No. 1023 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 4183 July Term, 1975.
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
Ross Weiss, First Assistant District Attorney, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a dissenting opinion in which Hoffman, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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After a jury trial, appellant was convicted of eleven charges arising out of an armed robbery. Post-verdict motions were denied, and appellant was sentenced. Because of our disposition, this case must be remanded for further proceedings.
Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, the following was adduced
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at trial. On June 6, 1975, two individuals entered the home of Mr. Joseph Criville and attempted to force him to open a wall-safe in his basement. Ultimately, Mrs. Criville opened the safe, and the robbers escaped with $21,000. The thieves also absconded with Mr. Criville's business records.
About one week after the incident, the Norristown police, suspecting that appellant had participated in the robbery, took him to the Criville residence for possible identification. Although Mr. Criville thought that appellant resembled one of the robbers, he could not be positive because the robber had worn a full beard that, in effect, disguised his face. Appellant was therefore released.
Three days later appellant contacted Mr. Criville and requested a meeting. At the meeting, appellant offered to sell information concerning the robbery and to obtain the return of the business records. During the next several months at least two more meetings took place. At these meetings, appellant restated his offer and described in great detail the physical layout of the Criville residence as well as the manner in which the robbery took place. Eventually, appellant admitted his complicity in the crime.
Prior to his arrest, appellant requested a meeting with the local District Attorney. Appellant asked for immunity from prosecution and three thousand dollars in return for information relating to the robbery. The request was refused, and appellant was thereafter arrested.
At trial, appellant testified on his own behalf. He denied participation in the robbery, claiming that he had been informed of the details of the crime by other individuals. On cross-examination, appellant stated that he had refused several deals which had been offered by the District Attorney's office. He specifically testified that he never asked for immunity or for three thousand dollars. On rebuttal, Mr. William Nicholas, Esquire, the District Attorney of Montgomery County, testified as to his conversation with appellant. According to Mr. Nicholas, appellant had admitted complicity in the robbery and had demanded immunity from prosecution. The primary problem in the instant case
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stems from the fact that according to the District Attorney, appellant was informed prior to the making of the admissions that his statements would be considered "off-the-record."
Appellant first contends that his admission of complicity should have been suppressed on the ground that appellant's prior waiver of his Miranda rights was nullified by the District Attorney's assertion that appellant's statement would be considered off-the-record. This issue is waived because appellant never moved, either prior to or at trial, to suppress the oral statement. Defense counsel did object at trial; the objection was based on the ground that the "information was given in confidence." (NT 2a). There was clearly no confidential relationship between appellant and the District Attorney, and therefore this objection was properly overruled. Defense counsel later asked the court whether appellant had been informed of his Miranda rights prior to the conference. (NT 30). The Commonwealth introduced evidence demonstrating that appellant had been so informed. At no point did appellant object on the grounds that his statements were involuntary or that the District Attorney's assertions vitiated the effect of the prior Miranda warnings. The issue is therefore waived. Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Clair 458 Pa. 418, 326 A.2d 272 (1974).
Appellant also contends that trial counsel's failure to move at trial for the suppression of the inculpatory statements on the above recounted basis constitutes ineffective assistance. Appellant cites Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), in support of his argument.
In both Garrity and Triplett, the defendants, police officers, were the subjects of investigations into alleged criminal acts committed in the course of their duties. Prior to questioning, they were informed of their Miranda rights; however, each defendant was also informed, or otherwise aware, of certain regulations which provided that failure to
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testify would result in dismissal from employment. Inculpatory statements were thereafter ...