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COMMONWEALTH PENNSYLVANIA v. JOSHUA SMITH (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSHUA SMITH, APPELLANT



COUNSEL

David P. Trulli, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 255 Pa. Super. Page 405]

Appellant was arrested for murder, robbery, and conspiracy. He was convicted in a jury trial of robbery*fn1 and conspiracy.*fn2 Appellant was then sentenced to a term in a state correctional institution.

The facts of the case are quite unique. At 11:00 p. m., March 13, 1975, a Philadelphia police officer, driving alone in a patrol car observed a fight between two men in the road. The appellant was observed on top of the other male punching him. As the patrol car approached, the appellant stopped punching the man. He picked up two hats on the ground and ran away. The police officer pursued the appellant in his patrol car, passing by the second male still lying in the intersection. The appellant was apprehended about thirty feet beyond the intersection. After the appellant was patted down, handcuffed, and placed in the patrol car, the police officer looked back to see if the second male had moved. It was then a SEPTA bus entered the intersection, running over the prone man, who was declared dead on arrival when taken to the hospital. The appellant was taken to the station house.

At the station house the appellant made three separate statements. The first occurred at 1:30 a. m. or 2 1/2 hours after the arrest. The statement was exculpatory, the appellant claiming that the other individual had attacked him and

[ 255 Pa. Super. Page 406]

    he fought back in self-defense. After a polygraph examination that indicated the appellant was lying, the appellant gave a second statement at 5:15 a. m. In this statement, the appellant admitted attempting to rob the individual.*fn3

Finally, at 12:30 p. m. (13 1/2 hours after the arrest), the appellant made a third statement. The police had found a witness who stated that the appellant was with another male and took the victim's coat. The appellant in this statement identified the name of his cohort (one Brad Brown) and his address. The coat was later seized at Brown's residence without a warrant.

The appellant's initial contention on this appeal is that he was not adequately advised of constitutional rights. There is evidence, however, that appellant was given standard Miranda warnings before the first and second statements, and was aware that a murder was being investigated. Appellant further argues that Miranda warnings should have been given before the third statement which occurred six hours after the second. The leading case on this issue is Commonwealth v. Wideman, 460 Pa. 699, 334 A.2d 594 (1975). However, a comparison of the situation in Wideman and that of the instant case demonstrates that the two cases are distinguishable. In the instant case, the time lapse between the last warning and the prejudicial statement was half the time lapse in Wideman, and there was no protracted continuing interrogation between the two statements. The two statements were taken in the same room by the same detective. The two statements were substantially similar except that the appellant gave the police the name and address of his accomplice. This case, on the facts, is far removed from the situation in Wideman, and therefore, the repetition of the Miranda warnings was unnecessary.

[ 255 Pa. Super. Page 407]

The appellant also argues that any waiver of his rights was not intelligent or voluntary because he was drunk, not given proper warnings, denied food, and promised that he would be let go if he made a statement. However, there is evidence which establishes that appellant was at all times mentally alert and not ...


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