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COMMONWEALTH PENNSYLVANIA v. JAMES TRIBBLETT (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES TRIBBLETT, APPELLANT



Appeal from Judgment of Sentence imposed January 16, 1976 at No. 485 of 1975 of the Court of Common Pleas, Criminal Division, Lackawanna County. No. 1005 October Term, 1976.

COUNSEL

Robert T. Gownley, Jr., Asst. Public Defender, Scranton, for appellant.

Paul R. Mazzoni, Dist. Atty., Anthony J. Popeck, Asst. Dist. Atty., Scranton, for appellee.

Watkins, President Judge and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Cercone

[ 242 Pa. Super. Page 166]

The instant appeal arises from appellant's conviction by a jury of robbery and aggravated assault. Appellant argues that evidence was introduced at trial which was discovered by police as the result of an illegal search; and, that an outburst by a spectator in the courtroom during the trial was so prejudicial that the trial court abused its discretion in refusing appellant's motion for a mistrial. With both points we disagree.

On March 7, 1975, appellant was arrested by the Scranton Police on a warrant for failure to pay a traffic fine. While appellant was at police headquarters, in another section of the building Gerard Lacey was attempting to select the picture of a man who had submitted Lacey and a friend of his to a particularly brutal and terrifying robbery in their apartment. Based upon Lacey's verbal description of his assailant, the investigating detectives, Genell and Walsh, suspected appellant might be the culprit. After apprising appellant of his Miranda rights, the detectives asked appellant about the robbery. Appellant responded that he had nothing to hide and knew nothing about it. The detectives then asked appellant if he would mind if they searched his apartment, and appellant said he did not. The detectives also gave appellant a "Consent to Search" form which appellant appeared to read and sign.

Appellant and the detectives then went to appellant's apartment on Capouse Street in Scranton which he shared with Edith Lydel and her four children. Mrs. Lydel answered the door and, upon learning the identity and purpose of the detectives, she stated that she did not mind if they searched the apartment either. In the living room, apparently in plain view, the detectives saw a radio which matched the description of a radio taken in the Lacey robbery. With Mrs. Lydel's permission the detectives took the radio and, when it was identified as the one

[ 242 Pa. Super. Page 167]

    which was stolen, they arrested appellant for the instant crimes pursuant to an arrest warrant.

Appellant argues that his consent to search was invalid because it was not knowing, intelligent and voluntary. In particular, appellant contends that his limited education and his functional illiteracy, combined with the inherently coercive atmosphere of the police station, rendered his consent nugatory.

As appellant correctly states, the burden is upon the Commonwealth to prove that a challenged consent was knowing, intelligent and voluntary. Commonwealth v. Harris, 429 Pa. 215, 239 A.2d 290 (1968); Commonwealth v. Dixon, 226 Pa. Super. 569, 323 A.2d 55 (1974); Commonwealth v. McCloskey, 217 Pa. Super. 432, 272 A.2d 271 (1970). Given that burden of proof, in the instant case the suppression hearing court found that appellant's consent to the search was valid, and we are not inclined to disagree. First, as we stated in Commonwealth v. Richard, 233 Pa. Super. 254, 260, 336 A.2d 423, 426 (1975), "great deference should be given to the decision of the hearing court since that court has had the opportunity to observe the appearance and demeanor of the witnesses and the defendants." See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In a well-considered opinion, the suppression judge in the case at bar, Walsh, J., concluded that appellant's demeanor and his narration of the circumstances at the hearing belied his allegation that he was incapable of understanding and intelligently waiving his constitutional rights. Furthermore, the court found that appellant's inability to read was not ...


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