Commonwealth v. Diaz

Opinion by

Mr. Justice Cohen,

On June 12, 1967 Julian Diaz, appellant, while represented by counsel was found guilty by a jury of voluntary manslaughter. He filed post-trial motions which were overruled and was sentenced to a term of from four to ten years. No direct appeal was taken. In 1968 he filed a Post Conviction Hearing Act petition alleging he had been denied his right to appeal. Following appointment of counsel and a hearing, Diaz was granted the right to file an appeal nunc pro tunc.

Appellant’s counsel has filed what is, in effect, an Anders brief, see Anders v. California, 386 U.S. 738 (1967), in which he concludes that appellant has only one “arguable” issue, which he considers to be frivolous. Although there is no specific request that counsel be permitted to withdraw, it is clear that he finds no merit in the appeal. Further, although the record does not disclose that Diaz was informed of his lawyer’s action, he has filed a pro se supplemental brief which raises several issues. Therefore we may properly treat counsel’s brief as an Anders brief. Cf. Commonwealth v. Baker, 429 Pa. 209, 239 A. 2d 201 (1968). As we are faced with an Anders brief, our obligation is to search the record thoroughly to determine whether any legal points are presented which are arguable on their merits and are therefore not frivolous. Anders, 386 U.S. at 744; Commonwealth v. Sparks, 438 Pa. 77, 263 A. 2d 414 (1970).

The record discloses that Raymond Rodriquez died shortly after 9:00 a.m. on October 15, 1966 as the result of a stab wound of the chest inflicted following a twenty minute argument with another man. He was found lying in a building at 152 West Gay Street, West Chester. Appellant was arrested shortly thereafter.

The only possibly nonfrivolous issue that appears from a reading of the record concerns the admission in evidence of confessions allegedly obtained in violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). This is what appellant raised in his pro se brief, and as to that claim the facts are as follows. What is involved is not one confession but three. The first was uttered just prior to appellant’s arrest. The police suspected Diaz of having committed the stabbing and went to his home. After they had gotten out of their car and as they were walking across the sidewalk, Diaz came out of the house with his hands up and said “[s] omething to the effect—it was broken English— that I give up, I did it. . . .” The second was uttered after Diaz was under arrest while the two officers were taking him to the police station. The third was given to two different police officers while appellant was at the police station.

Diaz moved to suppress confessions 2 and 3. After a hearing the court suppressed 2 but refused to suppress 3. At that hearing there was no mention at all of the first confession, and even though the suppression order states that statements made to Patrolmen Bell and Shank shall be suppressed (it was Bell who testified at the trial as to the first confession), it can therefore have no effect on the admissibility of that confession. At trial, Bell’s testimony as to the first confession was admitted. Appellant originally objected but after a side-bar conference withdrew the motion to strike. No evidence as to the second confession was introduced during the trial. After Sergeant Henley and County Detective Durnell testified as to the third confession, appellant (after expressly conceding the voluntariness of that confession and waiving a Jackson v. Denno hearing) moved to strike the testimony of both men on the theory that he had not been adequately apprised of his rights under Miranda and that there had been no intelligent waiver of those rights. The court granted the motion to strike that part of Durnell’s testimony which quoted Diaz’s oral statement and denied the motion to strike Henley’s testimony as to the same oral statement. Therefore, what was before the jury was Bell’s testimony as to the first confession and Henley’s as to the third.

In his pro se brief Diaz argues that the first confession was inadmissible. There is nothing in the record to indicate that this statement was anything other than completely voluntary, and it was uttered prior to the time appellant was under arrest and before the officers could possibly have given the Miranda warnings. He also argues that Henley’s testimony as to the third confession should be stricken because it was involuntary. It is also possible that the third confession was obtained through the “exploitation of the original illegality,” (The second confession), Commonwealth v. Banks, 429 Pa. 53, 59, 239 A. 2d 416 (1968), although it would be almost impossible to know whether the third confession resulted from an exploitation of the illegal second confession or was the fruit of the valid first confession.

We need not decide these questions, however, because even if the testimony of Henley as to the third confession were improperly admitted, that error was harmless constitutional error in light of the record as a whole. In Chapman v. California, 386 U.S. 18 (1967) the United States Supreme Court held that some constitutional errors in the setting of a particular case are so unimportant that they may be deemed harmless and do not require automatic reversal. While there is no general agreement as to which constitutional errors call for automatic reversal, see Note, Harmless Constitutional Error: A Reappraisal, 83 Harv. L. Rev. 814 (1970); Note, Harmless Constitutional Error, 30 U. Pitt. L. Rev. 553 (1968-69), this Court held in Commonwealth v. Padgett, 428 Pa. 229, 237 A. 2d 209 (1968) that Miranda violations do not call for automatic reversal but are subject to Chapman’s harmless error rule.1 That rule, which was recently reaffirmed in Harrington v. California, 395 U.S. 250 (1969), is that, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24.

After having examined this record we conclude that the case against Diaz was so overwhelming that even if there were a violation of Miranda it was harmless beyond a reasonable doubt. One witness (Boyle) was an eyewitness to the fight which resulted in Bodriquez’s death, and she testified that Diaz while holding a knife jumped on the back of the victim, tussled with him and then ran to his car and drove off. Her identification of Diaz as the man who fought with the deceased was unequivocal. Two other witnesses (Urban and Wilson) corroborated Boyle’s testimony as to the events which led to Bodriquez’s death although they did not identify Diaz as the other participant in the fight. Finally, there is the confession that appellant made to the police as they were approaching his home.

Therefore, even though appellant has what appears on the surface to be a nonfrivolous Miranda claim, the record as a whole contains overwhelming evidence against him which makes any error harmless and thus makes the claim frivolous.

The judgment of sentence is affirmed.

Mr. Justice Eagen dissents and would remand for the appointment of counsel.

1 To the same effect see Moore v. United States, 401 F. 2d 533 (9th Cir. 1968) and People v. Post, 23 N.Y. 2d 157, 242 N.E. 2d 830 (1968).