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filed: February 13, 1981.


No. 554 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 1049-1051, July Term, 1976.


A. Charles Peruto, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Gates and Dowling, JJ.*fn* Price, J., files a dissenting opinion.

Author: Gates

[ 284 Pa. Super. Page 378]

Appellant, David Thomas, a Philadelphia Police Officer, was tried by a judge sitting without a jury and found guilty of simple assault,*fn1 aggravated assault,*fn2 criminal conspiracy,*fn3 and possession of an instrument of crime.*fn4 Post-verdict motions were denied and appellant was sentenced to a four year probationary term.

The facts surrounding this appeal are as follows: On July 5, 1977, at or about 6:30 p. m., appellant's sister, Marva Crafton,*fn5 was assaulted near her residence by Joseph Smith. Following this attack, Ms. Crafton telephoned her brother, the appellant, who is a Philadelphia Police Officer, not then on duty. She told him about the incident. Appellant immediately went to his sister's house and saw that she was bruised and upset.

[ 284 Pa. Super. Page 379]

Smith returned to the Crafton home a short while later.*fn6 Smith was unarmed as he entered the house. Appellant was hiding behind the front door, armed with a police service revolver and a blackjack. Smith was shot and struck with the blackjack during the ensuing scuffle. Smith fled the scene and sought emergency treatment at a nearby hospital.

On July 5, 1976 Captain James Murray of the Philadelphia Police Narcotics Squad went to the scene of the shooting at about 8:15 p. m. There he found the appellant and his sister. His investigation disclosed that Officer Thomas had fired some shots and, as a result, he was ordered to go downtown and report to the Police Administration Building for the purpose of giving a statement. When Officer Thomas demurred and asked if he could go down to the Police Administration Building the next day, Captain Murray told him: "Don't you understand that you have to give a statement? You are involved in some activity here, and I have to investigate this under the City Charter, under 10-110 Section . . . I said I have to get this done this evening."*fn7 This was the only reference to the City Charter provision and Officer Thomas was not subjected to the litany of the "charter warnings" condemned in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975).

At this time Captain Murray did not suspect appellant of any criminal activity. However, the Captain felt his statement was necessary to the investigation because of his involvement in the incident and because a police revolver was used. At this point in the investigation it appeared to Captain Murray that Marva Crafton was assaulted by Joseph Smith, and that Joseph Smith in turn was shot by the

[ 284 Pa. Super. Page 380]

    defendant, Officer Thomas. At the time Thomas was not the focus of any criminal investigation.

Later in the evening, at about 11:00 p. m. on July 5, 1976, Captain Murray saw appellant at the Police Administration Building. Appellant had been allowed to make a telephone call to the Fraternal Order of Police. His attorney, Mr. Bernstein, had been summoned to the Police Administration Building to represent the defendant, and had conferred with him. Appellant was given free access to the building and was permitted to move about unescorted. However, subsequent to the passing reference to the City Charter, Captain Murray learned that appellant may have been involved in criminal activity. He told appellant's attorney that there was a possibility that his client would be arrested. The Captain told appellant's attorney that he wanted a statement from the appellant. After speaking with his attorney, appellant raised no objection to giving a statement to Captain Murray. When appellant became aware that he might be criminally charged, he volunteered, saying "Wait a minute. Let me get this together. I want to tell you my side."*fn8 Before any statement was taken from appellant he was advised of his Miranda rights. Appellant appeared normal and understood what was going on. At about 1:45 a. m. he gave an oral statement.*fn9 The statement was subsequently reduced to writing and signed by the appellant. The appellant was permitted to go home and was not arrested until the next day.

Prior to trial, appellant filed a suppression motion on the grounds that the statement given by him was involuntary as the result of the coerciveness of the reference to the City Charter provision.

The suppression hearing judge, after a three-day suppression hearing, found that the statement was voluntary and was not the product of any coerciveness resulting from the

[ 284 Pa. Super. Page 381]

    passing reference to the City Charter provision.*fn10 No statement was taken from appellant until after he was fully advised of his Miranda warnings.

The appellant's statement, though inculpatory, was used by the Commonwealth during the trial.

This appeal requires us to determine the validity of the suppression hearing judge's finding that the statement was voluntarily given and, therefore, not suppressible.

Before venturing further, we must examine some basic principles. At a suppression hearing, where the voluntariness of an accused's statement is the issue, the burden of proof is upon the Commonwealth to demonstrate, not beyond a reasonable doubt, but by a preponderance of the evidence that the challenged statement was given voluntarily. Commonwealth ex rel. Butler v. Rundel, 429 Pa. 141, 239 A.2d 426 (1968). The suppression judge who hears and evaluates the testimony is required to make findings of fact and conclusions of law and we should be deferent to those findings. Pa.R.Crim.P. 323(i); Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975). It is the responsibility of the suppression hearing court to determine whether the Commonwealth has established by a preponderance of the evidence that the statement was voluntary and that the waiver of constitutional rights was knowing and intelligent. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974). On appellate review, it is our responsibility to "determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. ...

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