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COMMONWEALTH PENNSYLVANIA v. JAMES O. SEIBERT (01/04/80)

filed: January 4, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES O. SEIBERT, APPELLANT



No. 264 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, at No. 460-1977.

COUNSEL

Justin K. McCarthy, Bethlehem, for appellant.

Richard Shiroff, Assistant District Attorney, Easton, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Nix

[ 274 Pa. Super. Page 186]

This is an appeal from the order of the Court of Common Pleas sitting en banc denying and dismissing appellant's motions for a new trial and the arrest of judgment. Appellant had been charged with criminal homicide in connection with the shooting death of his wife and was found guilty of murder of the third degree after a jury trial.

Appellant's first contentions is that the trial court committed reversible error when it refused appellant's motion to suppress the incriminatory statements made by him to the police. Appellant's evidence demonstrated that he had been drinking continuously for a period of six to seven hours prior to the death of his wife and his subsequent interrogation. Appellant contends that at the time he made these incriminatory statements he was too intoxicated to understand the constitutional warnings, and, therefore, did not knowingly and voluntarily waive his rights to remain silent and to have the assistance of counsel.

On the night of the homicide in question, a person who identified himself as appellant called the police station and informed the police switchboard operator that his wife had been shot and, "I did it -- please forgive me." This statement was spontaneous and was uttered before the police had any chance to warn the speaker against making any inculpatory

[ 274 Pa. Super. Page 187]

    statement. Later that night, after appellant was arrested and taken into custody, he was given the Miranda*fn1 warnings. The appellant nodded his head in response to the series of questions put to him and did not give an express verbal response to the questions. Following these warnings, the appellant gave a written and signed inculpatory statement.

One police officer who was present during the arrest and another police officer present during the questioning of appellant testified at the suppression hearing and at trial that, although it was evident that the appellant had consumed alcohol, both police officers believed that the appellant was not so intoxicated as to have rendered him incapable of understanding the warnings and the situation that he faced. A test administered by the police at the scene of the crime demonstrated the appellant's blood alcohol level was .13.*fn2 Appellant's testimony relating to his alcoholic consumption indicated that he had consumed between twenty-four (24) and thirty-six (36), seven (7) ounce bottles of beer during a six (6) to seven (7) hour period preceding the shooting. His testimony also established that he had ceased drinking approximately three to four hours before the time of the killing. Moreover, on direct examination, appellant stated, "Well, I was drinking, but I could drive my car." It is also apparent from the record that appellant was able to relate the sequence of events surrounding his arrest and interrogation. He concedes remembering that his rights were in fact given to him. He acknowledged that he experienced no difficulty in understanding the questions put to him by the police following his arrest.

Our standard of review of an issue of this nature has been clearly set forth in the ...


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