*2 HESTER, CIRILLO, Before CAVANAUGH and JJ. CIRILLO, Judge: is an appeal
This from the judgment sentence issued J., Munley, on appellant, October 1981. The William Caswell, was convicted in a jury proceeding and found guilty robbery,1 receiving stolen property,2 conspira cy.3 His motions for new trial and in arrest of judgment *3 were denied and appeal followed.4 16, 1980,
On February the Giant Market located in Scran- ton, men, Pennsylvania, up by was held three apparently wearing false mustaches and beards. One of these men trial, identified as appellant. was At the dairy manager testified that one of the men a gun had and that one was heavy-set. manager store, Yaninek, The Mr. testified appellant gun that the had and announced that a hold taking place. He up then directed Mr. open Yaninek to the store safe. The then placed good a deal of money into a shopping bag. robbery, After the Mr. Yani- nek described the person who took the money from the safe as a heavy-set weighing man about 230 pounds a goatee. with mustache and At a police line-up on 1. 18 Pa.C.S.A. 3701. §
2. 18 Pa.C.S.A. 3925. §
3. 18 Pa.C.S.A. § 903. Appellant
4. was also robbery. convicted various crimes in another appeal On to this his court conviction was affirmed. See Common Caswell, 903/82, Philadelphia wealth v. J. No. 2255 1981. appellant, also identified 20, 1980, Mr. Yaninek May wrong number on circled the an error although through trial, at Additionally, by police. to him given the paper respect unequivocally testified manager the store man.” positive “I’m that was the appellant: Zlotnicki, by Barbara also identified The a distance store. short She the head cashier manager a on her and the gun who held from the it placed in a from the safe and money as removed appellant’s ap- At she described the bag. trial shopping as follows: pearance he dressed?
Q. How was He had a Well, out like a sore thumb. A. he stuck on, And he had cap. a ski cap on and he had sweatshirt He had on and the hood was down. a hood the sweatshirt eye right came over his and covered cap down ski his head. to the back of eye? mean over his
Q. you What do I It was Well, his is what meant. eyebrow, A. above his head. eyebrow, right went around above right and a fake on. goatee a fake mustache And had it a fake mustache and fake Q. you do know was How goatee? or some- tape The on like scotch
A. mustache was just appeared off on the side. It coming It was thing. real It wasn’t at all. be. all, hair hair on his Did see his head?
Q. you it down his ears and over hanging A. Part of was over back, collar his coat and sweatshirt. over the *4 color? Q. What darkish-brown, brassy-type.
A. Sort of a Q. Pardon? something. a or brassy It sort like brown
A. of look real either. That didn’t mean, real? it didn’t look
Q. you doWhat or It was dyed something. It like it was A. looked or some- It to be cut trimmed hard to tell. needed thing. It looked like—it could have a or wig been it could hat, have been his hair pulled own down the but whatever—
Ms. Zlotnicki had observed the from appellant a distance of a two and half three feet for about three a minutes in brightly lit office. witness, Edmondson,
One Sharon also an employee of the store, man, that heavy-set testified a a of gun, was one the and that “took” the manager robbers into the office. presence She was the of heavy-set the man for a only “second” and did not see his face. did identify She not the being at trial as involved in the crime. appeal,
On the appellant challenges validity of his identifi- cation and the trial raising effectiveness of counsel for not in post-trial issue motions. the for Initially, guidelines identification are as follows: to determining factors relevant the reliability of the
[T]he are: identification
...
opportunity
witness to view the criminal at
crime,
attention,
the time of the
degree
the witness’
of
of
accuracy
description
criminal,
prior
of certainty
confrontation,
level
at
demonstrated
the time between the crime and the confrontation.
Ransome,
490, 496,
Brathwaite,
(1979),quoting
Manson v.
98, 114,
2243, 2253,
S.Ct.
Appellant contends because of inconsistencies cross-examination, brought out on trial counsel should have requested the court to rule on whether identification suggestive pre-trial procedures. based on identification
467 record, find that this argu- We reviewed the and we have ment merit. is without
The mere fact that the defense counsel’s cross-examina- ques- some for provided jury tion have basis may witnesses, by these validity tion the of the identification a for that there was provide suggesting did not basis and, testimony this there- why reason was inadmissible fore, to motion to subject suppress. a 70, Brown, 285, 306, v. 489 Pa. 80 Commonwealth (1980). for counsel not ineffective
Accordingly,
issue
nor in
motions
it
raising
post-trial
this
at trial
because
had
merit. Counsel will not be deemed
underlying
no
claims.
raising
ineffective for not
frivolous
Common
128,
Hosack,
(1979);
Pa.
Once crime, the interro does not want to talk to them about Walker, 470 must cease. gation However, States A.2d United establishing rule of in the case law Supreme very Court through inter dealing “In statements obtained stated: with all confessions inadmis rogation, purport we do not find enforce element law proper sible. remain Confessions 478, 86 436 at S.Ct. ment.” Miranda v. 1602, 1630, (1966). Therefore, 16 L.Ed.2d to hold under the facts this case that the appellant’s interview the police constitutionally defective undesir would *6 ably restrict the use of confessions as an of element law enforcement.5 record,
After reviewing the we hold that the appel rights, lant waived his because his Miranda statements meaning were under the of voluntary Edwards v. 484-5, 477, 1880, 1884-5, 378, 101 68 S.Ct. L.Ed.2d (1981): 386 accused, Edwards, further as
We hold that an such hav- expressed his to deal ing desire with the only counsel, through subject is not interrogation by further authorities, the unless the accused initiated himself communication, or conversations exchanges, further added.) police, (emphasis with case, In instant appellant expressed his desire to remain Then, gentle- silent. when volunteered that was the anyone, man bandit and never intended to hurt he initiated incriminating the discussion in which he made the state- Edwards, Under of meaning ments. those statements were voluntary. Court, Pennsylvania
Like
United States
Supreme
Court has
the rule
law that
Supreme
developed
voluntary
of
of
rights.
statements constitute a waiver Miranda
In
light
5.
decline
in
We
to view
facts of
instant case
of Common
159,
Rose,
Rose,
Pa.Super.
v.
401 A.2d
wealth
no
interrogation
place after
took
the defendant decided
remain silent.
report
Then
him with a ballistics
and
facts
confronted
other
warnings
connected
crimes.
which
other
After Miranda
readministered,
concerning
were
made a statement
the crime. We
say
legitimate
qua
sine
of a
cannot
that the
non
confession’s admissi
appellant’s
bility
warnings
is that
Miranda
must be readminis
especially
tered. That is
so in the instant case which the interven
See,
Abrams,
ing
period
so
short.
Commonwealth v.
443 Pa.
295,
(1971)
stale);
warnings
(eight
See *7 Simmons, (1978); 1059, v. 388 A.2d 1062 Commonwealth 496, 507-8, 431, (1978). 394 A.2d 437-8 482 Pa. case, seems have com-
In the interview the instant the appellant 45 minutes after approximately menced request did not warnings. appellant his The given Miranda he made statement. any assistance of counsel before the that the at requested Nor does it seem that he fact, to the In his statements interview be terminated. Also, responsive. he was alert and suggest by the physical of threats or violence there are no hints Therefore, in- appellant’s the during the interview. com- the not of criminating product statements were hold that Accordingly, own free will. we but of his pulsion, err in these statements permitting lower court did not the the trial. at is that Pa.R.Crim.P. next contention
Appellant’s prior started trial was not Rule 1100 was violated because 26, 1980. The run date of October to the on 29, commenced finally 1980. His trial April arrested on 17, 1980, interim, on October 18, 1980. the November of time for an extension petition filed a Commonwealth the re- Because of various continuances trial. to commence 470
quested
counsel,
the
his
by
appellant the
on
hearing
the
petition
7,
Commonwealth’s
was not held until November
1980. Accordingly,
contends
because the
hearing
date,
held after
run
trial
speedy
rights
were violated. Our
of the
review
record indicates that the
Commonwealth exercised due
it
diligence and that was the
appellant’s requests
in
delay
which occasioned the
schedul-
See,
Lane,
Commonwealth
ing
hearing.
v.
245
Pa.Su-
146,
per.
(1976).
Additionally,
335
there is no
requirement
hearing
that the
on an
petition
extension
be
See,
Wroten,
to the
Commonwealth v.
prior
held
run date.
340,
(1982);
305 Pa.Super.
Commonwealth v.
A.2d 1088 291 Pa.Super. Allen, (1981); Commonwealth Pa.Super. A.2d 1113 trial, the produced At four witnesses to the crime. positively Two those witnesses identified crime, from the at subsequent scene is no line-ups, question court. There that the appel lant was the scene that he participated robbery. eyewitness clearly supports Such identification *8 contrary and is not to law. Accordingly, verdict we find final to appellant’s contention be without merit. Judgment of sentence affirmed.
CAVANAUGH, J.,
dissenting opinion.
files a
CAVANAUGH, Judge, dissenting:
opinion
I
from that
part
majority’s
dissent
which
the appellant’s incriminating
holds that
statements to the
voluntary.
were
admitting
that
the court erred
contends
Appellant
made.
I
incriminating
agree,
statements which he
certain
incriminating
apart
evidence
from the
although and
appel-
to be sufficient to sustain the
appears
statements
convictions,
the erroneous admission
the state-
lant’s
him.
prejudicial
ments was
to
After
he
under
rights
was read
Miranda
arrested
A. he did. remark? And what was that
Q. him, being explained A. reason Mr. Cas- After the gentleman stated that he was a he never well bandit no hurt one.
IsQ. quote? Yes, unquote.
A. quote, Trooper Q. And whether Carlson made the defendant? statements to sir, Yes,
A. he did. Q. responded? And or not the whether defendant Yes, A. he did.
Q. response? And what was his Mr. A. The conversation and statement made town, was, “I that this a hick thought Caswell ten the time. But you years you were behind guys your did homework.” guys sure Q. whether or not And was asked defendant under surveillance? knew was sir, Yes, A. he was.
Q. And whether not he responded? Yes, sir,
A. he did.
Q. did say? What he A. His statement was he first became suspicious that the police were on April onto 27th of when a young boy came to his door—
Q. you question Did ask the he whether knew he was under surveillance? Yes,
A. sir.
Q. And what did he respond? A. He stated he that became on suspicious April 27th of this when year young a came to the door boy front of his home at South Main Avenue and advised him that watching were across the street his home and taking pictures. this point At he to indicated us that he he was becoming believed and he going hot that to leave go town and to Florida.
Q. did say anything And else? A. Yes. He us indicated to that had his bag packed clothing and belongings, right arrested, before he he was to going leave town. Now, in Q. fact, of his arrest at 943 South Street, Main you bag packed? did find a A. sir. arrest, 29th, Yes On the of date April when Mr. Caswell into custody, was taken he asked me if I go personally upstairs... would added). (Emphasis
Once criminal defendant tells the that he does not crime, want talk to them about the interrogation must cease: Bullard [Commonwealth v.] [465 (1976) appellant’s desire not to answer police ques ] conveyed
tions was the police through certain interme diaries. In the instant case appellant stated his desires involved, directly to interrogating officer did have the wherewithal to surrender fact or did not presence judge, in the himself the assistance request mind to presence have the of same time he *10 desire not conveyed his at the attorney an derogates expression no his speak, way to from of to remain right exercise his constitutional desire to court, As stated the Miranda silent. manner, any the individual indicates
“[i]f to remain during questioning, that he wishes prior to (Footnote silent, must omit- interrogation cease. ted.) point he has shown that he intends At this privilege; any his Amendment state- exercise Fifth his person privilege taken invokes ment after product compulsion, than the cannot be other added.) (Emphasis or otherwise.” subtle 436, 473-474, 1602, 1627-1628, 16 86 S.Ct. 384 U.S. 694, (1966). 723 L.Ed.2d 534, 1284, Walker, 542, v. 470 (1977). added). (Emphasis
1288
477,
The
relies on Edwards
majority
(1981).
held that
1880, L.Ed.2d 378
That case
101 S.Ct.
68
have counsel
right
an accused has invoked his
when
waiver of
interrogation,
custodial
a valid
present during
by showing only that
right
cannot be established
interrogation,
police-initiated
to further
custodial
responded
rights.
of his
This case is
even if he has been advised
facts,
in my opinion
on its
distinguishable from our own
support
majority.
lends little
to the
light
in the
The
in the instant case should be read
facts
159,
Rose,
The evidence that tactics were used is convincing. Milton, Cf. Commonwealth v. Informing appellant of addi- *11 in developments tional the case can toward go exculpat- ing as inculpating appellant’s as well involvement in the crime. As long warnings properly as Miranda were readministered, case, which were in this no error they was allowing committed in into evidence the state- ments made requestioning. after (Emphasis added)
In
the instant case the
told the
appellant why
gentleman
was arrested
his statement
that he was a
anyone
and never hurt
considered as a
may
purely
bandit
be
voluntary
response
interrogation.
remark and not
However,
were not satisfied and continued with
questions
their
as to whether he
that
knew
he was under
interrogation
clearly
surveillance. This
was
related to the
charged.
crimes with which he was
Also the
testimony
that
made “statements to the
Trooper
Carlson
responded.”
undoubtedly
The statements were
of questions
appellant responded
form
as the
to them.
If
give
meaning
we are to
serious
to the rule of law that
Bennett,
majority
respect
in this
is Commonwealth v.
(1971)
Supreme
expressly
A.2d 276
in which the
Court stated
that
apply.
supra,
Miranda v.
did not
during ques-
one indicates
must cease when
interrogation
silent,
should
grant
that he
to remain
we
tioning
wishes
of the continuation of
trial in this case as the result
new
stated that he did not want to
interrogation
after
police.
opinion
testimony
admission of the
my
talk to
court to conclude that an
reviewing
erroneous and for a
convinced
a reasonable
beyond
error is harmless it must be
the error did not contribute to the verdict.
doubt
184,
I would reverse the of sentence judgment a new trial.
Filed