Com. v. Stonehouse

• Decision Date: 26 November 1986
• Citation: 517 A.2d 540,358 Pa.Super. 270
• Parties: COMMONWEALTH of Pennsylvania v. Carol STONEHOUSE, Appellant.
• Court: Pennsylvania Superior Court

Page 540

517 A.2d 540

358 Pa.Super. 270

COMMONWEALTH of Pennsylvania v. Carol STONEHOUSE, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 19, 1986.

Filed Sept. 23, 1986.

Reargument Denied Nov. 26, 1986.

Shelley Stark, Asst. Public Defender, Pittsburgh, for appellant.

Dara A. DeCourcy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before BROSKY, OLSZEWSKI and POPOVICH, JJ.

BROSKY, Judge.

This is an appeal from the judgment of sentence imposed following a jury trial at which appellant was found guilty of third degree murder.

Appellant presents five issues for our determination: (1) whether the trial court erred by refusing to suppress certain statements made by appellant; (2) whether the testimony of Steve Owens constituted reversible error; (3) whether the Commonwealth failed to disprove self-defense; (4) whether trial counsel's stewardship of the defense was ineffective; (5) whether a remand for resentencing is required. On our review of the record and the briefs submitted by counsel, we find no merit in appellant's issues. Accordingly, we affirm judgment of sentence.

Appellant and the victim were City of Pittsburgh police officers. They met in March of 1980 and began dating six months later. The relationship between appellant and victim can best be described as tumultuous, as it was characterized by acts of harassment and violence.

On Wednesday, March 16, 1983, the night before the shooting, appellant drove to her girl friend's house. Along the way, the victim tailgaited appellant's car, bumping the rear of the car at traffic lights. Appellant, with her girl friend, drove to a bar where appellant met an old friend and neighbor, Steve Owens. When the victim arrived at the bar, words were exchanged between the victim and appellant. Appellant decided to leave, drove her friend home, and then proceeded to her apartment where she made herself ready for bed. Steve Owens, who was out walking his dog, stopped by appellant's house. They talked for about fifteen minutes and were then interrupted by the arrival of the victim.

The victim pounded and kicked the front door. After a few minutes of inaction appellant armed herself and unlocked the door. At that same moment, the victim kicked the door open and began to struggle with appellant for the gun. Steve Owens assisted appellant and the struggle ended with the victim exiting appellant's apartment. Seconds later appellant heard the window of her car being broken. She immediately called the police. While waiting for the police to arrive, Steve Owens left to buy a pack of cigarettes.

When appellant was alone, the victim reappeared this time with his own gun. Upon entering, he backed appellant at gun point through the kitchen into the living room and then into the bedroom. While appellant and victim were in the bedroom the victim struck appellant with his gun and then kicked her. The direction of the confrontation changed, and appellant this time backed the victim through the living room into the kitchen. Near the kitchen, appellant was able to pick up her gun and point it at the victim. When they reached the back door, the victim ran onto the porch and then down the stairway to ground level.

Appellant stepped onto the porch, leaned over the railing, and saw the victim standing below. Although there was no witness corroboration, appellant claims the victim was holding a weapon. Appellant fired twice striking the victim in the back. The victim ran off, never firing his gun. With that, appellant called the police two more times. During the first call at 7:10 a.m. she said she had shot the victim, but his whereabouts were unknown and, in the second call at 7:16 a.m., she said the victim was "bleeding all over the place". Before the police arrived, Steve Owens returned and saw the victim lying dead on the ground next to his vehicle which was parked near appellant's apartment.

After the shooting a passerby heard appellant state, "He shot at me, I shot at him". Appellant asked the passerby to call the police and paramedics. When the police arrived, they found the victim lying on the sidewalk. As the police approached, appellant stated for a second time, "He shot at me, I shot at him". The door of appellant's apartment had to be forced open by the police because appellant was unable to open it. As the police entered, appellant stated a third time, "He shot at me, I shot at him". While they climbed the stairs to her apartment, appellant was given her Miranda warnings. At the top of the stairs appellant appeared to have composed herself.

The police asked appellant for her weapon. An additional inquiry was made about her service revolver. Appellant was asked if she desired to have an attorney and she replied no. She was then asked if she wanted the police to contact her brother, another police officer, and she answered yes. The questioning then turned to what had happened. Appellant's response was the same as before: "He shot at me, I shot at him." Appellant tried to briefly describe the events of the shooting. She was taken to the Pittsburgh Public Safety Building at 8:25 a.m. where she was again given Miranda warnings and thereafter made a statement.

Appellant was tried before a jury and found guilty of third degree murder. Motions for a new trial and in arrest of judgment along with amended post-trial motions were denied. Appellant was then sentenced to a period of not less than seven and not more than fourteen years. A motion for reconsideration of sentence was filed and subsequently denied. Appellant filed her appeal from judgment of sentence and, as a result, the case is presently before us.

Appellant argues that the trial court erred by refusing to suppress her statements made at the scene of the homicide. She argues that due to her hysterical condition she had not been given an explicit Miranda waiver. Our Pennsylvania Supreme Court has said:

This court has consistently refused to adhere to a per se rule of incapacity to waive constitutional rights based on mental or physical deficiencies. Rather, we look at all the circumstances to determine if a knowing and intelligent waiver was effected. (citations omitted).

Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976); see also Commonwealth v. Glover, 488 Pa. 459, 412 A.2d 855 (1980). The Commonwealth need only to show by a preponderance of the evidence that a voluntary, knowing, and intelligent waiver of constitutional right was made. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980).

From the record it is clear that appellant was given ample opportunity to hear as well as comprehend her Miranda warnings. "In making this determination, we are to 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. Goodwin, 460 Pa. 516, 5234, 333 A.2d 892, 895 (1975); see also Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979). The police officers at the scene testified that appellant was calm when she reached her apartment. Further, when she was again asked if she wanted an attorney, she indicated not. "This issue is initially to be determined by the hearing court and where, as here, those findings have ample support in the record, they will be sustained upon appellate review." Commonwealth v. Bundy, 458 Pa. 240, 244, 328 A.2d 517, 520 (1974).

Appellant's next assignment of error is that the trial court abused its discretion by allowing the prosecution to cross-examine and impeach Steve Owens. We disagree. Although outright impeachment of one's own witness presents questions of unfairness, latitude must be given by allowing a party to cross-examine his witness "when it is believed that the interest of truth and justice so require." Commonwealth v. Smith, ---- Pa. ---, 513 A.2d 1371 (E.D.Pa.1986). Commonwealth v. Waller, 498 Pa. 33, 444 A.2d 653 (1982).

The record indicates the testimony of Steve Owens was incomplete due to his failure to remember details that occurred on the night of the homicide.

It is well settled a party may contradict his own witness by independent evidence showing facts to be different from those testified to by such witness. ... Such rule does not violate the general rule that one may not impeach his own witness because to contradict is not to impeach. Impeachment is directed to the credibility of the witness for the purpose of discrediting him. It ordinarily furnishes no factual evidence. Contradiction on the other hand, is directed to the accuracy of testimony and supplies additional factual evidence to be considered along with such testimony. Such evidence as is relevant to the issues may not be excluded because it contradicts another witness called by the same party, whether such witness is friendly or hostile.

Commonwealth v. Myrick, 468 Pa. 155, 164, 360 A.2d 598, 602 (1976). Lastly, we agree with the Commonwealth that even if there were error, it was harmless. We find no significant variation in either the accounts of March 16 and 17, 1983, by either appellant or Steve Owens. Consequently, we find no possibility of reversal as a remedy.

Appellant next argues that the Commonwealth did not disprove appellant's claim of self-defense. Our scope in review in issues of this nature is well established.

In reviewing the sufficiency of the evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt.

Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984); Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981); Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980). The facts of this case indicate the victim was in retreat. At the time he...