Com. v. Bowers

• Decision Date: 11 December 1990
• Citation: 583 A.2d 1165,400 Pa.Super. 377
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania v. John BOWERS, Appellant.

Page 1165

583 A.2d 1165

400 Pa.Super. 377

COMMONWEALTH of Pennsylvania v. John BOWERS, Appellant.

Superior Court of Pennsylvania.

Argued May 23, 1990.

Filed Dec. 11, 1990.

John R. Carroll, Philadelphia, for appellant.

Karen L. Grigsby, Asst. Dist. Atty., for Com., appellee.

Before WIEAND, McEWEN and HUDOCK, JJ.

WIEAND, Judge:

John Bowers was tried by jury and was found guilty of aggravated assault and carrying a firearm on a public street. Post-trial motions were denied, and Bowers was sentenced to serve consecutive terms of imprisonment for not less than ten (10) years nor more than twenty (20) years for aggravated assault and for not less than two and one-half (2 1/2) years nor more than five (5) years on the firearms offense. On direct appeal from the judgment of sentence, Bowers asserts that the trial court erred by (1) refusing to suppress statements elicited from him by police without prior Miranda warnings; (2) denying a defense motion for mistrial based upon disclosure by a Commonwealth witness of inculpatory statements attributed to appellant, which statements had not been provided to the defense during pretrial discovery; and (3) giving erroneous and confusing instructions to the jury regarding the possible verdicts of not guilty by reason of insanity and guilty but mentally ill. Finding no merit in any of these contentions, we affirm the judgment of sentence.

On July 27, 1987, at or about 5:00 p.m., Laureen Marrandino and her boyfriend, Thomas Vargas, were walking along Bainbridge Street in South Philadelphia, engaged in an argument. The two stopped in front of appellant's residence at 416 Bainbridge Street, where the argument continued. When they were told by appellant's two granddaughters to be quiet, a dispute developed between Marrandino and appellant's granddaughter, Natalie. During this secondary verbal dispute, Marrandino kicked the screen door to the Bowers house, and Natalie responded by slamming shut the inner door. Vargas then grabbed Marrandino by the arm, and the two began to walk away. Appellant, however, emerged from his home carrying a shotgun and followed them. When he overtook them, he put the shotgun to Marrandino's abdomen and fired, causing her to suffer serious bodily injuries. Appellant thereafter ran into his house, and Vargas responded in rage by throwing a cinder block through appellant's window.

After being summoned by neighbors, police arrived and began searching for appellant. During the course of their search, they entered appellant's house, where they were unable to find either appellant or the gun which had been used to shoot Marrandino. Appellant was later found hiding on the third floor of an abandoned house located next door to his home. When he saw the police coming, appellant exclaimed that "The mother f---ing Puerto Rican threw a brick through my window. If I was ten years younger, I would have kicked his ass." Appellant also remarked that his wife was dying of cancer. Officer McDevitt helped appellant up, placed him in handcuffs, and asked him several times where the gun was. At first, appellant refused to answer, but eventually he relented and told police that the gun was in the abandoned house. It was thereafter found where appellant had stated.

At trial, appellant presented in defense the testimony of a psychiatrist, who opined that appellant was suffering from grief and depression over the terminal illness of his wife and that, at the time of the shooting, his perception and cognition were adversely affected. The witness opined that because of depression appellant had been unable to perceive the wrongfulness of his shooting of Marrandino. This was so, he said, despite appellant's realization that his conduct was wrongful immediately following the shooting, when appellant hid in the abandoned house. In response, the Commonwealth presented its own expert psychiatric witness who said that, although appellant may have been depressed over his wife's illness, he was generally intelligent and mentally well and was not, at the time of the shooting, laboring under any mental defect or illness. The jury was thereafter instructed on both the insanity defense and the possibility of a verdict of guilty but mentally ill. Both alternatives were rejected by the jury, which found appellant guilty as charged.

Appellant contends that the statements which he made in response to Officer McDevitt's inquiries about the location of the gun should have been suppressed because the inquiries were not preceded by Miranda ¹ warnings. The trial court determined post-trial, however, that appellant's suppression motion had been properly denied because appellant had not been in police custody at the time of the relevant police inquiries and, as such, Miranda warnings were unnecessary. In its appellate brief, the Commonwealth does not pursue an argument that appellant was not in police custody, but argues, rather, that appellant's statements were admissible under the holding of the United States Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), which created a public safety exception to the requirements of Miranda.

In reviewing the trial court's denial of appellant's suppression motion, we must

'determine whether the factual findings of the [suppression] court are supported by the record. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense, as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982).'

Commonwealth v. Schneider, 386 Pa.Super. 202, 206, 562 A.2d 868, 870 (1989), quoting Commonwealth v. Chamberlain, 332 Pa.Super. 108, 112, 480 A.2d 1209, 1211 (1984). See also: Commonwealth v. Kichline, 468 Pa. 265, 280-281, 361 A.2d 282, 290 (1976); Commonwealth v. Stark, 363 Pa.Super. 356, 365, 526 A.2d 383, 388 (1987). We will also affirm the decision of the suppression court "if it can be sustained for any reason whatsoever, even if the lower court offered an erroneous reason to support its action." Commonwealth v. Reidenbaugh, 282 Pa.Super. 300, 309-310, 422 A.2d 1126, 1131 (1980). See: Commonwealth v. Shaw, 494 Pa. 364, 368 & n. 1, 431 A.2d 897, 899 & n. 1 (1981); Commonwealth v. Nelson, 320 Pa.Super. 488, 493-494, 467 A.2d 638, 641 (1983).

At the suppression hearing, Officer McDevitt described the sequence of events which occurred after appellant had been discovered behind a large drum in the abandoned house. He said:

I just pulled out and pointed my gun and I said "John, I want to see your hands stand up." At which time he didn't make any movement and I screamed, I said "John, stand up."

Q Did he say anything?

A At this time no. He just put his hands up like this. Then he had looked up at me. His head came over the drum.

Q Indicating for the record the officer raised both hands up to about neck level.

A What I could see were his 2 hands and could I see his head over the drum, but I couldn't see the rest of him.

Q Is the person you saw here today?

A Yes. Sitting over there in blue.

MR. FREED: He indicated the defendant John Bowers seated next to counsel.

....

BY MR. FREED:

Q What happened next?

A Well, he brought his hands up and I said "Don't move your hands. I want to see your hands."

I don't know where the weapon is yet.

His hands go up like this. And as I go forward towards him he went like this, back down again.

Q Indicating a falling forward motion.

A Right. Just dropping his arms, because he was behind the drums.

Q What did you do at that time?

A I thought he was going for something and I almost shot the man, which I didn't like, but my hand was going one way and my body was backing down the steps going another.

I am trying to tell myself don't shoot.

He screamed something to the effect about "I got a bad wheel. I can't get up."

Q What was that?

A "I got a bad wheel. I can't get up." I said "John, I want to see your hands. Let me see your hands."

So somehow he got his hands up again. Officer Pergolini was behind me.

I said, "John, let me see your hands. Don't move."

He started to--he was almost crying, or he was crying. He started saying "Don't beat me. Don't beat me." I am saying, "John, just calm down. Nobody's going to beat you. I want to see your hands."

With that he started to make some other statements to me.

Q What were they?

A He said something to the effect "that Puerto Rican mother fucker. He threw a brick through my window. If I was ten years younger I would have kicked his ass."

And then he was talking--he was crying. He was talking that his wife was dying. She had cancer. She was suppose to die the next day.

Q All right. Where were you when he made these statements about the Puerto Rican?

A I am still in the stairwell. I am trying to get to him. All I want to do is I am trying to get around him so I can see if there is a weapon or something behind these drums.

So I got around to him and I handed Officer Pergolini my gun, because he couldn't get up. I bent down and I didn't want to bend towards him with the gun so I bent down and I tried to help him up.

We got him up, or I got him up. Then once he could stand a little bit, I guess feeling came back in the leg or whatever.

Q Was he handcuffed?

A Not yet. No.

Q At what point was he handcuffed?

A A little after.

I remember he was making some other statements. I don't really recall exactly what all that was said.

Q Anything else that you can recall that he was saying at that time before he was handcuffed?

A (Pause)

Q If you can you can.

A I can't right now.

Q Now, were you able to get him on his feet?

A Yes. I finally got him up.

Q At this point did you know where the weapon was?

A No I didn't.

Q What if anything...