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COMMONWEALTH PENNSYLVANIA v. ANTHONY BRODO (01/19/79)

decided: January 19, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY BRODO, APPELLANT



No. 1445 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Section, Trial Division of Philadelphia County, Imposed on Information Nos. 1203 and 1204, November Session, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., filed a concurring opinion. This case was decided prior to the retirement of Jacobs, former President Judge. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 262 Pa. Super. Page 376]

Appellant contends that the lower court erred in refusing to suppress: (1) oral admissions made at his home because police officers did not give him Miranda warnings, and (2) a subsequent confession at police headquarters because it was tainted by the initial alleged custodial interrogation. Because we find appellant's contentions without merit, we affirm the judgments of sentence.

On November 9, 1976, Philadelphia police arrested appellant on charges stemming from the September 30, 1976 burglary of the Royal Villa Bar and the October 28, 1976 burglary of Michael's Dog Grooming Parlor. On January 11, 1977, the lower court held a hearing on appellant's motion to suppress two statements made by appellant on the day of his arrest. Testimony at that hearing revealed the following facts: On November 9, 1976, Detectives O'Shea and Romano of the Philadelphia Police Department began to investigate the burglary of Mrs. Gentile's home. Other officers informed

[ 262 Pa. Super. Page 377]

    the detectives that Mrs. Gentile had identified appellant from police photographs as a "possible" burglar of her home and that based upon a statement of the owner of the Royal Villa Bar, appellant was also a suspect in the September 30, 1976 burglary of that bar. From the detectives' interview with the bar owner on November 9, 1976, they learned that (a) a burglar had stolen the owner's cash register and other items, (b) appellant's mother had told the owner that his stolen cash register was at her home, and (c) a "similar" burglary had occurred at Michael's Dog Grooming Parlor across the street from the bar. From their subsequent interview with the owner of the dog parlor, the detectives learned that on October 28, 1976 a burglar had stolen some cash, framed photographs of nude women "similar to the old-time calendars," a small black ceramic buddha doll and other items. With all of the above information, the detectives went to appellant's home at approximately 3:00 p. m. on November 9, 1976 to question him about the burglaries of the Gentile home and the Royal Villa Bar. Appellant's mother admitted the detectives into the home when they asked her whether appellant was there. While waiting for appellant, the detectives observed a photograph of a nude woman and a black buddha doll, both matching the description of the items taken in the dog parlor burglary. When appellant came downstairs, the detectives asked him whether the items were his and where he obtained them. Appellant answered that they were his and that he had bought them from someone coming out of the dog parlor. The detectives then gave appellant Miranda warnings and asked him whether he would voluntarily accompany them to headquarters and bring the photograph and buddha doll with him. Appellant agreed. En route to headquarters, the detectives stopped at the dog parlor where the owner identified the photograph and buddha doll as those stolen during the burglary of his shop. At headquarters, the detectives again gave appellant Miranda warnings. Appellant waived his rights and confessed to burglarizing both the bar and the dog parlor. He signed his confessional statement at 4:30 p. m.

[ 262 Pa. Super. Page 378]

On January 11, 1977, after hearing the above testimony, the lower court denied appellant's motion to suppress the statements he made at his home and at headquarters, proceeded immediately to trial without jury, and found appellant guilty on two bills each charging burglary, theft by unlawful taking, and theft by receiving stolen property. On March 30, 1977, after denying appellant's written post-verdict motions, the lower court sentenced appellant to two consecutive 10 year terms of probation. This appeal followed.

Appellant contends that the lower court erred when it refused to suppress the statements he made at his home prior to the first Miranda warning. In Commonwealth v. Anderson, 253 Pa. Super. 334, 345-347, 385 A.2d 365, 370-71 (1978), we described the following guidelines used to determine "when a 'custodial interrogation' which triggers the need for Miranda warnings occurs. First, the mere fact that the police investigation has focused on a particular person will not require Miranda warnings before police interviews with that person. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977). Second, if the police in fact place a person in custody or restrict his freedom in any significant way prior to, or during, the interview, then the interrogators must advise that person of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Leaming, 432 Pa. 326, 247 A.2d 590 (1968); Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409 (1968), cert. denied, 393 U.S. 882, 89 S.Ct. 189, 21 L.Ed.2d 157 . . . . Third, a suspect actually may be in custody even if the police have not taken him to a police ...


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