Com. v. Morningwake

• Decision Date: 25 November 1991
• Parties: COMMONWEALTH of Pennsylvania v. Dwayne M. MORNINGWAKE, Appellant.
• Court: Pennsylvania Superior Court

Page 158

595 A.2d 158

407 Pa.Super. 129

COMMONWEALTH of Pennsylvania v. Dwayne M. MORNINGWAKE, Appellant.

Superior Court of Pennsylvania.

Argued June 12, 1991.

Filed July 25, 1991.

Petition for Allowance of Appeal Denied

Nov. 25, 1991.

Robert D. Glessner, York, for appellant.

H. Stanley Rebert, Asst. Dist. Atty., York, for Com., appellee.

Before CIRILLO, TAMILIA and HESTER, JJ.

TAMILIA, Judge.

Dwayne M. Morningwake takes this appeal from judgment of sentence entered September 4, 1990, after a jury found him guilty of first degree murder, ¹ robbery, ² burglary ³ and conspiracy ⁴ to commit these three offenses. On June 18, 1988, the appellant, then fifteen years old, along with co-defendants ⁵ Miguel E. Yoder and Michael A. Lehman, allegedly stabbed to death Kwame Beatty, the appellant's counselor at the York Children's Home where he resided. During the penalty phase of the trial, the jury recommended a sentence of life imprisonment for the first degree murder conviction. Appellant's post-trial motions were denied and life imprisonment along with two consecutive terms of eight (8) to sixteen (16) years and one (1) to two (2) years for the robbery and burglary convictions, respectively, were imposed by the court. This appeal followed.

Morningwake's first argument on appeal ⁶ is the court erred by failing to suppress statements made by him to the police which, appellant argues, were made without a "voluntary, knowing and intelligent waiver of his rights under all of the circumstances." (Appellant's brief at p. 15.) Appellant argues the adult with him when he made his statement to the police, Group Home Director, William Engstrand, was the victim's supervisor at the Children's Home and, therefore, his loyalties laid with the victim. Appellant also contends State Trooper David LaRue, one of the officers who took his statement confessing his involvement with the murder of Beatty, improperly suggested to appellant he could better his legal position by cooperating.

A determination of whether a juvenile knowingly waived his Miranda rights and made a voluntary confession is to be based on a consideration of the totality of the circumstances, including a consideration of the juvenile's age, experience, comprehension and the presence or absence of an interested adult. Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). We find there was sufficient evidence of record to support the trial court's denial of appellant's motion to suppress his statements made to the police.

The appellant was fifteen years and eleven months old when he was brought to the police station on June 18, 1988, initially to be interrogated in his capacity as a runaway, but subsequently on the investigation surrounding the death of Beatty. Despite his youth, the appellant had had prior encounters with the police, as indicated in the record and confirmed by his mother. At approximately 9:30 p.m., Officer LaRue, together with Officer Garber, began an interview with appellant concerning his possible involvement with the Beatty killing. Officers LaRue and Garber testified appellant was advised of his Miranda rights and was given the opportunity to consult with William Engstrand, appellant's counselor and the supervisor of the Children's Home. Mr. Engstrand was also informed of appellant's rights. Appellant indicated to Officer LaRue he understood his rights, was willing to make a statement and had no questions. He proceeded to tell the officer it was the co-defendants who murdered Beatty. Approximately five hours later, after co-defendant Yoder implicated appellant, Officer LaRue woke appellant, inquired as to his alertness and again gave appellant his Miranda warnings and allowed him to speak privately with his mother on the telephone. ⁷ Appellant's mother was aware of the nature of the investigation and was advised of her son's rights. Appellant then once more spoke with Mr. Engstrand, before deciding to speak with the officers and offer a statement describing his involvement with the murder. Before putting the confession on tape, appellant was advised a third time of his constitutional rights. The district attorney, who was present when appellant confessed, testified appellant was alert, was in no way under the influence of any drug or medication, nor was he deprived of his ability to hear, understand and respond. Appellant's mother testified her son had made no indication statements given by him were coerced or forced, and she advised him to cooperate with the police.

Based on the totality of the circumstances surrounding appellant's questioning and his experience and awareness of the proceedings, we find appellant's statements and confession were given knowingly, intelligently and voluntarily.

Next, appellant argues the court abused its discretion by refusing to certify his case to Juvenile Court. Appellant contends he is not a dangerous juvenile as defined by the Juvenile Act, section 6302, his prior crimes were against property only and he never had the benefit of sustained rehabilitation, supervision or care.

The decision whether to grant an application for transfer to Juvenile Court of a juvenile charged with murder is within the sound discretion of the hearing judge, whose decision will not be disturbed absent a gross abuse of his broad discretion. Commonwealth v. Brown, 332 Pa.Super. 35, 480 A.2d 1171 (1984). ⁸ A juvenile seeking transfer of a murder case to Juvenile Court has the burden of proving he belongs in a juvenile setting by showing his need for and amenability to a program with supervision, care and rehabilitation such as that which he would receive as a juvenile. Commonwealth v. Cessna, 371 Pa.Super. 89, 537 A.2d 834 (1988). The determination of whether a juvenile is amenable to the juvenile system is to be made only after a careful scrutiny of the individual's personal make-up, previous history and the nature and circumstances of the alleged homicide. Id. ⁹ We have reviewed the transcript of the November 10, 1988, hearing on appellant's petition to transfer this matter to Juvenile Court, as well as the trial court's November 30, 1988, decision denying appellant's petition and find there to have been no abuse of discretion by the trial court.

At the hearing, appellant responded appropriately and without hesitation to questions about his prior crimes and his purposeful shunning of all attempts by his parents and numerous homes and agencies to rehabilitate his behavior. Appellant's testimony with regard to his extensive journey through this state's youth residential facilities was matter of fact and offered without any justification other than blaming his cohorts and peers for leading him astray. His testimony reflected he was very much aware of the inappropriateness of his continued criminal behavior and drug and alcohol abuse, yet persisted in running away from all help offered him to change his self-destructive lifestyle. We find there was no evidence presented to convince the court appellant was amenable to programs of rehabilitation, supervision and care provided by the juvenile system. Also, it is unlikely that he could be effectively rehabilitated within the period of time within which Juvenile Court has jurisdiction. Therefore, the court's refusal to transfer the homicide case to Juvenile Court was proper.

Appellant's third argument on appeal is the court erred by denying his request for a venue change which was based on overt negative pretrial publicity. A hearing on the motion was held April 10, 1989, after which the court concluded the case could be tried in York County without undue prejudice to the appellant. Unfortunately for our society, the crime of murder is not so unusual so as to provoke the passion a murder such as this might have done 80 years ago. The court found the newspaper articles presented by the appellant in support of his motion were primarily informative rather than purposefully inflammatory, and the mere existence of pretrial publicity will not warrant a presumption of prejudice. Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982). Also, during individual voir dire, the court allowed defense counsel ample opportunity to discuss and explore with each prospective juror any possible negative prejudice the juror may have experienced regarding the appellant and his involvement with the crime. Once impanelled, the court instructed the jurors not to discuss the case with nonjurors or listen to media coverage during the trial. Having found no abuse of discretion by the trial court in denying appellant's motion for change of venue, we find appellant's third argument to be without merit.

Next, appellant argues he was denied a fair trial when the court allowed the Commonwealth to challenge for cause those prospective jurors who indicated they could not impose the death penalty. As stated in the trial court Opinion, this issue has been decided by our Supreme Court which followed the lead of the United States Supreme Court rejecting appellant's argument. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987). Permitting the Commonwealth to challenge for cause prospective jurors based on the assertion the jurors could not impose the death penalty in a legally proper case did not deprive the appellant of his constitutional right to a fair and impartial jury.

The appellant alleges the trial court erred by refusing to sustain his demurrer to the burglary charge in that there was no evidence to show he had entered a separately occupied part of his residence. We disagree.

The murder took place in the victim's bedroom at the Children's Home of York where both appellant and the victim resided. To be found guilty of the crime of burglary the accused must have entered "a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the...