APPEAL FROM THE JUDGMENT OF SENTENCE OCTOBER 5, 1984 IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY, CRIMINAL NO. 622 CD 1983.
Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
Katherene E. Holtzinger-Conner, Deputy District Attorney, Harrisburg, for Com., appellee.
Wickersham, Cirillo and Johnson, JJ. Johnson, J., files a dissenting opinion.
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This is an appeal from a judgment of sentence imposed by the Court of Common Pleas of Dauphin County. Following a non-jury trial, Lawrence Speaks, appellant, was found guilty of possession with intent to deliver marijuana. 35 P.S. § 780-113(a)(30). Appellant was sentenced to pay the cost of the proceedings, a fine of $300.00, and to be imprisoned in the county prison for not less than one month nor more than six months.
The evidence produced at trial revealed that a Detective Teel, accompanied by five other officers, arrived at a residence
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for the purpose of executing a search warrant for narcotics. Appellant and two unidentified persons were inside the premises at the time. After knocking on the door, the officers identified themselves as police and advised appellant that they had a search warrant. Upon gaining entry to the premises, Officer Teel read appellant the contents of the warrant, advised him of his Miranda rights and questioned him as to whether he understood those rights. Appellant responded in the affirmative to this question and was then immediately asked if there was any marijuana in the house. Appellant answered yes and indicated that the marijuana was located in the living room closet. A search of the closet yielded six bags of marijuana. After these items were discovered, appellant was searched and a bag of marijuana was found in his pocket. The police also seized $240.00 in currency from the premises, including marked bills that Officer Teel had given to an informant the previous day for the purpose of a controlled buy.
Appellant raises a number of issues on appeal: 1) whether the suppression court erred in ruling that appellant validly waived his Miranda rights; 2) whether the suppression court erred in refusing to suppress the marijuana seized from appellant's person; 3) whether the evidence presented was sufficient as a matter of law to sustain a guilty verdict; and 4) whether the trial court erred in denying appellant's request seeking disclosure of the identity and whereabouts of the informant who participated in the controlled buy. We find no merit in any of the issues raised by appellant and we therefore affirm.
Initially, appellant contends the suppression court erred in ruling that he validly waived his Miranda rights. After a careful review of the record, we conclude that appellant explicitly waived his Miranda rights as required by Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), and the suppression court did not err in so holding.
In reviewing an order denying a motion to suppress, our function is to determine whether the factual findings of the
[ 351 Pa. Super. Page 153]
suppression court are supported by the record. Commonwealth v. Scatena, 332 Pa. Super. 415, 481 A.2d 855 (1984); Commonwealth v. Chamberlain, 332 Pa. Super. 108, 480 A.2d 1209 (1984). There is credible evidence of record that Speaks explicitly waived his Miranda rights.
In Commonwealth v. Bussey, supra, the Supreme Court held that a waiver of Miranda rights must be explicit in order to be effective in Pennsylvania. In defining explicit waiver, the Bussey Court stated that it "mean[t] an outward manifestation of a waiver such as an oral, written or physical manifestation." Bussey, 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Additionally, the Court asserted that by requiring an explicit waiver of Miranda, it "d[id] not mean to imply [that] an express waiver for each and every right [was] necessary." Id., 486 Pa. at 231 n. 12, 404 A.2d at 1314, 1309 n. 12.
Under the facts of the case sub judice, it is apparent that appellant's waiver of his Miranda rights complied with the requirements promulgated in Bussey. After reading appellant the contents of the search warrant and giving him his Miranda warnings, Officer Teel specifically asked appellant if he understood the Miranda rights. Appellant answered in the affirmative and only then did Officer Teel question him as to whether there was any marijuana in the house. In response to this question, appellant indicated to the officer that there was marijuana in the living room closet on the first floor. Appellant's unequivocal recital of his understanding of these rights combined with his response to the aforementioned question clearly constituted an explicit waiver of his Miranda rights.
The Bussey Court succintly and unambiguously defined an explicit waiver as "an outward manifestation of a waiver such as an oral, written or physical manifestation." Bussey, 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Appellant's statement that he understood his rights followed immediately by his incriminatory answer to the officer's question was tantamount to a physical manifestation of his present intent to waive his rights. Such a physical manifestation
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qualifies as an explicit waiver under the definition provided by the Bussey Court. While such statements as "I want to talk," or "I waive my rights," easily satisfy the requirements of Bussey, these assertions are not the ...