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submitted: August 31, 1989.


Appeal from the judgment of sentence October 7, 1986, in the Court of Common Pleas of Allegheny County, Criminal Division, Nos. 8412440A, 8411736A, & 8411789A.


Melaine S. Rothey, Asst. Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Com.

Cirillo, President Judge, and Rowley and Tamilia, JJ.

Author: Rowley

[ 388 Pa. Super. Page 226]

Is the statement "I have a lawyer," made by a defendant at his preliminary arraignment, sufficient to bar police-initiated questioning several days later? This is one of several issues presented by appellant in his appeal from the judgment of sentence imposed following his conviction by a jury on charges of robbery, conspiracy, theft, receiving stolen property, recklessly endangering another person, two counts of third degree murder and three counts of homicide by vehicle. Having carefully considered the arguments of counsel, and the record as certified to us, we affirm.

The facts are as follows: On October 16, 1984, Jobe Wright, Terrance George and appellant drove through the Monroeville Mall parking lot in a red Chevrolet Camaro. George reached out of the car and snatched the purse of Marjorie Wilson. Appellant and his companions then exited the parking lot and proceeded along Route 22 west-bound towards Pittsburgh. After travelling approximately one-half mile, appellant, who was driving, lost control of the vehicle and crossed over into the lanes of oncoming traffic.

[ 388 Pa. Super. Page 227]

In the tragic collision which ensued, an elderly couple died. Terrance George also lost his life.

Appellant fled the scene of the accident on foot. He turned himself in to police several days later. Jobe Wright, who was injured and in a dazed state, proceeded one-quarter mile on foot to the parking lot of Sears, where he was attended to by a Monroeville Police Officer. Eventually, paramedics took Wright to the Forbes Health System. Wright recovered from his injuries and stood trial with appellant on one charge relating to the fatal collision.*fn1

Following the jury's guilty verdict, appellant filed timely post-verdict motions which were denied. He was sentenced to an aggregate term of imprisonment of not less than 18 years, 3 months nor more than 36 1/2 years. On appeal he presents five issues consisting of two alleged pre-trial errors and three alleged trial errors.


Appellant first argues that the trial court erred in failing to suppress allegedly inculpatory statements made by him to the police while he was incarcerated. The precise question before us is whether the statement "I have a lawyer" made by a defendant at his preliminary arraignment in response to the magistrate's statement that he has the right to representation by counsel and that counsel would be provided if he cannot afford it, is an invocation of his Fifth Amendment right against self-incrimination as protected by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Appellant specifically claims that his statement, under Edwards, was sufficient to bar the police from initiating any subsequent interviews with him.

[ 388 Pa. Super. Page 228]

Appellant has not claimed that his Sixth Amendment right to counsel has been violated.*fn2 Nor has he claimed that the Miranda warnings given to him before questioning were inadequate. Additionally, there has been no suggestion that the statements were made involuntarily. Thus, the issue raised by appellant is very narrow: whether appellant "expressed his desire to deal with the police only through counsel," prior to the police-initiated custodial interrogation that elicited the statements he now argues should have been suppressed. The trial court concluded that appellant did not invoke his right to the presence of counsel during questioning. For the reasons which follow, we agree.


In the landmark case of Miranda v. Arizona, supra, the U.S. Supreme Court held that where an "individual states that he wants an attorney, the interrogation must cease until an attorney is present." Id., 384 U.S. at 474, 86 S.Ct. at 1627. Fifteen years later, in Edwards v. Arizona, supra, the Supreme Court, as a corollary to its earlier decision in Miranda, adopted a bright-line rule "that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights . . . . [and that an accused having] expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,

[ 388 Pa. Super. Page 229]

    unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. at 484-485, 101 S.Ct. at 1884-1885.

In the post- Miranda and post- Edwards case of Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), the Supreme Court noted that the rigid prophylactic rule of Edwards

     embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.

Id. at 95, 105 S.Ct. at 492-493. It is the threshold inquiry with which we are concerned in this case.


Appellant was taken into custody during the late evening hours of October 18th or 19th, 1984, two or three days after the collision.*fn3 He was driven to the Public Safety Building in Pittsburgh, where his preliminary arraignment occurred in the early morning hours of the next day. Appellant contends that the invocation of his right to have counsel present before or during questioning occurred at the preliminary arraignment when he stated, "I have a lawyer." The questioning which appellant claims violated his rights occurred on October 21st and October 25th. On October 21st Officer William Naccarati of the Wilkins Township Police Department read appellant his Miranda rights and asked appellant whether he understood them. Appellant replied that he did, and signed a written form containing his rights. That document was entered into evidence at the April 22,

[ 388 Pa. Super. Page 2301985]

Suppression Hearing as Commonwealth Exhibit Number 4.

On October 25th Lieutenant Louis Smith of the Monroeville Police Department sought to interview appellant. Lt. Smith read appellant his Miranda rights. Appellant initialed each Miranda question with his initials, "WD," indicating his understanding of the question. This form, containing appellant's initials, was introduced into evidence at the April 12, 1985 suppression hearing as Commonwealth Exhibit Number 1. After signing and initialing both forms, appellant proceeded to voluntarily give statements which he claims are incriminating.

To reiterate, the narrow question before us is whether appellant's statement to the magistrate at the October 19th or 20th preliminary arraignment is sufficient to bar police-initiated interrogations on October 21st and 25th under Edwards. In footnote 3 of Smith v. Illinois, supra, the Supreme Court indicated the wide range of positions taken by courts on this issue:

Some courts have held that all questioning must cease upon any request for or reference to counsel, however equivocal or ambiguous. Others have attempted to define a threshold standard of clarity for such requests, and have held that requests falling below this threshold do not trigger the right to counsel. Still others have adopted a third approach, holding that when an accused makes an equivocal statement that "arguably" can be construed as a request for counsel, all interrogation must immediately cease except for narrow questions designed to "clarify" the earlier statement and the accused's desires respecting counsel.

Smith v. Illinois, supra, 469 U.S. 91, 96 n. 3, 105 S.Ct. 490, 493 n. 3 (citations omitted). The Supreme Court found no need to resolve these conflicting positions in Smith because judgment "must be reversed irrespective of which standard is applied." Id. at 96, 105 S.Ct. at 493. Thus, the wide

[ 388 Pa. Super. Page 231]

    variety of approaches to the issue continues throughout the various state and federal jurisdictions.*fn4

The case of Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168 (1986), though a plurality decision, suggests that our Supreme Court would not adopt the first of the three schools of thought outlined in Smith v. Illinois. Reading all of the opinions in Hubble, it seems apparent that the Court would adopt the view that not every use of the word "lawyer" would ...

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