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COMMONWEALTH PENNSYLVANIA v. MICHAEL ATKINSON (06/23/87)

filed: June 23, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL ATKINSON, APPELLANT



Appeal from the Judgment of Sentence entered April 15, 1986 in the Court of Common Pleas of Lawrence County, Criminal Division, at No. 192 and 192A of 1980.

COUNSEL

S. Sanford Kantz, New Castle, for appellant.

Angelo A. Papa, Assistant District Attorney, New Castle, for Com., appellee.

Rowley, Del Sole and Tamilia, JJ.

Author: Del Sole

[ 364 Pa. Super. Page 386]

For our consideration is an appeal from the judgment of sentence entered following Appellant's conviction for the first degree murder of Kathy Kadunce and the third degree murder of her daughter, Dawn Kadunce. Appellant was sentenced to life imprisonment for the first degree murder conviction. For the third degree murder conviction Appellant received 10 to 20 years of incarceration to run consecutive to the first degree murder sentence. This timely appeal ensued.

By his brief, Appellant raises seven instances of error allegedly committed at the trial court level. They are:

1. Where appellant is arrested outside of the jurisdiction of the arresting officers, which officers are not in "hot pursuit", is such an arrest illegal, thus necessitating the suppression of all statements and confessions taken as a result?

2. Where appellant is arrested and gives statements of confessions more than six (6) hours after said arrest and is not arraigned until approximately twenty-five (25) hours after said arrest, should said statements or confessions be suppressed?

3. Where statements are taken subsequent to an arraignment which was unnecessarily delayed, and such statements are clarifications of previous statements given prior to arraignment in violation of Davenport, must said statements be suppressed?

4. Where the Appellee causes delays in bringing Appellant to trial and petitions for an extension of time but fails to show due diligence, did the court below err in granting said petition and denying Appellant's petition to dismiss under Pa.R.Crim.P. 1100?

[ 364 Pa. Super. Page 3875]

. Did the court below err in not granting the appellant a change of venue?

6. Where during the course of the trial a spectator, in full view of the jury, attempted to influence their decision by making several thumbs down motions, did the court below err in not granting Appellant's motion for a mistrial?

7. Where appellant was convicted in October 6, 1980, and more than five (5) years elapsed before he was sentenced on April 15, 1986, to life imprisonment, was the appellant denied his right to a speedy trial in violation of the sixth amendment?

I.

Initially, we find that absent from Appellant's post-verdict motions is the assignment of error advanced in Appellant's first issue, supra. It is well-established that only issues included in post-verdict motions are preserved for appeal. Commonwealth v. Mason, 327 Pa. Super. 520, 476 A.2d 389, 396 (1984). See Commonwealth v. Pierce, 272 Pa. Super. 392, 416 A.2d 97, 99 (1979). Accordingly, Appellant has failed to preserve this issue for appellate review.

II.

Appellant contends that certain oral and written statements given by him should have been suppressed since they were the products of unnecessary prearraignment delay in violation of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). In that bellwether decision, our supreme court ruled that all statements made by an accused after arrest, but before arraignment, are inadmissible when arraignment is not held within six hours of arrest. Id. at 471 Pa. at 286, 370 A.2d at 306. See Pa.R.Crim.P. 123 (setting forth prearraignment procedure where warrant of arrest is executed outside judicial district of issuance). See also Commonwealth v. Feighery, 354 Pa. Super. 1, 510 A.2d 1248 (1986) (Davenport six-hour rule expressly held applicable to Rule 123).

[ 364 Pa. Super. Page 388]

Appellant argues that the Davenport mandate was violated insofar as 25 hours elapsed between the time of his arrest and subsequent arraignment. For purposes of a Davenport analysis, we must first establish at what point Appellant was arrested. An arrest constitutes "any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest". Commonwealth v. Woodson, 342 Pa. Super. 392, 493 A.2d 78 (1985), quoting Commonwealth v. Lovette, 498 Pa. 665, 671, 450 A.2d 975, 978 (1982). Instantly, Appellant had already been incarcerated for a different offense at the time the warrant for his arrest on the Kadunce murders was issued. Given the fact that Appellant was already restricted, we must evaluate all of the surrounding circumstances in order to set the exact time of arrest. Commonwealth v. Crissy, 304 Pa. Super. 38, 42, 450 A.2d 89, 91 (1982). "Whether an arrest had occurred depends upon the impression conveyed to the person detained, not upon the officers' subjective intention." Commonwealth v. McManus, 353 Pa. Super. 355, 359, 509 A.2d 1314, 1316 (1986).

When an arrest occurs is a factual determination to be made by the suppression court. In reviewing such decisions, we are bound by the factual determinations as supported by the record. Moreover, we may consider only the Commonwealth's evidence and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. McManus, supra, 353 Pa. Superior Ct. at 358-359, 509 A.2d at 1315; Commonwealth v. Crissy, supra, at 450 A.2d at 90. With these principles in mind, we turn to the factual findings rendered by the suppression court.

By his Memorandum Opinion, dated December 17, 1981, the suppression judge held that Appellant was under arrest for the Kadunce murders when the arrest warrant was read to him in the Butler County Jail at 9:00 a.m., February 11, 1980, for Davenport rule purposes. Under this view, there was no violation of the Davenport decision since Appellant

[ 364 Pa. Super. Page 389]

    was arraigned by 11:00 a.m. that morning. (M.O., 12/17/81, 2-3). We have painstakingly reviewed the record, and after affording proper consideration to the evidence, conclude that the suppression court's findings are adequately supported.

The transcript of the suppression hearing shows that Appellant was first questioned about the Kadunce murders in the middle of January 1980 while he was incarcerated in the Lawrence County Jail. (N.T., 8/29/80, 3). Towards the end of January, Appellant told the police that he had driven the "actors", in his car, to the Kadunce residence on the day the murders occurred. (N.T., 8/29/80, 9, 22). Subsequently, Officer Abraham, of the New Castle Police Department, made arrangements to have Appellant transported from the Lawrence County Jail to the Butler County Jail because Appellant felt that his physical well-being was in jeopardy. Officer Abraham testified that he had no further contact with Appellant until February 10, 1980.

On February 9, 1980, an arrest warrant was issued for Appellant. Officer Abraham visited Appellant at the Butler County Jail at approximately 10:00 a.m. the next morning. (N.T., 8/29/80, 26, 33). During that visit, Appellant gave an oral statement. (N.T., 8/29/80, 33). When asked if Appellant was told that he was under arrest for the Kadunce murders at that time, Officer Abraham related the following testimony:

Q. Did you advise him that he was under arrest for the murder of Kadunces?

A. I told him that we were going to be presenting him the arrest warrant as soon as we can make ...


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