COMMONWEALTH of Pennsylvania v. Helen BOONE, Appellant.
Supreme Court of Pennsylvania.
October 30, 1975.
Rehearing Denied April 28, 1976.
354 A.2d 898
Argued June 24, 1975.
While appellant‘s remarks may have been injudicious at times, considered in the context of the entire closing, and in light of an attorney‘s duty to zealously advocate his client‘s cause, those remarks are not sufficient to sustain the contempt conviction.
The order of the trial court should be reversed.
O‘BRIEN and ROBERTS, JJ., join in this opinion.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., MariAnne E. Cox, Asst. Dist. Atty., Philadelphia, for appellee.
Before JONES, C. J., and EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION
NIX, Justice.
Appellant, Helen Boone, was indicted for murder in the stabbing death of one Donna Stocker and subsequent
Initially, appellant alleges as error the suppression court‘s failure to suppress all written and oral statements made by appellant.
Our responsibility upon review is to determine whether the record supports the factual findings of the lower court and the legitimacy of the inferences and legal conclusions drawn therefrom. Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Stafford, 451 Pa. 95, 101, 301 A.2d 600, 604 (1974). Furthermore, we are to consider only the evidence of the prosecution‘s witnesses and that portion of the testimony offered by the defendant which is uncontradicted. See generally Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975); Commonwealth v. Bundy, supra.
The Commonwealth‘s evidence established that as a result of statements by appellant‘s estranged husband,1 Ms. Boone was picked up for questioning at approximately 9:30 P.M., April 16, 1973. Police Officer Merrick, who had not up to that point participated in the investigation, was assigned the task of transporting appellant to police headquarters. Merrick testified that at this particular time, he was unaware appellant was a suspect and believed he was merely transporting a witness. Shortly after Ms. Boone entered the car, a radio dispatch directed Merrick to meet a police wagon. At this point the following conversation occurred.
“While I was sitting waiting for the wagon to arrive, Helen Boone asked me, she said, ‘Do you know
what happened?’ or, did I hear anything about what happened. I said ‘No.’ She said, ‘Where are you taking me?’ I said, ‘I was told to take you to the P.A.B. Homicide Division.’ At this time she stated to me, ‘Then my husband‘s girlfriend I stabbed must have died.’ . . . She continued; she stated that she had gone to her husband‘s home, that she was attacked by his girlfriend, and she stabbed her, and they left.”
Appellant was then handcuffed, transferred to another vehicle and taken to Police Headquarters where she arrived at 10:30 P.M. At 11:00 P.M., Ms. Boone was given her Miranda warnings and repeated the inculpatory statement. The statement was reduced to writing and signed by appellant. Fifteen minutes later, the same officer returned to clarify part of the statement. This interview lasted approximately one hour wherein appellant stated further that she did not believe decedent was going to stab her nor was there a struggle when appellant grabbed the weapon from the decedent‘s hand. The second written statement was completed and signed at 7:45 A.M. of the morning after her arrest.
Appellant first argues that she was in police custody upon entering the patrol car and therefore Miranda warnings should have been given to her at that time. She thus contends that the oral statements made to the officer in the police vehicle should have been suppressed and were improperly introduced against her at trial. Accepting arguendo the fact that she was in custody when she first entered Merrick‘s vehicle, this fact would not be helpful to appellant‘s present position. Under the circumstances it is clear that these statements were not as a result of custodial interrogation but rather were voluntary and unsolicited comments. Under such circumstances Miranda warnings were not required to be given.
It is, however, only that questioning which is interrogation initiated by law enforcement officers which
Clearly, “any question likely to or expected to elicit a confession constitutes ‘interrogation’ under Miranda. . . .” Commonwealth v. Simala, supra at 227, 252 A.2d at 579. Accord, Commonwealth v. Mercier, 451 Pa. 211, 214, 302 A.2d 337, 339 (1973). But “[a]ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” Miranda v. Arizona, supra at 478, 86 S.Ct. at 1630, 16 L.Ed.2d 694. Commonwealth v. Yount, 455 Pa. 303, 309, 314 A.2d 242, 245 (1974).
Appellant next claims that subsequent incriminating statements were made as a direct result of these alleged “inadmissible in-custody, prewarning” remarks and must be suppressed as “fruits of the poisonous tree.” However, our disposition of the first issue is also dispositive of this claim.
Appellant concedes that the period of time that transpired between her arrival at Police Headquarters and the completion of her initial statement was not sufficient to constitute an unnecessary delay as that term has been defined under our caselaw. She does, however, contend that the further incriminating facts elicited during the subsequent interrogation which resulted in a second written statement and a tape recording of that statement, did offend Rule 118 (now
The weakness of the argument is that the record demonstrates that she made all of her incriminatory statements within the first 2 1/2 hours after her arrival at police headquarters. While it is true that the entire interrogation process exceeded 20 hours, no additional incriminating information was elicited after the first 2 1/2 hours.
In all of the cases following our decision in Futch,2 we have never considered a period of time of 2 1/2 hours as being offensive to the requirement of a speedy arraignment.3 While we have said the length of time itself is not necessarily determinative, Commonwealth v. Blagman, 458 Pa. 431, 326 A.2d 296 (1974); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), a short interval such as the one in this instance, is indicative of the fact that there was not a nexus between the time that expired and the resultant admissions.
Further appellant contends that her physical and mental condition rendered her statements involuntary. After reviewing the totality of the circumstances to determine the voluntariness of the confession, we find this contention unsupported. The detective who conducted the interrogation testified that appellant appeared alert at all times, spoke clearly, and was willing to answer questions. She was offered food and drink, and given several opportunities to use the lavatory and rest. Appellant received her Miranda warnings prior to the commencement of the custodial interrogation and a second time during the course of it. At neither time did she request assistance of counsel or decline to speak with the officers.
While it is uncontradicted that Ms. Boone had a large abscess on her left arm, the detective testified that appellant did not request medical attention. Additionally, her signed formal statement admits that no in-custody requests were denied. Accordingly, we are satisfied that the Commonwealth has met its burden of proving an intelligent and voluntary waiver. Commonwealth v. Goodwin, supra; Commonwealth v. Fogan, 449 Pa. 552, 296 A.2d 755 (1972).5
This was clearly beyond the scope of direct examination and the prosecution‘s objection was properly sustained. See Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970). Furthermore, this ruling did not preclude the presentation of such evidence during the defense case, which appellant failed to do.
Second, it is asserted that the prosecutor‘s reference to the “Della Penna Club”7 while cross-examining Ms. Boone constituted prejudicial error because it might have inflamed the jurors. This reference occurred during cross-examination of appellant with reference to a conversation she had with her sister shortly before the stabbing. We fail to find any prejudice to appellant.
First, there is nothing in the record to indicate that the jurors were aware of the reputation of the club. And even more importantly, the testimony indicated that appellant did not frequent the club and in fact admonished her sister for going there. At best this was a
Appellant next cites as error the reading to the jury of the officer‘s notes of the interrogation. It is argued that this should not have been permitted because it was admittedly not a verbatim record of what was said. This specific objection was not raised at trial and is therefore waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Ehly, 457 Pa. 225, 228-29, 319 A.2d 167 (1974).
Appellant charges it was error to overrule her motion for a directed verdict where the Commonwealth‘s evidence established self-defense. To the contrary, the record clearly indicates otherwise. In passing upon such a motion, the test is whether viewing all the evidence in a light most favorable to the Commonwealth, a jury could possibly find the defendant guilty as charged. All evidence actually received is to be considered without regard for the validity of the evidentiary rulings. Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974); Commonwealth v. Pride, 450 Pa. 557, 301 A.2d 582 (1973). The Commonwealth‘s evidence showed 1) decedent died of multiple stab wounds of the chest, back, arms and shoulder; 2) appellant‘s own inculpatory statements indicated she did not believe decedent would stab her and there was no struggle when appellant gained possession of the weapon; and 3) a witness’ testimony that decedent appeared to be backing away when appellant approached the victim. Taken in concert, the evidence obviously provided a basis for a jury‘s finding of guilt and the motion was properly denied.
The next group of assignments of error relates to the adequacy of the court‘s charge to the jury in explaining
“[3, 4] Additionally, the trial court is not required to accept the language of the point submitted by counsel but rather is free to select its own form of expression. The only issue is whether the area is adequately, accurately and clearly presented to the jury for their consideration. Compare, Commonwealth v. Nelson, 396 Pa. 359, 366, 152 A.2d 913, 917 (1959); Commonwealth v. Clanton, 395 Pa. 521, 526, 151 A.2d 88, 91 (1959).” Commonwealth v. McComb, 462 Pa. 504, 509, 341 A.2d 496, 498 (1975). See also, Commonwealth v. Rose, 449 Pa. 608, 297 A.2d 122 (1972).
We also find the court correctly refused to charge the jury on decedent‘s reputation for violence. Appellant testified that due to one specific incident, John Boone had called the decedent a “barroom brawler“. Appellant‘s daughter also testified that decedent was “mean” and often hit her own children. However, reputation evidence is established by testimony of the community opinion of the individual in question, not through specific acts or mere rumor. See generally V Wigmore on Evidence, §§ 1609, 1611-1612 at 580, 583-584 (Chadbourn Ed. 1974).
Appellant complains that the court erred in failing to recharge the jury as to self-defense during the further instructions that were given at the jury‘s request. It is clear that the judge confined this charge to the precise questions posed by the jury. After the instruction the court inquired of the jury whether the information supplied satisfied their request and they re
Appellant also contends that the verdict was not a product of a free and impartial deliberation. During the course of the jury deliberations an altercation erupted among several of the jurors. The court conferred with both counsel and all agreed that it would be inappropriate to discharge the jury at that time. The panel was then called in, admonished for their behavior and permitted to continue deliberating. Having failed to voice any objection at time of trial, appellant cannot now, for the first time, raise this objection. See Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974).
The final objection is that appellant was denied due process of law because she was given a minimum as well as maximum sentence, pursuant to Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974).9 This argument is predicated on a theory that Butler‘s application in this instance was tantamount to an ex post facto law. We decline to discuss the merits of this argument since appellant raised no objection during the sentencing proceedings and is therefore precluded from presenting this issue on appeal. See Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974) and cases cited therein.
Judgment of sentence affirmed.
ROBERTS, J., filed a dissenting opinion in which MANDERINO, J., joins.
I dissent. Although I agree that the first statement appellant gave to police was admissible, the subsequent statements made by appellant should have been ruled inadmissible as the product of an unreasonable delay between arrest and preliminary arraignment;
By 11:00 p. m. on April 16, 1973, appellant had signed a written inculpatory statement which had been properly obtained. Instead of taking appellant to preliminary arraignment without delay, as required by
In an attempt to justify its conclusion that the subsequent statements were properly admissible, the majority contradicts its own recitation of the facts. The opinion states that after the initial statement was given, the police sought to have appellant “clarify” her inculpatory recitation. These clarifications were apparently sufficiently important to be reduced to writing by the police, given to appellant to sign more than eight hours after her first statement was signed, and used by the prosecution at trial. The majority states however, “Since the information obtained during the subsequent period was
MANDERINO, J., joins in this dissenting opinion.