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COMMONWEALTH PENNSYLVANIA v. ROBERT JOHNSON (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT JOHNSON, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Northampton County, at No. 447 October Term, 1974. NO. 385 OCTOBER TERM, 1976.

COUNSEL

Harris S. Pasline, Assistant Public Defender, Bethlehem, for appellant.

Robert A. Freedberg, Assistant District Attorney, Easton, and Charles H. Spaziani, District Attorney, Easton, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion, in which Hoffman, J., joins.

Author: Van Der Voort

[ 247 Pa. Super. Page 211]

Appellant has been found guilty by a jury of robbery, criminal conspiracy, recklessly endangering another person and carrying a prohibited, offensive weapon and has been sentenced to a prison term of not less than 7 1/2 and not more than 15 years. His appeal from the sentence challenges (1) the refusal of the trial court to suppress evidence, (2) the effectiveness of assistance rendered by trial counsel, and (3) the length of his sentence.

The background of the suppression issue lies in the circumstances of appellant's warrantless apprehension and his verbal admissions of guilt made before counsel was assigned to him.

Jay's Submarine Shop in Easton was robbed of about $350 in late evening by two black men armed with a sawed off shotgun. Two employees described the robbers to the police and stated that one wore a green Army jacket and the other a black leather jacket. Shortly before the robbery a green Chevrolet had been observed by the police cruising near the scene of the robbery. Within minutes of the robbers' getaway, this car was observed about two blocks from the scene of the crime traveling at a high rate of speed. A pursuing officer located the car near the Easton Central Fire Station about five blocks from the scene of the robbery. It had just been parked there by the occupants and its engine was still warm. A fireman from the adjacent fire station informed the police that three black males had just rushed into an adjacent apartment building.

Two of the officers were directed to observe activities inside the apartment and did so by stationing themselves on the steps of a patio attached to the rear of the apartment for the use of anyone entering the building from the rear. Access to this patio was by a walkway at the rear of the apartment, but not adjacent to a public street.

From a position on the fourth or fifth step of the patio, the officers observed two black males and a white female through a four or five inch gap in the curtains on the

[ 247 Pa. Super. Page 212]

    kitchen window. They observed one of the black males remove a green Army field jacket and another one stripping down to a T-shirt. After about fifteen minutes of observation, the officers called an Assistant District Attorney by telephone and were advised that they had probable cause to enter the apartment. Appellant and a co-defendant were arrested in the apartment and the police seized several items of physical evidence, including a black coat, a green Army jacket and some packages of coins found in one of the jackets.

Appellant and his co-defendant were taken to police headquarters where they were read a statement of the Miranda rights and then given a written copy of that statement to read. Appellant signed an acknowledgement that he had read the statement, understood his rights and did not want a lawyer. Later in the same night at the police station, appellant orally admitted to one of the officers, "Well, I guess you got me" and made some other remarks implicating himself and others. However, he refused to make a written statement without the presence of an attorney.

At appellant's preliminary hearing held a few days later, he was not represented by counsel but the proceedings were postponed for three days until counsel for appellant could be appointed and was present.

It was argued at the subsequent suppression hearing and is reiterated here that the testimony of the officers concerning what they saw from the patio steps should be suppressed because it constituted a search and seizure in violation of the rights of privacy of those within the apartment. However, the failure of appellant and those with him in the apartment to close the window shades negates appellant's argument that he was deprived of his privacy; and the fact that the observations of the police involved a trespass of private property is merely one factor to consider in determining the reasonableness of the visual intrusion: Commonwealth v. Soychak, 221 Pa. Super. 458, 462, 289 A.2d 119 (1972). See also Commonwealth v. Janek, 242 Pa. Super. 340, 363 A.2d 1299 (1976).

[ 247 Pa. Super. Page 213]

If the observations of the officers were legal, and the opinion of the suppression judge clearly demonstrates that they were, there was justification for a search of the apartment without a warrant and a seizure of the identifying jackets.

It is further argued that appellant's oral admission of guilt to a police officer should have been suppressed because the Miranda warning was ambiguous and, therefore, defective. The statement which was both read to appellant and given to him to read and on the basis of which he signed a waiver of his rights read as follows:

"Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer."

"WAIVER: I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me."

A Miranda statement in this form was sustained as sufficient in Wright v. North Carolina, 483 F.2d 405, 406-7 (4th Cir. 1973), certiorari denied 415 U.S. 936, 94 S.Ct. 1452, 39 L.Ed.2d 494 (1974). A similar position has been taken by the 2nd and 5th Circuits, but a contrary conclusion was reached in the 7th and 9th Circuits, ...


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