Com. v. Graves

• Decision Date: 04 February 1983
• Parties: , 40 A.L.R.4th 563 COMMONWEALTH of Pennsylvania v. Bennie Davis GRAVES, Appellant.
• Court: Pennsylvania Superior Court

Page 561

456 A.2d 561

310 Pa.Super. 184, 40 A.L.R.4th 563

COMMONWEALTH of Pennsylvania v. Bennie Davis GRAVES, Appellant.

Superior Court of Pennsylvania.

Argued May 20, 1982.

Filed Feb. 4, 1983.

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Dara A. DeCourey, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before ROWLEY, MONTEMURO and VAN der VOORT, JJ.

VAN der VOORT, Judge:

A jury found appellant guilty of third degree murder for the death of Lynette Weston, age 10, and of first degree murder for the death of Lloyd Weston, age 10, and recommended a death sentence on the first degree murder conviction. Trial Judge Joseph Ridge refused post-trial motions for a new trial and in arrest of judgment, but did grant a motion to vacate the death sentence.

Appellant raises four contentions before this court. Issues designated I and IV are interrelated and will be discussed jointly.

I and IV

Appellant was the stepbrother and boarder of Yvonne Weston, the mother of the two children. At about 11:00 P.M. on February 16, 1979, Mrs. Weston left her home, entrusting the care of the two children to the appellant. The children were asleep. From about 11:30 P.M. to about 4:45 A.M. the next morning, Mrs. Weston's brother Daniel Anderson was in the home drinking beer and listening to records. When he departed, the living room was in reasonably good order; appellant was present; and the children apparently sleeping in their beds. At about 7:00 A.M. on February 17, 1979, when Mrs. Weston returned home she found the living and dining rooms in complete disarray; the bodies of the two children were lying on the living room floor, and the appellant was missing.

Shortly thereafter appellant telephoned Mrs. Weston several times from some undisclosed phone, ¹ asking if the children were all right. He claimed he had been visited in the home by three men looking for another of Mrs. Weston's brothers who forced him to leave the home. On a fourth phone call, appellant was advised that the children were dead; he revealed his whereabouts. A police car picked him up at that location and took him to Police Station No. 5. He was locked up for about twenty minutes and then taken to Police Station No. 1, where he was interrogated through most of the day, finally being placed formally under arrest at 5:30 P.M.

Prior to the formal arrest, he surrendered hair and saliva samples and fingernail clippings, and agreed to the making of wax impressions of his fingernails. The police also took photographs of several fresh scratches on his back. These bits of "physical evidence" were used as part of the circumstantial evidence by which the prosecution attempted to identify the appellant as the perpetrator of the murders. The appellant moved to suppress their use on the ground that they were the product of an illegal arrest and obtained without a search warrant and without his valid consent.

Whether such evidence, obtained following an illegal arrest, resulted from such arrest or was sufficiently removed from the arrest depends on the circumstances of the case. Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) (Opinion in support of affirmance); Commonwealth v. Bogan, 482 Pa. 151, 393 A.2d 424 (1978).

The prosecution called ten witnesses on the motion to suppress, including Mrs. Weston who went to Station No. 1 and talked with appellant in the room in which he was confined. Appellant testified that he had been beaten by several of the investigating officers, and consented to the taking of the samples so that the beatings and the interrogation would stop.

Judge Ridge heard all the witnesses; and he concluded that, despite the illegal arrest, the samples were taken with the voluntary and valid consent of the appellant. His opinion cites Commonwealth v. Tribblett, 242 Pa. Superior Ct. 164, 363 A.2d 1212 (1976) and Commonwealth v. Burgos, 223 Pa. Superior Ct. 325, 299 A.2d 34 (1972). See also Commonwealth v. Pytak, 278 Pa. Superior Ct. 476, 487, 420 A.2d 640 (1980) and Commonwealth v. Woods, 240 Pa. Superior Ct. 72, 76, 368 A.2d 304 (1976). As pointed out in Tribblett, 242 Pa. Superior Ct. at 167, 363 A.2d 1212, deference should be given to the decision of the hearing court, since that court had a firsthand opportunity to observe the appearance and demeanor of the witnesses, and therefore, to evaluate the credibility of the witnesses.

We find that the trial judge did not err. The current case is more in line with Bogan, supra, than with Nelson, supra. In Bogan, the court assuming the arrest was illegal, found a confession resulted from an "intervening act of a free will." Wong Sun v. United States, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441 (1963). Bogan had been in custody on other charges when he gave a confession to the crime from which he appealed his conviction. Whereas in Nelson, the defendant was unknown to the police until he was illegally arrested. The court found that but for the improper arrest, a statement and physical evidence would not have been forthcoming. Here appellant was a logical candidate for questioning; he was the last known person present with the victims and he explained his absence with an unusual tale. Under these circumstances we cannot overrule the lower court's finding that the arrest did not contaminate appellant's voluntary consent to the taking of the various samples.

We also must agree with the Commonwealth that the physical evidence and appellant's consent to the taking of the samples were not vitiated by the fact that he was not arraigned within six hours after his initial arrest. The appellant argues to the contrary, contending that under Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972) and Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974), and distinguishing Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), that any evidence obtained during a delay between arrest and arraignment, must be suppressed if (1) the delay was unnecessary; (2) the evidence was prejudicial; and (3) the evidence was reasonably related to the delay.

In Commonwealth v. Rhem, 283 Pa. Superior Ct. 565, 578, 424 A.2d 1345 (1981), this court held:

By its very terms, the six-hour rule is only applicable to inculpatory statements (Fn. 4) and not physical evidence. The inherent coercion during an unnecessary delay which may result in an invalid waiver of important constitutional rights is simply not present in Fourth Amendment cases where the search proceeds despite the accused's objections. Thus, the coercive influence against which "Futch" and "Davenport" were designed to guard is absent in the instant case since appellant was not asked to waive any rights. The court properly denied the motion to suppress.

(Emphasis supplied).

4. The rule probably applies to uncounseled lineup identifications as well. See "Futch", supra.

(Footnote in original).

Appellant contends that the giving of his consent was a product of a delay exceeding six hours and should be viewed as an invalid waiver of an important constitutional right. Davenport, supra, clearly addressed itself only to statements given by a defendant. Rhem, supra, involved the search of a suspect when brought to the police station, he was not free to refuse the search. Here, appellant argues that he was free to refuse the taking of samples but due to the pressures of the situation he consented. He concludes that the Davenport rule must be extended to such situation.

The courts of this Commonwealth have held that fingerprints are not of a testimonial nature involving the Fifth or Sixth Amendment, Commonwealth v. Ellis, 445 Pa. 307, 284 A.2d 735 (1971); and that blood samples are not testimonial evidence coming under the protection of the Fifth Amendment and therefore do not require Miranda protection. Commonwealth v. Funk, 254 Pa. Superior Ct. 233, 385 A.2d 995 (1978). The purpose of an early arraignment is to advise the appellant, among other rights, of his right to counsel. Rule 140, Pa.R.Crim.P. In keeping with the rationale behind Ellis and Funk, we find that as the right to counsel has not been applied to the taking of physical evidence, a greater than six hour delay in advising of the right to counsel, does not require physical evidence taken from a defendant to be suppressed.

II The Expert Testimony

Over the objection of appellant and after an extended examination of their qualifications on voir dire outside the presence of the jury, Judge Ridge permitted the prosecution to put in the testimony of four expert witnesses, as follows:

Dr. Michael N. Sobel, a dentist specializing in orthodontics, and forensic odontology employed from time to time as a consultant and expert on dental problems, bite marks and related topics;

Dr. Robert Levine, a criminalist employed by the Allegheny County Crime Laboratory, with considerable experience in making comparisons of tool-marks and firearm-related marks;

Dr. Lowell J. Levine, from New York, a dentist specializing in forensic odontology; and

Dr. Homer Richardson Campbell, Jr., a dentist and Board certified specialist in forensic odontology for the State of New Mexico, with experience in bite-mark cases.

Scratch marks were found on the back of Lloyd Weston's body near the base of the neck. Dr. Sobel made an impression or cast of one of those scratch marks, using a compound of the same general type as dentists use in making impressions of teeth. He then compared that impression with an impression made from the nail on appellant's fourth (left) finger, using among other things, a comparison microscope. On the basis of these comparisons he testified that: "it was highly likely that the nail of the fourth finger, left hand, of Bennie Graves had made the mark in the neck of Lloyd Weston, Jr." (N.T., p. 1180)

Dr. Robert Levine, characterizing a fingernail mark in the skin as "a tool mark" (N.T., p. 1260), based upon an examination of the impression made by Dr. Sobel,...