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July 17, 1992

CHARLES N. MARSHALL, ESQUIRE, Administrator of the Estate of RAYMOND G. PERCIAVALLE, deceased, Plaintiff,


The opinion of the court was delivered by: TIMOTHY K. LEWIS

LEWIS, District J.

 Plaintiff Charles M. Marshall, Administrator of the Estate of Raymond G. Perciavalle, brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of the Fourth, Fifth, Sixth, Eighth Ninth and Fourteenth Amendments to the United States Constitution, ad asserting pendent state law claims for false arrest, wrongful death ad survival.

 Title 42 U.S.C. § 1983 provides:

 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights or privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 To establish a violation of section 1983, plaintiff must prove two elements: first, that the decedent was deprived of a right secured by the Constitution and laws of the United States, and second, that defendants deprived the decedent of this right acting under color of any statute of the Commonwealth of Pennsylvania. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978).

 Presently before the court are cross-motions for summary judgment filed by plaintiff and defendants the Borough of Ambridge, the Ambridge Borough Police Department, Police Officers Robert Appel and Robert Kuzma, (former) Chief of Police George Kyrargyros and Mayor Walter Panek.


 The events which gave rise to this case are undisputed. On August 29, 1989, Robert Dickenson reported to the Ambridge Borough Police Department that an individual had pointed a gun at him and his companion while they were standing in a parking lot. Dickenson provided the police with a description of the suspect and the car that the person was driving. From the description, several police officers concluded that Raymond G. Perciavalle (the "decedent") was the individual involved in the incident. The decedent had grown up in Ambridge and had had several previous encounters with the police.

 The police eventually located Perciavalle at a Stop-N-Go in Ambridge. Officer Appel questioned him about the incident, but he denied any involvement. The decedent then consented to a search of his person and car, which Officer Appel conducted. Officer Appel did not find a gun. Officer Appel then asked the decedent to accompany him to the police station.

 The police also asked Dickenson to go to the police station to see whether he could identify the decedent as the individual who had pointed a gun at him. Through a one-way mirror at the police station, Dickenson positively identified the decedent.

 According to the police, approximately five or ten minutes after the decedent was placed in the cell, he began pounding the bars and door. Officer Appel went down to the basement to speak with the decedent. Officer Appel had grown up with the decedent in Ambridge, and had dated the decedent's sister. He informed the decedent that they were completing the paperwork as quickly as possible and would be transporting him to the magistrate. Officer Appel then returned to the first floor.

 Eventually, Officer Appel and Officer Larrick, a police officer in training, went down to the lock-up to take the decedent to the magistrate's office. They found the decedent hanging from his belt.

 According to the police, although Officers Appel ad Kuzma checked the monitor, they did not detect that the decedent had hung himself because the belt was hidden behind one of the bars of the cell. Through the monitor it appeared that the decedent was simply standing at the door of the cell.


 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be grated "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

 The cases of Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) establish the basic rule that a motion for summary judgment will not succeed "if the dispute about a material fact is 'genuine.'" Anderson, 477 U.S. at 248. This standard requires an inquiry into "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id., 477 U.S. at 251-52.

 Summary judgment is not, as plaintiff's attorney argues, a "drastic remedy."

 A. Police Officers Robert Appel and Robert Kuzma

 Both Officers Kuzma and Appel are sued in their individual and official capacities. Officer Kuzma, however, is not a named defendant in the section 1983 claims arising out of the questioning, search and arrest of the decedent, because he did not participate in these events.

 1. Fourth Amendment Claim Versus Officer Appel

 Plaintiff asserts that summary judgment should be granted in his favor because the investigatory stop and search of the decedent violated the decedent's right to be free from unlawful searches and seizures. Additionally, plaintiff argues that the decedent was arrested without probable cause.

 As to the investigatory stop issue, in Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the Supreme Court held that an investigatory stop short of an arrest is valid if based upon a reasonable suspicion of criminal activity. Reasonable suspicion must be based upon "specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion." Id. 392 U.S. at 21.

 As to the issue of the search, the decedent consented to the search of his vehicle. Exhibit to Plaintiff's Memorandum of Law in Support of Motion for Summary Judgment (Daily Police Report). Plaintiff, however, asserts that the decedent's consent was not voluntary because he was in a public place in the presence of five police officers. Voluntariness is a question of fact that must be determined from all of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). This material question of fact is best left to a jury for determination.

 As to the issue of probable cause for the arrest, in Patzig v. O'Neil, 577 F.2d 841, 848 (3d Cir. 1978), a prison suicide case, the Court of Appeals for the Third Circuit stated that "the question of probable cause in a section 1983 damage suit is one for the jury." Therefore, the issue of whether the decedent was arrested without probable cause will also remain in the case.

 In conclusion, there remains a genuine issue of fact as to whether Officer Appel acted with legitimate probable cause with respect to the search and the arrest of the decedent. No such factual dispute exists concerning the constitutionality of the Terry stop. The cross-motions for summary judgment with respect to the Fourth Amendment claim against Officer Appel will both be denied.

 2. Fifth Amendment Miranda Claim Versus Officer Appel

 Plaintiff asserts that because no Miranda warnings were given to the decedent, the decedent's right to be free from self incrimination was violated, and therefore, summary judgment should be granted in his favor. The court disagrees.

 A section 1983 claim based upon an alleged failure to give Miranda warnings fails as a matter of law. Williams v. Tansey, 610 F. Supp. 1083, 1085 (E.D.Pa. 1985). A claim under section 1983 must be based on a deprivation of a constitutional or other federal right. Miranda warnings are "not themselves rights provided by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected." Oregon v. Elstad, 470 U.S. 298, 305, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985), citing, New York v. Quarles, 467 U.S. 649, 654, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984). Furthermore, no prejudice flows from a failure to give Miranda warnings unless the resulting statement is used against the declarant in a criminal proceeding. No evidence on this record indicates that the decedent even gave a statement to the police. Summary judgment in favor of Officer Appel and against plaintiff will be entered on the Fifth Amendment claim.

 3. Sixth Amendment Claim Versus Officer Appel

 Plaintiff also argues that the decedent was denied his constitutional right of access to counsel. Again, the court disagrees.

 The Sixth Amendment right to counsel attaches at the time adversarial judicial proceedings have been initiated against a person by way of formal charge, preliminary hearing, indictment, information or arraignment. Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977), Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972). In Pennsylvania, a criminal defendant who cannot afford an attorney must be assigned an attorney prior to the preliminary hearing. Pa.R.Crim.P. 316(b). The comments to Rule 316 state that "ideally, counsel should be assigned to an indigent defendant . . . immediately after preliminary arraignment in all court cases." In this case, plaintiff was waiting to be transported to a preliminary arraignment. Therefore, no ...

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