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COMMONWEALTH PENNSYLVANIA v. ANDREW GALE (04/26/83)

submitted: April 26, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ANDREW GALE, APPELLANT



No. 1249 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, December Term, 1980, at Nos. 2176 and 2177.

COUNSEL

John S. DiGiorgio, Philadelphia, for appellant.

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

Rowley, Wieand and Popovich, JJ.

Author: Rowley

[ 315 Pa. Super. Page 60]

Appellant was convicted, after a non-jury trial, of theft and of conspiracy to commit theft. Post-trial motions were filed and denied. Appellant was sentenced on the two convictions to consecutive terms of imprisonment of not less than two and one-half nor more than five years on each charge. This direct appeal followed.

The sole issue raised by appellant is whether the trial court erred in failing to suppress his statement to police in which he admitted his participation in this incident.

The charges arose out of a theft committed on October 7, 1980, in the home of Henrietta Harze, a mentally retarded, fifty-eight year old woman. During the course of the incident, Ms. Harze was raped and stabbed to death and the house set on fire. Appellant's co-defendant, Carlie Mitchell, was tried by a jury and found guilty of murder in the first degree, arson, robbery, risking catastrophe, criminal conspiracy and rape.

[ 315 Pa. Super. Page 61]

The record reveals the following. On December 3, 1980, appellant was arrested on a charge of possession of an instrument of crime. Officer Lavine of the Philadelphia police was aware that homicide detectives were looking for appellant in connection with the Harze homicide. Appellant was taken to homicide headquarters, where he was advised of his Miranda rights. Appellant requested to speak to his attorney. Interrogation immediately ceased. Appellant then conferred with his attorney by telephone and, on the advice of counsel, refused to make any statement to police. Appellant was permitted to leave police headquarters without any charges having been filed against him. The investigation continued and, as a result of additional evidence, appellant was arrested on December 10, 1980, in connection with the Harze homicide.

After appellant was again read his Miranda rights, he signed a waiver of those rights and gave a statement to the police admitting his participation in the October 7 incident. When asked why he was talking to the police without his attorney being present and against his attorney's advice, appellant answered:

"Because I'm tired of everybody telling me what to do. I want to stand up on my own and do the right thing. That lawyer charged me $100 just for a phone call the last time. I don't think that he cares about me."

Appellant argues that the interrogation on December 10, 1980, without his attorney, violated his constitutional rights under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because he had previously ...


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