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decided: September 29, 1983.


No. 37 W.D. Appeal Dkt., 1982, Review of Death Sentence imposed by the Court of Common Pleas, Criminal Division, of Westmoreland County, Pennsylvania at No. 684 C of 1980, by Order dated June 4, 1982, No. 26 W.D. Appeal Dkt., 1982, Review of Death Sentence imposed by the Court of Common Pleas, Criminal Division, of Westmoreland County, Pennsylvania at No. 681 C 1980, by Order dated April 23, 1982, Consolidated by Order of Court September 27, 1982


Rabe F. Marsh, III, Greensburg (Court-appointed), Welsh S. White, Pittsburgh, for appellant at No. 26.

Dante G. Bertani, Public Defender, Timothy J. McCormick, Asst. Public Defender, Greensburg, for appellant at No. 37.

John J. Driscoll, Dist. Atty., Timothy J. Geary, Asst. Dist. Atty., Greensburg, for appellee at No. 37.

Marion MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee at No. 26.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., filed a concurring opinion. Roberts, C.j., filed a dissenting opinion.

Author: Zappala

[ 502 Pa. Page 480]


We are called upon to review convictions of first degree murder, for which the Appellants were sentenced to death.

[ 502 Pa. Page 481]

Pursuant to 42 Pa.C.S. ยง 9711(h), we examine the record for errors at trial, and to determine whether the sentence of death should be affirmed or vacated.


In the early morning hours of January 3, 1980, Apollo Police Officer Leonard Miller was killed by two bullets from a .38 caliber hand gun, after having stopped a silver-colored Lancia sports car, containing three men, which had several times sped past his position at the Apollo Stop-and-Go convenience store. Officer Miller was found lying on the highway by police officers who were responding to his radio request for assistance. His service revolver had been drawn, and all six rounds had been fired. Police investigation turned up the Lancia, abandoned, with the windows shattered and bullet holes in it. It was established that the automobile was registered to one William Nicholls of Pittsburgh who had recently disappeared.

Prior to the Miller homicide, state police had received evidence indicating that Appellant Travaglia may have been involved in a number of armed robberies and killings which had taken place in Pittsburgh and surrounding counties. Pursuant to their investigation, the state police had found a vehicle, owned by a homicide victim, abandoned near a motel where Travaglia and a man named Daniel Keith Montgomery had been staying.

Pittsburgh police located Montgomery in the early evening hours of January 3, 1980 in the downtown area of Pittsburgh. While questioning him, they discovered a .38 caliber revolver on his person. Montgomery told the police that Travaglia had given him the weapon and that he (Travaglia) and Appellant Lesko had at that time talked about "wasting a policeman." Montgomery then told police that both Appellants Lesko and Travaglia were staying in a room at the Edison Hotel in downtown Pittsburgh. The police proceeded immediately to the Edison where they arrested Lesko and Travaglia. Appellants were taken to the Public Safety Building and, after being given the standard

[ 502 Pa. Page 482]

    father and that used in the robberies. Bernard Travaglia had also told the police that his son owned a .22 caliber revolver but had told him it was confiscated by a game warden. The Pennsylvania Game Commission had contradicted the report of the confiscation.

The victims of one of the robberies had said that the perpetrators fled in a tan Dodge Ram Charger with window curtains. The body of Marlene Sue Newcomer had been discovered in such a vehicle.

On January 3, 1980, an arrest warrant was issued for Travaglia for receiving stolen property in connection with a burglary at Sonny's Lounge on Route 22 in Delmont, Westmoreland County. Travaglia was known to have been staying at the time with another individual at the Thatcher Motel, which was next to Sonny's Lounge. Peter Levato's car had been found abandoned on December 29, 1979, within a mile of the motel.

The police also knew that the windows of the escape vehicle used by the perpetrators of the Miller homicide had been shot out and that three men had been seen in the area hitchhiking toward Pittsburgh. A motorist, James Henderson, who gave a ride to a group of three men, had been previously acquainted with Travaglia and had identified him as one of the riders.

The police learned that Room 616 of the Edison Hotel in Pittsburgh had been rented to a Michael Simons and a Mr. Lesko. Travaglia was known to have used the alias Michael Simons. Information obtained from Daniel Keith Montgomery confirmed that Lesko and Travaglia were in Room 616 of the Edison Hotel and indicated that Lesko still had a .22 caliber revolver. A night clerk at the hotel told police that the Appellants were still in the room. At 10:20 p.m. on January 3, the clerk unlocked the room with a pass key. The police entered without announcing their identity or purpose. Lesko pointed his gun at them before surrendering.

Travaglia claims that his arrest was unlawful because the warrant for his arrest on the charge of receiving

[ 502 Pa. Page 484]

    stolen goods was issued without sufficient probable cause. We need not decide that question because we find that the validity of the arrest does not depend on the validity of the warrant. A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense, Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973). The officers' investigation and the information they acquired, as detailed above, gave them probable cause to believe that the Appellants were the perpetrators of the homicides. This allowed them to arrest the Appellants without a warrant.

The Appellants also claim that the arrests were invalid because the police acted improperly in entering the hotel room without a warrant and without announcing beforehand their identity and purpose. They base their claim on the rule prohibiting a warrantless entry into a suspect's dwelling without exigent circumstances, Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and on the "knock and announce" rule, Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982); Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). The Appellants would treat the hotel room as a dwelling and apply the requirements of Williams and Payton to both the warrantless entry and the failure of the officers to announce their identities and purpose. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) supports the Appellants' contention that they had a reasonable expectation of privacy in their hotel room. The Court in Stoner held that a hotel clerk does not have authority to allow police to search a guest's room. However, we find that even if the requirements of Williams and Payton apply to hotel rooms, they do not render these arrests invalid. In Williams, we listed certain factors that would tend to support a finding that a warrantless arrest of

[ 502 Pa. Page 485]

    a suspect in his or her home is legal. These include, inter alia, that a grave offense is involved, particularly a crime of violence; that the suspect is reasonably believed to be armed; a clear showing of probable cause -- including reasonable, trustworthy information -- to believe that the suspect committed the crime; and strong reason to believe that the suspect is on the premises. We find that these factors were present in this case and were sufficient to establish exigent circumstances so as to justify a warrantless entry and arrest. Although the exigent circumstances which "justify failure to obtain an arrest warrant are not entirely coextensive with those exigencies which justify noncompliance with the 'knock and announce' rule," Commonwealth v. Norris, 498 Pa. at 313 n. 2, 446 A.2d at 248 n. 2, the facts previously recited clearly demonstrate the existence of circumstances which excused compliance with this Fourth Amendment protection as well. See, Miller v. United States, 357 U.S. 301, 309, 78 S.Ct. 1190, 1195, 2 L.Ed.2d 1332 (1957); Sabbath v. United States, 391 U.S. 585, 591, 88 S.Ct. 1755, 1759, 20 L.Ed.2d 828 (1967).

Lesko challenges his confession on the basis he was not told he was a murder suspect when given his Miranda warnings. He bases his claim on an allegation that on the pre-interrogation warning form which he signed, the only charges indicated were a firearms violation and resisting arrest. He argues that because homicide charges were not also included on the form, he did not possess sufficient knowledge to understand the consequences of waiving his rights and that therefore his waiver was invalid.

[ 502 Pa. Page 486]

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) does not require that in addition to the various rights enumerated a suspect must be provided information as to the crime under investigation. This Court has held, however, that a suspect must have "an awareness of the general nature of the transaction giving rise to the investigation," in order to make an intelligent and understanding waiver of his rights. Commonwealth v. Dixon, 475 Pa. 17, 22, 379 A.2d 553, 556 (1977). See also Commonwealth v. Page 486} Richman, 458 Pa. 167, 320 A.2d 351 (1974). It was stated in Dixon that where "the defendant has not been furnished with such information [so as to make him aware of the transaction involved] and a pre-trial challenge concerning the validity of a confession is made on this ground, the Commonwealth must prove by a preponderance of the evidence that the defendant knew of the occasion for the interrogation." 475 Pa. at 23, 379 A.2d at 556. In that case it was held that the Commonwealth had not met its burden. We found that there existed a palpable ambiguity as to the defendant's understanding of the reason for her interrogation before she executed the waiver of her rights. This ambiguity arose out of the fact that the defendant had defaulted in making restitution payments ordered by a justice of the peace several months earlier, a default which she had been warned would result in her arrest. Because the Commonwealth had not refuted the reasonable inference that the defendant, when she waived her rights, thought that the interrogation was to be in regard to the default, the waiver could not be said to be an intelligent and understanding one as to questioning about a homicide, and statements elicited as to the latter were suppressed.

Appellant Lesko argues for the same result here. We find the facts to be sufficiently different, however, that applying the same rule a different result is required. From the record of the Suppression Hearing it is unclear whether Lesko was specifically told that the questioning would cover several murders before he was given the waiver form to sign. At one point Detective Frank Amity testified: "First thing we did was read him his pre-interrogation warning form advising him of his rights, the charges against him, what we wanted to talk to him about." (Suppression Hearing, p. 553, Sept. 23, 1980) (Emphasis added). Detective Amity later testified regarding what occurred after Lesko signed the form as follows:

Q. After you filled out this pre-interrogation warning form, what did you do?

[ 502 Pa. Page 487]

A. Well, we advised him of the charges that we arrested him for.

Q. What were those?

A. Violation of the Uniform Firearms Act and the recklessly endangering another person. And we also told him that he was a suspect in several murders that happened and wanted to talk to him about those.

Q. After you told him this, what was the next thing that happened?

A. He was more willing to tell us about everything that he did.

(Suppression Hearing, p. 558, Sept. 23, 1980).

Even if we assume that prior to being given the waiver form Lesko was not told in words that the interrogation would include questioning as to the homicides, we cannot conclude that the listing of only the two minor charges on the form created an ambiguity in Lesko's mind as to the purpose of the interrogation. It must be recalled that the four homicides about which Lesko was questioned had occurred over the five days immediately preceding the interrogation. The most recent homicide, the case at bar, had occurred in the early morning hours the same day. Indeed, Appellants Lesko and Travaglia had handed the weapon with which Officer Miller had been shot to Daniel Montgomery less than an hour before their arrest. To find under the circumstances here present that Lesko was unaware of the general nature of the transaction giving rise to his questioning would be tantamount to treating as fact that which is patently hypothesis and fantasy. We need not expound upon the differences which distinguish these facts from those in Dixon. We think it sufficient to note that in Dixon we recognized that "the fact that interrogation follows hard upon the criminal episode and there is no circumstance lending ambiguity to the direction and purpose of the questioning," 475 Pa. at 23, 379 A.2d at 556, could supply the necessary evidence that the defendant knew of the occasion for the interrogation. Viewing the entire episode in context, we must agree with the conclusion of the trial judge

[ 502 Pa. Page 488]

    that Lesko "was, in fact, advised of the seriousness of his situation and was aware that the police were not concerned with the relatively minor charges." (Opinion, p. 44).

The Appellants claim that it was improper to admit testimony by James Henderson identifying them as two of three men he picked up and gave a ride to on January 3, 1980. The basis of this challenge is that Henderson had previously identified them from a photographic array. At the time of this photographic identification, the Appellants were in custody. The identification was conducted without the Appellants being represented by counsel.

In Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), we held that a suspect in custody was entitled to have counsel present at a photographic identification, and that the absence of counsel would bar a subsequent in-court identification unless there was a showing that such identification had an independent origin. The Commonwealth contends that Whiting does not survive United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). It has previously been suggested that Whiting was "undercut considerably" by Ash, Commonwealth v. Diggs, 260 Pa. Super. 349, 355 n. 5, 394 A.2d 586, 589 n. 5 (1978). It has also been suggested that to the extent Whiting expressed an interpretation of federal constitutional law, it did not survive Ash, although the state constitution, Article I, Section 9, might be given a broader sweep and require such a rule. Commonwealth v. Ray, 455 Pa. 43, 315 A.2d 634 (1974) (plurality opinion, Pomeroy, J.). Since the Ash decision, this Court has several times found it unnecessary to reach the issue whether the Pennsylvania Constitution requires that an accused be represented by counsel at a post-arrest photographic identification. See, Commonwealth v. Holland, 480 Pa. 202, 389 A.2d 1026 (1978); Commonwealth v. Scott, ...

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