphia police officer in uniform. After his arrest, he was questioned by other officers who gave him appropriate Miranda Warnings and also warned him pursuant to the requirements of the Philadelphia Home Rule Charter that he would lose his job if he refused to cooperate fully with the investigation.
The defendant filed a motion to suppress a written confession given on the ground that the "charter warnings vitiated the Miranda Warnings." The court below suppressed the confession. An appeal to this Court was filed in October Term, 1973. On October 4, 1973, an order of judgment of Non Pros. was entered for failure to prosecute the appeal. Thereafter the court below permitted this appeal, nunc pro tunc.
The serious question raised by this appeal is whether the suppressed confession of the appellant may be used by the Commonwealth for cross-examination as to prior inconsistent statements.
The same question was raised in Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). In that case, the defendant was charged with sales of heroin to an undercover agent. After his arrest, he made statements that were suppressed owing to the failure of proper Miranda Warnings. The defendant took the stand and denied having sold narcotics to the undercover agent. "On cross-examination, petitioner was asked seriatum whether he had made specific statements to the police immediately following his arrest on January 7 -- Statements that partially contradicted petitioner's ...