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COMMONWEALTH PENNSYLVANIA v. BRYAN BAXTER (04/20/87)

submitted: April 20, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
BRYAN BAXTER, APPELLANT



Appeal from the Judgment of Sentence of June 11, 1986, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 4042, 4044, 10-84.

COUNSEL

Joseph Alessandroni, Jr., Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com.

Beck, Johnson and Cercone, JJ.

Author: Beck

[ 367 Pa. Super. Page 343]

This is an appeal by Bryan Baxter from a judgment of sentence of six to twelve years imprisonment. We conclude that the judgment of sentence must be affirmed.

On September 14, 1984, Bryan Baxter and his companion Walter Huot forced Michael M., a fifteen year old boy, to engage in oral and anal intercourse. This incident occurred at the Philadelphia Youth Study Center where Baxter, Huot, and Michael M. had been detained in connection with unrelated criminal conduct. A few days after the assault, Gregory Allen, a counselor employed by the Youth Study Center, questioned Baxter without first informing him of his right to remain silent. Baxter then made an inculpatory statement.

Baxter and Huot were both charged in connection with the sexual abuse of Michael M. and held for trial. Defense counsel filed a motion to suppress Baxter's statement to Allen. On May 6, 1985, the suppression court determined that Baxter's statement was voluntary, but the court granted the suppression motion on the grounds that Allen erred

[ 367 Pa. Super. Page 344]

    by failing to advise Baxter of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This ruling is not before us on appeal.

During the following three days, Baxter and Huot were jointly tried by a jury in the Philadelphia Court of Common Pleas. Although Huot did not testify, Baxter took the stand and denied that he had seen either Huot or Michael M. on the night of the assault. In rebuttal, the prosecutor called Gregory Allen who testified that "He [Baxter] said he was involved [in the assault] and the other defendant [Huot] was possibly involved too." N.T. May 8, 1985 at 129. At the close of the trial, the jury convicted both Baxter and Huot of involuntary deviant sexual intercourse and criminal conspiracy.

Following the denial of post trial motions and the imposition of sentence, counsel for Baxter filed this timely appeal. Counsel raises three allegations of error which we find are without merit.

First, counsel argues that the trial court erred by permitting Commonwealth witness Allen to impeach Baxter's testimony by referring to the suppressed statement. It is true that in Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), the Court held that under article 1 section 9 of the Pennsylvania Constitution a statement obtained in violation of Miranda could not be admitted at trial even for the limited purpose of impeaching the defendant. However, on November 6, 1984, during the period between when appellant confessed to the crime and the time of his trial, an amendment to article 1 section 9 was adopted which provides: "The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself." This amendment limited the application of the Triplett decision. ...


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