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06/04/97 COMMONWEALTH PENNSYLVANIA v. BILLY R.

June 4, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
BILLY R. BOGGS, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Cumberland County, Criminal Division at No. 850 Criminal 1995. Before HESS, J.

Before: Cirillo, P.j.e., Popovich and Hester, JJ. Opinion BY Popovich, J.

The opinion of the court was delivered by: Popovich

OPINION BY POPOVICH, J.:

Filed June 4, 1997

In this appeal, we are asked to determine whether appellant's incriminating statements made to a police officer posing as an attorney should have been suppressed. Appellant contends that his statements were improperly admitted at trial since he was not advised of his Miranda *fn1 warnings prior to his conversation with the officer, he was deprived of his right to counsel, and the statements were confidential and protected under the attorney-client privilege. We affirm.

Our standard of review in this case is well-settled.

In reviewing the denial of a motion to suppress, our responsibility is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal Conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains contradicted.

Commonwealth v. Lopez, 415 Pa. Super. 252, 609 A.2d 177, 178-179 (1992), alloc. denied, 533 Pa. 598, 617 A.2d 1273 (1992) (citation omitted). "If the evidence supports the findings of the lower court, we are bound by such findings and may reverse only if the legal Conclusions drawn therefrom are in error." Commonwealth v. Espada, 364 Pa. Super. 604, 528 A.2d 968, 969 (1987) (citation omitted).

The relevant facts in this case are not in dispute, and, after careful review, we are satisfied that the suppression court's factual findings are supported by the record. Accordingly, the pertinent facts are as follows: Appellant was incarcerated at the State Correctional Institution at Camp Hill, Pennsylvania, awaiting trial on theft charges. While in prison, appellant asked another inmate, Daniel Krushinski, whether he knew anyone who could murder the two witnesses who were scheduled to testify against appellant at his trial. Mr. Krushinski later contacted the Pennsylvania State Police and informed Trooper Daniel Wertz of his conversation with appellant. Trooper Wertz told Mr. Krushinski to tell appellant that he would get someone to "take care of the problem." Mr. Krushinski then approached appellant and told him that his cousin, who was an attorney, would come to the prison to discuss appellant's "problem." Trooper Wertz enlisted the aid of Corporal Craig Fenstermacher, who agreed to pose as Mr. Krushinski's cousin and agreed to meet with appellant at the prison.

On April 27, 1995, posing as an attorney, Corporal Fenstermacher met with appellant in a private room at the prison. Upon entering the room, Corporal Fenstermacher introduced himself as Chuck Fry. Appellant indicated that he was having a legal problem involving two witnesses and that he needed to get rid of the witnesses in order to get out of jail. Specifically, appellant indicated that he needed to have the witnesses "eliminated and unable to testify." Corporal Fenstermacher indicated that he could "take care of the witnesses" the following weekend. However, appellant indicated that he wanted the problem to be solved immediately. Appellant then gave Corporal Fenstermacher the names and addresses of the witnesses. The two men discussed a payment plan whereby Corporal Fenstermacher was to be paid $2500 by appellant's girlfriend.

After the meeting, Corporal Fenstermacher contacted Trooper Wertz, informed him of the conversation he had with appellant and informed him of the arrangements for payment. Thereafter, Trooper Wertz met with appellant's girlfriend and received $2500. The officers then obtained consent for a bodywire. On May 8, 1995, while wearing a bodywire, Corporal Fenstermacher again posed as an attorney and met with appellant at the prison. *fn2 During the meeting, appellant gave detailed descriptions of the witnesses, and indicated that "when this is done my attorney will have the charges against me dropped." N.T. 10/30/95 p. 14. The men then discussed the final payment arrangements and the corporal stated that he would "take care of it." Appellant responded that it "sounds good to me." N.T. 10/30/95 p. 16.

After the May 8, 1995, meeting, appellant was summoned to the prison security office, advised of his Miranda warnings and placed under arrest by Trooper Wertz. He was charged with attempted murder, criminal conspiracy to commit murder and solicitation to commit murder. Appellant filed a pre-trial motion seeking to suppress the statements he made to Corporal Fenstermacher during their two meetings. The lower court denied the motion. Appellant proceeded to a jury trial and was convicted of conspiracy to commit murder and solicitation to commit murder. After appellant was sentenced, he filed this timely appeal.

Appellant first contends that his statements made to Corporal Fenstermacher should have been suppressed since they were the product of an illegal custodial interrogation. In Miranda v. Arizona, (supra) , the United States Supreme Court held that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during "custodial interrogation" without a prior warning. *fn3 In Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990), the Supreme Court applied the dictates of Miranda to a situation where an undercover law enforcement officer, posing as a fellow inmate, obtained a confession from a defendant. The defendant objected to the use of his confession at trial because no Miranda warnings were given prior to the defendant's conversation with the undercover officer. The Court held that the tactic used to elicit constitutional guarantee against self-incrimination. Specifically, the Court held the following:

Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody. The warning mandated by Miranda was meant to preserve the privilege during incommunicado interrogation of individuals in a police-dominated atmosphere. That atmosphere is said to generate inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. Fidelity to the doctrine announced in Miranda ...


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