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COMMONWEALTH PENNSYLVANIA v. DAVID PAUL CASE (10/28/83)

filed: October 28, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID PAUL CASE, APPELLANT



No. 2550 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Tioga County at Nos. 154, 163, 164 CA of 1978.

COUNSEL

David B. Keeffe, Wellsboro, for appellant.

Rudolph Van der Heil, Assistant District Attorney, Wellsboro, for Commonwealth, appellee.

Cercone, President Judge, and Wickersham and Lipez, JJ. Cercone, President Judge, filed a concurring and dissenting opinion.

Author: Wickersham

[ 322 Pa. Super. Page 26]

This case comes to us as appellant David Paul Cases's challenge to his conviction on three counts of receiving stolen property. Case was arrested as a result of a police investigation into burglaries in Wellsboro, Pennsylvania. An omnibus pre-trial motion was filed on Case's behalf seeking to suppress statements Case made to the police shortly after his arrest. The motion was denied and the matter proceeded to trial before President Judge Robert M. Kemp and a jury. After Case's conviction, his post-trial motions were denied; Case was sentenced to pay a fine and serve a term of imprisonment. This appeal timely followed.

The evidence presented at trial showed that on April 29, 1978, the Western Auto store in Wellsboro was broken into and several pistols were stolen. In mid May 1978, the J.E. Clark sporting goods store was also burglarized. The Clark store lost guns and knives to the burglars. Police investigation of these incidents led to the filing of burglary charges against several juveniles. The juveniles told the police that they gave many stolen items to Case in exchange for marijuana.

A warrant then issued for Case's arrest, which was effected by a constable and an Officer Slavadge of the Wellsboro Police Department. At the time of his arrest Case stated that he wanted to speak to a lawyer. Officer Salvadge took Case to the Wellsboro Police Station and there advised Case of his Miranda rights.

Case refused to waive his Miranda rights or make a statement. While being fingerprinted in the county jail Case indicated to Officer Salvadge that he would make a statement if he received a deal. In the presence of another police officer Salvadge repeated Case's Miranda rights. Case stated that he knew where the guns were and would return the guns if he got a deal. The police said they had no authority to make a deal and even had an assistant

[ 322 Pa. Super. Page 27]

    district attorney explain to Case that a deal could only be struck if Case had an attorney.

Case's first issue is:

Did the trial court err in failing to grant the defendant's motion to suppress the defendant's incriminatory statement made at the jail house?

Brief for Appellant at 1.

Case argues that his request at the time of his arrest for a lawyer precluded the police from asking him if he wished to make a statement. Further, Case contends that he never expressly waived his Miranda rights.

The decision of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stands for the proposition that before custodial interrogation a person must be informed of his right to remain silent and his right to counsel. Both of these rights are, however, subject to waiver. A person questioned by the police can make a voluntary, knowing and intelligent waiver of his rights: nothing in Miranda prevents a suspect from making a voluntary confession.

In this case it is clear that Case's Miranda rights were not violated. Case indicated that he wanted a lawyer when he was arrested, nevertheless, a police officer explained Case's Miranda rights. The police asked Case if he wished to give a statement but Case in fact relied on his right to remain silent. The police officer dropped the matter and began fingerprinting Case for booking. It was during this procedure, a normal part of arrest and custody, that Case first said he wished to make a statement. In response ...


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