Com. v. Lore

Citation487 A.2d 841,338 Pa.Super. 42
PartiesCOMMONWEALTH of Pennsylvania v. Shawna LORE, a/k/a Magdalene Lore, Appellant.
Decision Date21 December 1984
CourtSuperior Court of Pennsylvania

Page 841

487 A.2d 841
338 Pa.Super. 42
COMMONWEALTH of Pennsylvania
v.
Shawna LORE, a/k/a Magdalene Lore, Appellant.
Superior Court of Pennsylvania.
Submitted Oct. 21, 1983.
Filed Dec. 21, 1984.

Page 845

[338 Pa.Super. 49] Robert T. Panowicz, Wilkes-Barre, for appellant.

Joseph Giebus, Asst. Dist. Atty., Wilkes-Barre, for Commonwealth, appellee.

Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.

MONTEMURO, Judge:

Following trial by jury in the Court of Common Pleas of Luzerne County, appellant, Shawna Lore, was found guilty [338 Pa.Super. 50] of the following offenses: criminal conspiracy to commit criminal mischief; 1 criminal mischief; 2 criminal conspiracy to commit abuse of corpse; 3 abuse of corpse; 4 criminal conspiracy to hinder apprehension or prosecution; 5 and hindering apprehension or prosecution. 6

Appellant's timely filed motion for a new trial and/or in arrest of judgment was denied and appellant was sentenced by the Honorable Arthur D. Dalessandro to six (6) consecutive terms of imprisonment with a minimum total duration of eleven (11) years and a maximum total duration of twenty-two (22) years.

Thereafter, appellant's petition to modify sentence was denied following a hearing and this appeal ensued. Appellant has alleged, and we review herein, the following assignments of error: (1) the suppression court's failure to suppress certain inculpatory statements made by appellant; (2) the suppression court's limiting appellant's cross-examination of a witness at the suppression hearing; (3) the suppression court's refusal to grant appellant a continuance

Page 846

to further develop evidence pertinent to the suppression hearing; (4) the lower court's refusal to grant appellant's demurrer and her motion in arrest of judgment, (5) the lower court's admission into evidence of a picture of the decedent; (6) the lower court's determination of the grade of the charge of hindering apprehension or prosecution as a felony of the third degree; (7) the lower court's imposition of consecutive sentences on the separate criminal conspiracy counts; (8) the alleged excessiveness of the sentences imposed by the lower court; (9) the alleged inadequacy of the statement of reasons for the sentences imposed; and (10) the lower court's reliance on allegedly improper considerations in sentencing appellant.

[338 Pa.Super. 51] We affirm in part, reverse as to the convictions for criminal conspiracy to commit criminal mischief and criminal mischief, and vacate as to the sentence imposed for criminal conspiracy to commit abuse of corpse. 7

This case arose out of the events immediately following the shooting death of John McNulty. In the early morning hours of November 8, 1979, McNulty accompanied the appellant, whom he had met earlier that night, to the residence of George Peters at 61 Carbon Lane in Wilkes-Barre, Luzerne County. Once inside the residence, a dispute ensued between McNulty and Raymond Ziomek, appellant's boyfriend. Ziomek shot and killed McNulty.

Over the course of the following two days, appellant, George Peters, and John Noss, a friend of Ziomek, assisted Ziomek in the concealment and/or destruction of all evidence of McNulty's death. At appellant's trial, the combined testimony of Peters and Noss established the following with regard to appellant's involvement: (1) appellant helped Ziomek and Peters clean the room in which McNulty had been shot; (2) appellant cleaned the cellar steps of the Peters residence over which McNulty's body was dragged; (3) appellant accompanied Noss and Ziomek to the Wyoming Valley Mall where they obtained an ax, Drano and lye, and then all three returned to the Peters residence; (4) appellant removed a sheet of plastic covering McNulty's body as it lay in the cellar of the Peters residence; (5) appellant untied a belt which had been used to bind McNulty's hands; (6) appellant went through McNulty's pockets; (7) as Noss and Ziomek dismembered McNulty's body, appellant held garbage bags open in order for the head, arms and legs to be placed in them; (8) appellant understood that the bags were to be thrown into the Susquehanna River; (9) appellant was in the cellar constantly throughout the dismemberment; (10) appellant cleaned the cellar floor, where the body had lain, with buckets of water and by shoveling dirt; (11) appellant carried bags containing the disassembled components[338 Pa.Super. 52] of McNulty's body up from the cellar; (12) appellant placed the bag containing McNulty's head into a bucket; (13) appellant carried bags containing body parts out to McNulty's automobile; (14) after the bags were loaded into the automobile, appellant and Noss accompanied Ziomek as he drove McNulty's automobile to the Breslau Bridge over the Susquehanna River; (15) Ziomek and Noss tossed McNulty's torso into the river and appellant threw the remaining bags in; and (16) Ziomek, Noss and appellant then proceeded to a coal stripping area where Ziomek set fire to McNulty's automobile.

On November 23, 1979, appellant was arrested on matters unrelated to the McNulty homicide. However, appellant was thereafter questioned regarding that homicide and on November 28 and 29, respectively, appellant made two inculpatory statements.

As related by Trooper Charles Casey of the Pennsylvania State Police on direct examination at appellant's trial, the substance of appellant's November 28, 1979 statement included the following assertions: (1) after arriving at the Peters residence with

Page 847

McNulty, appellant watched as Ziomek and Peters argued; (2) Ziomek shot McNulty; (3) Ziomek dragged McNulty's body into the cellar and covered it up; (4) Noss and Ziomek later dismembered the body and placed it in garbage bags; (5) Noss and Ziomek carried the bags to McNulty's automobile; (6) Noss, Ziomek and appellant traveled to the Breslau Bridge and the bags were tossed into the river; and (7) Ziomek burned the car.

Appellant's November 29, 1979 statement was recorded on tape and the tape was subsequently played before the jury at appellant's trial. This statement included the following additional inculpatory remarks: (1) appellant cleaned the steps and the rug going into the cellar of the Peters residence after Ziomek dragged McNulty's body over them; (2) appellant accompanied Noss and Ziomek to the Wyoming Valley Mall while they obtained a hatchet, Drano and lye; (3) appellant, Noss and Ziomek later went down into Peters' cellar and Ziomek announced his intent to dismember [338 Pa.Super. 53] McNulty's body; (4) appellant removed the plastic sheet and the debris covering the body; (5) appellant got garbage bags from upstairs and threw them into the cellar; (6) appellant was upstairs and heard "cutting" noises from the cellar; (7) appellant took a bucket of water into the cellar and poured it over a spot where the body had been laying; (8) after Noss and Ziomek finished dismembering the body, appellant again took a bucket of water into the cellar, poured it over the remaining blood stains, and shoveled dirt over the spot where the body had been dismembered; and (9) appellant threw one of the bags in the river.

Immediately prior to the commencement of appellant's trial on November 17, 1980, her counsel made the following oral motion:

The second motion that I would make at this time is that this morning from the Public Defenders' Office, a Judy Kleiman and a Russ Thomas had indicated that at the time that Mrs. Lore had made certain statements to the District Attorney that they had evidence of some needle marks on her arms and that they indicated that she had not slept for a number of days or hours. At this time I would present the Court with an oral motion on a suppression of the statements given by Mrs. Lore. I found that out this morning and I did not have an opportunity to present a written motion to the Court for the suppression of that evidence.

N.T., November 17, 1980, at 16. (Appellant had earlier filed omnibus pretrial motions, however, these did not contain a motion to suppress.) The lower court permitted a hearing to be held on the above motion; at the conclusion of which, the motion was denied.

Appellant's first assignment of error alleges that the suppression court erroneously denied appellant's motion to suppress the inculpatory statements made by her on November 28 and 29, 1979. Appellant argues that, because she was tired and experiencing the physical and psychological effects of narcotic withdrawal, her November 28 and 29, 1979 statements were not intelligently, knowingly and voluntarily[338 Pa.Super. 54] made and, therefore, were not the product of a constitutionally effective waiver of the rights afforded her under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 8

Page 848

In reviewing the action taken by the suppression court in admitting appellant's statements into evidence, we are guided by the standard enunciated in Commonwealth v. O'Bryant, 479 Pa. 534, 388 A.2d 1059, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978):

[T]his Court must consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as fairly read in the context of the record as a whole, remains uncontradicted.... Where the suppression court's findings have ample support in the record, they may not be disturbed on appeal.

Id. at 537, 388 A.2d at 1061; see also Commonwealth v. Taylor, 494 Pa. 399, 403, 431 A.2d 915, 917 (1981).

Moreover, we are mindful of the fact that the admissibility of the challenged statements need not be proven beyond a reasonable doubt. It is sufficient if the Commonwealth satisfies the court by a preponderance of the evidence that the legal requirements for admissibility have been met, that is, that appellant herein waived her constitutional[338 Pa.Super. 55] rights voluntarily, knowingly and intelligently. Taylor, supra; Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

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