Com. v. Penn

• Decision Date: 26 January 1982
• Parties: COMMONWEALTH of Pennsylvania v. Walter PENN, Appellant.
• Court: Pennsylvania Supreme Court

Page 1154

439 A.2d 1154

497 Pa. 232

COMMONWEALTH of Pennsylvania v. Walter PENN, Appellant.

Supreme Court of Pennsylvania.

Submitted April 27, 1981.

Decided Jan. 26, 1982.

Michael J. Byrne, Jr., Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Mark S. Gurevitz, Asst. Dist. Atty., for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT, and HUTCHINSON, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This is a direct appeal from judgments of sentence imposed by the Court of Common Pleas of Philadelphia on convictions of murder of the first degree and possession of an instrument of crime. For the reasons set forth below, we affirm. ¹

Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence establishes that on December 23, 1977, appellant became involved in an argument with Frances Hood, a woman with whom he was living. During the argument, appellant first attempted to push Ms. Hood out of a window. He then killed her by stabbing her repeatedly in the neck and chest, and fled the scene.

Appellant was arrested on January 25, 1978, on an unrelated charge, at which time he gave police a fictitious name. Upon determining appellant's true identity, police discovered that there existed two outstanding warrants for appellant's arrest on charges of murder, including the murder of Frances Hood. Following conviction by a jury, post-verdict motions were denied. Appellant was sentenced to life imprisonment for the murder and a concurrent term of two and one-half to five years for the weapons offense. This appeal followed.

Appellant advances numerous contentions in support of his argument that two incriminating statements made to police shortly after his arrest should have been suppressed. He first claims that his warrantless arrest was invalid because it was not based upon probable cause. He does not contend that the Commonwealth's evidence, if believed, fails to establish probable cause, but rather that the police version of the arrest was fabricated and that his version of the arrest should be believed. According to the Commonwealth, on January 25, 1978, a woman named Ruby Blocker approached a Philadelphia police officer and told him that she had been stabbed and held hostage by appellant. The stab wounds were visible to the officer. She further informed the officer that appellant was wanted for two murders and that he was at that time fleeing in a brown Hornet automobile. The officer and Ms. Blocker then pursued the vehicle, which was still in sight. After a chase, appellant was apprehended by other officers who had heard the broadcast of appellant's description and location over police radio. Seconds later, Ms. Blocker positively identified appellant as her assailant. This evidence clearly establishes that there were facts available to the arresting officers which would justify the belief of a reasonable person that a crime had been committed and that appellant was the perpetrator. See Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973).

Appellant contends that he was in fact arrested simply because he had vomited on the sidewalk. The suppression court rejected appellant's version of the arrest as incredible and credited the testimony of police. Resolution of questions of credibility is for the trier of fact, and where, as here, that resolution is based upon credible evidence, it will not be disturbed on appeal. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). Accordingly, we reject appellant's claim that his warrantless arrest was invalid.

Appellant next contends that he was interrogated prior to receiving his Miranda warnings and that this interrogation tainted all subsequent statements made by appellant. Appellant's contention is based on the fact that, while appellant was being transferred to the homicide unit after his identification as Walter Penn, a police officer with him said, "Hey, you've been involved in other murders," to which appellant responded, "Yeah, I was involved in a homicide in Pittsburgh." ² Whether the officer's statement constituted interrogation, as appellant claims, or was simply a gratuitous remark, as the Commonwealth contends, is immaterial. Appellant's response, which merely confirmed a fact of record, was not introduced at trial. Indeed, all references to this prior homicide in appellant's subsequent statements were carefully redacted before those statements were introduced into evidence. Moreover, appellant has not shown that police in any way exploited this brief exchange of remarks in the subsequent interrogation of appellant, which was preceded by appropriate Miranda warnings. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976). Thus this claim must fail.

Appellant next contends that because he was in a drugged and intoxicated condition when he was arrested, he lacked sufficient mental capacity to waive his right to remain silent. This contention was resolved against appellant by the suppression court on the basis of credible evidence, including the fact that appellant possessed the presence of mind to conceal his true identity from police at the time of his arrest. Accordingly, this determination of the suppression court will not be disturbed on appeal. See Commonwealth v. Holly, 483 Pa. 371, 396 A.2d 1215 (1979).

Appellant further argues that his incriminating statements should have suppressed because there was unnecessary delay between his arrest and arraignment and because police failed to rewarn him of his Miranda rights prior to taking his statements. Appellant was arraigned five hours and twenty minutes after his arrest. Thus, he does not argue that his statements should be excluded on the basis of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (delay of over six hours between arrest and arraignment renders pre-arraignment statements inadmissible). Rather, he argues on the basis of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), that his statements were tainted by unnecessary delay within this period. The record indicates that the first two hours following appellant's arrest were required for his administrative processing, in large part because appellant had misled police as to identity, and thus do not constitute unnecessary delay. Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973). During the next three hours, appellant received his Miranda warnings and voluntarily gave two statements to police, the second of which he reduced to writing in his own hand. Because appellant has not shown that the time between his arrest and arraignment involved unnecessary delay, this contention provides no basis for relief. Moreover, the record is clear that appellant began to cooperate with police immediately after receiving his Miranda warnings and that the next three hours were occupied continuously with the preparation of appellant's two statements. In the circumstances, there was no requirement that appellant be rewarned of his rights. See Commonwealth v. Dixon, 475 Pa. 365, 380 A.2d 765 (1977); Commonwealth v. Riggins, 451 Pa. 519, 304 A.2d 473 (1973). Having determined that none of the grounds advanced by appellant warrants the suppression of his incriminating statements, we conclude that these statements were properly admitted at trial.

Appellant next contends that eyewitness Juan Henderson, the twelve-year-old son of the victim, should have been found incompetent to testify because he displayed some confusion about dates and locations and did not know the meaning of the word "oath." The standards for determining the competency of a child to testify are set forth in Rosche v. McCoy, 397 Pa. 615, 620-21, 156 A.2d 307, 310 (1959):

"There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that (he) is called to testify about and (3) a consciousness of the duty to speak the truth."

Accord, Commonwealth v. Fox, 445 Pa. 76, 282 A.2d 341 (1971). Here, the trial judge conducted an extensive in-camera colloquy with the witness and determined that he possessed the requisite capacity for observation and communication, attributing the witness's confusion over dates and locations to his recent change of residence. The court also determined that the witness was conscious of his duty to tell the truth, notwithstanding his unfamiliarity with the specific word "oath." A determination of competency will not be disturbed on appeal absent a clear abuse of discretion. Commonwealth v. Fox, supra; Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977). Because the record reveals no such abuse, appellant's claim that the witness was incompetent cannot prevail.

Appellant next challenges the testimony of the Reverend Larry Falcon that, within half an hour of the murder, Juan Henderson told him that appellant had killed his mother. Appellant maintains that the trial court erroneously held the testimony admissible as an excited utterance under the res gestae exception to the hearsay rule. See Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975); Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966). In Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978), this Court held that to come within the excited utterance exception to the hearsay rule, a statement must be

" 'a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence...