Com. v. Speaks

• Decision Date: 21 February 1986
• Citation: 351 Pa.Super. 149,505 A.2d 310
• Parties: COMMONWEALTH of Pennsylvania v. Lawrence M. SPEAKS, Appellant. 00551 HARRISBURG 1984
• Court: Pennsylvania Superior Court

Page 310

505 A.2d 310

351 Pa.Super. 149

COMMONWEALTH of Pennsylvania v. Lawrence M. SPEAKS, Appellant.

00551 HARRISBURG 1984

Superior Court of Pennsylvania.

Submitted Sept. 17, 1985.

Filed Feb. 21, 1986.

Lawrence A. Kalikow, Asst. Public Defender, Harrisburg, for appellant.

Katherene E. Holtzinger-Conner, Deputy Dist. Atty., Harrisburg, for Com., appellee.

Before WICKERSHAM, CIRILLO and JOHNSON, JJ.

CIRILLO, Judge:

This is an appeal from a judgment of sentence imposed by the Court of Common Pleas of Dauphin County. Following a non-jury trial, Lawrence Speaks, appellant, was found guilty of possession with intent to deliver marijuana. 35 P.S. § 780-113(a)(30). Appellant was sentenced to pay the cost of the proceedings, a fine of $300.00, and to be imprisoned in the county prison for not less than one month nor more than six months.

The evidence produced at trial revealed that a Detective Teel, accompanied by five other officers, arrived at a residence for the purpose of executing a search warrant for narcotics. Appellant and two unidentified persons were inside the premises at the time. After knocking on the door, the officers identified themselves as police and advised appellant that they had a search warrant. Upon gaining entry to the premises, Officer Teel read appellant the contents of the warrant, advised him of his Miranda rights and questioned him as to whether he understood those rights. Appellant responded in the affirmative to this question and was then immediately asked if there was any marijuana in the house. Appellant answered yes and indicated that the marijuana was located in the living room closet. A search of the closet yielded six bags of marijuana. After these items were discovered, appellant was searched and a bag of marijuana was found in his pocket. The police also seized $240.00 in currency from the premises, including marked bills that Officer Teel had given to an informant the previous day for the purpose of a controlled buy.

Appellant raises a number of issues on appeal: 1) whether the suppression court erred in ruling that appellant validly waived his Miranda rights; 2) whether the suppression court erred in refusing to suppress the marijuana seized from appellant's person; 3) whether the evidence presented was sufficient as a matter of law to sustain a guilty verdict; and 4) whether the trial court erred in denying appellant's request seeking disclosure of the identity and whereabouts of the informant who participated in the controlled buy. We find no merit in any of the issues raised by appellant and we therefore affirm.

Initially, appellant contends the suppression court erred in ruling that he validly waived his Miranda rights. After a careful review of the record, we conclude that appellant explicitly waived his Miranda rights as required by Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979), and the suppression court did not err in so holding.

In reviewing an order denying a motion to suppress, our function is to determine whether the factual findings of the suppression court are supported by the record. Commonwealth v. Scatena, 332 Pa.Super. 415, 481 A.2d 855 (1984); Commonwealth v. Chamberlain, 332 Pa.Super. 108, 480 A.2d 1209 (1984). There is credible evidence of record that Speaks explicitly waived his Miranda rights.

In Commonwealth v. Bussey, supra, the Supreme Court held that a waiver of Miranda rights must be explicit in order to be effective in Pennsylvania. In defining explicit waiver, the Bussey Court stated that it "mean[t] an outward manifestation of a waiver such as an oral, written or physical manifestation." Bussey, 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Additionally, the Court asserted that by requiring an explicit waiver of Miranda, it "d[id] not mean to imply [that] an express waiver for each and every right [was] necessary." Id. at n. 12, 404 A.2d 1309.

Under the facts of the case sub judice, it is apparent that appellant's waiver of his Miranda rights complied with the requirements promulgated in Bussey. After reading appellant the contents of the search warrant and giving him his Miranda warnings, Officer Teel specifically asked appellant if he understood the Miranda rights. Appellant answered in the affirmative and only then did Officer Teel question him as to whether there was any marijuana in the house. In response to this question, appellant indicated to the officer that there was marijuana in the living room closet on the first floor. Appellant's unequivocal recital of his understanding of these rights combined with his response to the aforementioned question clearly constituted an explicit waiver of his Miranda rights.

The Bussey Court succintly and unambiguously defined an explicit waiver as "an outward manifestation of a waiver such as an oral, written or physical manifestation." Bussey, 486 Pa. at 230 n. 11, 404 A.2d at 1314 n. 11. Appellant's statement that he understood his rights followed immediately by his incriminatory answer to the officer's question was tantamount to a physical manifestation of his present intent to waive his rights. Such a physical manifestation qualifies as an explicit waiver under the definition provided by the Bussey Court. While such statements as "I want to talk," or "I waive my rights," easily satisfy the requirements of Bussey, these assertions are not the sole means by which an accused may explicitly waive his rights.

By requiring an express waiver of Miranda rights, the Bussey Court hoped to limit the number of cases in which the ultimate finding of a waiver depended upon the multitude of manifestations which occur between an expression of understanding by an accused and his giving a statement. The time lapse between the reading of Miranda rights and the accused's incriminating statement was a significant consideration for the Bussey Court in determining whether a waiver was explicit.

In Bussey, there was a delay of a quarter of an hour between the reading of the Miranda warnings and the accused's decision to make a statement. Additionally, Bussey did not specifically acknowledge his understanding of the rights when they were read to him. At the particular time that the accused incriminated himself, he again did not acknowledge his understanding of his Miranda rights nor indicate that he waived such rights.

The instant case is distinguishable on this very point. Officer Teel read appellant his rights, appellant indicated his understanding of these rights and he immediately thereafter answered the officer's question in an incriminating manner. The time span between the warnings, the expression of understanding and the giving of the statement was minimal, a matter of one or two minutes. No consideration need be given to Speaks' actions or thoughts occurring between his expression of understanding and his giving of a statement; they occurred almost simultaneously. The suppression court could determine with certainty that appellant waived his rights without delving into what was going on in the accused's mind at the time he incriminated himself.

Appellant's reliance on Commonwealth v. Nixon, 288 Pa.Super. 78, 431 A.2d 296 (1981), is misplaced. In Nixon, appellant was read his Miranda rights and was then asked if he understood them and if, keeping them in mind, he wished to talk. Appellant never answered these questions. He merely started to answer general background inquiries. Obviously, appellant in Nixon never explicitly waived his rights--there was no outward manifestation of a waiver either orally, physically, or in writing.

Once again, this case is easily distinguishable. Not only was appellant warned of his Miranda rights but the officer expressly asked him if he understood these rights. Speaks did not merely start answering questions but explicitly stated that he understood his Miranda rights, which include the right to remain silent.

The Bussey standard is difficult to apply because the Court "did not elaborate on what constitutes an explicit waiver." Nixon, 288 Pa.Super. at 82, 431 A.2d at 297. Therefore, the Court must be careful not to extend Bussey beyond its intended scope. Bussey did not hold that for a waiver to be deemed explicit an accused must state "I want to talk," or "I waive my rights." For our Court to now so require would broaden Bussey well beyond its original intended purview.

Even if the suppression court erred in ruling that appellant validly waived his Miranda rights, it was harmless error.

The doctrine of harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt. Its purpose is premised on the well-settled proposition that "[a] defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593.

Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981).

The evidence pertaining to the discovery of the marijuana was properly admitted at appellant's trial on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional provision had taken place. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In Nix, the Court stated that "the exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial." Id. 467 U.S. at ---, at 389, 104 S.Ct. at 2510.

In the present case, Officer Teel arrived at appellant's residence armed with a valid search warrant. The warrant enabled Teel to search the residence for "marijuana, cocaine, heroin, all drug related paraphernalia, drug records, and proceeds from drug sales." The marijuana discovered would have been uncovered by the police regardless of Speaks' statement. Even if Teel's failure to ask Speaks if he wanted to talk or waive his rights...