*1 final lump agreed upon that the sum had been [the term] appears matter now to be settled.” Appellees “this the documents memorializing executed the settlement agreement documents, and sent these with photocopies cashiers’ checks in the Kazanjian drawn amount $80,000 Spear to obtain execution said documents. We find that chancellor’s conclusion that “there is a evidentiary substantial basis for our determination that the parties did intend to be bound until the written instru- ment signed all [plain- concerned ... [and the] tiffs to present failed credible to the contrary evidence ...” is erroneous and is not supported by the record. We therefore reverse.
Decree reversed. Specific performance ordered. Pennsylvania
COMMONWEALTH of PETRINO, Jr., Appellant. John J.
Superior of Pennsylvania.
Argued Jan. 1984. July 20,
Filed 1984. Petition for of Appeal Allowance Denied Jan. 1985. *5 Fulton, Public Kalikow, Assistant William J. A.
Lawrence Defenders, Harrisburg, appellant. for Harris- Attorney, District Deputy Holtzinger,
Katherene Commonwealth, appellee. burg, MONTEMURO, WICKERSHAM, DEL SOLE and Before JJ. SOLE, Judge:
DEL degree third murder was convicted Appellant were filed Post-trial motions taking. unlawful by and theft grounds. on several appeals denied. He left Appellant as follows: On June The facts are in Ches- Hospital Administration Veteran’s Coatesville commitment one voluntary a after Pennsylvania County, ter voluntary of both history had a Appellant month before. hitchhik- commitments. While institutional involuntary given Lancaster, Appellant Pennsylvania, near ing west at the stopped men Porter. two ride William by a Township Dauphin Coun- Inn Lower Swatara Congress room, and, obtaining after drinking had been They ty. met Wilbert they tavern where adjoining an went into they At 1:30 a.m. fifties. about early in his Potter, a homosexual with to the hotel room men returned the three on June approximately At drinking. and continued one case beer parking in the Potter was found a.m., of Wilbert body Inn Congress Diner, south of the just lot of the Brookside had occupied the room the three from yards and about to the caused a blow by found to be The death was earlier. cement such as object, immovable by the head an back officer a.m., was seen paving. At the victim’s near where on the Boulevard north walking him, questioned officer When the discovered. body was he was Petrino and said name as John gave Appel- The officer then asked Inn. Congress at the staying later, police an hour Inn. Less than return to the lant to hitchhike on report trying to a of a man responded Inn. mile from the Exit one Turnpike at Pennsylvania *6 gave Archking, The man his name as Charles one of the but officers, turnpike, called to him to who was the knew be the John man who had earlier identified himself as Petri- same names, no. The when about two Appellant, using asked in police person smiled. told Room Appellant staying Police, identify 50 of the Inn could him. Congress taking to the and Appellant, went room woke William Porter. him Upon seeing stealing Porter accused of his Appellant, (Porter’s) shirt then took money. Appellant When Porter, money pocket police out of his and handed it to noted stains on shirt appeared which to be blood. The shirt was taken for evidence. 16, Appellant
Later on attorney June asked an before (where speaking police. to Because the hotel room occurred) (where found) theft and the Diner was body separate jurisdictions, were located two police Appellant’s request to the Township passed Swatara Police not was on to the Lower Swatara Police. he interroga- When was later on ted June 16 of by representatives departments, both Appellant responded that he to had beaten Potter death and knew he was his experience dead because of as an Army medic. This statement was suppressed at trial. 18, however,
On June police again questioned defendant. time, At that form given a waiver was to Appellant, which signed. he At that meeting, Appellant Porter in implicated the murder and denied his own involvement.
On June being while after processed his arrest at the Dauphin Prison, County Appellant asked one of the investi- gating officers if he wanted to know the events June 15 “Oh, to responded, which yes.” Ap- Detective pellant effectively withdrew his June 18 statement ad- by mitting that it he and was not Porter who had killed the victim. The Detective that his testified comment had not been intended elicit a response. Appellant was also stated reported have that the convict him couldn’t for the murder because “he crazy”. was
It is apparent from the record that given representation 13, 1981, benefit until July arraign- a notice formal signed counsel Appellant’s client. ment on behalf of his on are: appeal raised
The main issues
support
sufficient
(1)
the evidence was
Whether
degree.
in the third
of murder
guilty
finding
denying
Court erred
(2)
Suppression
Whether
suppress
physical
motion to
both
pretrial
omnibus
by Appellant.
made
and statements
evidence
all
failing
suppress
court erred
(3)
the trial
Whether
requested
after he
statements made
to him.
made available
counsel was
counsel but before
the evidence was
raised is whether
The first issue
*7
in the
guilty
of
of murder
finding
to
a
support
sufficient
that
argues
particular, Appellant
In
degree.
third
that
the circumstances
prove
failed to
Commonwealth
necessary
infer malice
jury
enable the
the death would
Malice is defined
third
murder.
degree
a verdict of
justify
heart, cruelty,
hardness of
as “a
... a
particular
ill-will
regardless
and a mind
consequences
recklessness of
Buzard,
511, 516,
Pa.
v.
365
Commonwealth
duty,”
social
394,
(1950).
weapon,
there is no murder
A.2d
Where
used,
presumption
there is no
fists are
only
but where
Guida,
A.
v.
Pa.
Commonwealth
malice,
considering the
Instead,
can
found from
(1930).
malice
be
v. Bu
acts,
Commonwealth
surrounding
circumstances
zard,
The test in in the admitted at trial Whether, viewing all the evidence drawing to the Commonwealth light most favorable Commonwealth, inferences favorable to the all reasonable of fact to the trier there is sufficient evidence enable of the crime a reasonable beyond find element every Moore, 488 Pa. v. Commonwealth doubt, A.2d 550-51 Buzard, re the court supra.,
In finding on a of malice a conviction based fused to overturn defendant a large pursued occurring from a death victim, smaller him, him overpowered threw to the ground and knocked his head against pavement repeatedly. Moore, supra., Also, Commonwealth v. under similar facts, the requisite malice was found Supreme to exist. The Court noted evidence that the victim suffered from head injuries and fractures hemorrhaging rib and internal while only defendant was in the hand. injured present case, there is evidence of a similar one-sided fight that the defendant suffered only slight hand injuries victim head, abdomen, was beaten about and limbs. Also, there was evidence admitted at trial from a crime reconstruction expert who testified that the blood stains on the shirt worn by Appellant would indicate that they came from the victim of a severe beating. the nature of Given the injuries along with the circumstances surrounding the act, malice could well inferred. We find the argument meritless. argues next Suppression
erred in denying his pretrial omnibus motion suppress physical both evidence and statements made by Appellant. The contention is that Appellant’s very arrest illegal and, therefore, the objects and the i.e. the fruits of the arrest, are suppressible. The turning question is whether Appellant was arrested at the time he was taken in police vehicle to the Inn or whether the arrest occurred at the Inn *8 when he was identified by Porter as the man who stole his shirt and money. Probable cause necessary for an arrest is charged to be lacking before Porter’s identification. “An arrest may be constructive or actual ... and is accom plished by ‘any act that indicates an intention to take a person into and custody him subjects to the actual control and person will of the making arrest,” Commonwealth Romeri, v. 279, 314 Pa.Super. (1983). 460 A.2d 1139 In the Romeri case, defendant voluntarily police went with to the station and questions answered in resulting his implication in a crime. Because the defendant chose to police follow station, the voluntary statements formed the basis for probable cause and were properly admitted. in- this
22 he at as stood
stance,
approached by police
was
Appellant
at
by police
seen
Appellant was
Turnpike
entrance.
his
as to
questioned
He was then
to hitchhike.
tempting
itself was
stop
that the
arguing
is
identity.
in
manner
may
appropriate
an
“A
officer
police
unlawful.
possi
of investigating
person
purposes
such
approach
probable
is no
though there
even
criminal behavior
ble
Ohio, 392 U.S.
88
arrest,”
v.
Terry
make an
cause to
Williams, 407
(1968),
889
Adams v.
1868, 20 L.Ed.2d
S.Ct.
an
(1972). When
1921,
diate response. Commonwealth v. See 278, 284, case, 421 A.2d In that police had given been of a description burglar which fit the defendant. Defendant was seen walking prox close imity to the scene at an hour of the early morning. When the defendant was unresponsive police questions, they frisked him and him took to the scene to be identified. the Appellant’s case, Given evasiveness this i.e. giving a name, false time of the day, to the scene proximity murder, brutal police attempts to secure an accurate identi fication justified. were doWe not have cir cumstances here similar to those in Commonwealth v. Lovette, 498 Pa. (1982), A.2d 975 U.S. cert. den. 459 U.S. S.Ct. L.Ed.2d 1025 where police stopped and questioned men, three based on a gener and, al description, being suspicious of the mud on their shoes as well as dissatisfied with their responses to ques tions, transported the men to the scene they where were identified by victim. burglary The time when men put were into the police vehicle was seen as the time of arrest. The court found that to be an unlawful intrusion into the rights. case, individual’s inBut this the Appellant was not taken back to the scene per se. He was then not suspected of the murder. Appellant, facts, under the asked to properly identify himself. He volunteered name and whereabouts of a person who could him. identify He went with to the Inn and was implicated person. While this court is mindful that such intermediate responses are lawful only narrow instances and that the transporting of individuals is very pursuasive of the fact that an arrest occurred, has such a response was lawful here. There is no evidence that Appellant would not have go been free to after he was properly identified or that he was forced to accompany police. Because the response was both necessary and justified, the physical evidence and oral statements obtained at the Inn which formed the probable
24 were admitted required properly
cause arrest using this rationale. Appellant’s found that Suppression
The Court in this case 16, he had coun- requested on June after statements made this appeal trial. No from order sel, excludable from were statements, however, 18 24 The June and has been filed. us case comes to on the into evidence. This were admitted following level: motions, suppression on ruling suppression
When of fact and conclusions findings is to make required court of as obtained violation of law to whether evidence was 323(i). rights, Pa.R.Crim.P. the defendant’s constitutional must whether the suppression The court determine Com- preponderance has of by monwealth established admissible ... challenged evidence is evidence that review, “to determine whether responsibility our is On findings the factual court supports the record legal and legitimacy the inferences below and findings,” those conclusions drawn from 1236, 76, 78, 464 1237 Hubble, A.2d v. 318 516, Goodwin, 521, v. Pa. (1983), Commonwealth 892, A.2d Arizona, 436, v. 384 U.S.
According to Miranda
1602,
(1966),
rights, including
certain
S.Ct.
16 L.Ed.2d
counsel,
right
interrogated
presence
in the
interrogation begins.
attach to the accused when custodial
as, “questioning
by
is defined
initiated
interrogation
Such
taken into
enforcement officers after
has been
person
law
of his
of action
custody
deprived
or otherwise
freedom
Miranda,
444,
at
at
86 S.Ct.
significant way,”
384 U.S.
any
Supreme
We turn our now discussion to the of the admissibility June rule set forth in Miranda 18 and statements. which provides the framework for today our decision is that:
(O)nce
warnings
given,
pro-
have been
subsequent
cedure is clear ...
If the
states
individual
that he wants
an attorney,
interrogation
must cease until
attor-
an
ney
present.
time,
is
At that
the individual must have an
to
opportunity
confer with the
have him
attorney
present during any subsequent
If the indi-
questioning.
vidual cannot obtain an
he
that
attorney and
indicates
he
wants one
speaking
police,
before
they
respect
must
silent,” Miranda,
his decision to remain
In the present
counsel.
presence
in the
interrogated
to be
right
1880,
477,
Arizona, 451 U.S.
101 S.Ct.
Edwards v.
3128,
101 S.Ct.
(1981), reh. den. 452 U.S.
L.Ed.2d 378
added that where
Court
Supreme
the U.S.
L.Ed.2d
at the
rights
read his
while
defendant,
having
after
been
he
later told
and was
station,
attorney
asked for an
police
making
his
an
detectives,
resulting in
‘had to’ talk with
inadmissible
statement,
were
such statements
incriminating
special
to counsel involves
right
that
Noting
at trial.
accused,
that, “(A)n
held
Supreme
safeguards,
deal with
his desire to
Edwards,
expressed
having
such as
further
counsel,
subject
is
through
police only
made
until counsel has been
the authorities
interrogation by
further
initiates
him,
accused himself
unless the
available
po
communication,
or conversations with
exchanges,
at
lice,” Edwards, 451 U.S.
at
101 S.Ct.
meeting
initiated the June
at 386.
If
L.Ed.2d
form,
then
he
the waiver
signed
with
if made
rights
of his
relinquishment
is a valid
waiver
Frison, voluntarily, intelligently and
However,
Appel
if the
assertion of
previous
meeting,
lant did not initiate
*12
Frison,
found to
was
In
the defendant
must stand.
rights
his
he delivered
“change of heart” when
experienced
have
of the
knowledge
denied
having earlier
confession after
that, “(A) defend
The court found
incident.
incriminating
does not fore
initial exercise of Miranda
rights
his
ant’s
is
the waiver
long
them so
as
a later waiver of
close
and is
rights
of those
complete explanation
preceeded by
forego
decision
that defendant’s
clear from the record
subtle,
coercion, however
not induced
rights
those
was
Frison, 301
voluntary,”
was
leniency
but
promise
or a
that
court found
A.2d at 23. The
at
448
Pa.Super.
his
along with
given
explanation
an
defendant was
because
confess,
no
there was
he decided to
Miranda
rights when
right
case, however,
involved a defendant’s
coercion. The
with an assertion
directly
This case deals
to remain silent.
counsel.
presence
in the
interrogated
right
of the
the
to counsel
Supreme
right
The U.S.
Court has said that
attention,
Butler, special
involves
North Carolina v.
(1979).
99 S.Ct.
Based what accused, the after he has asserted initially cases is whether right. counsel that right present, validly the to have revokes explained has that the Supreme recently The U.S. Court if initiates further contact does not end the accused inquiry right his to counsel. the once he has asserted with rule, found, prevent the designed The the court was If custody. of defendants in the “badgering” by police further with defendant is found to initiate communication the court next then is not violated but police, the Edwards a valid of the to counsel and inquires right “whether waiver occurred, right pur to silence has that is whether knowing intelligent waiver and and found to be ported was circumstances, including so under the neces totality accused, sary police, reopened fact that not the authorities,” Bradshaw, dialogue with the Oregon v. 405, 412 1039, 1045, 2830, 2835, U.S. L.Ed.2d 103 S.Ct. in determining Courts must be cautious whether a heart,” “change defendant has in fact had a as in Frison Bradshaw, and or subtle police, through pres whether sure, him give up rights. forced those Common Gale, wealth v.
Superior found knowingly that the defendant waived right his to counsel after he free on was bail between interrogation, ques first when he asserted a to be right present, meeting, tioned with counsel and the second gave he that The court found defendant up right. was to consult his interim attorney during able with 62-63, Ct. waiver, Gale, Pa.Superior understood facts, present under the Appellant, A.2d at 636. did had but requested custody from not released sessions with between of counsel receive the benefit *13 and individually taken cases must be Each of these police. Supreme said the U.S. adopted, rules should be per no se 42, 394, Fields, 459 U.S. 103 S.Ct. Court, v. Wyrick re- the defendant when Wyrick, L.Ed.2d not want he did exam and stated that polygraph a quested the meet- exam, “initiated” he during present counsel police. ing with that, “(a)
The
Court has
stated
Supreme
firmly
U.S.
(the
counsel)
to
right
cannot be established
valid waiver
defendant)
(the
to further
showing only
responded
aby
if
interrogation
custodial
even
he has been
police-initiated
Edwards,
484,
rights,”
of his
29 in na exculpatory The statement June 18 was glance first it seem to have been ture and so at would intro to have to harmless error allowed Porter who had statement that it had been Appellant’s duce Innis, Rhode Island v. However, 446 U.S. Potter. killed (1980), out 291, 1682, clearly points 297 100 64 L.Ed.2d S.Ct. statement, by when offered that even an exculpatory This Commonwealth, guilt by implication. the effect of has Innis Court said: Miranda only under refers not ‘interrogation’ term
[T]he or actions any to but also to words express questioning, (other normally than those police on the of the part should to arrest and that custody) attendant incriminating to elicit an re reasonably likely know are 5 suspect. from the sponse 5 any By ‘incriminating response’ response we refer to —whether exculpatory prosecution may inculpatory seek to intro or —that duce at trial. As the Court observed in Miranda: be drawn between statements which are direct "No distinction can part or confessions and statements which amount to “admissions” all of an offense. The privilege against protects self-incrimination being any compelled man- individual from ner; to incriminate himself distinguish degrees Similarly, of incrimination. for it does not reason, precisely may distinction be drawn between same no alleged merely “exculpa- inculpatory to statements and statements be would, tory”. truly exculpatory If a statement made were in fact it course, fact, merely prosecution. never be used statements exculpatory by intended to be are used im- defendant often peach testimony his at trial or to demonstrate untruths in the state- given interrogation prove guilty by implica- ment tion. These statements are under and thus to any meaningful incriminating sense may warnings the word and waiver not be used without the full and effective U.S., 476-477, required any other statement.’ at 9, 1628-1629], L.Ed.2d 86 S.Ct. 10 Ohio Misc. 36 Ohio [at Ops 2d 10 A.L.R.3d974. Id. 446 U.S. at at 1689-1690. S.Ct. admissibility
We now turn to the
of the June
prison
statement. This statement
made at the
was
Appellant
being processed following
was
his arrest. Appel
lant asked the detective if he
wanted
know what had
place
taken
on the 15 and 16 of
to which the officer
June
“Oh,
replied,
yes.”
gave
then
the statement.
v. Brad-
Oregon
The circumstances are similar to those in
2830,
Because we remand other issues raised by to deal with the necessary They on remand. are: guide in order to the trial court court erred in: 1. the trial Whether any to discover and permitting a. the Commonwealth insanity infirmity to the or mental reports relating all of Appellant. for the petition pro- granting
b. Commonwealth’s and other evidence. duction of records allowing the testimo- 2. the trial court erred Whether Bluitt, from the psychiatrist of Dr. Milton D.O. Y.A. ny Appellant’s patient physician of Hospital, violation — . privilege. admitting evidence of
3. the trial court erred Whether as evidence request for counsel Appellant’s post-arrest competence. of mental did not err in the Common- permitting
The trial court relating and all to the any reports to discover wealth granting or in infermity Appellant or mental insanity of records and production for the petition Commonwealth’s other evidence. Commonwealth, probability proving
The faced with doubt, Common- sanity beyond defendant’s reasonable Pa. Scarborough, wealth v. competency to a exam. Appellant agree requested
first and assertion Appellant’s met refusal request by That § 7402(e)(3) Health Mental rights of his under 50 P.S. The sought Procedures Act. Commonwealth then and re- Hospital records pertinent Appel- ceived from Y.A. 15, 1981. lant’s case on or before June The Commonwealth Appellant copies past from medical records requested by Appellant’s and reports prepared expert psychiatrists. refused, This filed request was also Commonwealth 305(C)(2)(a). a discovery motion under Pa.R.Crim.P. The granted trial court the order after the of- fered proof that the information was both material and the request sought reasonable and that the had reciprocal obtained under discovery Pa.R.Crim.P. 305(B)(1)(e). however, Portions of the reports, were deleted court. to Rule 305 states that: Commentary provide adequate order to for informed information trials,
pleas expedite minimize surprise, opportuni- afford ty cross-examination, require- effective and meet the ments of process, prior due discovery trial should be as full and free as possible protection consistent with persons, enforcement, effective law the adversary sys- *16 tem, and national security. 305(C)(2)(a),
Under Pa.R.Crim.P. such reports are, under discretion, the trial court’s discoverable. The Appellant argues the that Commonwealth in the first in stance was not entitled to the reports because are they and, in nature, such, testimonial as of Appellant’s violative rights against self-incrimination. Secondly, argues that the reports obtained directly from the V.A. Hospital were properly through obtainable discovery. We find arguments both meritless. Commonwealth ob tained the reports directly and the Appellant exercised rights to discover them from the any Commonwealth. At rate, these reports were discoverable at the court’s discre tion. We will not disturb that use of discretion here.
Appellant’s argument second is that the testimonial nature of the expert’s reports removes them from scope no discovery. We find merit to this The Appel claim. lant Pomponi, Commonwealth v. cites 447 Pa. Hale, Pa. v. (1971)
A.2d 708
and Commonwealth
reports
that
authority
psychiatric
Lastly, Bluitt, D.O., a from the V.A. psychiatrist of Dr. testimony testimo argues psychiatrist’s Hospital. Appellant communica privileged should excluded on the basis ny be The law which patient psychologists. tions between § creates, in is 42 5944 which Appellant cites Pa.C.S.A. both cases, privilege against revealing any civil and criminal relation psychologist-patient from the gathered information B, 482 Pa. cites In re ship. Appellant (1978) psychiatrist’s that a support argument of his psycholo with privilege should included testimony *17 in case gists. Supreme Pennsylvania not the the statute itself did bar although found that treatment of the of a about his testimony psychiatrist in rights certain proceeding, privacy mother in a juvenile the from testi prevented psychiatrist the Constitution U.S. legislative history, this state’s Psychiatrists, under fying. privilege claimed their under physician-patient have the § law, 328, 7, 1907, The older 28 P.S. privilege. Act June § 462, 7303(c), P.L. 50 P.S. repealed replaced § Pa.C.S.A. 5929 which states: by physician matter, No shall be allowed in any civil disclose any acquired information which he in attending in a patient professional capacity, which shall tend to patient, blacken character of the consent without patient, damages said on of personal injuries, account § 1976, 9, 586, 142, 2, 27, P.L. July 1978, No. eff. June added). (emphasis
The previous
cases,
section was found to
apply only
civil
Edwards,
1,
(1935).
Commonwealth v.
318 Pa.
178 A.20
context,
Within
civil
the privilege extended to “commu-
nications” and
gathered
not
“information
by
physi-
in examining
cian
the patient,” Massich v. Keystone Coal &
Co.,
541,
(1939).
Coke
137 Pa.Super.
34 however, in note, allowing psychiatrist’s
We the priva that the Supreme that our indicates testimony, as emerged well. has in cy rights must be considered What of a the public this area is the balance between application if given proper in care needed having person interest the having the interest in information privacy individual’s v. confidential, remain McKay state regarding mental Commonwealth, (1980), Pa.Common. 52 case, Platt, (1979). A.2d In this Pa.Super. 266 404 410 the testimony proving Appel the need for psychiatrist’s beyond clearly outweighs a reasonable sanity lant’s doubt expectations privacy put of he has the Appellant’s when the issue before court.
The in this the trial final issue case is whether allowing court erred the Commonwealth introduce Appellant’s of post-arrest request evidence counsel urges mental prove competence. need the merits not decided as the issue waived the of the evidence has Appellant. agree. We Where use court, accused, at unless the prejudice caused counsel, of the defense offers curative instructions request occur, Commonwealth Hum jury, to the reversal must Common 267 406 A.2d phreys, Pa.Super. Williams, A..2d wealth v. (1977). Although defense counsel offer objected evidence, suggested court curative ing instructions, the counsel chose to have the instructions could This Court said that where instructions have given. defendant, prejudice “(e)lecting against to the removed trial, complain relief at not now Appellant may available Quartman, 253 Pa. error,” Commonwealth v. prejudicial court, offering The trial Super. A.2d instructions, no committed error. is Judgment sentence is vacated and the case remand- ed for a new trial. is relinquished.
Jurisdiction WICKERSHAM, J., a dissenting filed statement. WICKERSHAM, Judge, dissenting: I affirm the on judgment would of sentence opinion the Honorable Warren G. Morgan filed the trial court below. *19 Pennsylvania
COMMONWEALTH BROWN, Appellant. Charles Superior Pennsylvania. Court of
Submitted Oct. 1983. July
Filed 1984. Petition of Appeal for Allowance Denied Jan. 1985.