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COMMONWEALTH PENNSYLVANIA v. EUGENE NIXON (06/12/81)

filed: June 12, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
EUGENE NIXON, APPELLANT



No. 406 April Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Allegheny County Criminal Division, No. CC7705393

COUNSEL

Donald Calaiaro, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Price, DiSalle and Montemuro, JJ.

Author: Montemuro

[ 288 Pa. Super. Page 79]

This case is before the court on a direct appeal from a judgment of sentence by a judge, sitting without a jury, for Escape.*fn1 Post-Trial motions were denied and appellant, Eugene Nixon, was sentenced to a term of two (2) to four (4) years.

The sole question raised by appellant on appeal is whether or not he should be afforded the benefits of the decision of the Pennsylvania Supreme Court in Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) [Hereinafter Bussey ], requiring an explicit waiver of Miranda*fn2 rights. For the reasons discussed below, we refuse to apply Bussey to appellant's case, and we therefore affirm the Order of the lower court.

[ 288 Pa. Super. Page 80]

The facts of the case are as follows:

On August 6, 1977, seventeen inmates were found to be missing from the Allegheny County Jail. Appellant was discovered to be one of the missing prisoners, and he did not have official permission to leave. On August 9, 1977, three days later, the Pittsburgh Police apprehended appellant outside the confines of the Allegheny County Jail. Appellant had been located at the home of a friend, based on a phone call received by police.

Appellant was placed in custody of Officer Maynerik of the investigating division of the Allegheny County Sheriff's Office. Following standard procedures in effect at the time, Officer Maynerik carefully read appellant his Miranda rights, and then asked him if he understood his rights and if, keeping the rights in mind, he wished to talk. Although appellant did not at this point specifically state his desire to waive the right to silence, nor was he offered an available form to sign to that effect, he did proceed to answer questions placed to him.

Officer Maynerik took simple background information for the first five or ten minutes following the Miranda warnings, and then he asked appellant how the escape had been accomplished. Appellant proceeded to confess his escape and to describe the method used. Officer Maynerik did not repeat the Miranda warnings prior to shifting the focus of his questioning.

At trial, appellant's counsel objected for the first time to the admission of appellant's confession. Although procedurally this was not the proper time to raise such an objection, the trial judge, the Honorable Henry R. Smith, Jr., permitted testimony to be taken in the nature of a suppression hearing. Appellant's main contention at this point was the failure to repeat the Miranda warnings prior to shifting the focus of the questioning. The Bussey decision requiring explicit waiver had not yet been reached and was therefore not argued. The Commonwealth did ...


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