Commonwealth v. Bodge

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 — duced 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 — stems 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 — testify 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 — to have no relevance to the issue of whether Mathiason had been in custody for the purpose .of the Miranda rule. “In Pennsylvania ‘custodial interrogation’ has been interpreted to mean either questioning . . . ‘while in custody or while the object of an investigation of which [the defendant] is the focus, . . . ’ Commonwealth v. Feldman, 432 Pa. 428, 432-33, 248 A.2d 1, 3 (1968) Commonwealth v. D’Nicuola, 448 Pa. 54, 57, 292 A.2d 333, 335 (1972) (emphasis added). Subsequent to these Pennsylvania cases, the United States Supreme Court in Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) explained that the Miranda Court ‘specifically defined “focus,” [of an investigation] for its purposes, as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his action in any significant way”.’ ” Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056, 1057-58 (1977). The court in McLaughlin noted that there was no difference between the federal and state tests for custodial interrogation. Despite the Supreme Court’s decision in Mathiason, we are unable to conclude that appellant’s claim in the instant case is without arguable merit. It is entirely possible that a confession could have been coerced even if Miranda warnings were not initially required. The facts surrounding the incident were not fully explored since the issue was not raised before the lower court. There is also no indication as to whether counsel had any reasonable basis for the decision not to move to suppress at trial. Therefore, the case must be remanded for a hearing to determine whether counsel’s decision had any reasonable basis. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). It should also be noted that appellant does not claim that counsel was ineffective for failing to file a pre-trial motion to suppress. Thus, if the lower court determines that appellant had the opportunity prior to trial to make such a motion and that the interests of justice would not — 383 — have required the court to consider the motion if it had been made during trial, the issue will be waived irrespective of counsel’s motivation. See, e. g., Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Brown, 250 Pa.Super. 504, 378 A.2d 1262 (1977); Commonwealth v. Page, 246 Pa.Super. 380, 371 A.2d 890 (1977); Commonwealth v. Williams, 229 Pa.Super. 390, 323 A.2d 862 (1974); Commonwealth v. Brown, 226 Pa.Super. 30, 312 A.2d 428 (1973). If it is determined that counsel had no reasonable basis for his decision and that the issue has not been waived, the lower court must then determine the merits of the claim. If the claim is meritorious, appellant shall be granted a new trial at which the confession shall be suppressed. If the claim is not meritorious, the judgment of sentence shall be affirmed.1 Appellant’s final contention is that counsel was ineffective in failing to object to portions of the District Attorney’s testimony on the grounds that it constituted impeachment on a collateral matter. This contention is without arguable merit. Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972), illustrates the parameters of the rule prohibiting impeachment on matters which have no relationship to the case on trial. In that case, the defendant attempted to explain certain inconsistencies between his trial testimony and a prior written confession by saying that the. police had failed to record his statement accurately. The Commonwealth then attempted to impeach the defendant by questioning him about pre-trial allegations that the confession had been coerced by physical brutality. This was held to be reversible error because appellant did not contest the voluntary nature of the testimony at trial. — 384 — In the instant case, appellant repeatedly denied any involvement in the crime. A request for immunity is obviously relevant to show that appellant thought he had some possible involvement in an offense. Appellant could have acknowledged the request and then attempted to explain his prior behavior. If he had pursued this tack, Fisher would control and the District Attorney could not have testified. Under the circumstances of this case, the Commonwealth’s tactics were proper. Based on the foregoing, the judgment of sentence is vacated and the case is remanded for further proceedings. CERCONE, J., files a dissenting opinion in which HOFFMAN, J., joins. WATKINS, former President Judge, did not participate in the consideration or decision of this case. Footnotes [1] Appellant also contends that trial counsel was ineffective for failing to object to certain allegedly hearsay statements made by the District Attorney. Appellant refers us to numerous instances where the District Attorney testified concerning statements made by the victim. Suffice it to say that appellant’s contention has arguable merit and this issue must also be remanded for a determination of whether counsel had a reasonable basis for his failure to object.