Commonwealth v. Brodo

• Decision Date: 19 January 1979
• Citation: 396 A.2d 802,262 Pa.Super. 375
• Parties: COMMONWEALTH of Pennsylvania v. Anthony BRODO, Appellant.
• Court: Pennsylvania Superior Court

396 A.2d 802

262 Pa.Super. 375

COMMONWEALTH of Pennsylvania v. Anthony BRODO, Appellant.

Superior Court of Pennsylvania.

January 19, 1979

Submitted June 19, 1978.

John W. Packel, Asst. Public Defender Philadelphia, for appellant.

Robert B. Lawler, Asst. Dist. Atty., Philadelphia, for Commonwealth appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

PER CURIAM:

Appellant contends that the lower court erred in refusing to suppress (1) oral admissions made at his home because police officers did not give him Miranda warnings, and (2) a subsequent confession at police headquarters because it was tainted by the initial alleged custodial interrogation. Because we find appellant's contentions without merit, we affirm the judgments of sentence.

On November 9, 1976, Philadelphia police arrested appellant on charges stemming from the September 30, 1976 burglary of the Royal Villa Bar and the October 28, 1976 burglary of Michael's Dog Grooming Parlor. On January 11, 1977, the lower court held a hearing on appellant's motion to suppress two statements made by appellant on the day of his arrest. Testimony at that hearing revealed the following facts: On November 9, 1976, Detectives O'Shea and Romano of the Philadelphia Police Department began to investigate the burglary of Mrs. Gentile's home. Other officers informed the detectives that Mrs. Gentile had identified appellant from police photographs as a "possible" burglar of her home and that based upon a statement of the owner of the Royal Villa Bar, appellant was also a suspect in the September 30, 1976 burglary of that bar. From the detectives' interview with the bar owner on November 9, 1976, they learned that (a) a burglar had stolen the owner's cash register and other items, (b) appellant's mother had told the owner that his stolen cash register was at her home, and (c) a "similar" burglary had occurred at Michael's Dog Grooming Parlor across the street from the bar. From their subsequent interview with the owner of the dog parlor, the detectives learned that on October 28, 1976 a burglar had stolen some cash, framed photographs of nude women "similar to the old-time calendars," a small black ceramic buddha doll and other items. With all of the above information, the detectives went to appellant's home at approximately 3:00 p. m. on November 9, 1976 to question him about the burglaries of the Gentile home and the Royal Villa Bar. Appellant's mother admitted the detectives into the home when they asked her whether appellant was there. While waiting for appellant, the detectives observed a photograph of a nude woman and a black buddha doll, both matching the description of the items taken in the dog parlor burglary. When appellant came downstairs, the detectives asked him whether the items were his and where he obtained them. Appellant answered that they were his and that he had bought them from someone coming out of the dog parlor. The detectives then gave appellant Miranda warnings and asked him whether he would voluntarily accompany them to headquarters and bring the photograph and buddha doll with him. Appellant agreed. En route to headquarters, the detectives stopped at the dog parlor where the owner identified the photograph and buddha doll as those stolen during the burglary of his shop. At headquarters, the detectives again gave appellant Miranda warnings. Appellant waived his rights and confessed to burglarizing both the bar and the dog parlor. He signed his confessional statement at 4:30 p. m.

On January 11, 1977, after hearing the above testimony, the lower court denied appellant's motion to suppress the statements he made at his home and at headquarters, proceeded immediately to trial without jury, and found appellant guilty on two bills each charging burglary, theft by unlawful taking, and theft by receiving stolen property. On March 30, 1977, after denying appellant's written post-verdict motions, the lower court sentenced appellant to two consecutive 10 year terms of probation. This appeal followed.

Appellant contends that the lower court erred when it refused to suppress the statements he made at his home prior to the first Miranda warning. In Commonwealth v. Anderson, 253 Pa.Super. 334, ---, 385 A.2d 365, 370-71 (1978), we described the following guidelines used to determine "when a 'custodial interrogation' which triggers the need for Miranda warnings occurs. First, the mere fact that the police investigation has focused on a particular person will not require Miranda warnings before police interviews with that person. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977). Second, if the police in fact place a person in custody or restrict his freedom in any significant way prior to, or during, the interview, then the interrogators must advise that person of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Leaming, 432 Pa. 326, 247 A.2d 590 (1968); Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409 (1968), cert. denied, 393 U.S. 882, 89 S.Ct. 189, 21 L.Ed.2d 157 . . . . Third, a suspect actually may be in custody even if the police have not taken him to a police station or formally arrested him. Fourth, . . . 'custodial interrogation' occurs when a suspect '. . . is placed in a situation in which he reasonably believes that his freedom is restricted by such interrogation.' Commonwealth v. Brown, 473 Pa. 562, 570, 375 A.2d 1260, 1264 (1977); . . . ." (footnote omitted).

In the instant case, the two detectives wished to question appellant about two burglaries. While waiting for him inside his home, they noticed some items matching the descriptions of items taken in a third burglary. Prior to giving Miranda warnings, they asked appellant only two short questions: were the items his and where did he get them. Appellant responded to both questions. Although the detectives had focused on appellant as a suspected burglar, they did not formally arrest him at his home, expressly indicate that he would be detained until he answered their two questions, or give him any other reason to suspect that he was not free to leave or terminate the interview. Their interrogation was short and occurred in appellant's own home. Under all these circumstances, we find that the detectives were not conducting a "custodial interrogation: and, consequently, that they were not required to give appellant Miranda warnings before the interview.

Appellant also contends that the lower court should have suppressed his statement made at police headquarters after Miranda warnings and waiver because it was a fruit of the poisonous first statement he made at his home. Because we have held that the first statement was not obtained in violation of appellant's constitutional rights under Miranda, we reject appellant's second contention.

Judgments of sentence affirmed.

SPAETH, J., filed a concurring opinion.

This case was decided prior to the retirement of JACOBS, former President Judge.

HOFFMAN, J., did not participate in the consideration or decision of this case.

SPAETH Judge, concurring:

Although I agree that appellant is not entitled to a new trial, I cannot join the majority's holding that the detectives' interrogation of appellant in his home was legal.

[262 Pa.Super. 380] -1-

Two detectives of the Philadelphia Police Department went to appellant's home to investigate his participation in three recent burglaries. The detectives had been informed that the complainant in the first burglary had identified appellant as the possible burglar of her house. The complainant in the second burglary, the owner of a bar at 17th and Jackson Streets in South Philadelphia, had told the detectives that appellant's mother had told him that the cash register taken from the bar during the burglary was now at her house, where appellant lived. Finally, the complainant in the third burglary, the owner of a dog grooming parlor also located at 17th and Jackson Streets, had described for the detectives the items taken from his shop.

When the detectives arrived at appellant's home, they were admitted by appellant's mother. As they waited in the living room for appellant to come down from the second floor, the detectives noticed a black ceramic Buddha doll and a photograph of a nude woman "similar to the old-time calendars," both in plain view and both matching the descriptions given them by the owner of the dog grooming parlor. When appellant entered the living room, the detectives asked him if the items were his. Appellant gave an affirmative response, and the detectives asked where he obtained them. Appellant replied that he had purchased them from someone coming out of the dog grooming parlor at 17th and Jackson. The detectives then gave appellant Miranda warnings and arrested him. ^[1] Appellant was taken to police headquarters, where he gave a full confession, which incriminated him completely in the two burglaries for which he stands convicted. This confession was given approximately ninety minutes after appellant was arrested, and after he was given Miranda warnings a second time.

The majority holds that appellant was not entitled to Miranda warnings prior to the interrogation in his home because the interrogation occurred before his arrest, and because appellant had no reason to believe that he was powerless to terminate the interview. I think the facts just recited all established by uncontroverted evidence demonstrate that appellant had sufficient cause to believe that he was in custody during the interrogation, and that consequently the detectives were required to warn appellant of his...