Com. v. Holloway

• Citation: 572 A.2d 687,524 Pa. 342
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Arnold C. HOLLOWAY, a/k/a Arnold Walker, Appellant.
• Decision Date: 20 March 1990
• Court: United States State Supreme Court of Pennsylvania

Page 687

572 A.2d 687

524 Pa. 342

COMMONWEALTH of Pennsylvania, Appellee, v. Arnold C. HOLLOWAY, a/k/a Arnold Walker, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 12, 1989.

Decided March 20, 1990.

[524 Pa. 346] Robert Redmond, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Marilyn Murray, Philadelphia, Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA and PAPADAKOS, JJ.

OPINION

McDERMOTT, Justice.

On May 22, 1986, a jury found appellant guilty of murder in the first degree ¹, criminal conspiracy ² and possession of an instrument of crime generally. ³ On May 23, 1986, following a hearing, the same jury fixed the penalty for defendant on the first degree murder conviction at death. Post-verdict motions were filed, argued and denied. On March 27, 1987, appellant was sentenced as follows: bill of information No. 1308 (first degree murder)--death as determined by the jury on May 23, 1986; bill of information No. 1306 (criminal conspiracy) five (5) to ten (10) years incarceration consecutive to bill of information No. 1308; bill of information No. 1350 (possession of an instrument of crime generally)--two and one-half (2 1/2) to five (5) years incarceration consecutive to bill of information No. 1306. Appellant directly appealed the Judgment of Sentence. ⁴ The events leading to the conviction of appellant begin on the early morning of May 16, 1980, when police were summoned to 321 West Sedgley Street in Philadelphia. There, lying in the street, hands bound behind his back with a trench coat belt, and a belt tied around his neck, head blasted by shotgun, was found the dead body of 17 year-old Richard Caldwell. The cause of death: two shotgun blasts to the head and ligature strangulation.

The Commonwealth's evidence at trial consisted of the appellant's confession and corroboration of that confession by admission to one Shirley Baker, who was with appellant before and after the murder. The confession and testimony of Miss Baker gave a glimpse into a lawless world of drug selling and off-hand murder. That evidence describes that the deceased, Richard Caldwell, was a drug pusher for one Leroy Johnson (Bubbles), that he had fallen short in his accounts and was killed at Johnson's behest by the appellant and one Daniel Freeman. ⁵

At trial, Miss Baker testified that on May 16, 1980 she was at a bar at 7th and Allegheny with the appellant and Freeman, when Johnson arrived and invited them to share cocaine. All four repaired to the apartment of Miss Baker. When they arrived at the apartment, Johnson said to the appellant, "Your boy is in the van all high on pills." The appellant replied, "Good I can take care of that now." Thereupon appellant went upstairs, got a shotgun, handed it to Freeman who concealed it in his pants. Johnson gave the keys of the van to appellant and they left. Within an hour they returned and said that the shotgun fired while Freeman was playing with it, shooting a hole in the van floor and that they had strangled and shot Caldwell. Appellant, Johnson and Freeman left to examine the van. ⁶

Miss Baker's testimony at trial was consistent with her initial statement to the police which was the basis of the warrant issued for appellant's arrest. When appellant was arrested he made a statement to the police. His statement was admitted into evidence, in which he said he killed Caldwell because Johnson threatened to kill him or his family if he didn't. Appellant said that Johnson wanted Caldwell killed as an example for failing to pay Johnson and other dealers for heroin sold. Appellant went on to describe how he and Freeman strangled the victim and then both took turns shooting him. It is clear that if such evidence was legally posited and believed by the jury, and it was, it was sufficient to sustain conviction. The only questions which remain are concerned with whether the evidence was legally posited.

Whether the evidence was properly admitted will be analyzed in the context of the appellant's contentions of error. First, appellant levels an attack on the admission of his confession.

Appellant argues that the suppression court erred in failing to suppress his statement. This Court's standard of review in determining whether a suppression court has properly permitted a statement to the police to be used against a defendant at trial has been stated as follows:

Our responsibility on review is "to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings." ... In making this determination, this Court will consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in context of the record as a whole, remains uncontradicted.

Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984), quoting Commonwealth v. Kichline, 468 Pa. 265, 279, 361 A.2d 282, 290 (1976) (citations omitted).

Appellant asserts here that he was denied his right to counsel, that there was a period of unnecessary delay between his arrest and arraignment, and that he either was not given Miranda ⁷ warnings, or did not intelligently and voluntarily waive his Miranda rights. In support he relies upon the fact that the loss of the police chronology ⁸ is indicative of a police conspiracy against him and also demonstrates that the statement used against him was in violation of his Miranda rights. The facts, viewed in the light of Lark id., reveal that Philadelphia Police Officer Dominick DiLorenzo received information on May 30, 1985, at 11:25 P.M., over his police radio that the appellant was seen in the area of 52nd and Spruce Streets. When the officer arrived at that location at 11:30 P.M. he observed an individual matching the appellant's description. The suspect furnished identification to the officer at which time the officer informed him that he was wanted on an outstanding homicide warrant. He was then transported to the Police Administration Building in a patrol wagon. When he arrived at approximately 11:50 P.M., he came in contact with Detective Ernest Gilbert who then gave him his Miranda warnings and informed him that he was wanted for questioning in connection with the homicide of Richard Caldwell. From then on Detective Gilbert interviewed the appellant until approximately 1:00 A.M. on May 31, 1985, and then at that time reduced the results of that interview to typewritten form. The statement was given to the appellant who then read it and did not contest its accuracy. However when the Detective asked the appellant to sign it he refused stating that he first wished to consult with his attorney. His request was complied with and his attorney recommended that he not endorse the document. He was provided with a meal which he did not consume and was subsequently arraigned at 5:00 A.M. on May 31, 1985, within six hours of his arrest.

Based upon these facts and accepting them as we must, under the standard enunciated by this Court in Lark id., we are satisfied that the record supports the suppression court's finding that the appellant was provided with Miranda warnings, voluntarily and intelligently waived his Miranda rights, was permitted to consult with his attorney and wife by telephone when requested and was arraigned within six (6) hours of his arrest ⁹. Therefore admission of the statement was proper. Lark id.

Appellant next presents numerous allegations of trial counsel's ineffectiveness. He first argues that trial counsel was ineffective by permitting the appellant to take the witness stand to testify in his own defense.

In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), this Court crystalized the standard to be employed in evaluating the effectiveness of counsel. There we determined that counsel's performance is to be evaluated in light of its reasonableness if it is determined that the underlying claim is of arguable merit, we also presume that counsel is acting effectively. Second, a defendant is required to demonstrate prejudice. Pierce id.

Though this Court has stated that the decision of whether or not to testify at trial rests solely with the defendant rather than counsel, Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983), it is difficult if not impossible to visualize how appellant could have forwarded his proposed defenses in silence. His defenses were first that his confession was involuntary and second that he was not present at the scene of the crime at the operative moment. Clearly these defenses were such that any credible presentation would require his appearance. It should also be noted that this appellant was incapable of being impeached through the introduction of crimin falsi convictions as none existed. Having determined that the decision to testify was his and his alone and that counsel could not prevent the appellant from so acting, this argument is without merit ¹⁰.

He next argues that trial counsel was ineffective in failing to impeach the credibility of Commonwealth witness Shirley Baker by presenting expert testimony regarding the effects of long term cocaine usage upon the brain and memory. However since appellant has not alleged that such a witness existed, was available and was willing to testify, his assertion of ineffectiveness is in the abstract and therefore without merit. Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). We do note that trial counsel cross-examined the witness extensively regarding her agreement with the prosecution in her open drug cases; her consumption of alcohol and drugs at the time of her observations; her expenditures on drugs and the inconsistencies between her trial testimony and her statement. Though the attempts to impeach this witness were unsuccessful, such failure does not indicate that counsel was...