Com. v. Romeri

• Decision Date: 08 August 1983
• Citation: 314 Pa.Super. 279,460 A.2d 1139
• Parties: COMMONWEALTH of Pennsylvania v. Joseph George ROMERI, Appellant.
• Court: Pennsylvania Superior Court

Page 1139

460 A.2d 1139

314 Pa.Super. 279

COMMONWEALTH of Pennsylvania v. Joseph George ROMERI, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 15, 1981.

Filed May 6, 1983.

Petition for Allowance of Appeal

Granted Aug. 8, 1983.

Thomas J. Calnan, Jr., Allentown, for appellant.

William H. Platt, Dist. Atty., Allentown, for Commonwealth, appellee.

Before McEWEN, JOHNSON and WATKINS, JJ.

McEWEN, Judge:

We here review an appeal from the judgment of sentence imposed after appellant was convicted by a jury of murder in the second degree, burglary, theft by unlawful taking, receiving stolen property and criminal conspiracy. Appellant was sentenced to serve a term of life imprisonment upon the murder conviction and a consecutive term of from two to seven years upon the other convictions.

Stella A. Bremmer was eighty years of age when she was bludgeoned to death on November 9, 1978. Four days later, appellant voluntarily accompanied two officers to the Allentown Police Station for questioning. Since appellant was not yet 17 years of age, the police provided for the presence of his mother, who with appellant was apprised of the Miranda warnings. Appellant thereafter gave and subsequently wrote and signed a statement admitting his complicity in the killing of Stella A. Bremmer during the commission of the burglary of her home. The juvenile probation officer of appellant, as well as another juvenile officer, were present with appellant and his mother when appellant made his statement, and the mother herself signed as a witness to the execution of the statement by her son. ¹

The record reflects that appellant and co-defendant, Michael Reinhard, after consuming a quantity of marijuana, gained entry to the house of Mrs. Bremmer through an open rear window. Appellant and the co-defendant then searched the house and took a small amount of money. The co-defendant testified that while he was in the kitchen he heard "muffled sounds" from upstairs, as a result of which he ascended the stairs, and saw appellant standing with a pipe over the bloodied body of Stella Bremmer.

Appellant testified that in addition to smoking marijuana, he ingested LSD, two or three bottles of ale and a swallow of whiskey or wine. He further testified that he was not certain whether or not he hit the victim, but since his accomplice told him he struck Stella Bremmer, he therefore believed that he inflicted the blows. Appellant also indicated uncertainty as to whether the statement he made to Detective Monahan was part of his honest recollection.

The record reflects that appellant, while incarcerated, wrote a letter to his mother in which he stated, inter alia:

... Mom, I talked to my lawyer last night. Mom, I am facing life in jail. I need your help. Do as my lawyer tells you to, please. He says I have a chance of being found not guilty. That means I can get away with murder....

Prior to the trial, the court denied the following applications of appellant: (1) a petition to transfer the case to juvenile court; (2) a motion to suppress the statement to Detective Monahan; and (3) a motion for bail.

On the morning of trial, April 2, 1979, a local daily newspaper reported upon the court opinion and order that denied the petition of appellant to transfer the case to the juvenile court. That same article also reported upon the opinion and order of the court that denied the petition of co-defendant Michael Reinhard for transfer to juvenile court.

Appellant, prior to the empaneling of a jury, moved for a change of venue as a result of the newspaper article, but the court held the motion under advisement. That evening, another local newspaper reported the "plea for venue change". Upon completion of voir dire, the trial judge denied the motion of appellant for change of venue.

Appellant asserts that the trial court erred when it refused to dismiss for cause four prospective jurors who had read or discussed the newspaper article of April 2, 1979, and had been thereby challenged for cause. Our eminent President Judge William F. Cercone, in Commonwealth v. Lucchese, 233 Pa.Super. 273, 279, 335 A.2d 508, 511 (1975), delineated the principle pertinent to this issue:

[T]he fact that a juror has read a newspaper account concerning the accused and the crime at bar does not require that the juror be excluded for cause. It must be shown that the juror has formulated a fixed opinion precluding him from reaching a verdict based solely on the evidence produced at trial....

The Pennsylvania Supreme Court reiterated this principle when the eminent Justice Robert N.C. Nix, Jr., in Commonwealth v. Hoss, 469 Pa. 195, 200-01, 364 A.2d 1335, 1338 (1976), declared:

The mandate for a fair and impartial jury does not require that the prospective jurors be free of all knowledge of the facts and circumstances surrounding the incident which forms the basis of the trial.

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Thus, the critical question where members of the panel have been exposed to pre-trial media publicity, is whether or not they are capable of casting aside any impressions or opinions they may have formed and render a verdict based solely upon the evidence presented to them during the course of the trial.

The en banc opinion of the Common Pleas Court provided the following description of the effort to secure an impartial jury:

[T]he Court, in recognizing the weight that a judicial opinion would receive in the community, took care to insure the selection of an impartial jury for trial. Wide latitude on voir dire examination was extended by the Court in recognition of the problem; every defense challenge for cause was granted where a prospective juror had read a recent newspaper article involving the case--whether or not that prospective juror had any recollection of the newspaper account or had formed an opinion. Of the fourteen (14) jurors seated, not one had read the allegedly prejudicial publicity.

Our review of the record does not indicate that any juror had an opinion that was fixed so as to preclude a deliberation and decision solely upon the evidence. As a result we conclude there is no merit to this contention of appellant.

Appellant next asserts that he was arrested without probable cause at his place of employment. He argues, therefore, that any statements subsequently made were the fruit of an illegal arrest and, for that reason, should have been suppressed. "In reviewing the findings of the suppression court, this court must determine whether the record 'supports the suppression court's factual findings and the legitimacy of the inferences and conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.' " Commonwealth v. Crissy, --- Pa.Super. ---, 450 A.2d 89 (1982) (quoting Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976) and Commonwealth v. Hunt, 280 Pa.Super. 205, 421 A.2d 684 (1980)).

The suppression hearing record reflects that investigating officer Gerald Monahan, who was dressed in civilian clothing and accompanied by a juvenile officer, located appellant at his place of employment, identified himself and said: "I would like to talk to you. Would you mind coming down to the police headquarters with me?" Detective Monahan testified that he informed appellant that he was not under arrest stating: "You aren't getting blamed for a thing. I just want to talk to you." The detective further testified that he asked appellant "if his mother would come with them", indicated that the conference would take about an hour, and offered to return appellant to his place of employment at the termination of the interview. The record clearly establishes that appellant was aware that he was not told that he was under arrest, and that after locating Mrs. Romeri, appellant, of his own volition, accompanied the officers to the police headquarters. The record further reflects that before being questioned, appellant was apprised of the Miranda rights and of the right to a private conference with his mother and his probation officer, who was, at his request, made available to him for counseling. It was not until after appellant made his confession that he was told he was under arrest.

The determination of when an arrest occurs depends on an evaluation of all the surrounding circumstances. Commonwealth v. Crissy, supra at ---, 450 A.2d at 91. An arrest may be constructive or actual, id., and is accomplished by "any act that indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest." Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), cert. denied, Bosurgi v. Pennsylvania, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963) (quoting 5 Am.Jur.2d, Arrest § 1, p. 695). See also Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). "An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest." Commonwealth v. Benson, 280 Pa.Super. 20, 27, 421 A.2d 383 386 (1980). See also Commonwealth v. Holmes, supra; Commonwealth v. Crissy, supra; Commonwealth v. Haggerty, 282 Pa.Super. 369, 422 A.2d 1336 (1980), rev'd on other grounds, 495 Pa. 612, 435 A.2d 174 (1981); Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979). However, the question of when an arrest occurs is determined by an objective standard, namely, the reasonable impression conveyed to the person subjected to seizure or detention rather than the subjective view of such person or of the arresting officer. Commonwealth v. Holmes, supra; Commonwealth v. Richards, supra; Commonwealth v. Trenge, --- Pa.Super. ---, 451 A.2d 701 (1982); Commonwealth v. Crissy, supra; Commonwealth v. Haggerty, supra; Commonwealth v. Benson, supra.

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