No. 1566 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Div. of Phila. County, at Nos. 2442-45: 2447-48 April Session 1979.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Wieand and Johnson, JJ.
[ 299 Pa. Super. Page 174]
This is an appeal from judgments of sentence for criminal conspiracy, robbery, possession of an instrument of crime, and simple assault. Appellant argues that the lower court erred (1) in refusing to suppress his statement; (2) in refusing to excuse for cause two prospective jurors; and (3) in sentencing him for both conspiracy and possession of an
[ 299 Pa. Super. Page 175]
instrument of crime. We have concluded that the lower court did not err in refusing to suppress appellant's statement but that at least one of the two prospective jurors should have been excused for cause. We therefore order a new trial, at which appellant's statement may be admitted. Because of this disposition, we do not reach appellant's third argument.
In arguing that his statement should have been suppressed, appellant says that "[w]hile the police were searching him, one officer asked appellant a question to which appellant made a direct response." Appellant's Brief at 11. Before we discuss the merits of this argument, we note that the evidence is in conflict on exactly what appellant replied to the officer's question, and, indeed, on whether there was a question at all. Appellant himself testified on both direct and cross examination that he could not remember having any conversation with the arresting officers. N.T. 3/27/79, 171, 209. However, one of the officers testified as follows:
A: Well, after observing him standing there, we pulled up to the curb, stopped our vehicle, maybe approximately three to four feet from him and I called to him. I said, "Hey Johnnie." He turned to us and said, "Yes." At this point, I said, "Don't move." At the same time, we were exiting our vehicle. We got out, went over to Mr. Johnson, my partner frisked Mr. Johnson while I kept him covered and I next said to Mr. Johnson, "Is your name Johnnie Johnson?" and his reply was, "No." At this point my partner proceeded to put the handcuffs on Mr. Johnson. I said to Mr. Johnson, "You are wanted." He asked me at this point, "What for?" I said, "There is a warrant that says robbery."
If we assume, as appellant seems to do in his brief, that the arresting officer's version of the arrest is accurate, still, the lower court did not err in refusing appellant's motion to suppress his reply to the officer. Statements
[ 299 Pa. Super. Page 176]
given in response to preliminary questions, such as questions about name and age, are not as a general rule within the purview of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), for at least in most cases, such questions are not intended or expected to elicit an incriminating response, Commonwealth v. Davis, 460 Pa. 37, 331 A.2d 406 (1975), Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974), and the answers are not incriminating or prejudicial to the defendant, Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). Here, both reasons apply. The officers asked appellant his name not to elicit an incriminating response but to determine whether he was the person named in the arrest warrant. Appellant's response that his name was not Johnnie Johnson was not prejudicial to him, for as appellant admits, "[R]egardless of his answer, the police were going to take him in, in light of their 'photographic identification' and appellant's affirmative response when addressed as 'Johnnie.'" Appellant's Brief at 17.
Since appellant's response was not incriminating, it was not obtained in violation of his right to counsel. United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) (right to counsel violated where government deliberately elicited incriminating information from defendant through cellmate). For the same reason, the rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), was not violated. Commonwealth v. Rhem, 283 Pa. Superior Ct. 565, 424 A.2d 1345 (1980) (Davenport rule applies by its terms to inculpatory statements). Moreover, Davenport applies only to statements "obtained after arrest but before arraignment." Commonwealth v. Davenport, supra, 471 Pa. at 286, 370 A.2d at 306. Here, appellant's response was during, not after, his arrest. N.T. 3/26/79, 136-37, 139.
A prospective juror should be excused for cause in ...