Com. v. Devine

• Decision Date: 13 April 2000
• Citation: 750 A.2d 899
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Danny DEVINE, Appellant.
• Court: Pennsylvania Superior Court

750 A.2d 899

COMMONWEALTH of Pennsylvania, Appellee, v. Danny DEVINE, Appellant.

Superior Court of Pennsylvania.

Submitted January 24, 2000.

Filed April 13, 2000.

Barbara A. McDermott, Philadelphia, for appellant.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before JOHNSON, J., CERCONE, President Judge Emeritus, and OLSZEWSKI, J.

CERCONE, President Judge Emeritus.

¶ 1 This is a direct appeal from a judgment of sentence following Appellant's conviction for first degree murder, criminal conspiracy, violations of the Uniform Firearms Act, recklessly endangering another person and possessing instruments of crime.¹ We affirm.

¶ 2 Appellant was arrested on September 4, 1997 for the aforementioned offenses. Following the denial of his suppression motion, he proceeded to a bench trial before the Honorable Steven R. Geroff. Appellant was convicted on January 21, 1999 and subsequently was sentenced to a mandatory term of life imprisonment for the first-degree murder conviction with concurrent sentences totaling ten (10) to twenty (20) years' imprisonment on the other convictions. This timely appeal followed.

¶ 3 The Trial Court aptly recounted the underlying facts of this case as follows:

On February 28, 1996 at approximately 5:30 p.m., the defendant and Junius Claiborne went to the 1300 block of South Mole Street to exact vengeance on two people know[n] as Jermaine and Edmund, who had been involved in shooting their friend Marcus earlier in the day. The intention of both defendants was to kill Jermaine and Edmund. The defendant was armed with a .22 caliber handgun, and Junius Claiborne was armed with a nine millimeter handgun. When they arrived at 1300 South Mole Street, Jermaine and Edmund were there. Defendant, Danny DeVine, shot first; Jermaine and Edmund returned fire. Both defendants were shooting. Unfortunately, Shafeeq Murrell, age fifteen, who was standing on the sidewalk on South Mole Street, was caught in the line of fire and was shot with a small caliber bullet just above the left eyebrow. The bullet penetrated his skull and caused his death.

Trial Court Opinion, filed 7/7/99, at 6-7.

¶ 4 Appellant raises three (3) issues for our review:

[1.] Whether the trial court erred in denying appellant's motion to suppress?

[2.] Whether the evidence was insufficient to sustain the verdict of guilt to murder in the first degree?

[3.] Whether the first degree murder conviction was against the weight of the evidence?

Appellant's Brief at 3.² We will address them seriatim.

¶ 5 We recently reiterated our role in reviewing the denial of a suppression motion and stated that:

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. Clark, 746 A.2d 1128, 1133(Pa.Super.2000) (en banc) (citations omitted). Appellant's entire suppression argument is premised upon his belief that his rights were violated under the six (6) hour ruling set forth in the seminal cases of Davenport and Duncan.³ Appellant argues that the Suppression Court erred in denying his motion given that he was held in police custody for nearly five and one-half hours (5-1/2) before he was questioned about the incident for which he was convicted. Specifically, Appellant complains that a documentary French film crew had "unfettered access" to him prior to the reading of his Miranda rights and subsequent interrogation by the police. Hence, Appellant avers that since his statement to the police "was not concluded until a minimum of thirty minutes after the six hour time limit had expired, the statement should have been suppressed." Appellant's Brief at 10.

¶ 6 The record reveals that Appellant was arrested on September 4, 1997 and brought to the police administration building at approximately 1:30 p.m. N.T. Suppression Hearing, 1/15/99, at 18-19. Appellant was placed in an interview room upon his arrival. Id., at 19 & 45. Before Appellant was interrogated, two members of a French film crew, who were making a documentary for French television, spoke to Appellant while he was waiting in the interview room. Id., at 46. The film crew moved in and out of the interview room during this time, but were instructed specifically by the arresting detective not to question Appellant about anything regarding the murder investigation. Id., at 51, 47-48. During this time, Homicide Detective David Baker attended to the administrative paperwork concerning Appellant's arrest. Id., at 46. Subsequently Detective Baker gave Appellant his Miranda warnings at 6:45 p.m. and began his interview with Appellant at 6:56 p.m. Id., at 22 & 19. Although not specifically clear when the questioning ceased, the record does indicate that Appellant's statement was faxed to the appropriate party from the District Attorney's Office at 8:05 p.m. Id., at 54-55.

¶ 7 In Commonwealth v. Washington, 547 Pa. 550, 692 A.2d 1018 (1997) our Supreme Court set forth the fundamental underpinnings of the Davenport and Duncan rulings. The Washington Court stated:

In Davenport, this Court held that an arrestee must be arraigned within six hours of arrest in order "to guard against the coercive influence of custodial interrogation [and] to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay." If arraignment did not occur within six hours of arrest, any statement by the accused obtained between arrest and arraignment was not admissible at trial.

Later, in Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), the Court modified the rule, indicating that the crucial consideration was not the time of the arraignment. Rather, the "focus should be upon when the [defendant's] statement was obtained, i.e., within or beyond the six hour period." Thus, since Duncan, any statement obtained within six hours of arrest, absent coercion or other illegality, is not to be suppressed on the basis of Davenport.

Id.,547 Pa. at 560,692 A.2d at 1022-23. In recognition of the aforesaid principles, the Court in Washington declined to find a violation of the Davenport-Duncan rule since the appellant in that case gave an inculpatory statement within five (5) hours of being questioned in an interrogation room even though he had been in police custody for approximately twenty-eight (28) hours. The Washington Court noted that the record did reveal that appellant had languished in a holding cell while being processed into the criminal justice system on an unrelated charge prior to his removal to the interrogation room and questioning on the murder charge for which he was convicted. Even so, the Court found that no violation of the Davenport-Duncan rule existed due to its premise, which is based upon "a desire to avoid the coercive effect of prolonged police interrogation." Id.,547 Pa. at 561,692 A.2d at 1023 (emphasis supplied).

¶ 8 Next, our Supreme Court in its recent holding in Commonwealth v. Persiano, 555 Pa. 428, 725 A.2d 151 (1999) applied Washington and held that even though the appellant in that case had been in police custody for approximately eighteen (18) hours on an unrelated weapons charge, his confession to a unsolved murder occurred within three (3) hours from the time the custodial homicide interrogation commenced. Hence, the Court found that the confession occurred within the relevant six-hour period and did not violate the Davenport-Duncan rule. Id., 555 Pa. at 432, 725 A.2d at 153.

¶ 9 We are also mindful of previous cases of this Court which have held that "absent facts pointing to an unnecessary delay due to police misconduct, voluntary statements given by a defendant and initiated within six hours after arrest may not be suppressed just because the process of obtaining the statement runs over six hours." Commonwealth v. Odrick, 410 Pa.Super. 245, 599 A.2d 974, 977 (1991) (emphasis supplied). The Odrick Court acknowledged that "[i]f we were to suppress all volunteered statements which happened to run past the six hour limit despite the absence of police abuse, we would be violating the parameters of the [Davenport-Duncan ] rule." Id. See also, Commonwealth v. Gray, 415 Pa.Super. 77, 608 A.2d 534, 551 (1992)

(setting forth the principle announced in Odrick that a defendant's voluntary statements that are initiated within six hours following his arrest may not be suppressed simply because the process of taking the statement runs over six hours).

¶ 10 Given the applicable law on the subject involved herein and our careful inspection of the suppression record in this case, we agree with the Suppression Court's assessment that:

[t]he defendant was arrested at 1:30 p.m.; the questioning by Detective Baker commenced at 6:56 p.m. and was concluded not later than 8:05 p.m. on September 4, 1997, well within the period provided by the six hour rule. Although the defendant claims that the film crew somehow induced his confession, the record is devoid of any evidence that the film crew acted improperly or in concert with the police.

Trial Court Opinion, 7/7/99 at 5 (citations omitted). Finally, even though we recognize that the presence of the French film crew was an atypical occurrence in this situation, we cannot conclude that the Suppression Court erred in denying Appellant's motion concerning any violations of the Davenport-Duncan rule and its progeny. Commonwealth v. Clark, supra.

¶ 11 Secondly, Appellant argues that the evidence was insufficient to sustain his first-degree murder...