Commonwealth v. Reed

POPOVICH, WIEÍAND, Before TAMILIA and JJ. WIEAND, Judge: tried and by jury guilty

Samuel Reed was was found Ray degree of murder in the third in connection with the Febru- ary shooting death of brother-in-law. Post-trial denied, motions were and Reed was sentenced to serve a (10) imprisonment term of for not less than ten nor years (20) A twenty more than motion to sentence years. modify was also denied. Reed then filed the instant appeal (1) argues which he the trial court erred: by denying (2) evidence; his motion to suppress by admitting into evidence, over defense certain objection, photographs, au- evidence; (3) slides and topsy physical by refusing admit (4) into evidence statements made him under by hypnosis; by refusing prosecutorial to declare a mistrial because of (5) during closing argument; misconduct by refusing charge the on jury involuntary manslaugh- the elements ter. Reed also asserts the trial court abused its imposed discretion when it the maximum sentence autho- degree rized law for third murder. by We will consider arguments these seriatim.

Appellant first contends that all oral and written statements he gave police which should have been suppressed interroga because he was to custodial subjected Miranda1 tion without first been advised of his having rights him police stop questioning and because failed to after right reviewing he asserted his to counsel. In motion, suppression trial court’s denial of we appellant’s must findings

‘determine the factual the [suppres- whether supported by making court are the record. this sion] determination, only prose- we consider evidence of the cution’s witnesses and so much of the evidence for the defense, as, read the context of the record as a fairly whole, If, viewed, remains uncontradicted. when so evidence factual supports findings, we are bound if findings legal such reverse conclu- may only Arizona, 1. Miranda v. U.S. 86 S.Ct. 16 L.Ed.2d 694 sions drawn therefrom are in error. Commonwealth v. 386, 305 Pa.Super. Trenge, (1982).’ 451 A.2d 701 Schneider, Commonwealth v. 202, 206, Pa.Super. (1989), quoting Commonwealth v. Chamber- A.2d lain, Pa.Super. (1984). 480 A.2d Kichline, See also: Commonwealth v. 280- Stark, 361 A.2d 356, 365, Pa.Super. the body discovered, police

After victim’s had been con- ducted interviews with members the family victim’s and obtained information which their investigation caused to appellant, focus on victim’s the brother-in-law. At or about 12, 1988, 9:30 on p.m. February evening following the the murder, Joseph Holmberg and Corporal Lieutenant Jeffrey of the Pennsylvania appellant’s Watson State Police went to home him purpose questioning for executing Upon search for his home. being warrant admitted by wife, appellant’s Holmberg appellant asked if he was will- ing to to the police. Appellant talk consented and led kitchen, Holmberg and Watson into the they where sat at the kitchen Holmberg appellant police table. told that him, were not there to he did to arrest that not have answer any questions any and that time he desired he could tell to police leave his home. Appellant’s permit- wife was present during ted to questioning. response be to police questioning, appellant said that he had had a few on beers with the victim the previous evening, but had left

the victim at the when he bar returned to his home. The police if appellant gun, appellant asked he owned replied that he owned a .357 police revolver. The asked if appellant see they gun, could and he sent his wife to get it. the gun upstairs She retrieved from an room and handed it to Watson. Corporal being given gun,

After the police appellant informed had a search they warrant for home and asked him if he them accompany police would station addi- questioning. Holmberg tional appellant told that he was arrest, he no obligation go under was under to to station, would be that, at the once station and Holmberg, According he wished. free to leave whenever down glad go he would be was that response appellant’s station. police station, taken to appellant was police at the arrival Upon for a few minutes with and left alone room an interview with a “notification presented then He was open. door as follows: provided form which non-arrest” I that have REED, acknowledge do I, hereby Ray Samuel Cpl. and WATSON Lt. accompanied HOLMBERG at Rockview at their to the station Police Pa. State own choice. by my and request am free to leave I not under arrest and I am understand time. any I me and have not been made to No have been promises in any way. threatened or coerced answer or refuse to stop talking I may I understand that I to answer. choose not question any particular indicated that and he explained appellant, The form was ques- then it. He was signed form and he understood the previous day. on the his activities police about tioned residence of the victim at the that he had met He said gone had he and the victim after which girlfriend, victim’s some regarding questioned appellant police to a bar. The had made and revealed which he inconsistent statements p.m. killed at 10:30 the victim had been knew that they had that there They also disclosed previous evening. on the this, appellant’s shooting. After a been witness asked, slowly, wheth- very and he visibly changed demeanor police continued who did it. police er the knew statements, his inconsistent regarding question appellant “looked appellant when, Holmberg, to Lieutenant according muttered, I should maybe and he kind of down at the floor motioned towards response, Holmberg lawyer.” get go. free to that he was again appellant and told the door minute, Holmberg and for about a silently sat Appellant then Appellant him “all we want is the truth.” then said to down out, got I the times you did it ... “Okay blurted pretty Appellant thereupon gave close.” an oral confession which he Holmberg explained Watson the details killing. appellant’s confession, oral

Following informed Holmberg him that he would arrested and charged be with criminal gave homicide. He also option going home appellant evening turning morning. himself the next Instead, agreed to appellant remain and make a formal then of Miranda statement. He was informed rights by Caldwell, who, Trooper Frederick after had took rights, waived his a formal statement.2 Appellant given by appellant 2. appears The formal statement as follows: Q. your rights you explained you? Do understand as have I them to Yes, A. Q. sir. ' mind, rights you With these do now wish to make state- ment? A. Yeah. Q. you English Language? Can read and write the A. Yes. Q. you Randy pm Were with P. REED of between the hours 9:00 Thursday, pm 11 and 10:30 on Feb 88? A. Yes. Q. you argument Randy Did in become involved an with P. REED traveling your personal while in vehicle? A. Yes. Q. you Gap company Did grounds travel to the Pleasant fire in Twp., Benner and exit the vehicle to urinate? A. Yes. Q. you Randy Did then shoot P. REED at that location at about pm using your Ruger 10:30 own revolver? A. Yes. Q. you Did then shoot at him several times? A. Yes. Q. magnum Was the .357 ammunition used in revolver of the jacketed point type? hollow it, I jacketed. A. think I had .357 both and .38. The .357 is Q. you gun Randy Is the used to shoot P. REED same one by your siezed the State Police in [sic] the search of home? A. Yes. Q. you Randy Did you shoot P. REED because felt that he had your sister, abandoned his wife? Yes. A. Q. page Is the information contained in this Three statement true your knowledge correct the best of and belief? A. Yes. Q. accord, given your Was this statement own free will and promises any without or threats?

215 arrest, transport- and he was agreed to submit thereafter arraignment. preliminary ed for had not determined suppression

The court warnings given. The custody before Miranda were been during period, he made this there statements which oral fore, suppression because ab subject were not are “Miranda warnings necessary warnings. sence of such suspect undergoing a is actual on those occasions when only ” Fento, 363 Commonwealth v. interrogation.’ ‘custodial Oregon 492, 784, (1987). 786 See: 488, 526 A.2d Pa.Super. 711, 492, Mathiason, 429 50 L.Ed.2d 714 v. 97 S.Ct. U.S. States, 96 v. 425 U.S. S.Ct. Beckwith United (1977); Holcomb, 508 v. (1976); Commonwealth 1612, 48 1 L.Ed.2d denied, 475 U.S. cert. (1985), A.2d Pa. 833 v. Commonwealth (1986); 1804, 90 106 S.Ct. L.Ed.2d (1989). Smith, 288, 555 A.2d 185 Pa.Super. being is suspect determining whether test so as to necessitate

subjected interrogation to custodial deprived is Miranda warnings physically is whether he placed or is significant way in any his freedom his freedom reasonably situation in which he believes interrogation. such movement is restricted action or 297, 412 Pa. A.2d Meyer, Commonwealth v. Brown, 375 A.2d v. (1980); 473 Pa. Commonwealth Fisher, (1977); O'Shea, 456 Pa. Commonwealth A.2d denied, 686, 42 1092, 95 S.Ct. cert. 419 U.S. A.2d L.Ed.2d 685 Chacko, 571, 577,

Commonwealth Gonzalez, v. Pa. 519 Commonwealth (1983). 314 also: See Marabel, 445 v. Commonwealth 116, (1988); 26 546 A.2d Toanone, v. 435, (1971); Commonwealth Pa. 283 A.2d 285 A. Yes. talking Q. this you what we about in statement? Do understand are A. Yes. you any Q. that wish to there in the statement Are corrections make? A. No. signed by appellant by him on and initialed each The statement was pages. its three 216 336, (1989). Pa.Super.

381 553 A.2d 998 The Superior Court, banc, en sitting developed has the following guide- for determining when Miranda lines are warnings required: First, police the mere fact investigation has particular focused a Miranda person require on will not warnings police person. before interviews with that See States, supra; Beckwith v. United v. Commonwealth McLaughlin, supra. Second, in police if fact place in person custody or restrict his freedom in any signifi to, interview, cant or way prior during, then the of his Miranda interrogators person must advise that Arizona, supra; Miranda v. rights. v. Commonwealth Leaming, (1968); 432 Pa. Common A.2d 590 v. Moody, wealth 429 Pa. cert. (1968); 239 A.2d 409 denied, Third, 393 U.S. 89 S.Ct. 21 L.Ed.2d 157. suspect may if actually custody be even the police have not him a police taken station or formally arrest Fourth, ed him. proposition this is not without some doubt, interrogation” “custodial occurs suspect when a “... is placed a situation in which he reasonably believes that freedom of action of re movement is stricted such Commonwealth v. interrogation.” Brown, supra, at 1264; 473 Pa. 375 A.2d at Com Fisher, v. supra; O’Shea, monwealth v. Commonwealth supra; v. Romberger, Commonwealth Marabel, (1973); A.2d 353 Commonwealth (1971). 283 A.2d 285 Anderson,

Commonwealth v. 334, 345, 253 Pa.Super. (1978) (footnote A.2d omitted). 370-371 See: Com- Holcomb, monwealth v. supra at 439-440, 840. Palm, See also: Pa.Super. 377, (1983); Nunez, A.2d 243 Commonwealth Pa.Super. 584, 376 A.2d Commonwealth v. Schoellham- mer, Pa.Super. 360, A.2d 576

A careful review of the testimony at appellant’s suppres- hearing ample sion discloses support finding the court’s he custody when made inculpatory The police statements. had sought appellant’s permission Mm his home and had told Mm he was questioning at before arrest, not any that he did have to answer

not under stop at time questioning any that would and questions, made appel- wished. Similar statements were to station. questioning police Appellant to at the prior lant police himself at voluntarily questioning, submitted to both understood, police fully station. He home and his moreover, stop questioning he was free to circumstances, appellant Under these leave at time. any interrogation, to custodial and Miranda subjected not was warnings unnecessary. were See: Commonwealth v. Hol- 436-441, (where A.2d at defen- comb, supra at 498 838-841 questioning, station for voluntarily police dant went at that time and was free to leave station not under arrest time; not in any custody defendant was Miranda at Oregon See also: v. Mathi- warnings necessary). were Anderson, ason, supra. v. supra; Commonwealth reasons, appellant’s we contention that reject For similar expressed statements made after he had desire to talk all suppressed. upon counsel have His reliance should been holding Supreme of the United States Court Edwards 477, 1880, Arizona, 451 101 S.Ct. 68 L.Ed.2d 378 v. U.S. (1981),3 when a defen- police ojuestioning that all must cease Miranda, right invokes his to counsel under is mis- dant A that the placed. reading close of Edwards reveals Su- of a invocation of preme speaking Court was defendant’s Thus, right interrogation. custodial during to counsel the Court Edwards said: Arizona, that the v. the Court determined Miranda prohibition against

Fifth and Fourteenth Amendments’ inter- compelled required self-incrimination that custodial rogation putative advice to the defendant preceded by be right right he also the has the to remain silent and 210, Zook, (1989), A.2d 3. See also: v. 520 Pa. 553 920 Commonwealth — denied, ——, 203, (1989); cert. U.S. 110 S.Ct. 107 L.Ed.2d 156 151, Gibbs, (1989), v. A.2d 409 cert. Commonwealth 520 553 — —, denied, 110 U.S. S.Ct. 107 L.Ed.2d 369 Common (1986). Hackney, Compare: Pa.Super. 800 wealth A.2d Hubble, (1986), A.2d 168 cert. Commonwealth denied, U.S. S.Ct. L.Ed.2d presence US, of an attorney. 16 L Ed 2d 86 Ct 1602 [1630], S 10 Ohio Misc Ops Ohio 2d 237, 10 ALR3d 974. The also Court indicated the proce subsequent dures to be followed warnings. to the If the accused indicates silent, that he wishes to remain “the must If interrogation requests counsel, cease.” he “the interrogation must cease attorney present.” until an is Id. at 16 L Ed 2d [1627], S Ct 1602 10 Ohio Ops Misc Ohio 2d 10 ALR3d 974. now hold that when an accused has his invoked

[WJe present to have counsel right during custodial interro- gation, right valid waiver that cannot be estab- of by showing lished only responded that he to further police-initiated interrogation custodial even he has if been advised rights. We further hold an that of accused, Edwards, such as expressed having his desire to deal the police only counsel, with through is subject not to interrogation further by the until authorities counsel has him, been made available to unless the accused himself communication, initiates further exchanges, or conversa- police. tions with the Arizona,

Edwards v. supra U.S. at 481-482 484- and 1884-1885, 101 S.Ct. at 1883 and 68 L.Ed.2d at. 384 and (emphasis added) (footnote omitted). See also: Com Hubble, monwealth v. 497, 518, denied, (1986), cert. 904, 106 477 U.S. S.Ct. 91 L.Ed.2d (1986) J., (“Custodial (Flaherty, Concurring) interroga tion is a predicate also the Edwards case”). it is clear

Instantly, appellant that was not in custody he time made the getting remark about counsel. He had voluntarily agreed to accompany the police station for questioning further he and had been informed that he repeatedly did not have questions to answer Indeed, was free to at any leave time. agreed he had writing, coercion, without he he understood that wasn’t arrest, under time, was free to leave at any and could suggested questions. appellant When refuse to answer Holmberg him told Lieutenant lawyer, need for possible however, not Appellant, free did go. that he was again killing. Instead, and confessed he remained leave. circumstances, appellant’s statements were Under these questioning con- merely because the suppression subject a law- possibility getting he mentioned tinued after yer.4 trial, made a motion to the start of

Prior be he the Commonwealth by requested limine which introducing photographs into evidence from precluded clothing as worn body, well as slides the victim’s items of disputed time he was shot. The the victim at the as opinion in the trial court’s evidence were described follows: objects Defendant photographs

The and slides which of it was at the scene body the as found depict victim’s and, later, being it prepared the crime when was in and slides are color. autopsy. photographs The the The of the crime show pictures taken at the scene ground, the covered with snow. partially victim on lying T-shirt, in blue jeans, navy He is clad dark blue denim Although his cloth- jacket. and a blue windbreaker navy blood, easily fact ing is soaked with that is not discernible clothing. of There is already due to the dark colors the but, again, some in the around that body blood snow the apparent, point- fact is not absent someone immediately prior autop- it As for ing pictures just out. the taken entry show the various exit wounds of the sy, these bullets, up. apparently body after the had been cleaned pointed presence has out the Counsel for Defendant leg photographs, some on the victim’s one of the blood really there is no more than a trace of it. but suggestion Appellant’s given 4. further that the formal statement after warnings suppressed prior Miranda should have been as the fruit of illegally meritless of our obtained statements is in view determination product interroga- the the that earlier statements were not of custodial tion. 220 motion, hearing appellant’s

After a on the trial court ruled permitted that the be to introduce Commonwealth would photos, clothing Appellant into slides evidence. this erroneous. ruling asserts that regarding admissibility photographs standard Supreme of homicide was summarized Court victims Garcia, Commonwealth v. 304, 505 Pa. 479 A.2d 473 (1984) in manner: following

The admission into evidence of photographs depicting victim corpse homicide or the location and scene of the crime lies within the sound discretion of the Hudson, judge. See Commonwealth v. 620, trial Pa. (1980); 414 A.2d Commonwealth v. Gil man, 145, 152, Com 485 Pa. 401 A.2d Gidaro, v. monwealth 472, 474, Pa. A.2d (1950). A is photograph judged which not inflammatory is if “it is and can jury admissible relevant assist Gilman, Commonwealth understanding the facts.” gruesome potential Pa. at A.2d at 339. A or ly inflammatory is if it is of photograph admissible “such essential evidentiary clearly value need out [its] weighs inflaming passions the likelihood of the minds and McCutchen, Commonwealth jurors.” 597, 602, (1982) Common 454 A.2d (quoting Petrakovich, wealth v. 511, 521, 849 [1974]). The fact that blood is in a photo visible graph require finding does not necessarily is inflammatory. Commonwealth v. Hud photograph son, 1387; 489 Pa. at 414 A.2d at Sullivan, 281, 273, 608, 612, 450 Pa. 299 A.2d cert. denied, 923, 2745, 412 U.S. (1973). 98 S.Ct. 37 L.Ed.2d 150 Id. 505 318, 478. See also: Common- Pa. at 479 A.2d O’Shea, wealth 384, 400-401, v. 523 1023, Pa. A.2d 567 (1989); Alarie, 1030-1031 378 Pa.Super. 11, 14, 1252, (1988). 547 A.2d In making 1253 a determina- tion of the admissibility of such a trial court photographs, must a two apply step analysis.

221 photo- decide whether initially must judge The trial If do they characteristics. inflammatory possess graphs evidentiary any as are are admissible photographs not the If the of relevance. items, qualification subject the trial inflammatory, then deemed are photographs of such are photographs must decide whether judge out- clearly their need value evidentiary essential inflaming passions of their likelihood weighs the Hudson, 489 Pa. 630, 620, v. Commonwealth jurors. (1980). 1381, 1386 A.2d 414 479, 453, A.2d Strong, v. 563

Commonwealth 522 Pa. Miller, 490 v. Pa. (1989). See also: Commonwealth 483 denied, 449 cert. (1980), 128, 134 468-469, 417 A.2d (1981); Common 924, 66 L.Ed.2d 842 1113, 101 S.Ct. U.S. (1978). Batty, 173, 177, wealth v. A.2d 437 482 Pa. to a determina applicable are principles These same basic Com clothing. See: of a victim’s admissibility tion Martinez, 331, 336, v. A.2d monwealth Frederick, v. Pa.Super. Commonwealth Commonwealth also: A.2d See Meadows, 1006, 1012 354, 366, A.2d Pa.Super. clothing on item victim’s (1989) of dried blood (presence render such necessarily into does not admitted evidence inflammatory). evidence slides challenged photographs, viewing

After counsel, the trial hearing arguments clothing and were items of evidence determined that such court the Commonwealth presented by could be inflammatory and ruling its explained the court opinion, In a separate at trial. as follows: Commonwealth cited us to for Defendant has

Counsel Scaramuzzino, (1974), where the first de- Court reversed Pennsylvania Supreme him granted of the defendant murder conviction gree had its deciding the trial court abused trial after a new into of the victim admitting color slides discretion Scara- However, admitted photographs evidence. re- muzzino of the heart three photographs included body, from the “portrayed moved five which the the portions emphasizing, wounded of nude torso because color, blood, of including the the dried a side view of the rods glass protruding torso with from the wounds to Scaramuzzino, the of the indicate direction wounds.” 380-81, 455 Pa. at 317 A.2d at 226. The photographs and slides at issue in case are shocking the instant or compared to those in Scaramuzzino. graphic when Rather, and, they showed cleaned bullet wounds although face, one of these wounds was to the victim’s are not inflammatory. inflammatory To “the depiction be must be of a in gruesome such nature or be cast such an unfair light it to an objective that would tend cloud assessment guilt of the or of the defendant.” Common- innocence Hubbard, wealth photographs These are neither gruesome nor

exploitative jury and the should not be shielded from viewing them. reasons,

For these same based very upon descrip- tion in clothing given discussion, earlier our we find clothing the victim’s bloodstained the instant case to be likewise admissible.

We also the challenged have studied After exhibits. so, doing we are unable to conclude that the trial court allowing abused its discretion the same to be received Although photos, evidence. slides and of clothing items view, are not find pleasant to we therein no basis for that the concluding depicted gruesome matters were so as precluded jury to have from returning a fair and true Indeed, acquittal verdict. on jury’s charge first degree murder would seem to militate against attempt an second-guess trial court and hold the disputed inflammatory evidence so likely it was have upon passion caused verdict based or prejudice. photos and slides of body depicted the victim’s which location of the wounds were to support relevant the infer- as were also relevant They to kill. intent specific ence of findings explaining pathologist an aid to the We clothing by the victim. worn as were the items jury, not disturb the conclude, therefore, this Court should ruling. court’s trial Sadoff, psychi Dr. trial, called Robert appellant

At that, in had opinion, appellant expert, atric who testified regarding the induced amnesia from alcohol suffering been therefore, and, his confession shooting; events of the recollec an accurate upon not have been based police could permitted not to relate Dr. Sadoff was tion of the incident. had, however, hypno while under to jury, the shooting sis, the which differed substan of given a version trial court also ruled given police. to The from that tially hypnotic interview could not videotape appellant’s of that a that the court’s Appellant the contends jury. be shown to of his state because the evidence ruling was erroneous the the truth of hypnosis was offered ments under that such only but to establish matters asserted therein this rejected The trial court had been made. statements evidence was scien concluding proffered that the argument, therefore, and, unreliable inadmissible. tifically Nazarovitch, 97, In Commonwealth v. (1981), Supreme Court first addressed Pennsylvania of influenced admissibility hypnotically issue of trial. The Court held that the

testimony during a criminal proper had testimony refreshed been hypnotically witness’s of the had no recollection ly excluded where the witness reaching prior to be this hypnosis. facts testified conclusion, great court Nazaroviteh observed community of scientific skepticism amount with which the determined, therefore, intro hypnotism. It that the viewed not be of refreshed would hypnotically testimony duction with permitted “presented such time as the Court was until proof more than has been offered date conclusive Common reliability memory.” hypnotically-retrieved Nazarovitch, 111, wealth v. 496 Pa. at 436 A.2d at supra, again refused to sanction Supreme 178. Court admissibility hypnotically testimony influenced in Com Smoyer, monwealth v. (1984). Pa. 476 A.2d 1304 DiNicola, See also: Commonwealth v. 348 Pa.Super. denied, (1985), cert. 502 A.2d 606 U.S. 108 S.Ct. McCabe, 98 L.Ed.2d 449 A.2d 670 Compare: Common Pa.Super. Romanelli, wealth v. 336 Pa.Super. 485 A.2d 795 affirmed, (1984), (1989) (witness 560 A.2d 1384 may testify prior to events remembered to hypnosis); Com Taylor, monwealth v. Pa.Super. A.2d (1982) (same). case,

In the instant we conclude that the trial court properly rejected appellant’s attempts ver- to introduce the shooting sion elicited from him hypnosis. while under doing, In so adopt reasoning we of the trial court as follows: Commonwealth v. Nazaro- Supreme

The Court [in vitch, (1981) ], 436 A.2d 170 this characterized issue as a problem. “scientific evidence” The leading case in establishing by admissibility the standard which of scientific must is Frye United judged evidence be States, (D.C.Cir.1923). 293 F. 1013 In Frye, the Court explained: when principle

Just a scientific or the discovery crosses line between the experimental stages and demonstrable define____ (W)hile is difficult to go long courts will a in expert way admitting testimony deduced from a well-recognized principle scientific or the discovery, thing from which the deduction is made must be suffi- ciently gained acceptance established to have in general particular the in belongs. field which it Frye, F. at 1014. Supreme

The Nazarovitch noted that Court the rationale behind the Frye standard of stems admissibility from “fear the of that trier fact will and accord uncritical reliability absolute to scientific device without consider- Nazarovitch, ation its in ascertaining of flaws veracity.” (citation omitted). 496 Pa. at 436 A.2d at 173 While the Court the conceded usefulness of “a hypnosis as (citation omitted), it ex- Id. technique,” medical powerful of the use about serious reservations pressed forensic to establish hypnosis facts. argument only that he acknowledge Defendant’s

We under hypnosis use statements he made to the sought doubt his confession casting upon purpose of those statements. rather than for truth police, Sadoff, L. at According to Dr. Robert psychiatrist suffering from Defendant was time of confession night to the crime occurred. as the events amnesia admitting hypnotic related to Defendant’s evidence By session, permitting in effect be Defen- the Court would is that his confession not credible. jury dant to show the lies the fact this argument flaw with Defendant’s hypnosis on the did not exclude evidence Court rather, excluded improp- it as hearsay; basis Court “scientific er evidence.” Nazarovitch, important the Court noted two hyper- trance are subject hypnotic

characteristics of a suggestibility hypereompliance. (citation omitted). The Court cited scientific

A.2d at is hypnotized subject which explained articles please highly motivated others. easily influenced Moreover, hypnosis, in instances of forensic Id. he is precisely tends to be aware that there subject Thus, he is his desire unable to remember facts. because “confa- unconsciously others often leads him to please is, fill in left his loss of gaps bulate”—that Id. Monaghan, Hypno- (citing with E. memory fantasy. (1980)) Investigation sis in Criminal mind, in to imperative this information ... it was With exclude all mention of the session. Defendant hypnotic as sought videotape introduce a of session first evidence, and Defen- Alternatively, the Court refused. him permit asked the to at to introduce dant Court least that, gave he differ- under a hypnosis, the evidence while died. night Randy of occurred the Reed ent version what evidence, not that into since justify allowing We could neither the nor the community Court scientific can be that assured the “different version” itself was not of product is, confabulation. That if Defendant was still unable to recall the events night question, in while under hypnosis, may very he well unconsciously have the story created he told while under If hypnosis. true, were then not the fact even that he told a “different under story” hypnosis while could properly be admitted into many evidence. Because “members the scientific community yet hold view criteria have not been developed whereby the accuracy of hypnotically-adduced assured,” can reasonably be testimony 174-5, A.2d at it is not “generally in the scien- accepted place tific under and has in a community” Frye no court of law. Stark, 369-371,

Cf. 363 Pa.Super. (1987) 390-391 (psychiatrist properly was precluded from testifying regarding results of truth serum test administered to defendant or any statements made by defendant while was in as progress, test truth serum lacking tests were in reliability). scientific The ruling trial court’s is consistent with decisions A jurisdictions. other similar issue was presented to the Virginia Supreme Court v. Common- Greenfield wealth, 214 Va. 204 S.E.2d 92 A.L.R.3d 432 There, a psychiatrist for the in a testifying defense murder that, trial was permitted testify the defen- opinion, had dant been unconscious at the time of killing. permitted, however, witness regarding to testify that which he had learned from the defendant while the hypnosis. defendant was under upholding trial court’s exclusion such testimony, Virginia Supreme Court reasoned as follows: experts agree

Most that hypnotic evidence is unreliable a person because under or hypnosis can manufacture Evidence, invent false statements. Wigmore, See 3A (rev. 1970); 998 at Chadbourn “Hypnosis as § Tactic,” Defense Toledo L.Rev. Note:

227 Law,” 1518 14 Vand.L.Rev. and the “Hypnotism Herman, (1961); Hypno-Induced “The of Statements Use (1964). A Cases,” person 27 25 Ohio St.L.J. Criminal subject heightened trance is also hypnotic under a Evidence, 208 at McCormick, Law suggestibility. § 1972). it is said: (2d 510 ed. There been treated under have hypnosis “Declarations made statements. drug-induced similar to a manner judicially this mani- ultrasuggestible, and person is hypnotized The of his statements. endangers reliability festly the usefulness of to some extent recognized courts have diagnosis and in investigative technique as an hypnosis, confessions However, rejected have they and therapy. hypnosis made under when thereby, induced statements behalf, opinion as to in Ms own subject offered by (Footnotes on examination.” hypnotic mental state based omitted.) 715-716, Commonwealth, at 204 supra v.

Greenfield appellate 439. The decisions 92 A.L.R.3d at S.E.2d recordings pre-trial in other states have also excluded state describing pre-trial testimony interviews and hypnotic Hiser, v. 267 People under See: hypnosis. ments made (1968); 1353 A.L.R.3d Cal.App.2d Cal.Rptr. 1981); Diaz, (Colo.App. Rodriguez v. 644 P.2d 71 People State, 282 Emmett v. State, (Fla.App.1976); So.2d Mack, 292 (1974); N.W.2d 205 S.E.2d 231 State Ga. Pusch, 46 N.W.2d (Minn.1980); State v. N.D. State, (Okla.Crim.App. P.2d 1316 Jones v. (1965). 1975); Harris, 241 405 P.2d Or. State v. At Annot, Of Evidence Admissibility Hypnotic See also: Trial, 92 A.L.R. 442 Criminal reasons, no error the trial perceive

For we all these appellant’s hypnotic videotape exclusion of the court’s regarding testimony of the psychiatrist’s interview and under hypnosis. statements while appellant’s attor prosecuting During’ closing argument by proseen- to comments ney, objections three defense tor These were sustained. objectionable remarks and the responses court’s were as follows: happened What between the first shot and then the at flurry might the end? You Randy conclude that took off running and Sam went him. after Dr. Handte told you devastating how even with a potentially mortal had Randy chest, wound which with the shot to the we get shot, from combat histories people know that can can shot get soldier and suffer a terrible he wound and going. on keeps Objection,

MS. LUX: Your Honor. This wasn’t estab- lished trial.

THE I agree. regard that, COURT: Yes. With conjecture is a little too far. That is Dr. bit not what Handte testified specifically regard with to soldiers. So must you your contain statements a little closer to the inferences; evidence and you reasonable not what might think occur under the circumstances.

Later, prosecuting argued: attorney trucker, do He Randy?

What we know about was a and doing pretty he was well. And was Randy maybe what And hat Sam wasn’t. relates to this role as a trucker. Because we from know the evidence that it was pins covered with little emblems which showed he different states had been in and so forth. That is like an or a badge emblem honor. He was a trucker. He was It proud part something of it. was It Randy. was him, that Sam wasn’t. And when killed and he Sam took the hat.

It’s like a off hunter who wants rack of a buck that he scalp has shot or Indians that used to their— LUX: Objection,

MS. Your Honor. Gricar, THE COURT: Sustained. Mr. is there no rea- son talking to start about indians what did about scalping. please, keep your Now remarks to the evidence they see you as logical inferences this case and could draw. made: following argument was

Finally, kind he in this case. Some thought he That’s what know, Mr. on behalf of You Gallant of a crusader. him. Kind of Did Killed Brooding about it. it. sister. knight shining beer cans. your like Your Honor. Objection, MS. LUX: THE COURT: Sustained. prosecutor’s closing argument,

At the conclusion mistrial, that “the arguing for a defense counsel moved referring referring scalping, to indians cumulative effect cans, cetera, et cetera—ref- shining beer et knight to a the hunting—has precluded my right client erences to ” mis- The the motion for trial court denied fair trial.... trial, ruling its erroneous. argues that for mistrial grant or a motion deny

The decision to A mistrial is the discretion of the trial court. within sound motion incident which the necessary only upon is when the a as the defendant deny is was of such a nature based 539, 554, 514 Pa. Crawley, fair trial. Commonwealth v. v. also: Commonwealth (1987). 334, 342 526 A.2d See 603, (1986); Chestnut, 511 Pa. 169, 176, 606 512 A.2d Hernandez, 415, 405, 498 446 A.2d v. Pa. Commonwealth (1982). cautionary or 1268, prompt 1273 curative “[W]hen court, of discretion given by the an abuse instructions are Meadows, v. Commonwealth be found.” readily will not also: 360, 553 at 1009. See supra 381 Pa.Super. at A.2d 175, Lawson, 519 Pa. 589 v. 546 A.2d Commonwealth Thomas, 1, 15, 521 v. Pa.Super. 361 Commonwealth (1988); 442, (1987). A.2d misconduct, Su- prosecutorial the reviewing claims following guidelines:

preme Court has established just a as a prosecutor, It is well established must latitude attorney, have reasonable defense free to present case and must be presenting jury a vigor.” force and arguments “logical her with his or Smith, v. 380, Commonwealth 387, Pa. 416 A.2d 986 (1980), Cronin, quoting Commonwealth v. 464 Pa. (1975). 346 A.2d Counsels’ remarks fair jury may legitimate contain deductions and inferenc presented during es from the evidence the testimony. Fairbanks, v. Commonwealth Pa. 306 A.2d 866 Stevens, (1973); Commonwealth v. 276 Pa.Super. prosecutor 419 A.2d may argue always jury evidence establishes defendant’s Capalla, Commonwealth v. guilt, 200, 185 322 Pa. A. 203 (1936) prosecutor offer although may not his personal guilt as to either in opinion argument accused inor from the witness stand. Commonwealth testimony DiNicola, v. (1983); Common 468 A.2d 1078 All Pa. Pfaff, wealth Com A.2d Cronin, supra. monwealth Nor he may or she ex press personal opinion belief and as to the or truth falsity of guilt, including evidence defendant’s Kuebler, of a witness. credibility (where (1979) defendant’s version “big lie”); events was branded a ABA Standards Justice, Criminal Relating Standards to the Prosecution 5.8(b) Draft, 1971). Function Section (Approved intemperate However not every or uncalled for remark prosecutor requires a new trial. As we have many stated times:

[Cjomments by a prosecutor do not constitute reversi- error unless the ble “unavoidable effect of such com- ments would be to the prejudice forming in their jury, minds hostility fixed bias and the toward defendant so that not the they weigh could evidence objectively and Anderson, render a true verdict.” Commonwealth v. supra 282, Pa. [275, at 501 461 A.2d 211 [208, at] at] v. Upsher, Commonwealth [1983]; 621, 627, 497 Pa. (cid:127) 90, (1982). 444 A.2d 93 Commonwealth v. Carpenter, 429, 439, Pa. 515 A.2d D'Ambro, Commonwealth v. (1986); 303, 500 309-10, (1983). Furthermore, 456 A.2d 140 the prejudicial remarks must be evaluated prosecutor’s effect of the occurred. Commonwealth v. they the context which quoting Carpenter, supra, 531, Pa. at 515 A.2d Smith, supra, v. 388, 416 Commonwealth 490 Pa. at A.2d at 989. 'Amato, D v. 489-490, 526

Commonwealth 514 Pa. Yabor, See also: Commonwealth (1987). 300, 309 A.2d Com 356, 370-371, 546 A.2d 376 Pa.Super. Toledo, 235-236, monwealth v. 529 A.2d Pa.Super. (1987). case, the to which the prosecutor In this the comments of a although improper, did rise to such objected, defense unable to evaluate the evidence jury level as to render the occasions, and return an unbiased verdict. On two fairly the trial court warned sustaining objections, after defense to the facts in prosecutor argument to conform On at least and reasonable inferences therefrom. evidence occasions, prosecutor’s argument one of these was not prosecut- None of the statements made completed. calculated to or ing attorney vilify unfairly were of a nature impede coolly reflecting upon from evidence jury instances, In all rendering impartial and an verdict. trial court and sustained defense promptly emphatically The court did not abuse its discretion when it objections. grant refused also to a motion for mistrial. court

Appellant argues also the trial erred involuntary when it refused to instruct man jury slaughter respect verdict. With possible manslaughter, on necessity jury charge involuntary “in Supreme prosecution, Court has held that a murder given an shall involuntary manslaughter charge only be when offense has made an requested, where the been reasonably issue the case and the trial evidence would White, verdict.” Commonwealth such a 490 Pa. support Commonwealth v. 179, 185, (1980) A.2d Williams, 187, 190, See 490 Pa. 415 A.2d Smith, 343, 356, also: denied, cert. (1986), 951, 480 1377-1378 480 U.S. U.S. (1987). S.Ct. 94 L.Ed.2d 801 Appellant ar- gues that evidence that he was drinking alcohol on the night killing could have led the jury to conclude that he had acted negligently or recklessly causing the vic- Thus, tim’s death. appellant suggests that his “[sjhooting a .357 Magnum revolver in a dark field while under the influence of alcohol could certainly be found to be reckless or grossly negligent.”5

The principal evidence at trial establishing how and why the killing had occurred came from statements made by appellant to the police. statements, these appellant said that he (his had been at the angry brother-in-law) victim because of the he way had abandoned his (appellant’s wife sister). On the evening of the killing, appellant had taken the victim to an isolated field and shot him five times with a .357 revolver. The last of the five shots was into the point victim’s face at blank range. There was no evidence from which a jury could have found that the killing had been unintentional because appellant had recklessly fired a gun into a dark field.

The fact that appellant had drinking been on the night of the killing would not have been a basis for an reducing intentional killing to involuntary manslaughter. Evidence of voluntary intoxication may reduce murder of the first degree to murder of the third degree, it but cannot reduce murder of the degree third to manslaughter. See: Com- monwealth Ruff, Pa.Super. (1979). 405 A.2d 929 See also: Milburn, Commonwealth v. 488 Pa. A.2d 388 Fairell, A.2d 1258 ‘Where the question of intoxication is introduced into a murder case its only effect could negate be to the specific 5. involuntary manslaughter The crime of is defined statute as follows: (a) person guilty General involuntary rule.—A is manslaughter as doing when or a direct result of the of an unlawful act in a reckless manner, grossly negligent doing or the of a lawful act in a manner, grossly negligent reckless or person. he causes the death of another 2504(a).

18 Pa.C.S. § required finding to kill is for a intent which murder of If degree.... intoxication does render the first an ac- forming of the the incapable necessary cused intent result is to crime to a of degree reduce the lesser murder. In no the change event does reduction the character of the crime from to manslaughter.’ murder Breakiron, 282, Commonwealth 295-96, 524 Pa. 571 1035, (1990), quoting Commonwealth v. Eng- A.2d 1041 land, 1, 19-20, 474 Pa. 375 A.2d There- fore, not entitled to appellant was have the instructed jury on the of involuntary manslaughter. law The trial court did not err when it refused a request therefor.

Appellant’s final contention is that the trial court its by imposing abused discretion an excessive sentence. a separate 2119(f), statement Pa.R.A.P. complying with specifically asserts the sentencing court failed to provide sufficient reasons in of support the sen tence; failed consider the nature and circumstances of the crime and the and history appellant; character of and abused its discretion by allowing the mother victim’s and sister to sit at counsel table with the assistant district attorney during sentencing and allowing sister to make an angry, emotional statement prior imposition sentence. Because we deem substantial, these contentions we will review the discretionary aspects sentencing.

“Sentencing is a matter vested in the sound discre tion of the sentencing judge, and sentence will not be disturbed on appeal absent an abuse of that discretion.” Anderson, Commonwealth v. Pa.Super. 1, 16, 552 A.2d (1988). However, the sentencing court must state its record, reasons for the sentence on the which turn aids determining “whether imposed sentence upon accurate, was based sufficient and proper informa tion.” Commonwealth v. Riggins, 115, 131, 474 Pa. (1977) A.2d (footnote omitted). When imposing sentence, a required court is to consider “the particular circumstances of the offense character of Frazier, defendant.” 347 Pa.Super. (1985). Furthermore, 500 A.2d the court must consider “the statutory factors enunciated for determina- tion alternatives,” of sentencing Commonwealth v. Hain- sey, 376, 382, Pa.Super. (1988), 550 A.2d impose must a sentence which is “consistent pro- with the tection of public, gravity the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” Common- Frazier, wealth v. supra. Where the sentencing had judge pre-sentence report, however, benefit of a it will be presumed that he “was aware of relevant information re- garding defendant’s character and weighed those con- siderations along Com- mitigating with factors.” statutory Devers, monwealth 88, 101-102, (1988). “Having fully been informed by presentence report, the sentencing court’s discretion should not be dis- Id., turbed.” 519 Pa. at 546 A.2d at 18. Supreme

The Court has made it clear that abundantly sentencing broad, court’s discretion is and that a reviewing court should not disturb the exercise of that discretion except See, for Commonwealth e.g.: substantial reasons. Ward, v. 524 Pa. 1242 (1990); Commonwealth Jones, v. 565 A.2d 732 Commonwealth Devers, supra. Such reasons do not appear the instant case. Here the sentencing court had to it and available considered a fully pre-sentence report and reviewed on the record each of the sentencing alternatives authorized by Sentencing Code. The comments of the during court sentencing hearing evidenced a careful consideration of appellant’s personal character and circumstances as well as the nature of his crime. Our of review the record discloses no evidence of undue influence upon sentencing court because of the presence of the victim’s mother and sister at counsel table or from the sister’s statement to the court. short, our review of the record discloses no abuse discretion.

Having found the issues raised by appellant to be lacking merit, we affirm the judgment sentence. judgment of sentence is affirmed. TAMILIA, J., concurs in the result. J.,

POPOVICH, dissenting files opinion.

POPOVICH, Judge, dissenting.

I respectfully majority’s must dissent from conclusion to appellant subjected interrogation was custodial Miranda and, therefore, unnecessary. were Basi- warnings I with the reached cally, disagree majority result Anderson, Commonwealth application after (1975) Super. (setting 385 A.2d 365 guidelines forth determining an interrogation whether was custodial na- ture). p.m.

Consider the facts: The arrived police after 9:00 to question appellant about the murder of Ms brother-in-law. Appellant the sole in the suspect Holmberg case. Lt. explained appellant testified that he to was not he arrest, under appellant any ques- did not have to answer tions and he ask any could the officers leave at time. However, standing outside front were appellant’s door two awaiting officers opportunity their a search execute appellant’s warrant for home and vehicles. complete

Rather than their quesfion-and- “non-custodial” home, appellant’s officers, answer session at after ask- ing receiving for and appellant’s handgun, .357 caliber requested them accompany sta- police home, leaving Watson, tion. Prior appellant’s Corporal to in presence appellant, the informed the officers who were search, going perform to the is “this the revolver we’re looking for.”1

Appellant with He police. extremely went the left on an in night nothing pants cold winter but and a T-shirt. Be- ear, frisked, and, fore entering police the he was once Appellant’s 1. appellant wife testified that the officers informed that if they he did not response, with them come would secure an arrest warrant. However, police making the denied such statement. we should that at alleged remember the time this statement to was have made, police investigation been police appellant, the focused on had the which, admission, possessed appellant’s by revolver their own they weapon. be the believed to murder

inside, accompanied he was the back seat a police Appellant permitted officer. was drive own police because, to the according vehicle barracks to the remain police, appellant’s it had to at home to be searched. if had Consequently, appellant police wanted leave the station, upon he would have been forced to rely police transportation home. barracks,

Upon police appellant signed arrival at the “Notification Non-arrest.”2 officers testified that their throughout appellant, interroga- conversation with open they tion room door was and that informed repeatedly him that he was not under arrest.3 Astoundingly, even murder, after appellant police admitted to told appellant go he could to home and return in the morning to However, turn in to the himself authorities! officers were positioned prevent outside the barracks to any attempt escape. me,

To this case one of clearly interroga- was custodial Despite tion. the officers’ self-serving testimony concern- “non-arrest”, I ing repeated their assurances of am con- appellant reasonably vinced that believed he subjected was to a custodial interrogation. Appellant was the sole sus- pect; appellant the police gun knew believed his was the weapon; police murder he knew the had a search warrant house; appellant permitted for his was not himself drive station; police appellant frisked entering was before cruiser; police arriving station, after at the he police way had no to leave other than by police transport; al- though interrogation the door to the room open, appel- was police lant was nonetheless inside the barracks. On those Non-arrest”, typed piece 2. The “Notification of on a blank of station- arrest, ary, appellant informed he was not under was free to leave at time, any being stop answering ques- was not threatened and could any tions at time. testimony regarding they 3. From the officers’ the number of times how, go, informed that he free to one must wonder insuring appellant custody, the midst of knew he was not appellant any questions concerning officers found time to ask murder. facts, I no have doubt that believed he was not free to leave.

It is ironic that the actions police which are most demonstrative the custodial nature of interrogation this are those by which the officers attempted to minimize the custodial appearance interrogation. Never my seventeen years jurist as a have I heard of a “Notification Non-arrest,” and neither I have ever heard police offering release an admitted murderer so custody from that he could home go the evening and turn for himself prosecution I later. believe such actions reveal that for the officers that the interrogation custodial, knew that, upon being surprised by appellants’ confession, sudden they undertook to clothe an otherwise custodial interroga- tion into a cloak of false volition.

I, one, am appellant’s convinced rights constitutional violated, were warnings issued, Miranda should have been appellant’s pre post-arrest police statements to the should suppressed, have been and a new trial is warranted.

583 A.2d 474 Filippo Giacomo BALLESTRINO BALLESTRINO, Appellant. Enrica Superior Pennsylvania. Court of 2,May

Submitted 1990.

Filed Dec. 1990.

Case Details

Case Name: Commonwealth v. Reed

Court Name: Supreme Court of Pennsylvania

Date Published: Dec 6, 1990

Citation: 583 A.2d 459

Docket Number: 328

Court Abbreviation: Pa.