Commonwealth v. SmithCommonwealth v. Smith
OPINION OF THE COURT
Aрpellant, Leroy Smith, was convicted in a jury trial of murder in the first degree and three counts of robbery. Postverdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction with three ten-to-twenty prison terms for the robbery convictions. This appeаl followed.
On December 16, 1975, four men armed with guns entered a West Philadelphia bar, announced a holdup and began taking the patron’s wallets and money, when off-duty Philadelphia policeman, William Daniels, a patron in the bar in
One of the robbers left a briefcase in the bar, containing a piece of paper with a name аnd telephone number, which was traced to an apartment less than two blocks from the site of the holdup and murder. The owner of the apartment building identified the name on the piece of paper as her granddaughter who was living in the second floor apartment. The owner admitted thе police officers and a search for the robbers ensued. The police apprehended appellant and his three companions after finding them huddled in an attic crawl space with their shirts, shoes, and socks removed. Later the police obtained a search wаrrant, searched the premises, and found four guns and the decedent’s wallet and badge.
The appellant was immediately taken to the Police Administration Building. He arrived at 11:15 p. m. on December 16, 1975 at which time he was left alone for 45 minutes. Appellant was given his Miranda rights by the interrogating officer, waived them, and was interrogated at midnight. At that time appellant admitted he had gone to the bar that evening but denied going inside. Forty-Five minutes later, 12:45 a. m., December 17, 1975, appellant agreed to take a polygraph examination, signed a polygraph waiver, once again waived his Miranda rights, and took the examination. The polygraph examination was started at 1:00 a. m. and completed at 2:00 a. m. At 2:10 a. m. the interrogating officer once more gave appellant his Miranda warnings. The appellant waived those rights and gave a statement of the incident, in which he admitted his participation in thе robbery and denied that he shot Officer Daniels. This was reduced to writing. The appellant read the statement, made some corrections, and signed his name to the bottom of each page of the statement. The statement began shortly after 2:10 a. m. and was completed at 4:30 a. m.
Four issues are raised in this appeal. The first concerns the admissibility of appellant’s confession. The remaining three consist of challеnges to evidentiary rulings made by the trial court.
First, appellant argues that his confession was the product of coercion, unnecessary delay, and an illegal search. We disagree with the appellant.
In the pre-trial suppression hearing, at trial, and again on this appeal appellant has maintained that his confession was involuntary because it was the product of a beating inflicted upon him by the interrogating officer. The trial court found as a fact that no force, threats, or promises were used or made in order to induce appellant to make his confession.
When a statement is challenged as involuntary, the Commonwealth bears the burden of demonstrating by a fair preponderance of credible evidence that the statement reflects the free and unconstrained choice of the maker.
Commonwealth v. Davenport,
A review of the record in acсordance with the guidelines set forth in Davenport discloses adequate evidence to support the findings of the court below.
The interrogating officer testified that he had not applied physical force to the appellant at any point during the interrogation and we may not now weigh apрellant’s allegations to the contrary. The officer’s testimony further reveals the appellant had a small cut on his head and several scratches and bruises on his body. Testimony of Detective Chitwood establishes the appellant had a small wound on his
The available medical evidence reveals a few injuries of the type that might be caused by a rapid unwieldly exit from an unfinished ceiling crawl space by a person with nо clothing on other than pants. It is for the trial court to determine the weight to be given the evidence, and the testimony was clearly sufficient to support the findings that appellant voluntarily and freely confessed.
Concerning appellant’s contention that his confession was the produсt of a pre-arraignment delay, we have established a three-prong test for determining when such delay would mandate exclusion of inculpatory evidence under
As early as 1972, in
Commonwealth v. Futch,
Viewed in light of the standards set forth above we see the trial judge found that the appellant arrived at the Police Administratiоn Building at 11:15 p. m. Appellant began his inculpatory statement at 2:10 a. m. only three hours after being in custody. During his first 45 minutes, the appellant was left alone. Another hour of the pre-statement time was consumed by the polygraph examination which appellant agreed to take. An additional fifteеn to thirty minutes of time were taken up by the giving of Miranda warnings, execution of waivers, and the transportation of the appellant from the initial interrogation room to the polygraph room. During the three-hour period preceding his statement only forty-five to sixty minutes were devoted to non-polygraph questioning. Under these circumstances we do not find unnecessary delay.
The appellant also challenges the admissibility of his confession, asserting it was the product of an arrest made without probable cause.
We will not discuss the merits of this issue, since appellant failed to raisе the legality of his arrest in his written pretrial suppression motions and in post-verdict motions, and, this is waived by virtue of
The prosecutor, at trial, during direct examination of the detective who interrogated the appellant at the Police Administration Building, asked the witness to give a chronological narrative of the interrogation. When the testimony reached the point at which appellant had made the incriminating statement, admitting participation in the crime and denying he shot Officer Daniels, the witness was requested to read the statement into the record. The challenged reference to the polygraph examination was part оf this statement and came on the seventh and last page of the statement. Defense counsel did not move for a mistrial at that time. He waited approximately two or three minutes, until the prosecutor finished direct examination and the court called a recess before making thе motion for mistrial.
Since the challengеd testimony came in the context of a recital of the contents of the defendant’s confession, a document with which defense counsel was thoroughly familiar, defense counsel could have requested an advance deletion of the polygraph reference. When, as hеre, the asserted error is one that could readily have been anticipated and avoided, the defendant’s explanation for noncompliance with
Next appellant asserts the trial court erred in allowing the prosecutor to question the bartender on redirect-examination regarding his reasons for keeping a gun in the bar. Specifically, he claims the questions were irrelevant, prejudicial and inflammatory. We must disagree with the appellant.
Defense counsel, on cross-examination of the bartender, attempted to discredit him by eliciting that he had initially failed to tell the police that an unlicensed gun had bеen stolen from him during the shooting. On redirect examination, the prosecutor merely asked the bartender three brief questions about why he was in possession of the gun. 3 The somewhat inarticulate answers elicited by the questions at issue were neither inflammatory nor prejudicial. The bartender clеarly told the jurors nothing to connect the appellant with the unlicensed gun or any previous incidents which occurred at the bar.
Appellant further argues that the trial court erred in refusing to permit the defense counsel’s cross-examination by extraneous inquiries into the bartender’s familiarity with newspaper reports of the herein crime. We disagree with
. Finally, appellant challenges the trial court’s ruling permitting the introduction of the weapons, used in the crime, into the evidence alleging they are the product of an illegal search and seizure.
Appellant admits this is a new issue which was not аddressed by the court below. The issue was waived and accordingly we will not discuss the merits of this claim.
Judgment of sentence affirmed.
Notes
. The report was signed on January 4, 1976 by a doctor who had not examined the appellant on December 17 when he was admitted to the Detention Center and who relied solely on the defendant’s representation that it was accurate. Its probative value was therefore questionable.
. The appellant had just signed each page of his confession when the interrogating officer asked appellant “are you willing tо take a polygraph examination?” The appellant answered “yes.” The witness continued to state that the defendant had signed his name to the question, whether he was willing to take a polygraph examination.
. First, the prosecutor asked why Jenkins (bartender) had not been completely candid with the police about the gun. Jenkins answered, “because I didn’t have a permit to carry one.” Second, the prosecutor asked if Jenkins used the gun when he was away from the bar. Jenkins answered that he did not. Finally the prosecutor asked Jenkins to tell the jury why he carried a gun in the bar. Jenkins said, “Because incidents that have happened, that the bartender before me had been shot, he was shot down, and the whole lot of stuff went on before I was working there.”