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filed: April 20, 1981.



Alan B. Ziegler, Assistant Public Defender, Reading, for appellant.

J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Hester

[ 286 Pa. Super. Page 412]

Following a jury trial, appellant Edwin Stamm was found guilty of theft and receiving stolen property in the Court of Common Pleas, Berks County. Post trial motions were argued and denied and a sentence of two to four years imprisonment was imposed. This direct appeal followed.

The factual scenario leading to conviction may be briefly summarized. On the evening of May 13, 1978, Daisy's Dress Shop in Reading, Pennsylvania, was burglarized by one Johnnie Diaz, who removed therefrom dresses, coats, and other ladies' apparel. Entry was effected by removing wooden panels from a rear door of the shop. Later that evening, Diaz was driving about the city in the company of the appellant, appellant's sister Karen, and one Linda Merkel. Diaz stopped the car near Daisy's, while appellant and his sister walked around to the store's rear. Presently, they

[ 286 Pa. Super. Page 413]

    returned to the car with appellant carrying several coats and Karen Stamm bearing a large green laundry bag full of jewelry. Afterward, at appellant's residence, the loot was divided in various ways, with appellant retaining some $600.00 worth of goods. In a pre-trial statement given to arresting officers, appellant denied entering the store, but admitting to taking some of the goods which he found on the rear porch of the store. Testifying in his own behalf at trial, appellant reiterated the substance of his pre-trial statement.

Appellant first contends the court erred in failing to suppress his confession as being involuntary. On appeal, our duty is to determine whether the record supports the factual and legal conclusions of the suppression court and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we will consider only the evidence of the Commonwealth's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). So viewed, the record of the suppression hearing reveals that in the early afternoon of May 19, 1978, Detective Zuchowski of the Reading Police Force arrived at appellant's residence and requested him to accompany the officer to City Hall for questioning about the burglary. At that time, the officer observed that appellant's head was bandaged as a result of an automobile accident four days earlier. At the station, appellant stated he understood why he was being interrogated, that he understood his Miranda warnings, and did not wish an attorney to be present. Officer Zuchowski reduced appellant's statement to writing and appellant initialed each of the seven paragraphs therein and affixed his signature at the bottom. In Zuchowski's opinion, appellant was alert and responsive, did not complain of pain, and understood fully what was transpiring.

In his own behalf at the pre-trial hearing, appellant testified that he was in a car accident on May 15, 1978, requiring some 50 stitches at the hospital to close a head

[ 286 Pa. Super. Page 414]

    wound. He was released from the hospital the same day but stated he felt dizzy, was in pain, and couldn't sleep for a few days. Appellant contended he was "confused" when he gave the statement to the officer. The defense also produced a physician's assistant at the county jail who stated appellant had complained of headaches and a partial hearing loss when examined at the jail after his arrest.

The suppression court found that the confession was voluntarily and knowingly rendered, crediting the officer's observations. Appellant's injuries had occurred four days before his arrest and he had recovered sufficiently to allow him to intelligently decide whether to give a statement or not. There was no evidence that he was taking medication at the time and his injuries were not serious enough to require overnight hospitalization. The court did not believe appellant's testimony that he was "confused" or that he did not understand what he was doing. We find the record supports the court's findings. This is not a case where an accused, lying in a hospital bed, suffering from serious wounds and under heavy medication, has rendered an involuntary confession. See, e. g., Commonwealth v. Perry, 475 Pa. 1, 379 A.2d 545 (1977); Commonwealth v. Walker, 470 Pa. 534, 368 A.2d 1284 (1977); Commonwealth v. Hallowell, 444 Pa. 221, 282 A.2d 327 (1971). Rather, this case is akin to those where we found the defendant, although suffering from some infirmity such as drug withdrawal or intoxication, was nonetheless capable of giving a confession of his own volition. Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977); Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103 (1972); Commonwealth v. Swint, 450 Pa. ...

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