Com. v. Duffy

• Decision Date: 16 July 1986
• Citation: 512 A.2d 1253,355 Pa.Super. 145
• Parties: COMMONWEALTH of Pennsylvania v. Bernard Cary DUFFY, a/k/a Bernard C. Duffy, Appellant.
• Court: Pennsylvania Superior Court

Page 1253

512 A.2d 1253

355 Pa.Super. 145

COMMONWEALTH of Pennsylvania v. Bernard Cary DUFFY, a/k/a Bernard C. Duffy, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 15, 1986.

Filed July 16, 1986.

Paulette J. Balogh, Asst. Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy Dist. Atty., Pittsburgh, for Com., appellee.

Before CAVANAUGH, OLSZEWSKI and KELLY, JJ

KELLY, Judge:

This is a direct appeal from judgment of sentence entered in the Court of Common Pleas of Allegheny County on October 10, 1984. The appellant was charged by information with Criminal Homicide and Firearms Not to be Carried Without a License as a result of a fatal altercation between the appellant and Rudy Ryder in the early morning hours of August 2, 1983 outside the Wagner Club, an after-hours bar.

On April 6, 1984, a jury found the appellant guilty of Voluntary Manslaughter and Firearms Not To Be Carried Without a License. Post-trial motions were filed and denied. On October 10, 1984, the appellant was sentenced to a term of from five (5) to ten (10) years on the Voluntary Manslaughter charge, and a concurrent term of from two and one half (2 1/2) to five (5) years on the firearms charge.

The appellant raises five issues on appeal. He argues that the trial court erred: in failing to suppress his "involuntary" statements to the police; in permitting use of a prior conviction to impeach the appellant; in refusing to give a requested instruction on Homicide by Accidental Misadventure; in finding the evidence sufficient to sustain a Voluntary Manslaughter conviction; and in finding the evidence sufficient to sustain a conviction for Firearms Not to be Carried Without a License. We find no merit in the appellant's allegations of error and accordingly affirm the judgment of sentence.

Appellant's first contention is that the trial court erred in failing to suppress his allegedly involuntary statements to the police. The appellant contends "that his lack of sleep, alcohol consumption, and shock over the shooting incident negated his ability to voluntarily and intelligently waive his rights as guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before making an inculpatory statement." (Appellant's Brief at 9).

The appropriate standard for appellate review of the finding of a suppression court is for the appellate court to consider the evidence of the Commonwealth and so much of the defense evidence as fairly read in context of the record as a whole, remains uncontradicted. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147, 151 fn. 5 (1980), Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

"[T]he ultimate test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice of its maker." Commonwealth v. Smith, 470 Pa. 220, 225, 368 A.2d 272, 275 (1977), quoting Commonwealth v. Alston, 456 Pa. 128, 133, 317 A.2d 241, 243 (1974). All circumstances "which may serve to drain one's power of resistance to suggestion and undermine his self-determination" must be considered. Commonwealth v. Fleck, 324 Pa.Super. 227, 471 A.2d 547 (1984).

Succinctly, the police officers each testified that the appellant's demeanor was calm and that he showed no signs of intoxication. They testified that the appellant was given full Miranda warnings and agreed to waive his rights orally and in writing. The "Pre-interrogation Warning Form" which the appellant signed was produced and entered into evidence. Thus, there was sufficient credible evidence upon which to base the findings of the learned trial judge. See also Commonwealth v. Thomas, 266 Pa.Super. 529, 405 A.2d 945 (1976). The appellant's first contention on appeal is, therefore, without merit.

The appellant next contends that the trial court erred in permitting the use of the appellant's prior crimen falsi conviction. The appellant alleges that:

At the conclusion of the defense case and prior to Mr. Duffy taking the witness stand, the Commonwealth surprised the defense by indicating that he intended to use a prior crimen falsi conviction of Mr. Duffy to impeach his credibility. (T.T. 235). Mr. Duffy's record was unknown to the defense counsel at the time of trial and any criminal record was not forwarded to the defense as required by the Pennsylvania Rules of Criminal Procedure. (Pa.R.C.P. 305(B)(1)(c)). The alleged offense took place in 1977 when Mr. Duffy was 18 years of age. (T.T. 235). The defense was placed at a tactical disadvantage in that it had already presented several witnesses based on the conclusion that Mr. Duffy could not be impeached by a prior record because he had no prior record."

(Appellant's Brief at 12).

It is true that when the admissibility of prior convictions is an issue, the trial court should conduct an in camera, Bighum ¹ hearing prior to the commencement of trial, in order that the defendant may weigh his or her decision to testify at trial. It is error for the court to deny the defendant such a hearing. See Commonwealth v. Hill, 302 Pa.Super. 377, 448 A.2d 1090 (1982). However, in Commonwealth v. Tangle, 349 Pa.Super. 574, 504 A.2d 193 (1986), this Court held that the Commonwealth did not have the exclusive responsibility to request a pretrial, in camera, Bighum hearing to determine the admissibility of prior convictions to impeach the defendant; and, thus, did not waive the right to use impeaching material by failing to request a hearing.

In Commonwealth v. Jennings, 335 Pa.Super. 404, 484 A.2d 409 (1984), this Court considered the failure of the trial court to conduct a pretrial Bighum hearing, among other factors, in determining that the trial court abused its discretion in permitting the use of the prior conviction evidence for impeachment purposes. However, in Commonwealth v. Richardson, 347 Pa.Super. 564, 500 A.2d 1200 (1985), Commonwealth v. Kearse, 326 Pa.Super. 1, 473 A.2d 577 (1984), and Commonwealth v. Toomey, 321 Pa.Super. 281, 468 A.2d 479 (1983), this Court upheld the trial court's decision to allow prior conviction evidence to be admitted for impeachment purposes in spite of the fact that no pretrial Bighum hearing was held. ²

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), our Supreme Court stated:

We here reiterate, and to some extent, refine the factors that should be considered in the balancing equation. It is to be stressed that the list is not to be considered exhaustive or exclusive, but rather illustrative of the type of considerations that should influence the decision.

393 A.2d at 367. It is clear that the trial court is required to balance each of the factors favoring and disfavoring admission of the prior record evidence in making its determination. Absence of a pretrial Bighum hearing and consequent protestations of prejudice are certainly factors to be considered in this analysis. ³

In reviewing the trial court's decision to admit prior conviction evidence we may only reverse where the trial court has abused its discretion. Roots, supra; Kearse, supra. In making this determination in the instant case we will first consider whether the appellant was prejudiced by the absence of a pretrial Bighum hearing. Next, we will consider the factors set forth in Roots.

Initially, we note that we do not accept the appellant's characterization of the facts. The appellant seeks to create the illusion that the prosecution sprang the appellant's prior conviction on the defense at the end of the trial just prior to the appellant's testimony. Such is not the case.

The only defense witnesses who testified prior to the required Bighum hearing did so upon the request of defense counsel, for the convenience of the defense witnesses, and prior to the close of the Commonwealth's case. The following discussion appears in the record between the Judge; the District Attorney, Mr. Conrad; and Defense Counsel, Mr. Radoycis:

THE COURT: We're going to deviate a slight bit, members of the jury, so that we can accommodate the lawyers on both sides here; and the jurors as well, not wasting time. Although the Commonwealth will not have concluded its case today, there may be some wrapup tomorrow. Is that possible?

MR. CONRAD: Yes, Your Honor.

THE COURT: The pathologist who will testify is unavailable at the present time. He is an important individual who must, I mean he is on call. But he's unavailable to be here today. Counsel for the defense has witness that he has in court; is that correct?

MR. RADOYCIS: That is correct, Judge. ⁴

THE COURT: That he wishes to call out of turn; and the Commonwealth has agreed to it; and we see nothing wrong with that; so we're going to accommodate him. That will be that much less for you to have to hear tomorrow.

MR. RADOYCIS: Your Honor, just so we're clear, I will make the necessary and appropriate motions at the completion of the Prosecution's case when Doctor Williams completes his testimony tomorrow. It's for the convenience of some of the people who have been so gracious to come to court to testify on behalf of the defense that we are asking the District Attorney for this unusual procedure.

(Trial Transcript at 185-186). The next day, after the Commonwealth closed its case and before the appellant re-opened its case, a Bighum hearing was held.

We also reject the appellant's allegation of unfair surprise. Appellant's counsel stated:

MR. RADOYCIS: The District Attorney has advised me that he intends to use a 1977 conviction from my client for theft and receiving stolen property, some hubcaps when he was 18 years old. My client indicated to me prior to this that he didn't recall having any convictions as such on his record. As a result, I didn't want to consider the possibility of any theft admission being used against him at trial. Secondly, I did not receive any rap sheet indicating that he had been convicted of a theft under...