Thomas J. McCormack, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Eagen, C. J., and Manderino, J., concur in the result. O'Brien, J., filed a concurring opinion, in which Pomeroy, J., joins.
On February 28, 1975, a jury convicted appellant of robbery and murder of the second degree. Appellant's motion to suppress the statement here challenged was denied. Appellant was sentenced to life imprisonment on the conviction for murder of the second degree and to a concurrent term of ten to twenty years on the robbery conviction after denial of post-trial motions. A timely appeal to this Court from the judgment of sentence on the murder conviction followed.*fn1 The judgment of sentence on the robbery conviction was appealed to the Superior Court and thereafter ordered consolidated with the appeal before this Court.
Appellant's sole contention is that the statement obtained from appellant approximately nine hours after his arrest on May 24, 1974, should be suppressed because appellant was not rewarned of his Miranda rights*fn2 before renewal of his
interrogation.*fn3 We conclude that admission of the challenged statement did not prejudice appellant and therefore affirm the judgments of sentence.
The challenged statement was given by appellant to a Detective Thornhill and consisted of non-inculpatory answers to four questions.*fn4 Appellant does not challenge an earlier 10-page statement which he made to a Detective Kelly. Over defense objections, the Commonwealth used the challenged statement to cross-examine appellant at trial. Detective Thornhill also testified to the four questions and answers on rebuttal.
Nothing in the challenged statement contradicted appellant's defense that he participated under duress in the crimes charged. Every material fact in the challenged statement had been admitted by appellant on direct examination before the challenged statement was introduced. Because the challenged statement was first used during cross-examination of appellant and was again introduced on rebuttal by the Commonwealth, it cannot be said that the statement impelled appellant's testimony at trial. See Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Commonwealth v. Hart, 471 Pa. 271, 370 A.2d 298 (1977) (dissenting opinions of Roberts, J. and Nix, J.);
before the challenged statement was ...