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filed: June 24, 1983.


NO. 1571 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, at Nos. 1332-1337 March Term, 1980.


William R. Solvibile, Philadelphia, for appellant.

Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Rowley and Van der Voort, JJ. Spaeth, J. files a dissenting opinion.

Author: Van Der Voort

[ 316 Pa. Super. Page 244]

Appellant was arrested and charged with robbery, theft by unlawful taking and/or disposition, theft, receiving stolen property, aggravated assault, simple assault, recklessly endangering another person and possession of instruments of crime. Appellant's motion to suppress physical evidence and a statement were denied. Following a jury trial, appellant was convicted of robbery and possession of an instrument of crime. Post-trial motions were denied and appellant was sentenced to a total term of imprisonment of twelve and one-half to twenty-five (12 1/2 to 25) years. This

[ 316 Pa. Super. Page 245]

    appeal followed. Appellant's brief lists eight issues to be resolved on appeal; we will review his first three contentions as one issue. A brief summary of the factual and procedural history of this case will be helpful.

A real estate broker was robbed on December 28, 1979, by an actor wearing a stocking over his face. The victim however recognized appellant from his build and voice as the culprit; appellant had been a tenant of the victim and had been in the real estate office on a number of occasions. Among cash and other items that were taken, the actor directed the victim to make out a check in the name of "James Ira Health"; the actor showed a social security card bearing that name.

Appellant had been wanted by the authorities on unrelated charges. Information was received concerning appellant's future activities and surveillance was established. Appellant arrived as expected and detecting the presence of police, fled and proceeded to take refuge in an occupied residence. Appellant contacted a lawyer by telephone who arrived at the above residence. Appellant then surrendered to the police. Later the attorney stated to the police that appellant did not wish to make any statement. The attorney left. The police advised appellant of his Miranda Rights.*fn1 Appellant allegedly refused to talk about the other unrelated crime but would discuss other matters; i.e., the current set of charges. He indicated he did not want to talk to an attorney. Appellant confessed to the robbery of the real estate office.

I. Should Appellant's Confession Have Been Suppressed?

Appellant's argument is threefold. He argues that any statement given without counsel present and after counsel had been retained should have been suppressed. The police should not have continued interrogation after appellant invoked his right to remain silent absent a request by

[ 316 Pa. Super. Page 246]

    appellant. Finally, he contends that he did not waive his Miranda rights.

Appellant first argues that the suppression court erred in failing to suppress certain statements he made to the police on the day of his arrest. Although there is no single litmus-paper test for determining the validity of a confession, the parameters of appellate review of a suppression court's ruling of admissibility are well-defined.

The suppression court, which hears and evaluates the testimony, is required to make findings of fact and conclusions of law . . . The court must determine whether the Commonwealth has established by a preponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing and intelligent . . . Our responsibility on review is "to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." . . . In making this determination, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976) (cites omitted). We will consider all of the attendant circumstances to determine if it was sufficiently demonstrated that appellant's decision to speak was the product of a free and unconstrained choice and that the waiver of his constitutional rights was a knowing, intelligent and voluntary choice. Id.

Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980). Here the suppression court found that there was no agreement by the police not to interrogate appellant and therefore found no basis for suppressing his statements (N.T. Suppression pp. 218-219).

In reviewing the record in view of the above standard, we find the following events led up to appellant's admission. Appellant acquired the attorney's name through the telephone directory yellow pages. (Id. pp., 165, 168) After

[ 316 Pa. Super. Page 247]

    appellant was taken to the police station he consulted with private counsel. As counsel was leaving, the attorney advised the police authorities that appellant did not wish to make a statement. (Id. p. 98) The same witness responded affirmatively when asked whether counsel informed him not to interview appellant as he did not wish to speak to the police. (Id. p. 110) The attorney who aided appellant in surrendering testified that he left after the police assured him appellant would not be interrogated. (Id. pp. 122, 134, 135) A second detective testified in rebuttal. He testified that the attorney just informed him that appellant did not wish to make a statement. (Id. p. 168) The police did not assure counsel that they would not question appellant. (Id. pp., 169, 173)

Resolving the discrepancies between the recollections of the police officers and private counsel is a matter for the suppression court. This court may not substitute its own finding for those of the lower court especially in weighing the credibility of the witnesses. Commonwealth v. Stamm, 286 Pa. Superior Ct. 409, 429 A.2d 4 (1982). As the record supports the court's findings that no agreement existed between the investigating officers and counsel to forego questioning, we may not supplant its findings with our own. Therefore the issue devolves into whether when ...

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