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decided: February 7, 1979.


No. 691 April Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Div., entered March 17, 1977 at Nos. CC7608155A, CC7608156A, CC7607675A.


Lester G. Nauhaus, Assistant Public Defender, Pittsburgh, for appellant.

Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., files a concurring statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.

Author: Spaeth

[ 263 Pa. Super. Page 194]

Appellant was tried by a jury and convicted of attempted robbery, aggravated assault, and violation of the Uniform Firearms Act. Post-verdict motions were denied and appellant was sentenced to consecutive prison terms of five to ten years for attempted robbery, five to ten years for aggravated assault, and two and one-half to five years for the firearm violation. On this appeal appellant argues that the court below erred in admitting an incriminating statement and in failing to instruct the jury concerning the voluntariness of that statement, and also that the evidence was insufficient to sustain the convictions.

Viewed in the light most favorable to the Commonwealth as the verdict winner, see Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973), the evidence was as follows: At approximately 7:00 p. m. on September 9, 1976, plainclothes police officers John James, Norman Leonard, and Ferris Hutton were on stake-out duty in Point State Park in downtown Pittsburgh. Their assignment was to investigate an outbreak of muggings and robberies in that area. After they had individually patrolled the area for approximately ninety minutes, the officers met. Officer James sat down on a park bench while Officer Leonard concealed himself in back of and to the left of Officer James, and Officer Hutton hid in the shadows of some nearby trees. From his vantage point, Officer Leonard saw appellant walking down a path near Officer James. Appellant was dressed in a waistlength blue denim jacket, dark pants, a floppy hat, and dark glasses. Officer James testified that as appellant approached the bench he stopped to peer into some bushes behind which was sitting a young couple, and then continued down the path, past the bench and Officer James, until he was approximately five to ten feet from Officer Leonard's hiding place. After a brief pause, appellant veered to the side, walked past Officer Leonard's hiding place, and circled back to the rear of the bench on which Officer James was seated. Appellant stood watching Officer James for a few minutes and then slowly approached the bench. When he

[ 263 Pa. Super. Page 195]

    was within two feet of Officer James, the officer jerked suddenly to his left. Appellant fired two shots, one of which struck Officer James in the lower back, puncturing his spleen. As he fell to his knees, the officer drew his revolver and fired it. Appellant ran up a hill pursued by Officer Leonard. After a brief chase he was apprehended and returned to the bench, where Officer James made a positive identification. Appellant was arrested and taken to police headquarters. He was given his Miranda warnings, signed a waiver form, and made an incriminating statement to the police.


At trial the Commonwealth was permitted to introduce evidence of the incriminating statement. According to one of the police officers to whom appellant spoke after his arrest:

A He stated to us that he went into the park for somebody to rob, decided to rob the old man, and shot him because the man reached back and the gun went off.

He said that he saw him and decided to rob Detective James. We asked why he settled on him, and he said old people usually don't give you any trouble. He said that he went over to Detective James and he said that he approached Detective James from the right rear, and he also said that he had the gun in his right hand. He said prior to that he had the gun in his right jacket pocket. We asked him why he entered from the right rear -- we asked him what position he entered from and he said to the rear ...

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