No. 2 E.D. Appeal Dkt. 1983, Discretionary Appeal from the September 10, 1982, Superior Court Panel Decision, Docketed at No. 220, Philadelphia, 1981, affirming the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, suppressing defendant's statements, as of Information Nos. 1845-1846, September Session, 1980, ARGUED: OCTOBER 21, 1983
Eric B. Henson, Deputy Dist. Atty., Mark Gurevitz, Asst. Dist. Atty., for appellant.
Burton Rose, Philadelphia, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Larsen, J., files a concurring opinion in which Hutchinson, J., joins. Zappala, J., files a dissenting opinion.
This is a discretionary appeal from the order of the Superior Court, 304 Pa. Super. 623, 450 A.2d 1055, affirming the order of the Court of Common Pleas of Philadelphia County, suppressing on Miranda*fn1 grounds statements given by appellee. We reverse.
Appellee, a Philadelphia Police Officer, became the subject of a homicide charge in a sequence of events arising out of the pursuit and apprehension of the driver of a vehicle. At approximately 4:30 p.m. on the afternoon of August 24, 1980, appellee, while on-duty and in uniform, observed what he suspected to be a stolen vehicle travelling at high rate of speed in a populous area, and attempted to stop the vehicle. The driver ignored these efforts and appellee gave chase. When the vehicle subsequently was stopped, at least one passenger fled while the driver remained behind the wheel. Appellee approached the vehicle with gun drawn. As he reached the door of the vehicle, appellee was knocked to the ground as the driver again put the vehicle in gear and drove a short distance before crashing. Appellee again approached the vehicle, an altercation with the driver ensued, and the driver suffered wounds, including a gunshot wound from appellee's gun. Approximately one hour later, at Temple Hospital, the driver was pronounced dead.
Radio messages between appellee and other police personnel concerning the sequence of events were monitored and recorded on the police communication network. Appellee's superior, a Lieutenant Puchalski, inquired over police radio as to how the driver had been shot, and appellee responded:
I hit him on the head, that's all.
Upon arriving at the hospital, appellee was confronted by his superior, who stated:
Well, the male's shot. Can you tell me how the male got shot?
I didn't shoot anybody. I hit him with my gun. He tried to get away from me. He tried to run me over and we were struggling and I hit him.
The superior then asked for the gun, examined it to determine if it had been fired, and said to appellee:
You have a spent shell, five live rounds. We have a male shot. Your gun went off, apparently. The male's shot and you shot him.
I hit him. If my gun went off, you know, I didn't -- it ...