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COMMONWEALTH PENNSYLVANIA v. BERNARD M. KARASH (11/24/86)

decided: November 24, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
BERNARD M. KARASH, JR., APPELLANT



Appeal from the Order of the Superior Court entered February 13, 1985 at No. 665 Phila. 1984 Affirming the Judgment of Sentence of the Court of Common Pleas of Luzerne County entered February 7, 1984, at Nos. 1334, 1355, 1356, 1584, 1752-1766 of 1981. 341 Pa. Super. 616, 491 A.2d 919 (1985)

COUNSEL

Al Flora, Jr., Asst. Public Defender, for appellant.

Robert J. Gillespie, Jr., Dist. Atty., Joseph C. Giebus, Wilkes-Barre, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 513 Pa. Page 8]

OPINION

We are here called upon to address appellant's contention that a request for removal of a prisoner from a holding facility for the purpose of transporting him to police headquarters for custodial interrogation is a "critical stage" under federal constitutional law*fn1 and should not be permitted without a prior counseled adversarial hearing. Appellant argues that the entitlement to the presence of counsel between his arraignment and preliminary hearing is dictated by fundamental fairness and therefore concludes from that premise that the presence of counsel must be mandated "at any 'bring up' order proceeding."*fn2 See Brief pg. 16.

Although appellant in his presentation to this Court by way of his brief and oral argument has not separated the Fifth and the Sixth Amendment contentions, for the sake of clarity in this opinion we will address the Fifth Amendment claim under section A and the Sixth Amendment claim under section B.*fn3

Appellant was found guilty, after a trial by jury, of twelve counts of Burglary, 18 Pa.C.S. § 3502, nine counts of

[ 513 Pa. Page 9]

Theft by Unlawful Taking or Disposition, 18 Pa.C.S. § 3921, and one count of Escape, 18 Pa.C.S. § 5121, the latter occurring during one of the occasions when he was in police custody pursuant to one of the orders presently the focus of this appeal. On the burglary charges he received concurrent sentences of five (5) to ten (10) years imprisonment followed by a seven (7) year consecutive term of probation for the escape charge. Upon appeal the Superior Court affirmed the judgments of sentence, 341 Pa. Super. 616, 491 A.2d 919 (1985).

These burglaries were committed between March through June 1981 in Luzerne County. On August 12, 1981, August 13, 1981, and August 17, 1981, appellant was removed from the Luzerne County Prison by police officials and interrogated during which periods appellant made incriminating statements and assisted the police in recovering some of the stolen articles.*fn4 This evidence was introduced against appellant at trial over objection. One of the reasons offered in suppression of the evidence was that the authorization for the removal of appellant from the detention facility ...


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