Com. v. Leveille

• Decision Date: 24 July 1981
• Citation: 289 Pa.Super. 248,433 A.2d 50
• Parties: COMMONWEALTH of Pennsylvania v. Peter William LEVEILLE, Appellant.
• Court: Pennsylvania Superior Court

Page 50

433 A.2d 50 289 Pa.Super. 248 COMMONWEALTH of Pennsylvania
v.
Peter William LEVEILLE, Appellant. Superior Court of Pennsylvania. Argued Nov. 10, 1980.
Filed July 24, 1981.

[289 Pa.Super. 250] Joseph A. Massa, Jr., Warren, for appellant.

Richard A. Hernan, Jr., Dist. Atty., Warren, for Commonwealth, appellee.

Before PRICE, CAVANAUGH and HOFFMAN, JJ.

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HOFFMAN, Judge:

On August 2, 1979, a jury found appellant guilty of arson, causing a catastrophe, and burglary. Following denial of post-verdict motions and imposition of sentence, appellant took this appeal, in which he contends that several inculpatory statements which he made while in custody were improperly admitted into evidence. Finding appellant's contentions to be unpersuasive, we affirm the judgment of sentence.

On February 2, 1979, a fire of suspicious origin destroyed several buildings in the Borough of Tidioute, Warren County. The next day, at approximately 7:45 p. m., appellant [289 Pa.Super. 251] was arrested by local police while hitchhiking on an area highway. Although the charges on which appellant was arrested were unrelated to the fire, the record establishes that at the time of his arrest police suspected appellant of having set the blaze. Appellant was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), arraigned on the arrest charges, and, at approximately 9:10 p. m., taken to the local barracks of the state police where he was questioned about both the arrest charges and the fire. Appellant agreed to take a polygraph test, and after the polygraph operator challenged his truthfulness, appellant admitted at approximately 2:05 a. m. on February 4, that he had set the fire. ¹ Appellant then requested a lawyer, and at approximately 3:15 a. m., appellant's present counsel arrived and consulted with appellant privately for at least ninety minutes. Thereafter, appellant was again given Miranda warnings, and at approximately 4:50 a. m., with counsel present, appellant gave an oral confession which was tape recorded and later introduced at trial. Appellant was then formally charged with the offenses of which he now stands convicted.

Appellant contends first that his tape recorded confession was of such poor audio quality that it should not have been admitted into evidence. The record reveals that the trial judge listened to the tape at a pretrial conference and determined that it was sufficiently audible to be admitted. Subsequently, the tape was played for the jury, over appellant's objection, on the second day of the three-day trial. Approximately three-and-one-half hours after they had retired to deliberate, the jury asked to hear the tape once again. In a colloquy with the trial judge, the jury foreman explained that the jurors' request resulted from their inability to agree on what they had heard on the tape. The [289 Pa.Super. 252] foreman attributed the jury's difficulty in part to the quality of the tape, but he did not claim that the recording was inaudible. ² Both

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appellant and the Commonwealth opposed replaying the tape, and the trial judge ultimately denied the jury's request. The jury then resumed their deliberations and arrived at their verdict within forty-five minutes.

Although we have found no Pennsylvania appellate decisions directly on point, we are guided by cases from other jurisdictions which have considered the issue presented. In State v. Donato, 414 A.2d 797 (R.I.1980), the Supreme Court of Rhode Island stated:

Most jurisdictions ruling on the admissibility of sound recordings of imperfect quality or partial inaudibility have held that a recording will be admissible unless the inaudible portions or omissions are so substantial as to render the recording as a whole untrustworthy. United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971); State v. Dye, 60 [289 Pa.Super. 253] N.J. 518, 531, 291 A.2d 825, 831, cert. denied, 409 U.S. 1090, 93 S.Ct. 699, 34 L.Ed.2d 675 (1972); see Bentley v. State, 397 P.2d 976, 979 (Alaska 1965); State v. Salle, 34 Wash.2d 183, 193, 208 P.2d 872, 878 (1949). Furthermore, these courts would leave the matter of the admissibility of such recordings to the sound discretion of the trial court. See United States v. Avila, 443 F.2d at 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971).

414 A.2d at 805. Accord, United States v. Lawson, 347 F.Supp. 144, 147 (E.D.Pa.1972) (collecting cases). See also Smith v. State, 272 Ind. 328, 397 N.E.2d 959, 962-63 (1979) ("the focus is upon whether the recording taken as a whole, or a crucial segment thereof, is of such poor quality that it is likely to lead to jury speculation as to its contents"); People v. Sacchitella, 31 App.Div.2d 180, 295 N.Y.S.2d 880 (1968) (same). See generally Annot., 57 A.L.R.3d 746, 752-54 (1974) (collecting cases).

Applying these principles to...