Com. v. Ellis

• Decision Date: 30 July 1997
• Citation: 700 A.2d 948
• Parties: COMMONWEALTH of Pennsylvania v. Roman ELLIS, Appellant.
• Court: Pennsylvania Superior Court

Page 948

700 A.2d 948

COMMONWEALTH of Pennsylvania v. Roman ELLIS, Appellant.

Superior Court of Pennsylvania.

Submitted June 12, 1997.

Filed July 30, 1997.

Erika P. Kreisman, Pittsburgh, for appellant.

Kemal A. Mericli, Robert A. Willig, Assistant District Attorneys, Pittsburgh, for Commonwealth, Appellee.

Before CIRILLO, President Judge Emeritus, and JOHNSON and FORD ELLIOTT, JJ.

CIRILLO, President Judge Emeritus.

Roman Ellis appeals from the judgment of sentence of the Court of Common Pleas of Allegheny County. We affirm.

During the early morning hours of May 1, 1994, four men were peacefully sleeping in a house located in the Stanton Heights section of Pittsburgh, Pennsylvania. Three of the men, Thomas Balistrieri, David Muto, and Thomas Urban, rented the home. The fourth man, Richard Wonderley, was one of Mr. Muto's friends. At approximately 3:00 a.m. the men were jolted awake by the sound of screaming and yelling. Four African-American males (one of whom was later determined to be Ellis) burst into the residence demanding money and narcotics. Mr. Balistrieri was first to come in contact with the intruders. One intruder viciously threw him to the floor and then bludgeoned him in the face with the handle of a handgun, causing his eye to bleed profusely. The intruder then reached in Balistrieri's pocket and retrieved fifty dollars and his car keys. Mr. Balistrieri pleaded with his assailant that he was unable to breathe. The assailant responded by inserting the barrel of his gun into Balistrieri's mouth.

While one intruder was assaulting Balistrieri, another struck Mr. Wonderley in the head with a gun and ripped a gold ring off his finger. Yet another intruder smashed Mr. Muto in the side of the head, shoved him to the ground, and fished two hundred dollars from his pocket. One of the intruders barked to the others, "I know him (referring to Muto). Cover him up." Muto was then blindfolded with a pair of shorts and his arms were tied behind his back. Muto was carried down to the basement. The intruders quickly restrained Wonderley and Balistrieri and threw them downstairs on top of Muto like a pile of dirty laundry.

As the other intruders were busy placing the residents in the basement, Ellis combed the upstairs area for narcotics. While a couple of the intruders were carrying Urban to the basement, Urban was able to momentarily break free of his captors' grasp and dash for the steps. One of the intruders yelled, "Get him," to which the other intruders responded with a hail of gunfire in Urban's direction. Multiple shots were fired striking Urban ten times, mortally wounding him. Ellis, meanwhile, descended the steps into the spray of bullets and was himself wounded. As the gunfire ceased, one of the assailants said, "Let's go Tiger," after which the intruders immediately fled. Two of the intruders drove away in Balistrieri's car, while the others fled on foot. Balistrieri immediately untied himself and the others and ran to a neighbor's house to call for assistance.

Upon questioning by the police, Muto explained that he knew "Tiger," one of the intruders. He told police Tiger's real name was Leonard Smith. Based upon this information, Pittsburgh police detectives interviewed Smith who told police that he, along with three others including Ellis, committed the crimes that occurred in the Stanton Heights house while looking for money and drugs Detective Robert McCabe was subsequently informed that Ellis was presently being treated for a gunshot wound at Presbyterian Hospital. Detective McCabe proceeded to the hospital to speak with Ellis. After recuperating, Ellis was arrested and placed on trial for his role in the crimes. The jury found Ellis guilty of second-degree murder, burglary, robbery, aggravated assault, unlawful restraint, criminal conspiracy, and unlawful possession of a firearm. Ellis was then sentenced to life imprisonment

without parole on the second-degree murder charge and a consecutive sentence of five to ten years imprisonment for aggravated assault. No further penalties were imposed on the remaining charges. Post-sentence motions were filed and denied. This appeal followed. Ellis presents the following questions for our consideration:

1. Did the court err in refusing to suppress appellant's statement to police on the ground that he was not in custody?

2. Did the court err in not [sic] holding an evidentiary hearing with regard to defense counsel Rothman's sabotaging of Ellis's case by providing information to the Commonwealth?

3. Did the court err in refusing to admit into evidence letters from the defecting witness to appellant that would have revealed her motive to lie?

4. Did the court err in permitting a medical doctor to testify that pain medication did not affect the ability to tell the truth?

5. Did the court err in refusing to admit evidence of promises to a Commonwealth witness?

6. Did the court err in elaborating on the 8.306 co-conspirator charge?

7. Did the court err in the sentencing of appellant with regard to the prior record score, deadly weapons enhancement and reasons for the aggravated range?

8. Was trial counsel ineffective in not preparing her client to testify in the suppression hearing; in not adequately interviewing important witness Edge; in not having Edge's love letters read to the jury and in not offering them into evidence; in failing to object when detective McCabe implicated appellant with hearsay; in not objecting to references to gangs; in not objecting to references to gangs; in not objecting to the reference to protective custody; in withdrawing the alibi charge; and in jury selection?

Ellis first claims that the suppression court erred in finding that he was not in custody at the time he made a statement to police. Our standard of review of an order denying a motion to suppress evidence is limited to determining whether the findings of fact are supported by the record and whether the legal conclusions drawn from those facts are in error. Commonwealth v. Crompton, 545 Pa. 586, 682 A.2d 286 (1996); Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991). In making this determination, this court may only consider the evidence of the Commonwealth's witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal conclusions drawn therefrom are erroneous. Id.

Ellis contends that the suppression court erred in refusing to suppress his statements to Detective McCabe at the hospital because he was subjected to custodial interrogation and did not knowingly, voluntarily, and intelligently waive his Miranda rights. Specifically, Ellis claims that the interrogation conducted by Detective McCabe was custodial, because Ellis felt he was not free to leave the hospital. Moreover, Ellis asserts that due to the lingering effects of the anesthesia administered before surgery and subsequent administration of pain medication his mind was clouded at the time of Detective McCabe's interrogation, and, therefore, he was unable to voluntarily waive his Miranda rights.

The Fifth Amendment right to counsel and the concomitant rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) are only triggered when an individual is undergoing actual "custodial interrogation." Commonwealth v. Reed, 400 Pa.Super. 207, 215, 583 A.2d 459, 462 (1990). "Whether a person is in custody for Miranda purposes depends on whether the person is physically denied his freedom of action in any significant way or is placed in a situation which he reasonably believes that his freedom of action or movement is restricted by this interrogation." Commonwealth v. Williams, 539 Pa. 61, 74, 650 A.2d 420, 427 (1994) (citations omitted). The subjective intent of the interrogating officer is not relevant to a determination of whether an interrogation was custodial. Rather, the paramount focus is on whether the individual being interrogated reasonably Before an individual may be subjected to custodial interrogation, he or she must make a knowing and intelligent waiver of his or her privilege against self-incrimination and right to counsel after adequate warning as to those rights. Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994); Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983). The test for determining whether a waiver is knowing and voluntary is multi-faceted. In order to determine the voluntariness of a waiver, we must ascertain whether the waiver was the result of an intentional choice that was not subjected to undue governmental pressure. Commonwealth v. Cephas, 361 Pa.Super. 160, 522 A.2d 63 (1987). To determine whether the waiver was knowing and intelligent, we focus upon the defendant's cognitive processes, i.e., whether the defendant was aware of the nature of the choice that he made in relinquishing his Miranda rights. Id.

believes that his freedom of action is being restricted. Id.

In the present case, the suppression court concluded that Ellis was not in custody at the time of his interrogation, and, thus, was not entitled to assert his Miranda rights. In drawing this conclusion, the court found credible the testimony of Detective McCabe. Detective McCabe testified that he requested and received permission from the hospital staff prior to talking with Ellis. Detective McCabe also stated that Ellis agreed to answer some questions, but did not want to talk in Ellis' room. With the assistance of a nurse, the two proceeded to a lounge at the end of the hall. The detective further stated that he did not promise or threaten Ellis in any manner, nor did he physically restrain him or order that Ellis be physically restrained at any time prior to questioning Ellis. In fact, Detective McCabe testified that had Ellis refused to talk with...