Com. v. McGlone

• Decision Date: 08 September 1998
• Citation: 716 A.2d 1280
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Warren McGLONE, Appellant.
• Court: Pennsylvania Superior Court

Page 1280

716 A.2d 1280

COMMONWEALTH of Pennsylvania, Appellee, v. Warren McGLONE, Appellant.

Superior Court of Pennsylvania.

Argued March 11, 1998.

Filed Sept. 8, 1998.

Edward H. Wiley, Bala Cynwyd, for appellant.

Karen A. Brancheau, Assistant District Attorney, Philadelphia, for Com., appellee.

Before TAMILIA, ORIE MELVIN and BECK, JJ.

BECK, Judge:

In this appeal from the judgment of sentence for second degree murder and related offenses, we consider, inter alia, whether and to what extent the statement of a non-testifying co-defendant may be redacted to allow its admission at a joint trial. After careful consideration of Gray v. Maryland, --- U.S. ----, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), we affirm.

On the morning of January 2, 1996, Philadelphia Police Officer Lauretha Vaird responded to a radio call of a bank robbery in progress. Upon entering the bank, Officer Vaird interrupted the crime and was shot in the abdomen by one of the robbers. She later died of her wounds.

Three men planned and executed the fatal robbery. Mark Canty and Christopher Roney entered the bank armed with guns while appellant Warren McGlone waited for them in the getaway vehicle, a stolen mini-van. After shooting Officer Vaird and attempting to shoot another officer, Roney jumped into the van and appellant sped away. Canty fled on foot. Both men dropped their weapons before fleeing.

By tracing ownership records of the guns found at the scene, police identified appellant as a suspect. They approached appellant outside his home and he agreed to accompany them to headquarters where he later made a full confession. Appellant's wife told police that appellant met with Canty and Roney shortly after the incident, at which time the men watched televised reports of the robbery/murder and discussed their escape.

Other evidence presented at trial established that one of the guns used in the crime was purchased by a woman for appellant. In addition, a citizen who observed the van fleeing from the bank identified appellant as the driver.

On appeal appellant raises three issues. The first two involve the admission of his own statement. He claims that the confession was "the direct result of an illegal arrest" and/or "obtained illegally during custodial interrogation."

Appellant relies primarily on allegations of police misconduct to support his claims. He argues that he was arrested in his home without a warrant, that he was not given Miranda ¹ warnings, that he requested but was refused an attorney, that he was deceived by police and that he was threatened with physical harm. Prior to trial, the suppression court heard all of these allegations, as well as the version of events presented by the police. The court found appellant's story not credible. Specifically, the court found that appellant was arrested outside his home, that he was informed of his Miranda rights, that no police deception occurred and that appellant's statement to police was voluntarily given.

In addition, the court found that the police had probable cause to question and detain appellant due to the connection between him and one of the guns found at the scene and information from federal authorities that appellant was a suspect in other armed bank robberies. Finally, the court found no violation of the "six hour rule" which our supreme court set forth in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) and further refined in Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987). ²

Upon review of the record and the trial court opinion, we are confident that the suppression court's findings of fact are supported by the record and its legal conclusions are proper. Commonwealth v. Lopez, 415 Pa.Super. 252, 254-55, 609 A.2d 177, 178, appeal denied, 533 Pa. 598, 617 A.2d 1273 (1992). The manner in which appellant was apprehended by police and the circumstances of his custody and interrogation were legitimate under the facts as found by the court. Further, the court's credibility determinations are not subject to reevaluation by this court. Commonwealth v. Fitzpatrick, 446 Pa.Super. 87, 89-90, 666 A.2d 323, 325 (1995). In sum, we find no error by the trial court in denying appellant's motion to suppress his statement to police.

Appellant's third claim concerns the admission of his co-defendant's statement. Appellant asserts that the prosecution's use of Mark Canty's statement at trial denied him his sixth amendment right to confront witnesses against him. He insists that this could have been remedied only by severing his case from Canty's, a request that he made prior to trial, but which the court rejected.

In a pre-trial motion to sever his case from his co-defendant's case, appellant argued that admission of Canty's statement was prejudicial. The court denied the motion to sever and the parties then set about redacting the statement to avoid prejudice to appellant.

The trial court recounts in its opinion:

Prior to the admission of both the statements made by co-defendant Canty and [appellant], this Court conducted two separate hearings ... to determine the best method to redact these statements. The parties eventually reached an agreement as to the final redacted version of both statements, where portions of each statement inculpating either co-defendant were omitted and specific names substituted with "other persons" or "person" when necessary to preserve the integrity of each statement.... The final versions of each statement only implicated the confessor of the statement and mentioned the confessor's role in the criminal acts....

Trial Ct. Op. at 12-13.

The Commonwealth argues that because appellant did not renew his motion to sever after his statement was redacted or when the statement was admitted, he has waived his claim. This is technically correct. Commonwealth v. Johnson, 368 Pa.Super. 427, 435-36, 534 A.2d 511, 515 (1987), appeal denied, 520 Pa. 587, 551 A.2d 214 (1988). However, in arguing for severance prior to trial, appellant's counsel focused primarily on the admission of Canty's statement and asserted that, despite the availability of redaction, the danger of prejudice remained. The court ultimately denied the motion to sever, as well as the motions to suppress both men's statements, and later led the parties through the redaction process. In light of counsel's pre-trial position, we decline to find waiver and instead will address appellant's claim on its merits.

Our task then is to determine whether the admission of Canty's redacted statement violated appellant's constitutional rights.

The primary basis for such a claim was first recognized by the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, two co-defendants were tried jointly and neither testified on his own behalf. The statement of one, implicating himself and his co-defendant, was presented to the jury. In the statement, the co-defendant specifically named Bruton. Although the trial court instructed the jury to consider the statement only against the defendant who made it, the Supreme Court held that admission of the statement violated Bruton's constitutional rights. This was so, reasoned the Court, because the co-defendant did not testify at trial and, therefore, his allegations against Bruton were not subject to cross-examination. Admission of the statement constituted a violation of Bruton's sixth amendment right to confront witnesses against him. Id.

Nearly twenty years later, the Supreme Court revisited the "Bruton rule" in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). There, in a joint trial, the confession of a non-testifying co-defendant was redacted. The issue was whether the redacted confession was sufficient to protect the sixth amendment rights of the other co-defendant, Clarissa Marsh. The statement was redacted "so as to 'omit all reference' to [Marsh] ... 'indeed, to omit all indication that anyone other than ... [the co-defendant] and a third person had 'participated in the crime.' " Id. at 203, 107 S.Ct. 1702. The Richardson court recognized that although the statement did not on its face incriminate Marsh, the substance of the confession became incriminating to her when linked with evidence introduced later at trial. Despite this, the Supreme Court found no violation of the Bruton rule. The Court held:

[T]he Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.

Id. at 211, 107 S.Ct. 1702.

Richardson explicitly left open the issue of whether confrontation clause interests are protected when, in a redacted statement, a co-defendant's name is replaced with a symbol or a neutral pronoun. However, in the wake of Bruton and Richardson, this court routinely approved the use of statements redacted in this manner as long as the statement was not "powerfully incriminating" or lent "substantial, perhaps critical, weight" to the prosecution's case. See Commonwealth v. Rawls, 276 Pa.Super. 89, 97-99, 419 A.2d 109, 113 (1980) (where redacted statement on its face does not incriminate defendant, admission proper), appeal dismissed, 499 Pa. 267, 452 A.2d 1347 (1982). See also Commonwealth v. Miles, 545 Pa. 500, 681 A.2d 1295 (1996) (use of term "X" in place of defendant's name permissible in light of limiting instruction); Commonwealth v. Presbury, 445 Pa.Super. 362, 665 A.2d 825 (1995) ("other guy" reference in redacted confession did not render confession inadmissible), appeal denied, 544 Pa. 627, 675 A.2d 1246 (1996); Commonwealth v. Pirela, 398 Pa.Super. 76, 580 A.2d 848 (1990) (use of "X" proper particularly since trial judge was fact finder), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991); Commonwealth v. Hess, 378 Pa.Super. 221, 548 A.2d 582 (19...