Com. v. Steward

• Decision Date: 25 April 2001
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David STEWARD, Appellant.
• Court: Pennsylvania Superior Court

775 A.2d 819

COMMONWEALTH of Pennsylvania, Appellee v. David STEWARD, Appellant.

Superior Court of Pennsylvania.

Argued November 14, 2000.

Filed April 25, 2001.

Reargument Denied June 27, 2001.

Garrett D. Page, Norristown, for appellant.

Mary M. Killinger, Asst. Dist. Atty., Norristown, for the Com., appellee.

Before FORD ELLIOTT, J., EAKIN, J., and CERCONE, President Judge Emeritus. CERCONE, President Judge Emeritus:

¶ 1 Appellant appeals nunc pro tunc from the judgment of sentence of life imprisonment imposed after his conviction by a jury of first degree murder, aggravated assault, robbery, burglary, theft by unlawful taking, possession of an instrument of crime, criminal conspiracy, receiving stolen property, reckless endangerment and carrying firearms without a license.¹ After review we affirm.

¶ 2 On New Years Day 1986, Doctor Michael Groll and his wife were asleep in their bedroom when they were awakened by two intruders. Dr. Groll pointed his finger at one of the intruders and told him to "get out of here." At this point one of the intruders fired a gun and killed Dr. Groll. While in the bedroom, the other intruder forced Mrs. Groll to give him the rings she was wearing. The intruder then took her at gunpoint into the bathroom where she handed him an envelope of money that she had in her purse. The intruders subsequently fled the house.

¶ 3 Two weeks later, Appellant was in the Philadelphia Police station being arraigned on an unrelated assault charge. Appellant was represented by Attorney Michael Floyd on that matter. After the arraignment on the assault matter, homicide detectives took him for questioning concerning the Groll shooting death. Attorney Floyd was not present when Appellant was questioned. Although given his Miranda rights by the detective before questioning, Appellant gave an oral statement implicating himself and an accomplice in the murder of Dr. Groll. Appellant subsequently signed a written waiver of his Miranda rights and also a confession, as well as making a drawing of the victim's bedroom. Mrs. Groll later picked Appellant out of a lineup. Appellant filed a pretrial motion to suppress his oral statements, written confession and drawing but it was denied by the Trial Court. Appellant proceeded to a jury trial along with a codefendant, Christopher Briggman. Appellant was convicted and sentenced to life imprisonment.

¶ 4 Appellant, still represented by trial counsel, filed a post trial motion which was denied by the Trial Court prior to sentencing. In this motion, Appellant raised the issues of whether the Trial Court erred in failing to grant his pretrial motions, whether the evidence was sufficient to sustain the verdict, whether the verdict was against the weight of the evidence and whether the trial court erred in failing to sustain defense demurrers. See Post Trial Motion, filed 6/30/86. The post trial motion was denied by the Trial Court. Appellant's trial attorney then filed a notice of appeal from the judgment of sentence. However, the appeal was later dismissed for trial counsel's failure to file a brief. See Commonwealth v. Steward, 382 Pa. Super. 648, 549 A.2d 1343 (1988) (unpublished memorandum filed 8/4/88). Appellant subsequently filed a pro se PCRA Petition. Counsel was appointed for Appellant who filed a Turner/Finley² no merit letter and sought leave to withdraw representation. The Trial Court then dismissed the PCRA Petition. Appellant appealed pro se and our Court affirmed. See Commonwealth v. Steward, 724 A.2d 961 (Pa.Super.1998) (unpublished memo filed 7/1/98). However, our Supreme Court reversed and remanded to the Trial Court for a hearing on the issue of whether trial counsel's ineffectiveness deprived Appellant of his right to a direct appeal. See Commonwealth v. Steward, 559 Pa. 384, 740 A.2d 1141 (1999)

. After conducting the required evidentiary hearing, the Trial Court reinstated Appellant's direct appeal rights nunc pro tunc. Appellant, who was appointed new counsel, subsequently filed this instant direct appeal from his judgment of sentence.

¶ 5 Appellant presents six (6) issues for our consideration:

I. DID NOT THE SUPPRESSION COURT ERR, IN NOT SUPPRESSING THE TYPED AND ORAL CONFESSION, WHEN APPELLANT WAS INTERROGATED AFTER HE HAD INVOKED HIS RIGHT TO COUNSEL AND HAD COUNSEL PRESENT AT THE ARRAIGNMENT ON AN UNRELATED OFFENSE JUST MINUTES BEFORE THE INSTANT ALLEGED CONFESSION TO MURDER,

AND NEVERTHELESS WAS NOT PROPERLY REMIRANDIZED WITH THE PRESENCE AND BENEFIT OF COUNSEL.

II. WAS NOT THE SUPPRESSION COURT AND TRIAL COURT IN ERROR IN ALLOWING THE OUT-OF-COURT IDENTIFICATION OF THE "LINE-UP" WHEN SAME WAS GAINED THROUGH UNDULY SUGGESTIVE PROCEDURES?

III. WAS NOT TRIAL COUNSEL INEFFECTIVE IN FAILING TO INVESTIGATE, AND ENGAGE AN EXPERT TO DETERMINE AND/OR CONFIRM THE APPELLANT'S ASSERTION THAT THE CONFESSION AS PRODUCED AT TRIAL, WAS A FRAUD, AND UNAUTHENTIC, AFTER APPELLANT INFORMED COUNSEL THAT HE SIGNED "BLANK SHEETS OF PAPER," WITH NO TYPED CONFESSION STATEMENT THEREON?

IV. WAS NOT TRIAL COUNSEL INEFFECTIVE FOR NOT PROPERLY CROSS EXAMINING THE COMMONWEALTH WITNESS AS TO HER SUGGESTIVE OUT-OF-COURT IDENTIFICATION?

V. WAS NOT THE TRIAL COURT IN ERROR AND WERE NOT THE APPELLANT'S ATTORNEYS INEFFECTIVE IN NOT ORDERING THE CLOSING ARGUMENTS TO BE TRANSCRIBED, IN A MURDER CASE, WHEN THE CO-DEFENDANT'S TRANSCRIPT WAS SO TRANSCRIBED, AND THE FAILURE TO DO SO PREVENTED MEANINGFUL REVIEW OF ANY ERROR?

VI. WAS NOT TRIAL COUNSEL INEFFECTIVE IN ESSENTIALLY PLEADING APPELLANT "GUILTY" TO MURDER IN HIS CLOSING STATEMENT TO THE JURY, WITHOUT EVER DISCUSSING SAME APPROACH WITH APPELLANT NOR GAINING HIS CONSENT?

Appellant's Brief at 3.³ We will consider these issues seriatim.

¶ 6 In Appellant's first issue he argues that the homicide detectives should not have questioned him regarding the murder of Dr. Groll since he had already specifically invoked and asserted his right to counsel whenever he retained Attorney Floyd to represent him on the unrelated assault offense. Appellant asserts that because he was questioned about the homicide without the presence of counsel, the oral and written statements which he gave should have been suppressed. After careful consideration we must disagree.

¶ 7 As a reviewing court, when evaluating the propriety of a Trial Court's denial of a suppression motion our role is to determine:

whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we may consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, we may reverse only if there is an error in the legal conclusions drawn from these factual findings. Commonwealth v. Jackson, 548 Pa. 484, 487, 698 A.2d 571, 572 (1997); Commonwealth v. J.B., 719 A.2d 1058, 1061 (Pa.Super.1998). As a reviewing court, we are therefore not bound by the legal conclusions of the suppression court and must reverse that court's determination if the conclusions are in error or the law is misapplied.

Commonwealth v. Hayward, 756 A.2d 23, 26 (Pa.Super.2000).

¶ 8 Appellant relies principally on the case of Commonwealth v. Santiago, 528 Pa. 516, 599 A.2d 200 (1991) as support for his argument that his statements to detectives should have been suppressed.⁴ In Santiago, the appellant was arrested by the FBI in Washington, DC on an outstanding warrant for unlawful flight to avoid prosecution in connection with the murder of a man from Lawrence County, Pennsylvania. When he was arrested, Santiago invoked his right to remain silent and requested an attorney. Questioning ceased and an attorney was provided for him. The next day two detectives from Pittsburgh sought to interview Santiago in connection with the murder of a Pittsburgh man. Prior to questioning Santiago, the detectives advised him of his Miranda rights and the defendant agreed to the interview both orally and in writing. Santiago subsequently confessed to the murder during the interrogation. Prior to his trial, Santiago sought to have his confession suppressed, however this motion was denied by the Trial Court.

¶ 9 Our Court affirmed the Trial Court, however the Pennsylvania Supreme Court reversed. Relying on the U.S. Supreme Court's decisions in Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) and McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) our Supreme Court ruled that Santiago's confession to the Pittsburgh detectives should have been suppressed.

¶ 10 Both Minnick and McNeil were cases in which the United States Supreme Court clarified under what circumstances police interrogation of a suspect in custody, who had previously requested or obtained the assistance of an attorney, was permissible. Minnick and McNeil were interpretations and applications by the United States Supreme Court of its earlier decisions in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).⁵

¶ 11 In Miranda the United States Supreme Court held that in order to protect an individual's privilege against self-incrimination secured by the Fifth Amendment to the United States Constitution the police may not conduct a custodial interrogation of that individual once the individual has shown that he intends to exercise his Fifth Amendment privilege. The Court held:

If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before

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