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filed: January 7, 1983.


No. 383 Philadelphia, 1981, Appeal from the Judgment of Sentence of Jan. 20, 1981, in the Court of Common Pleas of Phila. County, Trial Division, Criminal Sect. at No. 1937 March 1980.


Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Beck, JJ. Brosky, J., files a dissenting opinion.

Author: Spaeth

[ 310 Pa. Super. Page 388]

This is an appeal from a judgment of sentence for robbery. Appellant argues that the lower court erred in denying his motion to quash the return of the transcript of the preliminary hearing; in refusing to suppress his statement; and in giving the "restrain" version of the reasonable doubt charge.

We admire the careful way in which the lower court conducted the trial, and we agree with, and find no need to add to, its discussion rejecting appellant's arguments regarding the motion to quash and the reasonable doubt charge. But on two issues, which concern appellant's statement, we don't agree with the lower court. These issues have nothing to do with appellant's guilt -- there's no doubt he was the robber -- but a good deal to do with the conduct of other trials, in other cases.

The police officer who obtained appellant's statement did not give appellant the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In refusing to suppress the statement, the lower court held that whether a police officer must give a suspect Miranda warnings should be decided by a subjective, not an objective, test: Did the officer think he was asking a question that might elicit an incriminating answer, not, Should he have thought so? We believe that the objective test is the right test. Applying it here, we conclude that the warnings should have been given, and since they were not, that the statement should have been suppressed. The lower court also held that it was not required to order a new trial as a sanction for the Commonwealth's failure to disclose appellant's statement in violation of Pa.R.Crim.P. 305 B(1). We believe that a new trial should have been ordered.

Appellant robbed a bar. He ran away but was soon caught by the police and brought back to the bar, where the bar maid, the disc jockey, and two patrons positively identified him. At the suggestion of one of the persons who had

[ 310 Pa. Super. Page 389]

    chased appellant, the police went to a nearby porch. There they found a coat and scarf. Appellant had discarded these when he was chased -- as an attempt, no doubt, to make himself look different. In a pocket of the coat the police found sunglasses, gloves, and a paper bag with money inside it, in an amount closely corresponding to the amount taken from the bar's cash register. Also in the pocket the police found a set of keys. After appellant had been arrested, and while he was in a holding cell at the police station, the officer who had found the keys showed them to appellant, and asked "if they belonged to him and he said they did and I [the officer] returned them to him." N.T. 119.

Before the trial, appellant's counsel had asked the assistant district attorney whether he intended to introduce any statement by appellant. The assistant district attorney replied that there was no statement. N.T. 133-34. After the officer had testified to appellant's statement about the keys, his counsel moved for a mistrial. N.T. 145, 219. The assistant district attorney argued that the statement was not a statement. N.T. 134. The lower court held that it was but denied the motion for mistrial. After some further testimony, the court interrupted the trial, saying, "I'll salvage this case if I can." N.T. 219. The court then conducted a hearing to decide whether the statement should be suppressed, N.T. 220 et seq., after which it ruled that the statement was admissible, and could be referred to by the assistant district attorney in his closing argument, N.T. 234-35.


At trial the Commonwealth argued that appellant's statement that the keys were his was really not a statement. In rejecting the argument, the lower court said to the assistant district attorney:

Well, in answer to your contention, suppose you had asked him about the coat, does this coat belong to you, don't you think his answer would have been a highly

[ 310 Pa. Super. Page 390]

    important statement? Suppose you asked him about the sunglasses.

N.T. 135.

The assistant district attorney replied that he agreed that appellant's answer that the coat and sunglasses belonged to him would have been a statement, "since they were . . . submitted as evidence against [appellant]," N.T. 135-36 (the coat and sunglasses were Exhibit C-1), but went on to say, "I think the keys themselves have no significance as evidence other than the fact that they were in the pocket of the coat," N.T. 136. In its brief to us the Commonwealth argues in somewhat different terms, blending an argument about ...

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