Com. v. Johnson

• Decision Date: 20 April 1988
• Citation: 541 A.2d 332,373 Pa.Super. 312
• Parties: COMMONWEALTH of Pennsylvania v. Roxanne JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

Page 332

541 A.2d 332

373 Pa.Super. 312

COMMONWEALTH of Pennsylvania v. Roxanne JOHNSON, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 26, 1987.

Filed April 20, 1988.

Vincent R. Baginski, Asst. Public Defender, Pittsburgh, for appellant.

Dara A. DeCourcy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before WIEAND, McEWEN and HOFFMAN, JJ.

HOFFMAN, Judge:

This appeal is from the judgment of sentence for first degree murder and carrying a firearm without a license. Appellant contends that (1) the suppression court erred in (a) denying her motion to suppress her statement to police on the ground that her arrest was illegal; (b) denying her motion to suppress her statement to police because it was given without benefit of Miranda warnings; (c) overruling her objection to a leading question; (d) admitting a carbon copy of the search warrant in violation of the best evidence rule; and (e) reopening the record to allow the admission of the original search warrant; (2) the verdict is against the weight of the evidence in light of her defense of mental illness; (3) the evidence is insufficient to support a conviction for first degree murder in light of her defense of mental illness; (4) the trial court erred in prohibiting appellant's expert witness from rendering an opinion regarding the legal definition of mental illness; (5) her sentences are illegal because they should have merged; and (6) the sentencing court, when sentencing appellant on the weapons offense, failed to state adequate reasons on the record for its deviation from the Sentencing Guidelines. For the reasons that follow, we affirm the judgment of sentence for first degree murder, we vacate the judgment of sentence for carrying a firearm without a license and remand the case for resentencing.

On February 5, 1985, appellant was arrested and charged with homicide in relation to the killing of her former husband. Following a jury trial, appellant was found guilty of first degree murder and carrying a firearm without a license. Appellant was sentenced to a term of life imprisonment for first degree murder and a concurrent term of two-and-one-half-to-five-years imprisonment for carrying a firearm without a license. This appeal followed.

Appellant first contends that her arrest was illegal because the arresting officers were outside of their municipal jurisdiction and, therefore, the lower court erred in denying her suppression motion. ¹ The Municipal Police Jurisdiction Act (Act), 42 Pa.C.S.A. §§ 8951-8954, provides that a police officer may act outside his or her primary jurisdiction in certain enumerated instances. See Id. § 8953. Appellant argues that the police officers' actions in this case do not fall within any of the circumstances identified by the Act. Here, at approximately 9:27 p.m. on February 5, 1985, McKeesport Police Officer Willard received a radio call regarding a possible homicide in McKeesport. Upon arriving at the victim's home, Officer Willard spoke with the victim's son, who stated "My mother shot my dad." N.T. March 14-22, 1986 at 44. Officer Willard then sent a radio dispatch to police officers in White Oak, an adjoining municipality, stating that appellant was involved in a shooting and asking them to check appellant's White Oak home. Id. at 46. Officer Gironda, of the White Oak Police Department, received the radio dispatch and proceeded to appellant's home. Id. at 22. Upon discovering that appellant was home, Officer Gironda parked his car outside her home and requested assistance from the McKeesport and White Oak Police Departments. Id. at 23. Officers Willard and Tirpak of McKeesport, as well as two White Oak police officers, arrived on the scene. Officers Gironda, Willard, and Tirpak approached appellant's house and asked her to come outside. Id. at 24-25. When appellant came outside, Officer Gironda put handcuffs on her. Id. at 47. Officer Gironda then read the Miranda warnings to appellant. Id. at 26. Officer Gironda testified that he could not remember which officer actually told appellant she was under arrest. Id. at 34. White Oak police officers then placed appellant in a White Oak police car and transported her to the McKeesport police station. Id. at 54. Although McKeesport police officers were present at the time of appellant's arrest in White Oak, we conclude that appellant effectively was arrested by Officer Gironda, and under authority of the White Oak Police Department. Thus, the Municipal Police Jurisdiction Act does not apply. Accordingly, the suppression court did not err in concluding that appellant's arrest was lawful. ²

Appellant next contends that the suppression court erred in denying her motion to suppress her post-arrest statement to police because it was given without the benefit of Miranda warnings. A person must be informed of his or her Miranda rights prior to custodial interrogation by police. Commonwealth v. Sites, 427 Pa. 486, 490, 235 A.2d 387, 389 (1967). Custodial interrogation is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way." Id. [373 Pa.Super. 320] at 492, 235 A.2d at 390 (emphasis supplied) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). " 'Interrogation' is police conduct 'calculated to, expected to, or likely to evoke admission.' " Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011, 1016 (1979) (quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969)). When an inculpatory statement is not made in response to interrogation by police officers, however, "the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings." Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983) (citations omitted).

Here, it is uncontested that appellant was in custody at the time she made an inculpatory statement to the police. The record reveals, however, that the statement was not the result of an interrogation by the police. At the suppression hearing, Officer Gironda testified that after appellant was placed under arrest, he began to advise her of her Miranda rights. N.T. May 14-22, 1986 at 26. Appellant interrupted him several times while he attempted to inform her of her rights. Id. Officer Gironda further testified as follows:

Q. When she interrupted you, what did she say? Use whatever language she said.

A. She said, "Are you in on this fucking thing?" I said, "Roxie, I have got a job to do." And she looked at me, and she said, "I had a job to do, and I did it tonight."

Id. at 27-28. Officers Willard and Tirpak then finished advising appellant of her rights. Id. We cannot conclude that Officer Gironda's response to appellant's question, particularly in light of her continued interruptions, was conduct designed to evoke an admission. See Commonwealth v. Brantner, supra (admission made in response too "Hi, Harry. Apparently we have a little problem, and I need to take your photograph." was not result of interrogation). Thus, for Miranda purposes, appellant's statement was volunteered and need not be suppressed simply because it was made before the police could finish giving her the Miranda warnings. Accordingly, we conclude that the suppression court correctly denied appellant's suppression motion on this ground.

Appellant next contends that the suppression court erred in overruling her objection to a leading question. It is well-established that the allowance of leading questions lies within the discretion of the trial court and a court's tolerance or intolerance of leading questions will not be reversed absent an abuse of discretion. See, e.g., Commonwealth v. Beasley, 504 Pa. 485, 495, 475 A.2d 730, 735 (1984); Commonwealth v. Bell, 328 Pa. Superior Ct. 35, 51, 476 A.2d 439, 448 (1984). "A leading question has been defined as one which puts the desired answer in the mouth of the witness." Commonwealth v. Dreibelbis, 493 Pa. 466, 476, 426 A.2d 1111, 1116 (1981).

Here, appellant objects to the following question posed by the district attorney to Officer Willard:

Q. Were you present at the time that [appellant] said to Gironda, "Are you in on this fucking thing, too, Gironda?"

MR. BAGINSKI [attorney for appellant]: Object to that as being leading.

THE COURT: Overruled.

MR. BAGINSKI: We don't even know if the witness even heard it.

THE COURT: Overruled.

N.T. May 14-22, 1986 at 48. Because the question objected to by appellant could be answered with either a "yes" or "no" response, it is not of the type designed to put the desired answer in the mouth of the witness. We conclude, therefore, that this question was not leading. Moreover, appellant was not prejudiced by this question because the fact that appellant made that statement to Officer Gironda, and the substance of the statement had already been introduced into evidence. See Id. at 28. Thus, the suppression court did not abuse its discretion in overruling appellant's objection to this question.

Appellant next contends that the suppression court erred in admitting into evidence a copy of the original search warrant in violation of the best evidence rule. The best evidence rule requires that, "to prove the contents of a writing, the original writing must be produced, unless a sufficient reason for not producing it is shown." Commonwealth v. Byers, 320 Pa. Superior Ct. 223, 227, 467 A.2d 9, 11 (1983). A copy of the original document may be admitted if it is shown that the original is not available and that the copy conforms to the contents of the original. Commonwealth v. Olitsky, 184 Pa. Superior Ct. 144, 154, 133 A.2d 238, 243 (1957).

The rule which excludes evidence of copies of documents where the documents themselves are available as proof does not apply to documents and writings which are executed in duplicate or multiplicate form....