filed: November 5, 1986.
COMMONWEALTH OF PENNSYLVANIA
MICHAEL D. KINNEY, APPELLANT
Appeal from the Judgment of Sentence of June 6, 1985, in the Court of common Pleas of Lycoming County, Criminal division, at No. 84-10, 363.
Before: Wickersham, Brosky and Watkins, JJ.
Judgment of sentence affirmed.
BROSKY, J. filed a Concurring Memorandum.
CONCURRING MEMORANDUM BY BROSKY, J.
I agree with the result reached by the majority. Although the majority relies upon the opinions of the court below, I believe that court's treatment of some of the issues raised by appellant needs clarification.
The first issue that I believe needs clarification is the third one raised by appellant. This issue is divided into several distinct arguments. The first argument appellant makes is that he was arrested without probable cause, and therefore, his incriminating statements should be suppressed as fruit of that unlawful arrest. The opinion of the suppression court does not treat this issue, but rather the related one of whether appellant was in custody such that he was entitled to Miranda warnings before being interrogated.
A "arrest" is any act that indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Woodson, Pa. Super. , 493 A.2d 78 (1985). However, the test of whether a defendant is under arrest is not what the police actually intended, but rather the reasonable impression conveyed to the person in question. Commonwealth v. Rodriguez, 330 Pa. Super. 295, 479 A.2d 558 (1984).
Although the suppression court does not discuss the question of whether appellant was subject to an unlawful arrest, I believe its discussion of appellant was in custody so as to require Miranda warnings before interrogation, is sufficient for us to conclude that appellant could not have had a reasonable impression that he was under arrest. Thus, I would find no merit to the first part of appellant's third issue.
In appellant's fourth issue, he "invokes the rules that criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti." Commonwealth v. Ware, , Pa. , , 329 A.2d 258, 274 (1974). Appellant raises the issue in terms of the trial court's failure to sustain his objections to the introduction of evidence of his incriminating statements where the Commonwealth has failed to establish the corpus delicti. Although I note that my review of the record indicates no such objections by appellant at trial,
[t]he [corpus delicti] rule is frequently articulated in terms of a condition on the admissibility of the defendant's statements; see e.g., Commonwealth v. Palmer, 448 pa. 282, 285, 292 A.2d 921, 922 (1972). "Because of the trial court's decision over the order of proof, however, it is for practical purposes not a condition of admissibility but rather . . . a formulation of the required proof to take the case to the trier of fact or to sustain a finding of guilt.
Id. at n. 41 (citations omitted).
Thus, despite the manner in which appellant has framed his issue in his brief (and in his post-trial motions), I believe it is properly treated as a claim that the Commonwealth's evidence was not sufficient to establish the corpus delicti at trial. Viewed in this light, I agree with the majority that appellant's claim lacks merit for the same reasons expressed in the trial court's opinion disposing of appellant's petition for writ of habeas corpus.
Finally, in appellant's sixth issue, he contends that the trial court erred in allowing the jury to read a transcript of his incriminating statements while listening to a tape-recording of those statements. One of the grounds he advances in support of this issue is that the Commonwealth failed to establish a proper foundation for the admission of the transcript. However, appellant failed to object to the admission of the transcript on this ground at trial. Therefore, this reason for its exclusion has been waived. See Commonwealth v. McNeal, 456 Pa. 394 (1974).
*fn1 Appellant raises a seventh issue not noted by the majority that the trial court erred in refusing to allow appellant to adduce testimony of his good reputation for truthfulness and honesty. I assume the majority would also conclude the trial court's opinion addresses this question.