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COMMONWEALTH PENNSYLVANIA v. FRANK LOWERY (04/11/80)

filed: April 11, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK LOWERY, APPELLANT



Nos. 252 & 253 Special Transfer, Appeal from the Judgment of Sentence imposed, of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, denying Appellant's Post Trial Motions and Sentence imposed thereon on Bill of Information Numbers 44, 45, 46, 47 of the November Term, 1976.

COUNSEL

Joel W. Todd, Philadelphia, for appellant.

Cynthia Severinsen, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, O'Brien and Cirillo, JJ.*fn*

Author: Watkins

[ 276 Pa. Super. Page 573]

This is an appeal from the Court of Common Pleas of Philadelphia County, Criminal Section, by the defendant-appellant, Frank Lowery, after conviction by a jury of charges of murder of the first degree, possession of an instrument of crime, robbery and criminal conspiracy. The defendant was sentenced to life imprisonment on the murder conviction. The sentences on the other crimes were to run concurrent with the life sentence on the murder conviction.

On September 30, 1976, the defendant and two other males agreed to rob a vegetable store located at 1607 West Susquehanna Avenue, in Philadelphia, Pennsylvania. Shortly after 4:00 P.M. on that date they entered the store. Defendant served as a lookout and carried a pistol. One of the other participants, an Anthony Jackson, carried a shotgun into the store with which he shot and killed the store's proprietor during the robbery. Defendant was aware of the fact that Jackson was carrying the shotgun at the time of the holdup. Defendant was apprehended a short time after the holdup but was released when an eyewitness to the robbery informed police that defendant was not the one. On September 11, 1976, at 1:15 P.M., defendant accompanied by his attorney, surrendered himself to police authorities at the District Attorney's office after he learned that the police were looking for him. At this time defendant was instructed by his attorney not to make any statement in the absence of the attorney. Defendant was then taken to the Police Administration Building where, after being provided his Miranda Warnings, he gave a statement implicating himself in the crime. Defendant had never requested an attorney during the questioning although he had been advised that he need not answer questions in the absence of one. On the way to the police building he had asked a Detective Ellis about the advisability of one in defendant's position giving a

[ 276 Pa. Super. Page 574]

    statement. The court below held that this fact supported the contention that defendant intended to relinquish his right to counsel. In any event at 7:43 P.M. on September 14, 1976 defendant signed a written statement implicating himself in the crime. Defendant filed a motion to suppress the statement but the court below denied defendant's motion and the confession was used against him at trial.

Defendant's first assignment of error on appeal is that the court below erred in failing to suppress his confession because his Sixth Amendment rights to counsel had been violated when the police questioned him in the absence of his attorney. Defendant argues that once the police knew that defendant had retained an attorney they should not have been permitted to question him in the absence of the attorney even if defendant had agreed to waive his right to an attorney during questioning. An inculpatory statement will not be suppressed even though obtained in the absence of counsel, where a defendant's constitutional rights have been fully explained and knowingly, voluntarily and intelligently waived. Commonwealth v. O'Bryant, 479 Pa. 534, 388 A.2d 1059 (1978).*fn1 A defendant's right to counsel is the defendant's right and not the attorney's right. Therefore a person accused of a crime who has already engaged counsel may with full knowledge of his rights effectively waive his right to have counsel present while he is questioned by the police. Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972). After a full hearing the court below held that defendant waived his right to counsel with full knowledge of his rights. The fact that defendant initiated a conversation with the police detective on the way to the police building during which he inquired about the advisability of giving a statement supports the court's finding that defendant desired to give such a statement. A review of the record demonstrates that the court below had sufficient facts before it to enable it to find as it did.

[ 276 Pa. Super. Page 575]

In Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977), the majority of the court reversed defendant's conviction and ordered a new trial. There were two grounds for the new trial identified by the writer of the lead opinion in that case. The writer of the lead opinion held that a statement taken from the defendant during a custodial interrogation when the defendant had retained an attorney who had been denied access to the defendant during the interrogation and who had expressed a desire to the police to be present during the interrogation was inadmissible at trial and constituted a denial of defendant's Miranda rights despite the fact that defendant had expressed a desire to waive his Miranda rights. In such a case the waiver was invalid. However, only two other Justices agreed with this reasoning and therefore the principle enunciated by the lead opinion was not adopted by a majority of the Supreme Court. It should also be noted that in Hilliard, supra, the defendant's attorney was present at the police station during the questioning of the defendant, had asked to see the defendant but was denied access to him and had expressed his desire to the police that the defendant not be questioned unless he was present during the questioning. In our case the attorney had not expressed a desire to the police to be present during the interrogation, had not been denied access to the defendant by the police and the defendant had not requested counsel during the interrogation. Therefore, even if the opinion of the lead writer in Hilliard, supra, had been adopted by a majority of the Court it is apparent that our case is readily distinguishable from Hilliard on its facts. In Commonwealth v. Lark, 482 Pa. 292, 393 A.2d 1112 (1978), a case in which three Justices joined an Opinion in Support of ...


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