Com. v. Kampo

• Decision Date: 05 October 1978
• Citation: 391 A.2d 1005,480 Pa. 516
• Parties: COMMONWEALTH of Pennsylvania v. Michael D. KAMPO, Appellant.
• Court: Pennsylvania Supreme Court

Page 1005

391 A.2d 1005

480 Pa. 516

COMMONWEALTH of Pennsylvania v. Michael D. KAMPO, Appellant.

Supreme Court of Pennsylvania.

Argued March 10, 1978.

Decided Oct. 5, 1978.

[480 Pa. 518] Sanford S. Finder, Washington, for appellant.

Jess D. Costa, Dist. Atty., Samuel L. Rodgers, Washington, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Michael D. Kampo, was convicted of murder of the first degree in the Court of Common Pleas of Washington County and sentenced to life in prison. He now appeals the judgment of sentence.

Appellant does not challenge the sufficiency of the evidence. However, we are required to review this question by the Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187. In doing so, we will follow the standard of review set forth in Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825 (1975):

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The fact-finder is free to believe all, part, or none of the evidence. . . . " (Citations omitted.)

The Commonwealth's evidence establishes that on July 25, 1975, the decedent, Sherman Edward Armstrong, II, age 15, and his family stopped at a Dari-Delite on Main Street in the Borough of Bentleyville, Washington County. Appellant's home was approximately one hundred yards to the west of the Dari-Delite. The decedent was standing at the Dari-Delite, purchasing an ice cream cone, when a shot was fired from the direction of appellant's house. The decedent was mortally wounded by a bullet that passed through the base of his neck and struck an artery. The time was approximately 4:15 p. m. Two bystanders, Mark Segedi and John McKenna, confirmed that the shot was fired from the direction of appellant's home. The two witnesses also testified that no persons or vehicles were passing the store at the time of the shot. Prior to the shooting, appellant was at Brown's Tavern, where he was served by Mary Jean Kennedy, a barmaid. He was then driven to his home by Franklin Blackburn, appellant's drinking companion.

Kennedy and Blackburn testified that appellant had told them that someone was going to die that day. Blackburn drove appellant to his home at approximately 4:00 p. m. and then went to the Dari-Delite. Shortly after the shooting, appellant appeared at the Dari-Delite, when Blackburn noticed a fresh cut on his forehead near the eye. Appellant asked what had happened. When told of the shooting, he did not react. He then returned to his home. Subsequently, Chief William Stankovich of the Bentleyville Police arrived at the Dari-Delite. Stankovich retrieved a fragment of the jacket of the bullet used in the shooting and was told that the shot came from the direction of appellant's house. Stankovich went to appellant's home, where he arrested appellant at approximately 4:45 p. m. In appellant's home Stankovich found other bullets and spent shells of the same type as used in the shooting. Subsequently, a search warrant was executed and the rifle used in the shooting was found. Appellant admitted that he used the rifle to fire the shot. He claimed, however, that he was aiming at a garbage can at the Dari-Delite and not at the decedent. He attributed his lack of accuracy to a defective scope. However, Commonwealth witness Barry Trew contradicted appellant's story. Trew operates two hunting and fishing supply stores with merchandise which includes firearms and ammunition. He was called as an expert witness on firearms. At the request of police, he had conducted tests with the rifle used by appellant. The results of the tests indicated that the scope was in fact defective. However, he concluded that the decedent would not have been shot if the rifle had been aimed at the garbage can, as appellant had claimed. He determined that the rifle would have had to have been aimed at the small of decedent's back for him to have been shot in the neck.

Appellant next claims that at the time of the shooting, he was too intoxicated to form an intent to kill and that he was insane. Several witnesses who saw appellant near the time of the shooting testified that in their judgment, he was not intoxicated. Herbert Thomas, a psychiatrist called by the defense, testified that he had examined appellant and found him to have been insane at the time of the shooting. The Commonwealth had appellant examined by another psychiatrist, Owen Benton, who testified in rebuttal that appellant was sane at the time of the homicide. On the basis of the evidence, we find that it was permissible to believe that appellant aimed his rifle at the decedent, shot with the intent to kill, and was neither intoxicated nor insane. The evidence will sustain the verdict.

Appellant argues that a tape recorded statement and written confession by him were the result of an unnecessary delay between arrest and arraignment and, therefore, were inadmissible. We do not agree. See Pa.R.Crim.P. 130 and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

Appellant's motion to suppress the evidence was denied. In reviewing such denial, we are to consider only the evidence of the Commonwealth and the uncontradicted evidence of appellant. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). The evidence shows that Chief Stankovich arrested appellant at his home at 4:45 p. m. on the day of the shooting, after having retrieved a bullet fragment from the scene of the homicide. Stankovich noticed other bullets while in appellant's home at that time. Appellant arrived at the Bentleyville police station at 5:00 p. m. and was given his Miranda warnings, which he waived. Appellant was questioned until 5:20 p. m. He said that he had a gun that the bullets would fit but had lost it in a poker game and that it was not then in his home. Stankovich was joined by State Trooper Edward Pauley at 5:20 p. m. The officers obtained a warrant to search the house, executed it, and found the rifle that was connected to the shooting. They returned to the station at 8:00 p. m., repeated the Miranda warnings and questioned appellant after he again waived his rights. At 8:35 p. m., appellant admitted shooting the rifle. The questioning lasted until 8:50, when appellant gave a written statement, which took approximately twenty minutes. The interrogation from 8:00 p. m. until 8:50 was taped and recorded. He was then immediately taken for arraignment. Appellant claims that the delay involved in procuring and executing the search warrant was unjustified and renders appellant's statement inadmissible. We do not agree.

A delay is permissible if it is accounted for by necessary steps in the police process, which may involve checking the suspect's story. Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975). The search was conducted for the purpose of checking appellant's contention that he did not have a gun that could have fired the shot. Moreover, the interrogation, search, and arraignment were conducted with such dispatch as to withstand any objection on the...