Com. v. Monahan

• Decision Date: 26 October 1988
• Citation: 549 A.2d 231,378 Pa.Super. 623
• Parties: , 57 USLW 2358 COMMONWEALTH of Pennsylvania v. Donald MONAHAN, Appellant.
• Court: Pennsylvania Superior Court

Page 231

549 A.2d 231

378 Pa.Super. 623, 57 USLW 2358

COMMONWEALTH of Pennsylvania v. Donald MONAHAN, Appellant.

Superior Court of Pennsylvania.

Argued June 9, 1988.

Filed Oct. 26, 1988.

Thomas M. Dickey, Altoona, for appellant.

Keith A. Presto, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.

Before CAVANAUGH, ROWLEY and KELLY, JJ.

KELLY, Judge:

In this case, we are called upon to determine whether an appellant's pre-arrest refusal to explain his appearance at a state police barracks with a dead body and the murder weapon in his automobile may be admitted into evidence, and whether appellant's post-arrest refusal to submit to a neutron activation test to determine whether he had recently fired a gun may be admitted into evidence. Despite appellant's objections on constitutional grounds, we find as to both of these issues that the evidence was admissible.

On March 23, 1982, at 1:40 a.m., appellant appeared at the Pennsylvania State Police Barracks at Hollidaysburg, Pennsylvania, and informed the desk officer on duty that he wanted to report a dead body. He further indicated to the trooper that the body was in the automobile parked in front of the barracks. Two other troopers went out to the automobile and discovered the body of the victim, a young woman, located in the passenger's side of the front seat. The victim had been killed by a single gun shot wound to the left side of the head. In addition, the murder weapon, a hand gun, was found in the automobile beside the victim. The weapon was later determined to have been stolen from its owner several years prior to the subject incident.

On the same day, a criminal complaint was filed, charging appellant with homicide, aggravated assault, recklessly endangering another person and receiving stolen property. Appellant was subsequently tried and convicted on all offenses; the homicide charge was determined by the jury to be first degree murder. A sentencing hearing was conducted on the first degree murder conviction, after which the jury returned a sentence of life imprisonment. Both post-trial motions and supplemental post-trial motions filed by new counsel were denied after a hearing. Appellant was sentenced to a term of life imprisonment on the first degree murder conviction and to a consecutive period of one to five years imprisonment on the receiving stolen property conviction. This timely appeal follows.

On appeal, appellant raises twelve separate issues¹ in support of its contention that the trial court erred in failing to grant appellant's post-trial motion for a new trial. We have reviewed the voluminous record, the briefs of the parties, and the well-reasoned opinion of the Honorable Richard A. Behrens. In this opinion, we shall address only two of the issues raised by the appellant. First, we will consider appellant's contention that the trial court erred in admitting evidence of his pre-arrest silence. Second, we will consider appellant's contention that the trial court erred in admitting evidence of his post-arrest refusal to submit to a neutron activation test. These contentions present issues of general significance to the public which warrant further examination. With respect to the ten remaining issues, we affirm on the basis of the trial court opinion.

I.

Appellant contends that the trial court erred in charging the jury that appellant's failure to give an explanation to the police at the state police barracks as to what had occurred could be considered by the jury to assess appellant's credibility. Testimony reveals that after appellant reported a dead body in his automobile parked outside the barracks, two police officers went out to investigate. At least one officer, Trooper William Emeigh, remained inside the barracks with appellant. Trooper Emeigh questioned appellant as to his name and address, which was obtained. However, when Trooper Emeigh asked appellant what had happened, appellant refused to answer.

The trial court charged the jury as follows:

... [Y]ou have heard evidence in this case concerning the failure of the defendant to give an explanation to the police at the State Police barracks as to what had occurred and also evidence regarding asking for an attorney or asking to speak with his attorney. You are hereby directed that a defendant's silence and/or his request for an attorney or to speak to an attorney is not any evidence of guilt whatsoever and should not be considered as such. A defendant's silence prior to being advised of his constitutional rights and prior to being taken into custody, however, may be considered in connection with a jury's assessment of defendant's credibility as a witness in this case in conjunction with all the other factors bearing on credibility but only for the purpose of credibility and only if you are satisfied that under all the circumstances then and there existing an explanation would naturally have been given by the defendant.

(N.T. 11/5/82 at 571-572). Appellant contends that this charge is inconsistent with the law of this Commonwealth.

Appellant alleges that his silence during the circumstances related above was not pre-arrest silence but rather post-arrest silence. In either event, appellant contends that Commonwealth v. Turner, 499 Pa. 579, 454 A.2d 537 (1982), is dispositive of this issue. In Turner, our Supreme Court found as follows.

Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when in fact he remained silent. (Citations omitted). Absent such an assertion, the reference by the prosecutor to previous silence is impermissible and reversible error.

454 A.2d at 539, 540. (Emphasis added). The court in Turner ruled that if a defendant remains silent after his arrest but prior to receiving Miranda² warnings, his silence cannot be used to impeach his trial testimony. In the instant case, however, the trial court determined that appellant's silence occurred at a pre-arrest stage.

An arrest may be accomplished by any act that indicates an intent to take an individual into custody and subject him to the control and will of the person making the arrest. Commonwealth v. Lovette, 498 Pa. 830, 450 A.2d 975 (1982) cert. denied 459 U.S. 1178, 103 S.Ct. 803, 74 L.Ed.2d 1025 (1983). An arrest may be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974); Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988).

The test is an objective one, i.e., viewed in the light of the reasonable impression conveyed to the person subjected to the seizure rather than the strictly subjective view of the officers or the persons being seized.

539 A.2d at 419. (Citations omitted). Finally, whether an encounter is to be deemed 'custodial' must be determined with reference to the totality of the circumstances. Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987); Commonwealth v. Lovette supra; Commonwealth v. Douglass, supra.

After appellant reported the dead body and before the officers returned from checking appellant's car, appellant had not been arrested. The police had no corroborative information that there was a dead body in the car or any information that a murder might have occurred. Appellant had not suggested that he or anyone else had committed a crime. No physical or verbal restraints were placed upon appellant, nor had he yet been given his Miranda warnings. At that juncture, neither a formal arrest nor a custodial detention had occurred. Therefore, use of appellant's silence during that time period by the Commonwealth to impeach appellant's credibility as a witness³ did not violate appellant's Fifth Amendment right against self-incrimination. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985). The charge given by the trial court correctly stated the applicable law.

II.

Appellant next contends that the trial court erred by permitting the Commonwealth to introduce testimony of appellant's refusal to submit to a neutron activation test.⁴ At trial, testimony presented by the Commonwealth indicated that the results of the neutron activation test on appellant were negative. (N.T. 11/3/82 at 249). Trooper Lingenfelter explained, however, that the test was only effective if administered within two hours of the discharge (N.T. 11/3/82 at 193), and that appellant had refused to submit to the test between 2:30 a.m. and 3:00 a.m., on the morning appellant had appeared at the barracks, thus the test was not administered until 4:00 a.m. after a search warrant was finally obtained to proceed with the test. (N.T. 11/3/82 at 211). In his testimony, Trooper Lingenfelter explained further that a subject could remove the minute particles of barium and antimony by rubbing his hands together, by washing his hands or by putting his hands in his pockets. (N.T. 11/3/82 at 193). The inference the Commonwealth sought from this evidence was that appellant exhibited a consciousness of guilt in resisting the test, that appellant feared the test might reveal his guilt.

Appellant advances two theories in support of his contention that the trial court erred by permitting introduction by the Commonwealth of testimony concerning appellant's refusal to submit to a neutron activation test. First, appellant argues that such testimony violated Pa.R.Crim.P. 305(B)(1)(b). Secondly, appellant argues that such testimony violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution.⁵

A.

In support of his first theory, appellant alleges that because the pre-trial discovery statement received from the District Attorney's office listed the result of the neutron activation test as negative, the Commonwealth could not introduce his refusal to submit...