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COMMONWEALTH PENNSYLVANIA v. DARRYL MCBEE (06/13/79)

decided: June 13, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
DARRYL MCBEE, APPELLANT



Nos. 31 & 32 SPECIAL TRANSFER DOCKET, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, Nos. 111-113, September Term, 1976.

COUNSEL

William T. Cannon, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, for Commonwealth, appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 267 Pa. Super. Page 51]

Appellant appeals directly from judgments of sentence following his conviction by a jury for murder of the second degree, robbery, and conspiracy. He contends inter alia*fn1 that the lower court erred in (1) not suppressing his statement to police and (2) failing to sustain his challenge for cause to a venireman. We conclude that the lower court erred in not sustaining appellant's challenge for cause and, accordingly, reverse and remand for new trial.

Appellant contends that the lower court erred in admitting his confession to police because it was involuntary. Specifically, he claims that his confession resulted from physical abuse, threats, and cajolery by the police. However, testimony of the interrogating officers refuted this claim and was credited by the suppression court. Because the evidence supports the suppression court's findings, we conclude that this claim is without merit. See Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977); Commonwealth v. Washington, 259 Pa. Super. 407, 393 A.2d 891 (1978).

Appellant, a 17 year old juvenile at the time of arrest, also contends that the lower court should not have admitted

[ 267 Pa. Super. Page 52]

    his confession because it was taken (a) in the absence of a consultation with an interested and informed adult, Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975), and (b) contrary to an agreement that appellant's counsel be present, Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Commonwealth v. Bullard, 465 Pa. 341, 350 A.2d 797 (1976). Because appellant failed to raise the McCutchen issue pre-trial and the Brewer issue in post-verdict motions, we hold that he has waived those issues. See Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Appellant also contends that the lower court abused its discretion in not sustaining his challenge for cause of venireman Joseph Steinmetz. The facts are as follows:

In response to a question by the court, venireman Joseph Steinmetz responded:

"Well, my niece was killed approximately two years ago, Your Honor. She was shot. I don't think I could give a fair verdict."

The following colloquy then ensued between the court and Mr. Steinmetz:

"Q. Do you mean somebody was arrested for the incident and there was a trial?

"A. Yes.

"Q. Were you in any way a witness to the incident or a ...


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