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COMMONWEALTH PENNSYLVANIA v. RODNEY SIMMONS (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RODNEY SIMMONS, APPELLANT (TWO CASES)



Nos. 407 and 415 January Term, 1976, Appeals from Judgments of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 542 and 544 May Term, 1975

COUNSEL

Richard P. Abraham, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Glenn S. Gitomer, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix and Larsen, JJ., concur in the result. Manderino, J., files a dissenting opinion in which Roberts, J., joins.

Author: O'brien

[ 482 Pa. Page 501]

OPINION

Appellant, Rodney Simmons, was tried by a judge sitting with a jury for the homicide of Samuel McCrae. Appellant was found guilty of murder of the third degree and possession of instruments of crime. He filed original post-verdict motions and supplemental post-verdict motions, all of which were denied. On March 25, 1976, he was sentenced to a term of imprisonment of ten to twenty years on his conviction of murder of the third degree, and a concurrent sentence of two and one-half to five years on the possession of instruments of crime conviction. He appealed the judgment of sentence imposed on the murder conviction to this court and the judgment of sentence imposed on the conviction of possession of an instrument of crime was appealed to the Superior Court, which certified that appeal to this court for disposition.

The facts of this appeal are as follows. On April 14, 1975, appellant, Rodney Simmons, also known as "Hot Lips," was sitting in the front passenger seat of an automobile driven by Kenny Biggs, also known as "Lemon". In the rear seat was another individual, known as "Nut," who was intoxicated. At approximately 9:30 p. m. the automobile driven by "Lemon" was in the vicinity of 29th and Clementine Streets, Philadelphia. The automobile was pulled to the side of the street where Clarence Williams, Gregory LaMarr and Michael Jackson were standing. Appellant inquired of the group where they were from. This question was explained as meaning in street language, did they belong to a street

[ 482 Pa. Page 502]

    gang. Williams responded "Go ahead. We don't do that stuff around here." This response caused a verbal exchange between appellant and Williams. Jackson then told the occupants of the car to turn off the engine and get out of the car. Appellant responded that they would be right back. As the car pulled away Williams, carrying a stick, followed the car up to a red light at 29th and Allegheny Avenue. When the car stopped at the light, Williams took cover behind a tree. Samuel McCrae then walked around the corner from Allegheny Avenue onto 29th Street. As McCrae crossed the street and approached the driver's side of Lemon's automobile, appellant leaned across from the passenger seat and fired a shot, striking McCrae in the chest. McCrae was later pronounced dead. The cause of death was determined to be the gunshot wound.

Appellant first argues that the court below erred in failing to suppress his confession. His argument is four-pronged:

     a.) The statement was taken in violation of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

     b.) Appellant was arrested without a warrant and without probable cause and his subsequent confession was "tainted" as the fruit of the poisonous tree.

     c.) The statement was not voluntarily given.

     d.) Appellant received inadequate Miranda warnings in that the police did not inform him of his right to an attorney or that any statement he gave the police could be used against him in a court of law.

Appellant attempts to raise, by way of a supplemental brief, a fifth issue concerning the admissibility of his confession. He argues that the court below erred in failing to suppress his confession because the police failed to rewarn him of his constitutional rights prior to each period of interrogation preceding his confession. We do not reach the merits of appellant's fifth contention. His motion sought the suppression of his confession on the following grounds:

     a.) The statement was obtained in violation of Commonwealth v. Futch, supra.

[ 482 Pa. Page 503]

    b.) The statement was the product of an illegal arrest and was, therefore, tainted as the fruit of the poisonous tree.

     c.) The statement was not a product of appellant's free will and was, therefore, involuntary.

     d.) Appellant was denied access to an attorney and his family.

     e.) Appellant received inadequate Miranda warnings in that the police never told him of his right to an attorney or that any statement he gave could be used against him in a court of law.

     f.) Appellant did not voluntarily waive his Miranda rights.

The suppression court denied appellant's application to suppress.

In his supplemental post-verdict motions, appellant attacked the suppression court's order on three grounds:

     a.) There was no probable cause for the arrest and his confession was the product of that illegality.

     b.) The statement was taken in violation of Commonwealth v. Futch, supra.

     c.) The statement was involuntary.

The then-applicable Pa.R.Crim.P. 323(d) (1975) stated:

"(d) The application shall state specifically the evidence sought to be suppressed, the specific constitutional grounds rendering the evidence inadmissible, and shall state with particularity the facts and events in support thereof."

Appellant's application to suppress did not challenge the admissibility of his confession on the grounds that the police were required to rewarn him of his Miranda rights at intervals during the interrogation. See Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973) and Commonwealth v. Dixon, 475 Pa. 365, 380 A.2d 765 (filed December 1, 1977). In Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978), we concluded that the specificity requirement of Pa.R.Crim.P. 323(d) was mandatory.

[ 482 Pa. Page 504]

Moreover, appellant's supplemental post-verdict motions did not present any argument concerning a violation of Miranda. Rather, the motions concentrate on three limited areas:

     a.) Futch violation.

     b.) Involuntary nature of the confession.

     c.) Confession as the fruit of an illegal arrest.

Appellant's supplemental post-verdict motions were filed January 14, 1976, approximately one year after this court's decision in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). In Blair, this court required strict adherence to Pa.R.Crim.P. 1123(a), which required specific written post-verdict motions. Therefore, we find that appellant's Miranda claim is not preserved for appellate review.

Appellant argues that the suppression court erred in failing to suppress his confession because of an alleged violation of Commonwealth v. Futch, supra. We do not agree.

The chronology surrounding his statement is as follows. Appellant was arrested at approximately 11:48 p. m. on April 14, 1975, at his home in Philadelphia, and transported to the Police Administration Building. He arrived at police headquarters at 12:25 a. m., on April 15, and was placed in an interrogation room. From 12:25 a. m. until 2:50 a. m., appellant was left alone. The police officer in charge of the investigation, Detective Doyle, was at the scene of the shooting supervising the crime laboratory's collection of evidence and interviewing potential witnesses. Detective Doyle arrived at the police station at 2:50 a. m., when he immediately proceeded to the interrogation room where appellant was being held. Appellant was then permitted to use the bathroom facilities. The record continues by showing that between 2:54 a. m. until 3:01 a. m. Doyle elicited general ...


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