COMMONWEALTH of Pennsylvania v. Walter LOWENBERG, Appellant.
Supreme Court of Pennsylvania.
Oct. 5, 1978.
Reargument Denied Nov. 8, 1978.
392 A.2d 1274
Argued March 9, 1978.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Charles W. Johns, Pittsburgh, for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
OPINION OF THE COURT
NIX, Justice.
On March 10, 1976, appellant was convicted of murder of the third degree. This is a direct appeal from the judgment of sentence of 10 to 20 years imposed thereunder.1
The testimony established that on March 14, 1975, Nevada Bellman, an 82 year-old woman, was found beaten to death in the bathtub in her apartment in the City of Pittsburgh. Police investigation determined that there had been no forced entry. This led them to suspect that someone who was known to the victim was the killer, and also to suspect that it might have been someone residing in the apartment
Shortly thereafter, it was learned that appellant had been seen speaking to Miss Bellman on the night prior to her body being found and it was also learned that appellant had not attended school on the day of the killing. As a result of this information Detective Freeman and another detective returned to the Lowenberg apartment. Appellant was there alone and upon entry into the apartment the officers explained to him that he was suspected of killing Nevada Bellman. He was then advised of his Constitutional Rights, informed that he could have any adult present that he wished while he was being questioned, and then asked if he understood the nature of the offense which was the subject of the investigation. Appellant replied in the affirmative and said he would rather talk to them alone. He then related that he and the deceased had a dispute about an $82.00 check and she called him a thief and threatened to call his mother and the police. When she went to the telephone he struck her with his fist, and she fell to the floor groaning. Appellant then stated that he dragged her into the bathroom, placed her in the tub and struck her about twenty times with a pipe. He said that the pipe was laying in the bathroom and he picked it up. After making this statement, appellant was taken to the Public Safety Building and turned over to Detectives McKay and Stotlemeyer.
Detective Robert W. McKay testified that he took appellant into Interview Room No. 222 for the purpose of making
On March 24, 1975, a Coroner‘s Inquest was held. The Coroner held that a prima facie case of Murder had been established against appellant and ordered him recommitted to Juvenile Hall. Following the inquest, appellant met with his attorney who cautioned him not to discuss the case with the police.
Appellant was returned to the Public Safety Building where he was fingerprinted and photographed. He was then transferred to the Shuman Center by Detectives Freeman and Gorny. During the trip appellant requested an ice cream cone and the detectives complied by stopping at Islay‘s, a dairy store on the way. While inside the store during a casual conversation about The Meadows, appellant again volunteered his confession:
Q. (Assistant District Attorney Fagan) Any conversation take place at that time as far as the accused here is concerned?
A. (Detective Gorny) Yes, sir. The accused and I were discussing the racetrack such as any of the drivers.
Q. Why? Are you interested in the racetrack?
A. Occasionally.
Q. Are you familiar with the Meadows?
A. Too familiar.
Q. Did you find the accused here knowledgeable about the track?
A. Yes, sir, he was.
Q. What did he have to say along that line?
A. He stated that he aspired to be a sulky driver, and as I said, he mentioned that he knew quite a few of the drivers, that he helped out around the stable and so forth.
Q. Anything else?
A. Yes, then he asked us if we found a pipe.
Q. If you found the pipe?
A. Yes, sir.
Q. When he made that statement, what did you say?
MR. MARTIN: Your Honor, I would object to all of this testimony on the grounds previously stated.
THE COURT: Objection overruled.
Q. When he said that, what did you say?
A. I cautioned him that his attorney had advised him not to discuss the case or anything that happened during the case while he was in our custody.
Q. Did that have any effect on him?
A. Momentarily it did. He referred to his attorney as his family having to go out and get some money together to pay for his attorney.
Q. And?
A. And then, after a period of silence, he said, “I‘m in some bad trouble,” or words to that effect. It sounded to me like he said, “I‘m in some bad trouble.” He said, “If only I would have hit her when she—she threatened to call my mother and tell her about the check, and also the police.” He says, “If I would have hit her, I would have been in trouble, but when I put her in the tub, I‘m in a little more trouble than I would have been.”
Q. Did it go any further than that?
A. No. At this time we left Islay‘s and got in the car and proceeded out to Shuman Center where again a few words of conversation were about the track and a uniform that he had already purchased, sulky driver‘s uniform, so forth.
At trial, evidence was produced which showed an $80.00 discrepancy between the dollar amount of a check payable to appellant and the corresponding deduction noted in Miss Bellman‘s ledger. Barbara Connor, a bookkeeper at Miss Bellman‘s bank, testified that on March 12, 1975, Miss Bell-
Herbert Schwachter, appellant‘s uncle, testified that he had endorsed the check at the request of appellant.
Cooper Terry, custodian of the apartment building where Miss Bellman lived, testified that Miss Bellman had told him she wanted to see appellant on a matter, “. . . far worse than borrowing money.” the Wednesday before her death. Mr. Terry also placed appellant in the building the day Miss Bellman died. A fingerprint obtained from the top portion of the head of the shower in Miss Bellman‘s bathroom matched an exemplar taken from the appellant following the inquest on March 24, 1975.
Prior to trial appellant made a pre-trial application to suppress the above oral admissions. After a hearing, the court suppressed the oral admissions made by appellant at his home and at the Public Safety Building on March 18, 1975. The admission made to Detectives Freeman and Gorny on March 24, 1975, inside Islay‘s Dairy Store was not suppressed.
Appellant argues that the court below erred a) in admitting into evidence the confession made by appellant on March 24, 1975, while at the dairy store; b) in admitting into evidence the fingerprint exemplars taken while appellant was in custody; and c) in permitting the introduction of the statement of the deceased relating to Miss Bellman wanting to see appellant on a financial matter, “. . . far worse than borrowing money.”
In support of the position that the statement of March 24, 1975 was not properly admitted appellant has two strings to his bow. He argues that the statement was elicited without proper Miranda warnings2 and in violation of our rules relating to confessions by juveniles. See Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977);
We must also reject the suggestion that Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977) is controlling in this case. That decision is clearly distinguishable since its holding was based upon a determination that the police had intentionally engaged in conduct designed to elicit the challenged statement. As we have indicated such was not the case here.
Appellant also seeks to attack the March 24th statement on the grounds that it was allegedly the product of an unlawful arrest and that it was tainted by the illegality of the March 18th interrogation. An arrest is lawful if based upon probable cause to believe that a crime had been committed and that the person arrested was the probable perpetrator. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119
The trial court found that the March 16th statements should be suppressed because the Commonwealth had not proven an effective waiver of Fifth and Sixth Amendment rights by this minor. Commonwealth v. Smith, supra; Commonwealth v. McCutchen, supra. However, the suppression of the March 18th statements do not require the suppression of the statement of March 24th. The record adequately supports the conclusion that the March 24th statement was not an exploitation of the initial illegality, but was obtained by means sufficiently distinguishable to be purged of any taint. See Wong Sun v. U. S., 371 U.S. 471, 487, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).
A fingerprint exemplar, removed from appellant while he was in custody matched a fingerprint taken from the showerhead in the bathroom of the victim‘s apartment. Appellant relying upon his position that his arrest was illegal argues that the fingerprint exemplars taken from him should have been suppressed. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Since we have determined that appellant‘s arrest was lawful the pillar supporting this argument is withdrawn and it must necessarily fall.
Appellant also challenges the introduction of the deceased‘s statement to the effect that she wanted to see appellant on a financial matter, “. . . far worse than
This testimony was offered to establish the intention of the deceased to see the appellant and confront him concerning a financial matter she considered serious. In discussing the declarations of a deceased victim to establish the declarant‘s existing intention at a time of particular relevance in the sequence of events we have stated:
“It must be recognized, however, that some confusion is present in the authorities as to the circumstances under which declarations of the character we are now discussing may be admitted to show intention. The question is frequently dealt with as one of res gestae (see Com. v. Palma, 268 Pa. 434, 112 A. 26; Hunter v. State, 40 N.J.L. 495, 536; State v. Hayward, 62 Minn. 474, 65 N.W. 63, 65; 3 Wigmore, Evidence, section 1726), but such evidence is more correctly supportable on another basis. In many of the decided cases treatment of the problem as one of res gestae did not affect the result reached, since the elements of res gestae were present, as, for instance, in the three cases just cited; but, in other instances, such treatment might result in the exclusion of admissible evidence. See Wigmore, supra, section 1726.
Intention, viewed as a state of mind, is a fact, and the commonest way for such a fact to evince itself is through spoken or written declarations. It is therefore because of the impossibility, in many cases, of proving intention apart from personal declarations, that they are admitted. The true basis of their admission, then, is necessity, because of which an exception to the hearsay rule is recognized, rather than that they are part of the res gestae. Ickes v. Ickes, 237 Pa. 582, 593, 594, 85 A. 885; Com. v. Trefethen, 157 Mass. 180, 31 N.E. 961; Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 36 L.Ed. 706; State v.
Hayward, 62 Minn. 474, 65 N.W. 63, 70; Wigmore, supra, sections 1725, 1726. On this basis it is immaterial whether or not the declaration accompanied and was part of a relevant act. State v. Hayward, supra; Wigmore, supra. Commonwealth v. Marshall, 287 Pa. 512, 521-22, 135 A. 301, 305 (1926).”
See also Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976); Commonwealth v. Wright, 455 Pa. 480, 317 A.2d 271 (1974).
In addition to the necessity for such an exception, the admission of this type of evidence is justified because the circumstances in which these utterances were made indicate that they accurately reflected the declarant‘s state of mind at that time and there was an absence of a motive to deceive. Commonwealth v. Thomas, 410 Pa. 160, 189 A.2d 255 (1963), cert. denied, 375 U.S. 856, 84 S.Ct. 118, 11 L.Ed.2d 83 (1963) (should be accepted because the declarations were made in a “natural manner“). We find that this testimony was properly within the state of mind exception and the court was correct in admitting it.
Judgment of sentence affirmed.
MANDERINO, J., filed a dissenting opinion in which ROBERTS, J., joined.
MANDERINO, Justice, dissenting.
I dissent. Our rules regarding juvenile confessions were designed to protect the youthful accused from the added pressures that youth might cause during police interrogation, (i. e. to assure that any confession given was voluntary), and to assure that a juvenile‘s lack of intellectual and emotional maturity would not cause an unknowing or unintelligent waiver of constitutional rights.
In the instant case, appellant chose to waive his constitutional right to remain silent when he began speaking to police detectives at Isaly‘s on March 24th. In the absence of adult guidance, that purported waiver cannot be said to have been knowing and intelligent.
ROBERTS, J., joins in this dissent.
Notes
In this aspect the instant case is similar to Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974). In Gullett the evidence established that the defendant was known to the victim and thus someone she would have admitted on the premises. We also found it significant in finding probable cause in Gullett, that the defendant in that case was also not at home at the time of the crime. Commonwealth v. Gullett, supra.