Commonwealth v. Bussey
| Decision Date | 27 August 1979 |
| Citation | 404 A.2d 1309,486 Pa. 221 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Bruce B. BUSSEY, Appellant. |
| Court | Pennsylvania Supreme Court |
Argued April 27, 1979. [Copyrighted Material Omitted]
Arthur R. Sagoskin, Gary B. Gilman, Doylestown, for appellant.
Peter F. Schenck, Asst. Dist. Atty., Stephen B. Harris, Doylestown for appellee.
Before EAGEN C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
Bruce B Bussey, appellant, was convicted of murder of the first degree following a nonjury trial in the Court of Common Pleas of Bucks County. Post-verdict motions were denied, and judgment of sentence of life imprisonment was imposed. This appeal followed.
Bussey raises two issues seeking discharge or the grant of a new trial.
In support of his request for discharge, Bussey maintains the trial court erred in denying his application for an order dismissing the charges pursuant to Pa.R.Crim.P. 1100(f).
While trial did not commence within two hundred seventy (270) days from the date the complaint was filed, Pa.R.Crim.P. 1100(a)(1), and while no petition to extend the mandatory period in which to commence trial was filed, Pa.R.Crim.P. 1100(c), the Commonwealth argues trial commenced within the mandatory period of Pa.R.Crim.P. 1100(a)(1) because computation of the mandatory period requires exclusion of a period of time sufficient to bring the commencement of trial within the two-hundred-seventy-(270)-day mandate. Specifically, the Commonwealth urges the period between December 21, 1973 and January 18, 1974 should be excluded. [1] The Commonwealth is correct.
The record shows that, on December 21, 1973, Bussey appeared before a district justice for a preliminary hearing. [2] The district justice asked Bussey if he wished to obtain private counsel and received an affirmative reply. The Commonwealth indicated it would not oppose continuing the hearing, but asked that the date be set after "the first of the year." Subsequently, the hearing was set for January 18, 1974 at which time Bussey appeared with counsel. Counsel then requested a continuance which was granted.
Commonwealth v. Millhouse, 470 Pa. 512, 368 A.2d 1273 (1977), is controlling as to this period. In Commonwealth v. Millhouse, supra, the accused who was not indigent presented himself for a preliminary proceeding without counsel and did not waive his right to counsel. For this reason, the proceeding was delayed. We concluded that, under such circumstances the accused was unavailable within the meaning of Pa.R.Crim.P. 1100(d)(1) and that the period of delay resulting from the unavailability, i. e. until counsel entered an appearance, was to be automatically excluded.
Instantly, Bussey appeared at a preliminary proceeding without counsel, did not waive his right to counsel, and was financially capable of retaining private counsel. [3] The delay in the proceeding was the result [4] of these circumstances and counsel did not enter into the case until January 18, 1974. [5] Hence, Bussey was unavailable for this period, and it must be excluded pursuant to Pa.R.Crim.P. 1100(d)(1). [6]
Since this period must be excluded in computing the mandatory period and since doing so brings the commencement of trial within the confines of Pa.R.Crim.P. 1100(a)(1), the trial court did not err in denying the application to dismiss. [7]
In support of his request for a new trial, Bussey argues the trial court erred in refusing to grant his motion to suppress certain incriminatory statements given by him to police and in permitting evidentiary use of these statements at trial. Specifically, Bussey argues the statements were given in violation of his constitutional rights as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (hereinafter: Miranda ) in that he did not expressly waive or indicate an understanding of his rights. [8] We agree.
The relevant facts are:
Bussey was arrested on December 14, 1973, in Burlington, New Jersey, at approximately 1:30 a. m. by police of that city. At the scene of the arrest, Bussey was advised of certain rights pursuant to Miranda, but "did not specifically acknowledge that he understood the rights as given" and did not expressly waive his rights.
Bussey was then transported to Burlington City Police Station. Arriving there at approximately 1:45 a. m., he was confronted by a detective from the Office of the District Attorney of Bucks County. The detective asked Bussey if he was "all right, and whether he was under the influence (of) drugs or alcohol." Bussey responded that he was alright and that he was not under any such influence.
Bussey was then asked if "he knew why he had been picked up," and he responded "it must be because (I) killed that dude back in Pennsylvania." The detective then left to make certain phone calls.
Shortly after 2:00 a. m., a Bensalem Township police detective and a Pennsylvania state trooper, who had been present during the 1:45 a. m. conversation, began talking to Bussey "about different things to get him talking." A conversation occurred concerning Bussey's girl friend. Then the two gave Bussey warnings pursuant to Miranda which he acknowledged and indicated he understood. Bussey indicated he was "willing to answer questions without the presence of an attorney." Bussey then told the two that the victim had been killed by "three men who broke into (Bussey's) house and that (he, Bussey,) was not responsible for the death of the victim."
The state trooper then told Bussey he did not believe him because it was contrary to what Bussey had said to the detective from the district attorney's office. Indeed, the trooper told Bussey he was "lying." Bussey began to talk about his girl friend, but the conversation soon returned to the subject of the crime. Bussey then stated: "I just can't tell you." [9] Bussey then began to "fill up a bit," i. e. got "ready to cry." The police detective then told Bussey he might "feel better if he did talk about it." Bussey then gave an incriminatory statement which included a reference to throwing "guns off the Burlington Bristol Bridge." The questioning stopped at 2:30 a. m. when instructions were received from the district attorney's office that a formal statement would be taken when a court stenographer arrived and that interrogation was not to be conducted until then.
Subsequent to the above conversation, Bussey, in conversation with the detective from the district attorney's office about extradition, indicated "things looked pretty bad for him and . . . he might have to spend either a long time or the rest of his life in jail." He also stated he would ". . . plead guilty right now."
The court stenographer arrived at 4:05 a. m. and a formal statement was taken beginning at 4:28 a. m. Prior to taking the formal statement, a lieutenant of the Bensalem Township Police Department, who was the chief questioner, warned Bussey of his rights. At the conclusion of the recitation of the warnings when asked if he understood "all of the things that have just been explained," Bussey asked the lieutenant to "(b)ack up to the last part." The lieutenant repeated the warning which advises of the right to a "lawyer . . . free of charge" if Bussey could not "afford to hire" one. Bussey then responded, "(o)kay," and was then asked if he understood his rights as explained. He indicated he did and was asked if he wanted Bussey asked: "Can I say something besides yes or no?" When told he could, he asked, "What do you recommend?" The assistant district attorney who was present replied:
Bussey then stated: "Okay, I will, I'll answer your questions."
Questioning began but shortly thereafter when asked what happened when the victim came to Bussey's house, he asked: "I ain't allowed to ask no questions?" The lieutenant responded: "Ask whatever you want." Bussey responded:
The lieutenant responded: "Well, we would like to hear this again ourselves." Bussey replied: "(o)kay," and the formal statement continued until completed at 5:04 a. m.
Bussey waived extradition before a judge in Mt. Holly, New Jersey and was transported to Bensalem Township Police Headquarters where he arrived at 11:00 a. m. on December 14, 1973. [10] At 1:30 p. m., while being processed, Bussey saw the detective from the district attorney's office, see 1312, supra, and indicated that he wished to speak to him in private. The detective indicated such a conversation would have to await completion of processing.
At 2:00 p m., Bussey spoke to the detective who told Bussey in response to inquiries that, "if one of two people do a job, and both get arrested," it would be up to the court whether "they have to serve time in the same prison" and that the detective was aware of a gang-related crime where persons served in separate prisons. The detective then asked "why . . . was someone else involved with you in this killing." Bussey replied: "Yes, but I don't know if I would testify against him, I would fear for my life." Bussey then incriminated one Dwight Tools and advised the detective that he had not thrown the guns involved over a bridge, and that Tools had one gun and the other was in New Jersey. Bussey was then taken to a lieutenant's office where he repeated the above information, was advised he could not be taken...
To continue reading
Request your trial