Com. v. Gwynn

• Decision Date: 23 November 1998
• Citation: 555 Pa. 86,723 A.2d 143
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Daniel GWYNN, Appellant.
• Court: Pennsylvania Supreme Court

723 A.2d 143

555 Pa. 86

COMMONWEALTH of Pennsylvania, Appellee, v. Daniel GWYNN, Appellant.

Supreme Court of Pennsylvania.

Argued October 21, 1997.

Decided November 23, 1998.

As Amended January 13, 1999.

Reargument Denied April 13, 1999.

Daniel Silverman, Philadelphia, for D. Gwynn.

Catherine Marshall, Philadelphia, Robert A. Graci, Atty. General's Office, Anthony V. Pomeranz, Philadelphia, for the Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

FLAHERTY, Chief Justice.

Following a jury trial in the Court of Common Pleas of Philadelphia County, appellant, Daniel Gwynn, Sr., was found guilty of murder of the first degree, arson, and five counts of aggravated assault. A sentencing hearing took place after which the jury recommended that appellant be sentenced to death, finding that the aggravating circumstances outweighed any mitigating circumstances.¹ The court then imposed the death sentence and, in addition, sentenced appellant to a term of thirty to sixty years imprisonment for arson and five counts of aggravated assault. The present direct appeal ensued.² We affirm.

The record reflects the following. On November 19, 1994, at approximately 6:00 a.m., appellant went into an abandoned building where he had formerly lived with several squatters. He forcibly entered the third floor apartment shared by Donald Minnick and Marsha Smith, the deceased victim. Appellant said Mr. Minnick could leave but that Ms. Smith had to stay. Mr. Minnick left to get help from the other occupants of the third floor and when they returned they saw that Ms. Smith's mouth was bloody and she was crying. Appellant then punched Mr. Minnick and a fight ensued. Mr. Minnick and the other occupants then evicted appellant from the building. As appellant left, he said "I'll get you one way or another, all of you.... I will get all of you. If I can't stay in the building, none of you can stay in the building."

The next morning at about 6:00 a.m., the occupants of the building were awakened to shouts of fire. Ms. Smith was in such a panic that she could not jump out of the third floor window to a pile of trash below and, therefore, she died in the fire.³ All of the other occupants were able to escape from the burning building with varying degrees of injury.

The evidence showed a fire had been set. Gasoline had been poured under two apartment doors, down the stairs leading from the fourth floor, underneath the stairs between the third and fourth floors and down the third floor hallways. The gasoline was then ignited. The fire had been set in such a way that fire blocked the stairs from the third floor apartments. Appellant later confessed that he had poured the gasoline and ignited the fire, allegedly accidentally.

Although appellant has not specifically challenged the sufficiency of the evidence supporting his first-degree murder conviction, we have nonetheless independently reviewed the evidence pursuant to the standard established in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (Pa.1982),cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The applicable standard of review is whether, viewing all the evidence in the light most favorable to the Commonwealth as verdict winner, a jury could find that every element of the crime exists beyond a reasonable doubt. Commonwealth v. Bryant, 524 Pa. 564, 574 A.2d 590, 592 (Pa.1990). This standard is equally applicable in cases where the evidence is circumstantial rather than direct, provided that the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Cox, 546 Pa. 515, 686 A.2d 1279, 1285 (Pa.1996).

To prove murder of the first degree, the Commonwealth must demonstrate that the defendant killed with a specific intent to kill. 18 Pa.C.S. § 2502. The Commonwealth must show that: 1) a human being has unlawfully been killed; 2) the defendant participated in the killing; and 3) the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624, 626 (Pa.1991). Circumstantial evidence can itself be sufficient to prove any element or all of the elements of the crime of criminal homicide. Commonwealth v. Cox, supra, 686 A.2d at 1285.

The record reflects that the evidence is sufficient to support appellant's conviction of the murder. Here, the record established that when appellant departed the dwelling the first time, he said he would return and that the incident was not over. The fire was intentionally set and ignited at 6:00 a.m. when, based on appellant's previous night's experience, he could assume that the occupants were sleeping. And, as is discussed later, appellant voluntarily confessed to the setting of the fire. On review of the record, the Commonwealth has demonstrated that Marcia Smith was unlawfully killed in an intentional, deliberate and premeditated manner and that appellant perpetrated the killing. We therefore proceed to address appellant's allegations of trial error and trial counsel's ineffectiveness.

The first issue is whether the trial court erred in denying appellant's motion to suppress physical evidence and his statements. A police officer may stop and question a person for investigative purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This investigative detention must be supported by reasonable suspicion that "crime is afoot." Id.; Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (Pa.1969). This detention subjects the suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of arrest. Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

Probable cause to arrest exists when the facts and circumstances within the police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (Pa.1979). Arrest is an act that indicates an intention to take a person into custody or that subjects the person to the will and control of the person making the arrest. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 978 (Pa.1982). The standard for determining whether an encounter with the police is deemed "custodial" or police have initiated a custodial interrogation is an objective one based on a totality of the circumstances, with due consideration given to the reasonable impression conveyed to the person interrogated rather than the strictly subjective view of the officers or the person being seized. Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078, 1085 (Pa.1993).

The record reflects that police officer Joseph Surina, who had twenty-four years of experience and had worked at the site for ten years, observed appellant on four occasions over the space of thirty minutes on November 30, 1994 between 1:15 a.m. and 1:45 a.m. The officer testified that: the officer was acquainted with most of the persons who "hung out" in the vicinity; the vicinity was a high crime area; a burglary had been reported; appellant was not familiar to him; he saw appellant three times with a knapsack on his back and something sticking out of it; and, each time the officer approached appellant in the police car, appellant walked away from him.

When Officer Surina saw appellant for the fourth time, appellant's previous actions made the officer suspicious and the officer stopped appellant and asked him for some identification. Appellant told the officer his name and said his identification was in his knapsack. Appellant took off the knapsack and the officer frisked him. During the frisk, appellant kept moving his head suggesting to the officer that he was preparing to run from the officer. Believing that appellant intended to flee, Officer Surina placed appellant inside his patrol car, called for a backup, and then retrieved appellant's identification from the knapsack. Following the arrival of the backup officer, the officers observed appellant trying to escape from the vehicle and they placed appellant in handcuffs. Officer Surina then ran appellant's name through the Pennsylvania Crime Information Center and found that he had five outstanding bench warrants.

The officer arrested appellant on the five bench warrants and transported him to the headquarters. A subsequent search yielded five cigarette lighters and several matchbooks on appellant's person, and two more lighters and additional books of matches in the knapsack. About twelve hours later, Detective Mangoni gave appellant his Miranda warnings and warned appellant that he might be charged with murder and other offenses incident to the fire. At 3:00 p.m., appellant gave a statement to the police admitting that he had: fought with the occupants of the building; stolen a container filled with gasoline; spread the gasoline on the floor of the apartment building; accidentally ignited the fire when he threw down a match he had used to ignite his crack pipe; and did not try to help anyone.

On review of the record, no illegal stop, arrest or search occurred. The high incidence of crime in the area and the reported burglary yielded a reasonable conclusion that crime was afoot. The suspicious nature of appellant's behavior and the appearance of the knapsack gave the officer reasonable cause to believe that appellant might be connected to crime. The frisk was appropriate for the protection of the officer's safety.

The remaining actions during the Terry stop constituted permissible preservation of the status quo while the officer confirmed or dissipated his suspicions. The preservation of the status quo occurred: while the officer...