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COMMONWEALTH PENNSYLVANIA v. ANTHONY FRISON (07/02/82)

filed: July 2, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY FRISON, APPELLANT



No. 266 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of Montgomery County at No. 1201 - 80.

COUNSEL

Richard M. Lovenwirth, Pottstown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Popovich and Montgomery, JJ.

Author: Spaeth

[ 301 Pa. Super. Page 502]

This is an appeal from judgments of sentence for robbery and theft. Finding none of appellant's arguments persuasive, we affirm.*fn1

On December 1, 1978, Michael Zipkin, a 68 year old man, parked his car near a Pantry Pride grocery store in the Cedarbrook Mall in Cheltenham Township, Montgomery County. He went to a savings bank in the mall, where he deposited one check and cashed another. At about 4:00 p. m. he left the bank with some $100 in cash. At about 5:00 p. m. he told a Pantry Pride cashier, "I was just robbed in the parking lot." He was directed to an attendant, and told the

[ 301 Pa. Super. Page 503]

    attendant that he had been robbed by a black male in his early twenties who stood approximately five feet six or seven inches and carried a small package or brief case. The attendant notified the police. While awaiting their arrival, Mr. Zipkin collapsed and shortly thereafter died from a heart attack. According to the physician who performed the autopsy, the attack was in part brought on by the emotional stress of the robbery and by the impact of a blow to the chin and neck.

Later that evening, Mr. Zipkin's car was taken to a township parking garage, where it was dusted for fingerprints. Three prints were identified as appellant's. Also, Mr. Zipkin's personal possessions were inventoried; no cash was found.

On December 30, 1978, the Cheltenham Township police were notified that appellant had been arrested in Philadelphia. When questioned by Montgomery County detectives, appellant denied any involvement in the Zipkin robbery. Appellant was questioned a second time in January 1979 and again denied any involvement, stating that he knew nothing about the robbery and was "finished" talking about it. N.T. 8/4/82 at 47.

On March 1, 1979, in response to charges arising from the Philadelphia arrest, appellant pleaded guilty to assaulting a postal employee and was sent to a federal penitentiary in Missouri. In August 1979 appellant asked to be sent to Montgomery County, pursuant to the Interstate Agreement on Detainers, so that an outstanding charge of fraudulent use of a credit card might be resolved, and in December 1979 he was brought to the Montgomery County jail. On March 3, 1980, while awaiting disposition of the credit card charge, he was again questioned about the Zipkin robbery. This time, after a formal waiver of his Miranda rights, he gave a detailed statement. The gist of the statement was as follows: On December 1, 1978, appellant had been at the Cedarbrook Mall, "making a couple dollars helping peoples with their packages to the cars." He helped a white male [Mr. Zipkin] with his packages. When Mr. Zipkin took out

[ 301 Pa. Super. Page 504]

    an envelope to give him a tip, appellant saw that the envelope contained a lot of money: "[I]t looked like there was containing about $85-$90.00 and it wasn't no singles in it. So, I guess he was looking for some singles -- you know -- something just to give me." Appellant "just snatched [the envelope] out of [Mr. Zipkin's] hand as he went to open up the [car] door and [appellant] closed the door back and . . . took off running."

-1-

Appellant argues that the evidence was insufficient to sustain his conviction. This argument is without merit, for the evidence included appellant's confession. Appellant, however, would have us review his sufficiency claim without considering the confession because, he contends, the confession was invalid; therefore not properly admitted; therefore not properly part of the record. Brief for Appellant at 13.

This reasoning reflects a misunderstanding of the scope of our review. If we conclude that evidence should not have been admitted, we do not discharge the defendant but at most remand for a new trial. See Commonwealth v. Fiume, 292 Pa. Superior Ct. 54, 436 A.2d 1001 (1981). The Commonwealth may have other evidence, which we know nothing about, that if produced at a new trial might prove what had been improperly proved at the first trial. To discharge the defendant would penalize the Commonwealth for using evidence held by the lower court to be admissible.

-2-

Appellant offers several arguments in support of his contention that his confession should have been suppressed.

(a)

Appellant argues that his confession should have been suppressed because the corpus delicti of the theft and robbery had not been established.

It has long been the rule that the corpus delicti of a crime must be established before a confession by the accused may be admitted in ...


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