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filed: June 3, 1983.


No. 2042 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division, at No. 2287 of 1979.


Stuart Wilder, Assistant Public Defender, Doylestown, for appellant.

Jeffery M. Williams, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Cavanaugh, McEwen and Hoffman, JJ. McEwen, J., files a dissenting opinion.

Author: Hoffman

[ 314 Pa. Super. Page 579]

Appellant contends that the lower court erred in admitting evidence of statements made by appellant without proper Miranda warnings. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

On July 22, 1979 appellant surrendered to Bensalem police after shooting Dr. Joel Bockol. At appellant's subsequent jury trial, the Commonwealth's evidence established the following: Appellant and Bockol were jockeying for position while driving upon Interstate 95. Appellant would pass Bockol, then cut in front of him and slow down, prompting Bockol to reciprocate. This maneuvering continued

[ 314 Pa. Super. Page 580]

    until appellant abruptly turned onto the Street Road exit. Bockol followed by driving over the grass separating the highway from the exit ramp. Both cars sped into the parking lot of a nearby donut shop. Appellant left his vehicle carrying a gun and warned Bockol to stay away. As appellant began to walk away, Bockol emerged from his car and grabbed appellant. Appellant shot Bockol in the stomach. Bockol staggered five to ten feet to appellant's vehicle and reached in for the ignition key. Appellant then shot Bockol a second time from five feet away. Appellant's testimony corroborated much of the Commonwealth's evidence with several exceptions. Appellant testified that he had received anonymous threats prior to the incident and that Bockol's attempts to run him off the road caused him to believe that Bockol had been the source of the threats. He admitted firing two shots at Bockol's tires on Interstate 95 but alleged that the shots fired in the parking lot were in self-defense. Appellant was found guilty of voluntary manslaughter and sentenced to four-to-eight years imprisonment. This appeal followed.

Appellant contends that the lower court erred in permitting a corrections officer's testimony about what he overheard appellant say to a prison psychiatrist because appellant had not been given the Miranda warnings. Appellant turned himself in to Bensalem police immediately after the shooting and was questioned from 4:30 to 5:30 p.m. After a second interrogation ended about 7:30 p.m., appellant was transferred to Bucks County Prison. After midnight, appellant was taken from his cell by Sgt. David Belgarde and interviewed in the prison infirmary by the prison psychiatrist. Belgarde positioned himself in the infirmary's outer office to observe appellant and listen to the interview. He testified at trial that he had heard appellant tell the doctor: (1) "I don't need this bullshit. I don't want any trouble, but if anybody fucks with me, I will kill them;" (2) that he would kill the person who was "fooling around" with his wife; and (3) that he had smashed his army superior with a wrench, "poked him in his head and shot him with a .45."

[ 314 Pa. Super. Page 581]

(N.T. December 18, 1979 at 9-10). Neither Belgarde nor the psychiatrist gave appellant any Miranda warnings.

"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). "[A]bsent other fully effective procedures, a person must receive certain warnings before any official interrogation, including that he has a 'right to remain silent' and that 'anything said can and will be used against the individual in court.'" Estelle v. Smith, 451 U.S. 454, 466-467, 101 S.Ct. 1866, 1875, 68 L.Ed.2d 359 (1981). Here, appellant was transferred to County prison and then hours later to the prison infirmary where he was interrogated by the prison psychiatrist while a corrections officer eavesdropped. The lower court concedes that the psychiatrist's testimony would be precluded under Estelle v. Smith, supra, (psychiatrist's testimony detailing statements made by defendant at court ordered pre-trial examination precluded from sentencing hearing because no Miranda warnings given). It cannot be seriously argued that a corrections officer, employed by the same institution and required by that ...

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