Com. v. Foster

• Decision Date: 20 April 1993
• Citation: 425 Pa.Super. 61,624 A.2d 144
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert FOSTER, Appellant.
• Court: Pennsylvania Superior Court

Page 144

624 A.2d 144

425 Pa.Super. 61

COMMONWEALTH of Pennsylvania, Appellee, v. Robert FOSTER, Appellant.

Superior Court of Pennsylvania.

Argued March 10, 1992.

Filed April 20, 1993.

Gary Lysaght, Harrisburg, for appellant.

William T. Tully, Asst. Dist. Atty., Harrisburg, for Com.

Before POPOVICH, HUDOCK and HESTER, JJ.

HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed upon Appellant after a jury convicted him of rape ¹ and involuntary deviate sexual intercourse. ² Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to an aggregate term of incarceration of twelve to twenty-four years. ³ A timely filed motion to modify sentence was also denied. This direct appeal followed. We remand with instructions.

The relevant facts, as summarized by the trial court, are as follows:

On October 6, 1988, at approximately 1:15 A.M., Officer Kenneth A. Bittner of the Harrisburg Police Department was called to 2039 Rudy Road, Harrisburg. (N.T. 26-27). Officer Bittner entered the basement area, observed a large pool of blood on the floor and found the body of Carla Childs lying naked on a sofa bed. (N.T. 27). Forensic pathologist Cheryl L. Murray conducted an autopsy on October 6, 1988 and concluded that Ms. Childs died as the result of head injuries. (N.T. 58). The pathologist also observed a laceration in the anal region. (N.T. 51). Dr. Murray further found a small plastic fragment in the victim's vagina. (N.T. 53).

During the early evening hours of October 5, 1988, Ms. Childs was at Dinger's Bar located at Market and Evergreen Streets in Harrisburg with the defendant, Robert Foster. (N.T. 31). She left the bar later that evening with Foster. (N.T. 32). The couple returned to the home of Clifford McLamb, the owner of 2039 Rudy Road. (N.T. 76). McLamb stated that he was present when the couple returned home on the night of the incident and that Ms. Childs had two other male visitors before he left later that evening to take care of some family business. (N.T. 77). Jack Buie, a former boyfriend of Childs, left before McLamb but Ulysses Boulware was at the residence with Foster and Childs when McLamb departed on his errands. (N.T. 77).

Detective Robert H. Fegan interviewed Foster, Boulware and Buie. It was ascertained that Buie gave some money to Childs and he returned to her residence to inquire about her use of this money on the night of the incident. (N.T. 119). Boulware came to this residence to collect some money borrowed by Childs in preparation for his trip to Texas. (N.T. 121). On October 7, 1988, Detective Fegan had a detailed interview with Robert Foster. (N.T. 124). Foster gave the police, duirng [sic] his statement, approximately ten different versions of the activities of the night of the incident. (N.T. 125).

Trial Court Opinion at pp. 1-2.

On appeal, the following issues are raised by Appellant:

A. Whether the convictions for rape and involuntary deviate sexual intercourse must be overturned, the charges dismissed and Appellant discharged because the Commonwealth failed to exercise due diligence in bringing Appellant to trial within 365 days as required by Pennsylvania Rule of Criminal Procedure 1100?

B. Whether the suppression court erred in refusing to bar Appellant's statements to police as violative of his rights under the Pennsylvania and United States Constitutions where they were obtained during the course of a continuous 13-hour interrogation, Appellant was the prime suspect, he reasonably believed he was in custody and the police admitted failing to mirandize him until some 2 hours into the interrogation?

C. Whether the trial court erred in permitting the jury, during deliberations, to have possession of and view a videotape reenactment made by the police with Appellant of his attempted sex acts with the victim on the night in question, which videotape was the equivalent of a confession?

Appellant's Brief at p. 3.

Initially, Appellant asserts that the lower court should have dismissed the charges against him because the Commonwealth violated Pa.R.Crim.P. 1100 by not bringing him to trial within 365 days of the filing of the criminal complaint. We disagree. Further, we hereby adopt the hearing court's well-reasoned memorandum opinion addressing this issue as our own for purposes of allocatur. ⁴

Next, Appellant asserts that the lower court erred in failing to suppress statements which Appellant made to police prior to being advised of his Miranda rights. This contention is without merit.

Our standard of review when assessing the propriety of a suppression court's ruling is well settled:

In an appeal from the denial of a motion to suppress our role is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from those factual findings.

Commonwealth v. Fromal, 392 Pa.Super. 100, 111, 572 A.2d 711, 717 (1990) (citations omitted).

In the present case, a review of the testimony at Appellant's suppression hearing reveals the following: Harrisburg police learned that Appellant was one of several individuals who had been with the victim on the evening of her death. On October 6, 1988, Detective Robert Fegan went to Appellant's residence and spoke with Appellant's girlfriend. Appellant then telephoned Detective Fegan and left a message on his answering machine informing the officer that he could be reached at 9-B Hall Manor if the officer wished to speak with him. The following day, Detective Fegan and Lieutenant Goshert went to 9-B Hall Manor. Once there, the officers spoke with Appellant for a few minutes. The officers asked Appellant for his assistance in their investigation into the victim's death. Appellant then agreed to comply with the officers' request that he come with them to the police station and make a statement. At approximately 5:00 p.m., the officers and Appellant arrived at the police station. Detective Fegan took Appellant to an interview room where he asked Appellant what he knew about the victim's activity on the evening of October 5. No other police officers were present in the room.

Appellant related several conflicting statements regarding his knowledge of the victim's activities on the evening of her death. Approximately one hour and forty-five minutes after the interview had begun, the officer and Appellant took a break and went across the street from the police station to purchase soft drinks. When they returned to the station, Appellant agreed to submit to a polygraph examination to verify his statement that he had nothing to do with the victim's injuries. After Appellant signed a consent form to take the test, which contained a waiver of his right to have an attorney present, the test began. Appellant proceeded to give several versions of his activities and those of the victim on the night in question, ultimately admitting to having vaginal and anal intercourse with the victim after she sustained the head injuries which caused her death.

In assessing the merits of Appellant's claim, it is necessary that we first determine whether he was in custody when he made the statements which he argues should have been suppressed, thereby requiring that he be advised of his Miranda rights. As our Supreme Court stated in Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983):

The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.

Id. at 577, 459 A.2d at 314 (citations omitted).

Further, as we stated in Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987):

Miranda warnings are necessary only on those occasions when a suspect is undergoing 'custodial interrogation.'

* * * * * *

Miranda warnings were designed to shield an accused from the coercive aspects of custodial interrogations, i.e., from incommunicado interrogation in a police-dominated atmosphere, which resulted in self-incriminating statements without full warnings on constitutional rights.

Id. at 492-93, 526 A.2d at 786-87 (citations omitted).

Our review of the testimony taken at Appellant's suppression hearing provides us with no basis to conclude that Appellant was undergoing "custodial interrogation" at the police station before being advised of his Miranda rights. The police were aware of several individuals who had been seen with the victim on the night of her death. Detective Fegan stated that Appellant was a "potential witness, somebody that could help us establish what happened, who may have been involved, to further the investigation." (N.T. 5/29/90, at p. 35). Appellant was very cooperative with the police. After Detective Fegan visited Appellant's residence and did not find him there, Appellant telephoned him and left a message on his answering machine informing him of where he could be reached. The police went to this address. Appellant then agreed to go "to the police station, make a statement, and help [the officers] out any way he could." (N.T. 5/29/90, at pp. 35-36). The officers did not "physically deprive [Appellant] of his freedom." Chacko, supra. Detective Fegan stated that he was fairly certain that he had told Appellant at that time that he "wasn't under arrest or in custody, that we would take his statement and he would be free to leave." (N.T. 5/29/90 at pp. 49-50).

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