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filed: December 10, 1982.




Andrew Achman, Pittsburgh, for appellant.

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Brosky, Cirillo and Popovich, JJ.

Author: Cirillo

[ 307 Pa. Super. Page 526]

Appellant was arrested on February 5, 1980 and arraigned on the charges of murder, two counts of burglary and one count of criminal conspiracy. On August 26, 1980, appellant's motion to suppress his confession was denied after a hearing before the Honorable George H. Ross. A trial by jury commenced before Judge Ross in September 1980. On September 4, 1980, the jury found appellant guilty of second degree murder, criminal conspiracy and two counts of burglary. On December 4, 1980, appellant was sentenced to a term of life imprisonment on the conviction of second degree murder and five (5) to ten (10) years on one burglary count to be served consecutively to the term of life imprisonment. Sentences on all other counts were suspended. This appeal followed.

On appeal, Mr. Maddox argues that the trial court erred: (1) when it denied his motion to suppress an unlawfully

[ 307 Pa. Super. Page 527]

    obtained statement made by him prior to arraignment; (2) because he was denied effective assistance of trial counsel, and (3) when it imposed an illegal sentence. We find no merit to appellant's arguments and affirm the judgment of sentence.

On February 3, 1980, at 11:10 p.m., Mary Buchewicz heard a hammering noise coming from the basement of the Strand Building, in Sharpsburg, Allegheny County, where her husband, Joseph Buchewicz, was custodian. While Mr. Buchewicz went to investigate the cause of the noises, Mrs. Buchewicz called the police. After completing the call, Mrs. Buchewicz started to follow her husband and upon reaching the stairwell, she heard her husband shout, "stay upstairs, two guys got me." Mrs. Buchewicz returned to her apartment and called the police again.

Sharpsburg Police Officer Michael Rapino was first to arrive at the Strand Building. When he reached the basement, he saw Mr. Buchewicz lying in the hallway unconscious with wounds in his chest. Officer Rapino never saw anyone in the immediate area, and Mr. Buchewicz died without ever regaining consciousness. Upon subsequent investigation, it was discovered that two offices in the basement of the building, one belonging to Adams Enterprises, and the other to National Home Products, had been broken into.

At 11:59 a.m. on February 5, 1980, Detective John Markel went to the Main De-Lite Restaurant to question appellant about the death of Joseph Buchewicz. Appellant agreed to accompany the detective to the Sharpsburg Police Station for questioning. Upon arrival at the station, one of the officers read appellant his Miranda rights which he agreed to waive. Appellant began to make a detailed exculpatory statement, but because of excessive noise and commotion in the Sharpsburg Police Station, Detective Markel asked appellant to accompany him to the Allegheny County Homicide Division in the Jones Law Building. They arrived at County Homicide at 12:58 p.m. At the Jones Law Building, appellant was confronted with some inconsistencies in his statement, and he began to inculpate himself. Appellant confessed

[ 307 Pa. Super. Page 528]

    to his participation in the burglary but claimed it was his companion who stabbed the victim. Appellant agreed to sign a written statement and started the narrative at 2:03 p.m. It was completed at 4:20 p.m., and at 4:22 p.m., appellant was formally placed under arrest. At 5:02 p.m., appellant was arraigned at the Coroner's Office on the charge of criminal homicide. The arraignment on the burglary and conspiracy charges took place at a squire's office in Sharpsburg at 7:08 p.m.

Appellant's first argument is that the trial court erred when it denied his motion to suppress the statement made at 2:03 p.m. He contends that the statement was improperly admitted into evidence in violation of the rule established in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977).

In Davenport, the Supreme Court of this Commonwealth held that if the accused is not arraigned within six hours of his arrest, any statement obtained after arrest but prior to arraignment shall not be admissible at trial. Therefore, the crucial issue in the application of the rule must turn on the time when appellant was placed under arrest.

Appellant contends that he was arrested sometime between 11:59 a.m., and the departure from the Sharpsburg Police Station to downtown Pittsburgh, rather than at 4:22 p.m., when he was expressly told he was under arrest. If the time of arrest was before 1:08 p.m., the arraignment on the burglary charges would have occurred beyond the six hour limit of Davenport.

The lower court agreed that the arrest occurred prior to 4:22 p.m., but found that the arrest took place at the time appellant started to incriminate himself, at 2:03 p.m.

In Commonwealth v. Benson, 280 Pa. Super. 20, 27, 421 A.2d 383, 386, 387 (1980), our court outlined the test to determine when an arrest has occurred. We wrote:

The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to ...

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