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COMMONWEALTH PENNSYLVANIA v. DENNIS MCQUAID (01/04/80)

filed: January 4, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS MCQUAID, APPELLANT



No. 2528 October Term, 1978, Appeal from Judgment of Sentence imposed on September 15 1978 in the Court of Common Pleas of Philadelphia, Trial Division, Crim. Section, Nos. 77-09-388-389, 391 and 393

COUNSEL

Joel S. Moldovsky, Philadelphia, for appellant.

James B. Jordan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ.

Author: Cavanaugh

[ 273 Pa. Super. Page 602]

This is an appeal from judgment of sentence entered after a lengthy trial before Kubacki, J. and a jury. Appellant was found guilty of criminal conspiracy; possession of an instrument of crime, generally; robbery and aggravated assault. He was sentenced to 1 1/2 to 3 years for criminal conspiracy; 1 1/2 to 3 years for a possession of an instrument of crime, generally; 2 1/2 to 5 years for aggravated assault; and 10 to 20 years for robbery. All sentences are to run concurrently with the sentence for robbery.

At about 9:00 a. m., July 12, 1977, the doorbell rang at the home of Mr. Zarenkiewicz, an elderly man residing in Philadelphia, Pennsylvania. As he went to answer the doorbell, two men, one of whom was armed with a double barrel shotgun, ran into his home and asked him where his money was. The man with the shotgun threatened to kill Mr. Zarenkiewicz if he did not tell him where he kept his money and subsequently taped the victim's eyes, mouth and feet. The men ripped out the telephone and ransacked Mr. Zarenkiewicz's home. While this was occurring Mrs. Zarenkiewicz arrived home from a shopping trip. When she walked into the living room she observed one of the men holding a shotgun and she started to scream for help. The intruder

[ 273 Pa. Super. Page 603]

    with the gun threatened to kill Mrs. Zarenkiewicz if she continued screaming. She continued to do so and was struck on the head and pushed down the steps. As a result of this she suffered a broken hip and was hospitalized for over three weeks. An operation was required for the insertion of a pin and plate in her hip.

The two intruders fled from the premises with two encyclopedias and three or four books containing coins which belonged to Mr. Zarenkiewicz. They were observed by a witness whose attention was caught by two men running out the front door of Mr. Zarenkiewicz's house, one of whom was carrying books over his head and the other a shotgun. The witness, who at the time his observations were made, was driving his car, stopped and heard Mrs. Zarenkiewicz moaning. He wrote down the license number of the car in which the two men fled. He also observed that the car was a green foreign make four door automobile and that three men were in it when it was driven away. He observed that the man carrying the shotgun wore a plaid shirt. This information was shortly thereafter given to the police.

The description of the car and of two of the three white males occupying the car and the license number and the direction the car was heading were broadcast over the police radio. At about ten minutes after nine a police officer observed the fleeing vehicle which had been described on the police broadcast and gave chase. The officer put on the dome light of his car to signal the fleeing vehicle to stop but it did not do so. On the contrary, it increased speed. By this time the police officer informed headquarters that he was in pursuit of the vehicle and also put on the sirens in his police car. During the chase the officer observed the doors of the pursued vehicle being opened and an object fell out one of the doors. The pursued vehicle sped into a parking lot and went into a ditch. Three males ran from the car which was then in an area of high grass and bushes. The officers shouted to the men to stop. One of the men turned and threw a machete toward the police officer who then opened fire at the fleeing men. One of the men was shot

[ 273 Pa. Super. Page 604]

    and killed. This was Raymond Dales, the owner of the vehicle in which the men fled from the Zarenkiewicz house. A second man who was standing a few feet away from Mr. Dales when he was shot fled into the high grass. The third man observed fleeing from the automobile was captured by police a few minutes later. This man was Carl Miller, who was a co-defendant at appellant's trial.

Other police officers joined in the search and about one-half hour later the appellant was found hiding in the heavy undergrowth about 45 feet from where the machete was found. Appellant was wearing a plaid shirt of the same description as that worn by the man who fled from the automobile. Police officers located the stolen coins and books in the automobile in which the men fled. At about 10:00 a. m. appellant was taken to Parkview Hospital in an emergency patrol wagon together with Detective O'Brien and other police officers. On the way to the hospital appellant stated that he had been shot. Although appellant was loud when he arrived at the hospital and insisting that his girl friend be called, he appeared to calm down when the doctor told him his wound did not look too serious. Appellant was examined and was found to have a wound in the back of his head behind his right ear. The wound appeared to be slightly less than a quarter inch in diameter. Appellant's injury was treated and he was administered fluids intravenously. While waiting in the hall of the hospital for x-rays to be taken and while lying on a type of wheeled-stretcher, he made a statement to Officer O'Brien after having been advised of his constitutional rights. In the course of his statement to Detective O'Brien appellant stated that "I was there, I did it. We only got some lousy coins". The interview with Officer O'Brien lasted from about 11:15 to 11:35 a. m. and at 12:25, after appellant had been x-rayed, he was discharged from the hospital. He was subsequently taken to the police administration building and arraigned at approximately 3:00 p. m.

Appellant's first contention is that the court below erred in not suppressing his ...


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