*1
Superior Pennsylvania. Court of 16,
Submitted Jan. 1986. May
Filed III, Lebanon,
John R. Kelsey, appellant. Feather, Jr., John E. Assistant District Leba- Attorney, non, Com., appellee. POPOVICH, WICKERSHAM, DEL JJ. SOLE
Before POPOVICH, Judge: *2 (two from of sentence to judgment is an appeal
This criminal conspiracy years imprisonment) four Wolf. We affirm. Robert appellant, facts, light most to viewed in a favorable The when all reasonable inferences there- drawing and verdict-winner January, the 26th of thirteen- from, that on reveal in the playing games video Crystal Swisher was year-old she was City B in the Lebanon when Circle Laundromat Stofko, she met once. Dean someone had one approached by purchase grain help to bottle her $1.50 He asked gave money, him the she Ms. Swisher alcohol. friends in it. drinking to him and his join agreed laundry until Stofko’s friends The two waited outside Kramer, Weatherholtz, Mitch Miller and the Dave (Timothy The six then walked secured the alcohol. had appellant) it left when was apartment, the street to but across to mix with the orange juice that there was no discovered result, to repair and his friends decided As Stofko liquor. along. premises. Ms. Swisher went to Weatherholtz’s p.m. and apartment at the around 5:00 group The arrived (Lori) there. and two children wife found Weatherholtz’s proceeded then and Dave Weatherholtz appellant The grain punch the 190 alcohol in a bowl proof to mix kitchen others, Kramer, i.e., Stofko and orange juice. with At this Miller, in the room Swisher. stayed living with going her she was time, Lori husband that advised take their cigarettes, and that she would buy store son one-year-old He along. was watch daughter she gone. while was set on brought in one
Thereafter, drinks Kramer sat on point, At this front of Swisher. table arm as on the other arm of a chair and Stofko rested one in the middle. was Swisher alcohol grain had three drinks mixed with
Swisher “grain drank at first and later she orange juice and on the straight.” dizzy verge passing She became chair, Somehow, initially sitting she was on a although out. couch, eventually herself on the from which she she found onto the floor. Two of the individuals slipped or fell Thereafter, she upstairs. being carried her recalls present removed, clothing Her and she was on the bed. placed Next, her ankles and wrists. the victim tied to the bed took sexually recounted how each of the five males turns lasted no more than assaulting twenty- her. The assault minutes, length for this of time Lori Weather- five returned, apartment. from the When she away holtz was on in her going discovered what was bedroom she everyone directed to leave. she left the she was premises,
The victim said that after *3 group. of the A by for some distance members pursued this attracted the attention of gathered, crowd had and officer Upon investigation, Bowman. the Officer Robert wall, kicking a fit. She the “having found the victim ” I die.’ the and ‘Leave me alone. want to ground saying and emotionally that the victim was intoxicated Seeing her to the transport emergency the officer decided upset, Hospital. room of the Good Samaritan hospital, obstreperous. On the to the the victim was way in such a why acting asked the officer she was When stated, manner, feel if you you she “How reportedly would raped by guys?” five just hospital, the the officer checked the victim’s Once at “rope ankles and and detected what he termed burns wrists on inside of ankles and on the indentations the both Depart- Police wrists.” Two detectives from the Lebanon the of the victim “very hysterical” ment confirmed condition hospital. while at the from that the hospital
Test results the established victim in There also evi- engaged had sexual intercourse. following his arrest appellant, dence at trial that the but incarceration, one of the detectives prior any approached to strike a “deal” to minimize any the case investigating he if the to trial. might receive case went potential sentence the in appellant, testified that the This same detective contacts, the witnessing of three admitted victim second However, he stated he never being sexually assaulted. point, interestingly in this attack. This participated the performed by the tests enough, was corroborated i.e., linen, the all Investigation on bed of Federal Bureau of secured, victim, of the those Weather- samples the hair found on sheet. matched those the bed holtz Kramer stand, placing took admitted appellant When to hearing of the victim and conversation a drink front relations. He stated he among the about sexual also group Further, age her and was told Wolf asked victim bed, that, figures except seeing mentioned two on unusual he was nothing when bedroom. observed witnesses story, including all sides jury heard assailing reputation of the appellant on of the behalf and one’s recollec- community for truthfulness victim question the victim after incident shortly tion bondage sexual admitted to him that she had read about you “to how it is ... when magazine and wanted see up.” tied found the jury a verdict which the
Following promote or facilitate the crime guilty conspiring rape statutory and involun- statutory rape, but intercourse, motions were post-trial deviate sexual tary *4 denied, imposed appeal perfect- and this was sentence was ed. find it appellant, by issues raised we
Of four sparse to one because of its necessary respond to All others were ade- treatment in this Commonwealth. in its to this by opinion court below quately addressed purposes. it as our own for allocatur adopt Court we ruling of this Court parties All concerned look to the 173, 459 A.2d Pa.Super. v. 313 Commonwealth
487 the issue of whether an offer to (1983) to resolve 795 case,1 although a criminal each is admissible compromise interpretation their re- supportive away with an comes positions. spective ruling its that the defendant’s offer to course of
In the admitted at trial because he was properly was guilty plead and, thus, no arrest, there was reason this not under offering plead that the defendant was to assume Court charged, not a crime for which he had been guidelines forth some to assess the Court set Calloway trial; an offer at to-wit: admissibility such however, it must in such cases Initially, be determined an or the statement or statements whether negotiations. plea are in connection with U.S. accused (5th Cir.1978) Robertson, provides 1356 a worka- 582 F.2d appropriate framework to determine the analytical ble characterization: first, sub- whether the accused exhibited an actual
... negotiate at the time of the expectation plea jective discussion, second, expectation the accused’s whether objective of the circum- given totality reasonable stances. Id. at 1366. an assessing accused’s sub- primary importance
Of is expectation negotiating whether jective in participating showed interest Commonwealth voluntary, In line reasoning, such discussions. with this uttered an accused to authori- unsolicited statements striking a be to made in furtherance of ties cannot said bargain. 184-85, 459 Pa.Super. at A.2d at 800-801. 313 arrest, our under Instantly, albeit the Rather, required by we are analysis stop does not there. expecta- “subjective ascertain accused’s police appellant's renders would note "deal" to officer 1. We infra), (see "spontaneity" argument to under- offered his discussion confederation, suspect. Compare Common- mine the existence of a (1982). Kennedy, A.2d wealth v. 499 Pa. *5 one who was not a make a “deal” with offering tion” Office. Attorney’s the District of representative that, on the 18th of indicate regard facts this meeting after the second wherein 1983—this August, assaulted, Detec- seeing the victim admitted the appellant, at his desk when working Capello was tive and: unannounced, into his office walked concerning deal his like to make a me he would He told could not make a him that he—I and I informed charges, attorney to his and also deal, to talk he would have up out office, they worked would be anything D.A.’s time—he told me that at that opinion It was his to them. he through enough and had been thought Crystal trial, another go through have to think she should didn’t stupid, you but when did to her was they what because things. you stupid drink do offer, of any the admission to condone readWe or to an assistant officer police it made to whether be case, provided Common- handling attorney district such discus- participating no interest showed wealth and unso- voluntary uttered were and the statements sions the case here. to be appears licited. This any presence discounts the of the facts reading Our otherwise, there would have If it were plea negotiations. his case to a pleaded to have for the accused no reason been may have been that the accused officer. The fact police totally for- someone by approaching “testing waters” nature of the volitional is indicative plea process to the eign statements. of his to evidence
Further, point did the accused at no time engage of the Commonwealth part “interest” on the any after the or negotiations, before any type facts, teaching These under statements. his a shield to not afford the accused require that we
would remarks. extemporaneous one solace does not afford
Just as the criminal law incriminating state- makes spontaneously case where different status to to accord a no reason ments, seewe *6 voluntary in a and unsolicited one made statements the representative or a Commonwealth If the context. in or shown an interest inquiry, initiated the had authorities trial, not hesitate of a we would case short the resolving However, is not the such actions. accused’s the protect at bar. case should be believing speaks that one who
Accordingly, actions, appel- hold that the for his we held accountable admissible, and, Capello were to Detective statements lant’s therefore, no new trial is warranted. affirmed. of sentence
Judgment SOLE, J., dissenting opinion. files a DEL SOLE, dissenting: Judge, DEL Appel- that determination Majority’s from the I dissent admit- Capello properly were to Detective lant’s statements ted at trial. Pa.Super. 313
This court Commonwealth statements made 795, (1983) “any announced: 173, A.2d 459 inadmissi- guilty plead an offer in connection with Capello cannot to Detective statements Appellant’s ble”. made other than statements as anything characterized plead guilty. an offer to connection with holding Calloway interpreting Majority The ruling that the defendant’s “In course of its states: admitted at trial because properly to plead offer set forth Calloway Court arrest ... he was not under of such an admissibility to address guidelines some 487, emphasis at added. Opinion Majority at trial”. offer in its conclusion rests analysis the Majority’s -The error with plead made an offer Calloway that state- appellant’s court admitted Calloway guilty. plead “offer to not amount to an they did ments because 490 case, court stated: “In the instant The Calloway
guilty”. not appellant’s statements were conclude we negotiations”. Commonwealth v. attendant Callo- 185, at 459 A.2d Pa.Super. Accordingly, at 313 way, forth court do set guidelines offer”, an admissibility such rather aid “assess characterizing statement as an offer. important recognized by distinction is This citing In Appellate Calloway. Court Illinois v. Illinois 64, Tennin, 79 463 N.E.2d Ill.App. Ill.Dec. that in cases statements (1984),the court noted where related, defendant clearly inadmissible as each found *7 concession. When a defendant did not make sought a plea his offer the statements were not character manifest plea of a discussion admitted at trial. part ized as were in an a statement made connection with offer To constitute negotiation it contain rudiments of the to must plead Tennin, The in v. also supra, court Illinois out process. seeking for a explanations lined other statements “deal” related. plea indicate that were not Such which would his sought negotiate the case one to release would be where bond, requested charges or one without where exchange him be in for information. State against dropped made these instances would not constitute state ments plead an to guilty. ments made connection with offer or not statements made an To determine whether a plea negotiations, connection with court accused if an first look to see the accused exhibited actual must a expectation negotiate to and whether that subjective plea, The of the circum- totality was reasonable. expectation including participat- interest stances the Commonwealth’s if must be examined to determine in such discussion ing were related. Commonwealth Cal- plea the statements 184, Pa.Super. at A.2d at supra, 313 loway, holding appellant’s In that the statements unsolicited, and that simply unilateral remarks were subjective expec- have had a not reasonable could appellant regard made in to plea that his statements tation stated: the court negotiation, statements, he uttered the time was
Appellant at
placed
arrest,
would not be
under arrest for
under
personal
three months after his
some
the crime until
Not
attorney.
being
with the district
communication
defendant,
is then no reason for us to assume that
there
to
offering
plead guilty
a crime
which he
he was
charged.
possible expla-
There are myriad
had not been
provide
his motivation to
“informa-
underlying
nations
We do not
“information”
tion”
a “deal”.
know what
arrange.
Nei-
type
or
“deal” wanted
was what
attorney.
appellant
did
district
We know what
ther
now, i.e.,
attempting
open
claims
was
bar-
discussion,
explanation
focus
at
gaining
but our
seeks
made.
the time the statements were
Id., 313
Ct. at
... City at his desk in the Detective Division of the Lebanon into Capel- Police when the defendant came Department office, Capello’s sat next to desk and unrequested; lo’s informa- talking. Capello requested any had not began First, Capel- the told tion from the defendant. defendant driving” after lo that he had arrested “drunk been he running sign. Capello then told want stop a Wolf the Attorney make a the to consolidate deal with District driving” so charges statutory and “drunk that rape of expressed do concern could time at once. Wolf all his in jail if for a separately, that he did his time would long that the victim had been time. Wolf also said through anoth- go shouldn’t have to enough, she
through “you her was but when stupid, did to trial, they er what responded stupid things.” Capello by do drinking you to his and sent lawyer have to talk he would telling Wolf way. him on his Brief at 4-5.
Commonwealth explanation Appel- there is any that inconceivable It is made connec- other than that were lant’s statements plead guilty. offer to tion with that the statements are determining majority fact that the Commonwealth on the relies admissible discussion. a While participating interest showed no interest that the Commonwealth’s court noted Calloway to assess the important discussions is in the participating a negotiating plea, of expectation subjective accused’s finding this of as the type not set forth court did Calloway plea if the statements were to determine test dispositive unwilling- on the Commonwealth’s rely solely To related. unfair and con- negotiations would be to enter ness protect seeks to the Rule which purpose trary to statements upon inferences adverse based defendant from The court negotiate plea. seeking made when encourages plea which system recognized Calloway component desirable highly is an essential bargains justice. the administration Majority today, reached the decision Under There bargaining. could initiate the Commonwealth approach an accused could instance where would be no I plea arrangement. and seek to initiate Commonwealth result was intended such a do not believe court. by Appellant find that the statements I would
Since with an offer made in accordance detective Judgment Sentence I reverse plead guilty, would trial. for a new remand case