Com. v. Hayes

• Decision Date: 13 June 2000
• Citation: 755 A.2d 27
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gregory HAYES, Appellant.
• Court: Pennsylvania Superior Court

755 A.2d 27

COMMONWEALTH of Pennsylvania, Appellee, v. Gregory HAYES, Appellant.

Superior Court of Pennsylvania.

Argued May 5, 2000.

Filed June 13, 2000.

Reargument Denied August 18, 2000.

Robert M. Buttner, Scranton, for appellant.

Christopher Caputo, Asst. Dist. Atty., Scranton, for Commonwealth, appellee.

Before CAVANAUGH, STEVENS, and OLSZEWSKI, JJ.

OLSZEWSKI, J.:

¶ 1 Gregory Hayes appeals his judgment of sentence entered by the Lackawanna County Court of Common Pleas subsequent to a waiver trial. The trial court convicted appellant of first-degree murder and sentenced him to life imprisonment. We affirm.

¶ 2 Appellant and Karen Maddox, the victim, were crack cocaine addicts who supported their habit by acting as intermediaries for local drug users.¹ These two individuals had an acrimonious relationship that included both verbal and physical confrontations. Appellant distrusted the victim and accused her of cheating him out of his share of cocaine, acting as a confidential informant, and selling drugs in an indiscreet manner. The events leading up to the homicide occurred on February 3, 1997, when appellant sold Fred Gibson a rock of crack cocaine.

¶ 3 Gibson, who suffered from numerous diseases including end-stage renal disease, had been hospitalized for most of December 1996 and January 1997. While he was in the hospital, his veterans disability check was automatically deposited into his bank account. Since he had not paid his rent for two months, this resulted in a rather large balance. Soon after his discharge from the hospital, Gibson encountered appellant at Herbies' Bar in Scranton. There, appellant solicited Gibson to purchase crack cocaine. After initially declining the offer, Gibson reconsidered and purchased a rock of crack cocaine.

¶ 4 Gibson returned to his apartment and smoked the cocaine. He soon hungered for more. Thus Gibson located appellant and, along with several other people, engaged in a sixteen-hour binge of crack cocaine ingestion funded by Gibson. After a final excursion to acquire more cocaine, appellant and co-defendant, William Cotillis, returned to Gibson's apartment house with the victim.

¶ 5 Gibson testified that he heard several people arguing on the second-floor landing to his apartment building and opened his door to listen to the commotion. He observed appellant punch the victim several times about the head and then watched as appellant and Cotillis lifted the victim up and threw her over the balcony to the ground seventeen feet below, resulting in her death.

¶ 6 In an effort to dispose of the body, appellant and Cotillis then wrapped the victim in a bed sheet obtained from Gibson's apartment and placed the victim behind the seat of Cotillis' truck. The victim and Cotillis then drove to Elmhurst Boulevard in Dunmore, where they dumped the body in a wooded area just off the roadway. ¶ 7 After conducting a waiver trial, Judge Nealon convicted appellant of first-degree murder, hindering apprehension or prosecution, intimidation of witnesses, and abuse of a corpse. Appellant then filed this timely appeal.

¶ 8 Appellant raises the following questions for our review:

A. Did Trial Counsel render ineffective assistance of counsel when, in seeking suppression of statements made by the Defendant on February 19, 1997 to Trooper Thomas Kobeski, he failed to raise the Defendant's right to counsel as provided for within the context of the Fifth Amendment of the United States Constitution?

B. Did the Trial Court err in determining that the Defendant was not in custody and was not required to be informed of his rights under Miranda as derived from the Fifth and Fourteenth Amendments of the United States Constitution when he was transported to the State Police Barracks, placed in an interview room for over four hours and statements were obtained from him by Trooper Joseph Pacifico on February 19, 1997?

C. Did Trial Counsel render ineffective assistance of counsel in stipulating to Commonwealth Exhibit # 3, in its entirety, which was comprised of medical records of Fred Gibson and contained medical opinions?

D. Did the Trial Court err or abuse its discretion in failing to consider the statements of William Cotillis as related to the Trial Court through Ashleigh Lamaster?

F[sic]. Did Trial Counsel render ineffective assistance of counsel in failing to secure the admissibility of statements of William Cotillis made to Ashleigh Lamaster under an alternative theory to the exclusionary hearsay rule?

Appellant's Brief, at 4.

¶ 9 In order to establish a successful ineffectiveness claim, appellant must demonstrate that: (1) the underlying claim has arguable merit; (2) counsel had no reasonable basis for his action or inaction designed to effectuate appellant's interest; and (3) there is a reasonable probability that counsel's decision prejudiced appellant in such a manner that the outcome of the proceeding would have been different. See Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261, 273-74 (2000)

.

¶ 10 First, appellant argues that his trial counsel provided ineffective assistance because he failed to raise appellant's Fifth Amendment right to counsel in his attempt to suppress appellant's statements to Trooper Kobeski. To support this issue, appellant highlights two instances that he believes should suffice to invoke his Fifth Amendment right to counsel. Appellant first argues that the authorities failed to advise him of his Miranda rights prior to initiating the 4:30 p.m. interrogation on February 19, 1997; secondly, he contends that the interrogation proceeded in violation of his previously asserted Fifth Amendment rights. Our research and our review of the record leads us to the conclusion that neither of these sub-claims has any arguable merit. Therefore, trial counsel was not ineffective for refusing to litigate a meritless claim. See Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485, 495 (1999)

.

¶ 11 State authorities transferred appellant to the State Police Barracks around 4:30 p.m. on February 19, 1999. While at the barracks, appellant made at least two statements to the police, one after 8:30 p.m. and one after 10:30 p.m. The Commonwealth contends that Trooper Kobeski instructed appellant of his Miranda rights at 4:30 p.m. and twice again prior to taking the two statements. Trooper Kobeski testified that he orally Mirandized appellant on the first two occasions, and that he obtained a signed waiver before appellant made the second statement. See Commonwealth v. Servich, 412 Pa.Super. 120, 602 A.2d 1338, 1344 (1992)

(holding that defendant's waiver of Miranda rights need not be in writing). Appellant, of course, alleges that the authorities had not informed him of his Miranda rights prior to his signed waiver at 10:30 p.m.

¶ 12 When reviewing such a claim, "the Commonwealth must demonstrate that the accused explicitly waived his Miranda rights in order for ... statements made in the course of custodial interrogation to be admissible." See Commonwealth v. Dewar, 449 Pa.Super. 517, 674 A.2d 714, 717 (1996)

. Trooper Kobeski testified at the suppression hearing that he not only informed appellant of his Miranda rights, but also made sure that appellant understood them. He stated that he discussed each of appellant's constitutional rights in a conversational manner and appellant indicated that he understood those rights.² "It is within the sole province of the suppression court to weigh the credibility of witnesses." See Commonwealth v. Valentin, 748 A.2d 711, 713 (Pa.Super. 2000). In the instant case, the suppression court found Trooper Kobeski's testimony more credible than defendant's and therefore made a finding of fact that defendant had been advised of his rights at approximately 4:30 p.m. on February 19, 1997. See Suppression Court Opinion, 2/25/98, at 6. The record supports this factual finding; therefore, appellant's first sub-claim alleging that his statement was elicited in violation of his Fifth Amendment rights must fail.

¶ 13 In the second sub-claim, appellant argues that his request for counsel prior to the 4:30 p.m. interrogation should be enough to invoke his Fifth Amendment right to counsel. Trooper Pacifico arrested appellant for possessing drug paraphernalia immediately following an interview conducted between 3:40 and 5:40 a.m. on February 19, 1997. Appellant was then transported to the Lackawanna County Prison, where he remained until late the next afternoon. Sometime around 4:00 p.m. that day, appellant applied for a public defender to help him defend against the possession charge. Shortly thereafter, state authorities took appellant to the State Police barracks where Trooper Kobeski conducted the interview discussed above. Appellant now argues that his request for a public defender at 4:00 p.m. invoked his Fifth Amendment right to counsel.

¶ 14 Although both the Fifth and Sixth Amendments provide a right to counsel, each amendment affords different protections and requires different actions to initiate those protections. For instance,

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), we held that "once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective." It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the West Allis armed robbery, for which he had been formally charged.

The Sixth Amendment right, however, is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, "`at or after the initiation of adversary judicial...