*1
Submitted Feb.
Filed Jan. 1983. Reargument Denied March *3 DeMasse, Elaine Defender, Assistant Public Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Phil- adelphia, Commonwealth, for appellee. BECK, SPAETH, and BROSKY JJ.
Before SPAETH, Judge: for rob- from a of sentence appeal judgment
This is an in deny- court erred that the lower Appellant argues bery. transcript return of the quash his motion to ing statement; his refusing suppress hearing; preliminary of the reasonable doubt the “restrain” version giving and charge. court in which the lower way the careful
We admire
with, and find no need to
trial,
agree
and
we
conducted
re-
arguments
to,
rejecting
its discussion
add
the reasonable doubt
quash
the motion
garding
state-
issues,
concern
which
charge. But
two
These issues
court.
ment,
lower
agree
we don’t
no doubt
appellant’s guilt—there’s
to do with
nothing
have
the conduct
deal to do with
good
a
he was the robber—but
trials, in other cases.
of other
did
appellant’s statement
officer who obtained
police
required by Miranda
warnings
give appellant
(1966).
1602,
At trial the Commonwealth argued appellant’s state- ment that the keys were his was not a statement. really rejecting argument, the lower court said to the assistant district attorney:
Well, contention, to your suppose you answer coat, him asked about the does this coat belong you, don’t think his you answer would have a highly *5 statement?
important Suppose you asked him about sunglasses. 135.
N.T. The assistant district that he attorney replied agreed that the coat appellant’s sunglasses belonged answer him a they would have been “since were ... (the submitted as evidence against [appellant],” N.T. 135-36 C-l), coat and sunglasses were Exhibit but went on to say, “I think the keys themselves have no significance as evi- dence other they than the fact that were in the pocket of coat,” N.T. 136. In its brief to us the Commonwealth terms, argues somewhat different blending argument the nature of appellant argument about what said with an he about whether was entitled to Miranda Brief warnings. for Commonwealth at 9-12.
Without admission that the question, keys his were statement. The fact that the keys were not themselves offered in evidence was immaterail. Further more, indicated, as the lower court’s comment it was “a important statement.” The nature highly statement as a statement and its importance were both emphasized by the assistant district in his attorney closing argument. lit,” He conceded that the bar was “dimly N.T. 252-53, insisted that there “physical but were facts” that showed that the witnesses’ identification of appellant as the was not mistaken. they robber “There’s the coat described him wearing, long coat. There’s the sunglasses.” N.T. And, he said:
We know that’s his coat not only because it came off the porch but because of a—sometimes let you things escape. It’s did very important. Oakley say. What Officer The keys. keys pocket were in the of the coat. to the police
When went station the defendant was defendant, at the police station and he said to the are Yes, these are your keys. they my keys. you Do want them And them back. he took back and the defendant even admitted that he had the to his himself mother’s home and he possession keys. is now those *6 one absolutely So hundred per cent that ties the de- to the coat. separate You can’t that defendant fendant from that coat with a hundred crowbars. That’s his coat and you separate can’t the coat the money, from crime, of proceeds with a thousand crowbars because and, that’s the proceeds the crime of therefore is the robber. That’s A B plus equals C. defendant added). N.T. 260-61 (emphasis appellant’s
Since admission that the keys were his was a statement, we must appellant decide whether was entitled to conceded, Miranda It warnings. and on motion to suppress his found, lower court that the police officer who elicited the statement “did not disclose to [appellant] the site or location where he found 232-33, the keys,” not, N.T. and did before he questioned appellant the keys, about give-appellant warnings, N.T. found, 234. The lower however, court also questioning appellant, the officer did not have “any inten- tion to obtain incriminating or inculpatory statement.” so, N.T. 233. being held, This the court was no “[T]here violation of [appellant’s] constitutional rights and no duty warn him that if he claimed of the he ownership keys would be incriminating himself.” N.T. 234.
We are of course bound
lower court’s findings
of fact if the
supports
record
them. Commonwealth v.
Davis,
491 Pa.
(1980);
A.2d 179
Commonwealth v.
Williams,
287 Pa.Superior
(1981).
Ct.
them.” intent when subjective of his the officer testimony by the evi- supported by credible is appellant questioned reporting the officer’s conduct dence of finding keys. recovery noting or statement on us. binding therefore is subjec that a conclusion law
The lower court’s
of course not
apply
right
is the
standard
standard
tive
that our first difference
us,
point
at this
and it is
binding
For it is settled
court arises.
the lower
in custo
an individual is
determining whether
standard for
subjective
is not
interrogation
being subjected
dy and is
of the United States
Court
Supreme
As the
objective.
but
*7
under Miranda
it,
‘interrogation’
term
recently put
“[T]he
any
also to
questioning, but
only
express
not
refers
the police
the
...
that
police
on the
of
part
or actions
words
¿re
to elicit an incrimina
reasonably likely
know
should
Innis,
Rhode Island v.
suspect.”
from the
ting response
1689-90,
In the of statement finding that evidence verdict, to the the the were his did not contribute keys 472 Pa. Rodgers, lower court relied on Commonwealth v. sup- Appellant argued should have been has that the statement Davenport, A.2d 301 pressed 471 Pa. under Commonwealth (1977). argument. We do not reach this In the (1977). Rodgers, A.2d 771 after defendant warnings his and exercised given had been Miranda silent, questions, asked in remain he was various right counsel, of a completing of for the purpose the absence questions these was police information form. One nicknames, to which he by any he was known whether suppress “Tubby.” he was His motion that called replied appeal trial by was denied the court. On the this answer suppressing error in not the held that Supreme Court use the defendant’s statement was harmless because through testimony established the “Tubby” was nickname witnesses; police the officer’s testimony other of several it nickname also said his was that the defendant had was only. cumulative find of little It does stand for help.
We Rodgers subject to a may that violations be proposition disposes proposition hardly But that harmless error test. the evidence was indeed cumula of this case. Rodgers Here, contrast, appellant’s statement about only. tive may evidence. be Eyewitnesses was the critical keys face, when especially in recalling mistaken a robber’s coat found a seen lit” bar. And a “dimly robber him; it fits he and simply not the because porch suspect’s the suspect same size. But when may be the robber coat, any were in the doubt keys himself admits that his Then, said in his attorney as the assistant district vanishes. robbery and the separate” suspect can’t closing, “[Y]ou crowbars;” “absolutely one you a thousand know “with cent” he was per hundred that robber. argues us the Commonwealth
In its brief admitted that his were appellant evidence [appellant] link between and “merely one more coat was all, it if was error its admission robbery, Brief for Common- doubt.” beyond harmless reasonable added). was not the (emphasis certainly at 15 This wealth admis- attorney’s district evaluation assistant the admission sion; argued jury, correctly, to the *9 appellant’s per proof hundred cent” “absolutely one
395 of a not prosecutor justice, is to do high purpose guilt. 477 Pfaff, Commonwealth v. hand onto a conviction. (1978); Miller, v. 461, A.2d 1179 Commonwealth Pa. 384 392, (1980). 422 A.2d That purpose 525 Pa.Superior 281 Ct. of the evi characterizations by opportunistic not served is 22, States, 96, 290 U.S. 54 S.Ct. v. United Shepard dence. if (1933) (“trial testimony unfair” L.Ed. 196 becomes 78 accepted appeal impeach is for at trial for truth accepted (CARDOZO,J.). ment) Pa.R. no violation of there was
Finally, Rodgers
305 E
the trial court
305(B)(1).
gives
Pa.R.Crim.P.
Crim.P.
remedies for a failure to
formulating
discretion
broad
cases,
order
requirements.
many
comply
discovery
remedy.
This will be
adequate
a continuance will be
ing
or other evidence is
the undisclosed statement
so where
surprise.
is
only prejudice
and the defendant’s
admissible
Parente,
Pa.Superior
294
Ct.
v.
Commonwealth
E.g.,
(1982);
Pa.Superi
v.
Bey,
Here, failed to dis the evidence Commonwealth ad keys—was statement about the close—appellant’s missible, in violation of for it was obtained the efforts of the lower court rights. respect We a mid-trial already along by holding a trial well salvage explained, As how hearing. already we suppression conclusion, after that ever, that the lower court’s we believe statement was admissible hearing, trial, itself a new require error. This conclusion would error in of the given importance for harmless. But a it characterized as admitting cannot be in view particularly, required additionally, new trial statement, in disclose the failure to Commonwealth’s B(l)(b). violation Pa.R.Crim.P.
396 agrees with Judge BROSKY dissenting opinion,
In his that suggests the merits but of the issues disposition our to make a “due to a failure waived issues have been the find, how- at 995. We Dissenting op. objection.” timely suggestion. this ever, by not persuaded that we are. the sponte; is made sua neither First, suggestion waiver. suggested court has nor the lower Commonwealth made, the lower was first objection It is true that when court' made But the “timely.” that it was not court stated occurred any that waiver had it did not consider that plain said, argue the Commonwealth have does (nor, as we to hear proceeded lower court had). Accordingly, the and consider and hearing, suppression conduct a argument, the lower opinion. Clearly in its objection dispose made was not objection The reason the court was correct. had failed to dis- once was the Commonwealth at because can find statement. We existence of close the n. Dissenting op. at 995 dissent’s no for the basis counsel “should failure, 3, this despite an objection.” for grounds aware of become support the dissent not second, by the cases cited And no waiv- dissent, but, rather, conclusion that there was er. Griffin, v. 271
The' dissent cites Commonwealth
(1979),
proposition
for
397 only there no facts, attempt know complain the record and thereaft- into “insinuate [ ] [error] error, to excise the strenuously attempted er,” counsel but suppression hearing. the ensuing and at by argument both circumstances, would untimely to find the objection these as a value upon [contemporaniety] indeed be “insist [ ] itself.” Folino, Pa.Super.
Commonwealth dissent, shows (1981), similarly also cited A.2d *11 Folino, here. defense counsel no occurred waiver for excusing trial a witness judge not to to the object chose conference, id,., Then, 294 “well after” the a conference. 352, 147, at counsel apparently at 439 A.2d Pa.Superior did Thus counsel change object. permitted of mind and a then, occurred, claimed occur, to and after it had something happened like that here. Nothing error. Co., Trust 457 Pa. Lehigh Valley
Finally, Dilliplaine
(1974),
case
the
remaining
by
A.2d 114
cited
dissent, also
that no
occurred here. Dilli-
shows
waiver
indeed,
doctrine and
is the foundation of the waiver
plaine,
There the Court said
especially apposite.
is therefore
objection
to
specific
reason for
be
“[Requiring
timely
trial
that the
has
judge
taken in the trial court
ensure
to]
[is
Id.;
trial errors.”
457 Pa.
alleged
a chance
correct
“This
alleged
BROSKY, files a dissenting opinion. BROSKY, Judge, dissenting: opinion I dissent. While the cor- respectfully majority applies by appellant, the law to the two issues raised rectly these issues should not have been dealt with on their They timely merits. were waived due to a failure to make a objection.1 Oakley coat-containing
Officer testified that sto- taken into money keys custody by len if police. He further testified that asked the defendant and, they upon receiving were his affirmative answer, returned them to him. No was made at objection time. then exami- Defense counsel conducted cross nation, without mention of the or the Mandatory Disclosure violations. Discussions were then held in cham- *12 bers, also without reference to these issues. Court was the day. then recessed for mistrial, regard-
A motion for on the basis of the evidence at ing keys, beginning the return of the was first made The trial following day. judge of the court session the held 2 at time “there no I timely objection.” agree. was 228, Pa.Super. 271 412 Griffin, Commonwealth v. (1979), applicable A.2d 897 this Court stated the law on this question. appeal, appellee appellant by arguing
1. On has not countered this However, “may sponte." this Court raise the issue of waiver sua issue. 10, Triplett, Pa. A.2d at Commonwealth v. 476 83 at 90 n. 381 877 881 (1977). n. 10 holding, suppression 2. While the trial court never withdrew this hearing was held and the evidence ruled admissible for reasons dealt majority opinion. in the
399
has
held that the
consistently
in
jurisdiction
law this
Case
issues below
of our
doctrine
cornerstone
waiver
purposes
manner are foreclosed for
timely
raised
not
Pritchitt, 468
v.
appellate
review. Commonwealth
10,
(1976).
majority
In the vast
Pa.
It appear measures, does that no curative short of a mistrial, could have taken even had the objection been However, timely made. this should not influence the deci- sion to made A be here. contrary result would encourage practice meretricious of “sandbagging.” coun- Namely, sel could allow the record; error enter fail to make a timely objection; wait and if the see trial seems be favor; in progressing and, not, his it if is make an objection Then, later demanding a mistrial. even if the motion for a denied, mistrial is the issue could be raised on appeal. We do not insinuate that is this here. case Nonethe- less, we know of no reliable to distinguish method between honestly errors discovered later and kept those hidden for tactical purposes. As a general application rule of there- fore, the courts of this state have unequivocal made requirement that made in objections timely be fashion preserved order to be for appellate review. That rule is binding on us case. this
I would affirm the judgment sentence. Indeed, grounds become objection. aware of the for an lack of such part awareness on counsel's Dilliplaine irrelevant. 255, Co., Lehigh Valley Trust 457 Pa. 322 A.2d at 116 (1974), Supreme rejected Court this Commonwealth the short- comings of counsel as excuse for a timely failure make a objection.