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decided: June 13, 1979.


13 SPECIAL TRANSFER DOCKET, Appeal from Judgment of Sentence of the Common Pleas, Criminal Division, of Mercer County, at No. 573 Criminal, 1977


Timothy R. Bonner, Assistant Public Defender, Mercer, for appellant.

Charles S. Hersh, Assistant District Attorney, Mercer, for Com., appellee.

Van der Voort, Larsen and Lavelle, JJ.*fn*

Author: Van Der Voort

[ 267 Pa. Super. Page 17]

Appeal is taken from judgment of sentence rendered following jury trial and verdict of guilty of murder in the first degree.*fn1 Pertinent facts are that on September 6, 1977, in the early morning hours, State Police were investigating an apparently abandoned automobile parked on the roadside when they came upon the unconscious body of one James Miles in a nearby ditch. At first it appeared that Miles had been the victim of a hit-and-run accident. He was removed to a hospital, where he died. Numerous bruises were noted on the body. Pursuant to interviews conducted on September 6, the name of appellant surfaced as one who had an unrequited romantic interest in the girlfriend of decedent, a girl in whose company it was known Miles to have been shortly before the crime. Investigating officers interviewed appellant at his residence.

The facts are not disputed that appellant spoke freely to the officers, telling them that he knew Miles, that he had been driving alone the prior evening, and that he owned two cars, one being at the present residence and the other at a second home some distance away. After the officers expressed interest in seeing this second auto, appellant offered to accompany them to its location. This accomplished, appellant stated that the police needed no search warrant to examine the vehicle. The investigators expressed concern at finding blood, mud, and hairs on the under side of the car.

[ 267 Pa. Super. Page 18]

Again appellant disdained a need for a warrant and cooperated to the extent of providing a cloth to aid in the removal of this foreign matter. Further appellant agreed to a more thorough investigation, and drove the car to a nearby service garage where it could be placed on a hoist.

Once there, however, the officers had determined that their investigation to that point was showing the accident not to have been of a hit-and-run variety, but rather done with purpose, the evidence pointing toward appellant. Consequently, he was given his Miranda warnings. Nevertheless, appellant continued to cooperate by allowing the vehicle to be hoisted. Thereupon, the officers observed an amount of mud, blood, and grass. One of the officers left to obtain a search warrant so that samples of the material could be removed for analysis, and to another officer appellant confessed to murder.

[ 267 Pa. Super. Page 19]

Appellant alleges error in the lower court's refusal to suppress his statements both before and following his receipt of the Miranda warnings. At the time of the officers' initial contact with appellant until the various factors of the investigation coalesced to indicate that the decedent had fallen afoul of a crime other than a hit-and-run driver, it is clear that appellant was not a suspect. He was then merely one of thirty or so people who were being questioned. We have provided in some detail hereinabove the factual setting to show the investigatory nature of the proceedings and appellant's cooperative bent. Not until the many seemingly disparate pieces of the puzzle of the crime began to fall into place and point toward appellant was he considered a suspect, or one upon whom the investigation centered or focused to the possible exclusion of others. It was also then that he received his Miranda warnings. This is correct procedure, for it is not a constitutional necessity for one to be warned of a right of silence until his liberty has been deprived, either physically or intrinsically as the focus of police investigation. Prior to the warnings appellant had been free to leave, and could not be said to have been subjected to custody in any sense. Commonwealth v. Page 19} McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977). There was no error in allowing the statement made during investigation, and consequently no taint of post- Miranda statements or search, given or allowed voluntarily.

Next appellant argues that the jury should have been instructed as to the penalties of the lesser included offenses of murder, citing Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) and Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977). Appellant's reliance on the cited cases is misplaced as neither case makes any such holding. There is no requirement that the court in a murder case charge the ...

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