Commonwealth v. Bodge

389 A.2d 1172, 256 Pa. Super. 376, 1978 Pa. Super. LEXIS 3037
CourtSuperior Court of Pennsylvania
DecidedJuly 12, 1978
DocketNo. 1023
StatusPublished
Cited by2 cases

This text of 389 A.2d 1172 (Commonwealth v. Bodge) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bodge, 389 A.2d 1172, 256 Pa. Super. 376, 1978 Pa. Super. LEXIS 3037 (Pa. Ct. App. 1978).

Opinions

PRICE, Judge:

After a jury trial, appellant was convicted of eleven charges arising out of an armed robbery. Post-verdict motions were denied, and appellant was sentenced. Because of our disposition, this case must be remanded for further proceedings.

Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, the following was ad[379]*379duced at trial. On June 6, 1975, two individuals entered the home of Mr. Joseph Criville and attempted to force him to open a wall-safe in his basement. Ultimately, Mrs. Criville opened the safe, and the robbers escaped with $21,000. The thieves also absconded with Mr. Criville’s business records.

About one week after the incident, the Norristown police, suspecting that appellant had participated in the robbery, took him to the Criville residence for possible identification. Although Mr. Criville thought that appellant resembled one of the robbers, he could not be positive because the robber had worn a full beard that, in effect, disguised his face. Appellant was therefore released.

Three days later appellant contacted Mr. Criville and requested a meeting. At the meeting, appellant offered to sell information concerning the robbery and to obtain the return of the business records. During the next several months at least two more meetings took place. At these meetings, appellant restated his offer and described in great detail the physical layout of the Criville residence as well as the manner in which the robbery took place. Eventually, appellant admitted his complicity in the crime.

Prior to his arrest, appellant requested a meeting with the local District Attorney. Appellant asked for immunity from prosecution and three thousand dollars in return for information relating to the robbery. The request was refused, and appellant was thereafter arrested.

At trial, appellant testified on his own behalf. He denied participation in the robbery, claiming that he had been informed of the details of the crime by other individuals. On cross-examination, appellant stated that he had refused several deals which had been offered by the District Attorney’s office. He specifically testified that he never asked for immunity or for three thousand dollars. On rebuttal, Mr. William Nicholas, Esquire, the District Attorney of Montgomery County, testified as to his conversation with appellant. According to Mr. Nicholas, appellant had admitted complicity in the robbery and had demanded immunity from prosecution. The primary problem in the instant case [380]*380stems from the fact that according to the District Attorney, appellant was informed prior to the making of the admissions that his statements would be considered “off-the-record.”

Appellant first contends that his admission of complicity should have been suppressed on the ground that appellant’s prior waiver of his Miranda rights was nullified by the District Attorney’s assertion that appellant’s statement would be considered off-the-record. This issue is waived because appellant never moved, either prior to or at trial, to suppress the oral statement. Defense counsel did object at trial; the objection was based on the ground that the “information was given in confidence.” (NT 2a). There was clearly no confidential relationship between appellant and the District Attorney, and therefore this objection was properly overruled. Defense counsel later asked the court whether appellant had been informed of his Miranda rights prior to the conference. (NT 30). The Commonwealth introduced evidence demonstrating that appellant had been so informed. At no point did appellant object on the grounds that his statements were involuntary or that the District Attorney’s assertions vitiated the effect of the prior Miranda warnings. The issue is therefore waived. Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Clair 458 Pa. 418, 326 A.2d 272 (1974).

Appellant also contends that trial counsel’s failure to move at trial for the suppression of the inculpatory statements on the above recounted basis constitutes ineffective assistance. Appellant cites Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975), in support of his argument.

In both Garrity and Triplett, the defendants, police officers, were the subjects of investigations into alleged criminal acts committed in the course of their duties. Prior to questioning, they were informed of their Miranda rights; however, each defendant was also informed, or otherwise aware, of certain regulations which provided that failure to [381]*381testify would result in dismissal from employment. Inculpa-tory statements were thereafter obtained from each defendant.

In Commonwealth v. Triplett, supra, the confession was suppressed pre-trial based on Garrity v. New Jersey, supra. At trial, the Commonwealth used the suppressed statements to impeach appellant after he testified. Our supreme court refused, to apply the decision in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and held that where “any statement of a defendant [is] declared inadmissible for any reason by a suppression court[,] [it] cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf at trial.” 462 Pa. at 248-49, 341 A.2d at 64. Triplett is inapplicable to the instant case, however, because appellant’s statements to the district attorney had never been suppressed.

The Supreme Court in Garrity, held that the confessions were involuntary, concluding that

“the protection of the individual under the Fourteenth Amendment against coerced statements prohibits used [sic] in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” 385 U.S. at 500, 87 S.Ct. at 620.

In contrast with Garrity is the Supreme Court’s recent decision in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). In that case, the defendant, who was a suspect in a burglary case, went to the police barracks to discuss the matter with the investigating officer. When the defendant arrived he was told that he was not under arrest. During the interrogation, the investigating officer falsely stated that the defendant’s fingerprints had been found at the scene. After about five minutes the defendant confessed. The defendant was then informed of his Miranda rights. The Supreme Court reversed the lower court’s order of suppression, holding that Mathiason had not been placed in custody or otherwise deprived of his freedom of action in any significant way. The officer’s false statement was held [382]*382to have no relevance to the issue of whether Mathiason had been in custody for the purpose .of the Miranda rule.

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Bluebook (online)
389 A.2d 1172, 256 Pa. Super. 376, 1978 Pa. Super. LEXIS 3037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bodge-pasuperct-1978.