Com. v. Taylor

• Decision Date: 23 April 1987
• Citation: 362 Pa.Super. 408,524 A.2d 942
• Parties: COMMONWEALTH of Pennsylvania v. Grover TAYLOR, Appellant. 488 Phila. 1986
• Court: Pennsylvania Superior Court

Page 942

524 A.2d 942

362 Pa.Super. 408

COMMONWEALTH of Pennsylvania v. Grover TAYLOR, Appellant.

488 Phila. 1986

Superior Court of Pennsylvania.

Argued Oct. 23, 1986.

Filed April 23, 1987.

Michael N. Borish, Philadelphia, for appellant.

JoAnn M. Verrier, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before WIEAND, OLSZEWSKI and CERCONE, JJ.

CERCONE, Judge:

This is an appeal from judgment of sentence imposed for convictions of robbery, aggravated assault and possessing instruments of crime.

On March 17, 1983, the appellant, Grover Taylor, gained admittance to the apartment of Laura Jean Antonowicz, with whom he was acquainted, under the pretext that he would go to the store for her on an errand. As Ms. Antonowicz turned toward her bedroom to get money for appellant, he approached her from the rear and pulled an electrical cord around her neck. The victim passed out and fell to the floor.

Appellant then got on top of the victim, locked her head between his knees, and stabbed and cut her repeatedly with a knife. When the knife broke in the course of his attack, appellant continued his onslaught first with a pair of scissors, and finally with an ice pick. Ms. Antonowicz, who was in and out of consciousness during this attack, suffered serious disfiguring lacerations of the face, neck, chest and wrist, as well as multiple puncture-type wounds to her chest, breasts, abdomen, genital area and thighs. She was taken to the hospital after being found by a friend.

When the victim's boyfriend, Louis Carbo, Jr., went to the apartment later that day, he found the icepick and electrical cord in the bedroom. The victim's jewelry box was missing and a camera which belonged to Carbo had been taken and was later returned to him by the man with whom appellant resided. Additionally, the victim later discovered that the gold chains that she had been wearing at the time of the attack had also been taken.

Appellant, whom the victim identified as her assailant, was arrested five days after the attack in the home of his father where he was found crouching in a pile of clothing in a closet. When he was told that he was under arrest and the charges were being explained, appellant blurted out, "Yeah, I did it, but I'm not the only one that's going to go to jail for it."

After a trial by jury ¹ in April of 1984, appellant was convicted of robbery, aggravated assault, and possessing instruments of crime. Post-trial motions were denied, and appellant was sentenced to ten to twenty years on the robbery count, five to ten years on the aggravated assault charge and two and one-half to five years on the charge of possessing instruments of crime. All sentences were to be served consecutively.

Appellant's initial argument is that his inculpatory statement ² to police after his arrest should have been suppressed on the ground that he was not arraigned within six hours of his arrest. In Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), the Pennsylvania Supreme Court promulgated a rule that when an accused is not arraigned within six hours of arrest, any statements obtained after arrest but before arraignment are generally not admissible at trial. Appellant was arrested in Camden, New Jersey at 11:50 a.m. on March 21, 1983. After clearing his transfer to Philadelphia with Camden authorities, the arresting officers transported him to the South Detective Division in Philadelphia at 5:05 p.m. Sometime thereafter, the Youth Study Center was notified of appellant's arrest, and later informed the officers that appellant should be kept in custody due to his significant prior record. The appellant was ultimately transferred to the Youth Study Center, although the time of this transfer is not clear from the record. The parties agree that appellant was not arraigned within six hours of his arrest although the record is unclear as to the exact time of arraignment.

Although appellant was not arraigned within six hours of arrest, the development of the law since Davenport was decided demonstrates that this is not the only factor to be considered. In Commonwealth v. Lewis, 350 Pa.Superior Ct. 595, 504 A.2d 1310 (1986) this court, en banc, held that absent police coercion, any "blurt out" by an accused shall be admissible at trial despite a delay of more than six hours between the time of arrest and arraignment where the "blurt out" is unrelated to the illegal detention. Although he was detained for more than six hours before his arraignment, it is undisputed that appellant uttered an inculpatory remark without questioning or provocation soon after his arrest. We therefore find that the illegality of the detention was unrelated to the "blurt out." As in Lewis, appellant's remarks were not induced by police inquiry or other official action; rather, the statement was made as a voluntary and spontaneous act of free will. We therefore affirm the denial of the suppression motion.

Appellant's next argument is that the trial court erred in admitting into evidence the victim's bloodied and puncture-marked jeans, because this evidence was inflammatory and prejudicial. A decision as to the admissibility of demonstrative evidence such as this is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Frederick, 327 Pa.Superior Ct. 199, 475 A.2d 754 (1984).

The trial judge must initially decide whether the evidence possesses inflammatory characteristics. If the court decides the evidence is not objectionable the evidence is admissible subject to the qualification of relevance. If the evidence is deemed inflammatory, then the trial judge must decide whether its probative value outweighs the likelihood that it will inflame the passion of the jurors. Id.

We agree with the Commonwealth's assertion that the victim's jeans were admissible as an indication of the brutality of the attack in order to establish the elements of aggravated assault. In Commonwealth v. McClain, 325 Pa.Superior Ct. 29, 472 A.2d 630 (1984) a panel of this court found that there was no abuse of discretion in admitting into evidence two color photographs of the victim's face for the purpose of proving the attempt to cause serious bodily injury, an element of aggravated assault. In Commonwealth v. Dockins, 324 Pa.Superior Ct. 305, 471 A.2d 851 (1984) this court held that the victim's bloody clothing was admissible to aid in establishing the nature of the crime and the intent of the defendant.

Appellant argues that the victim's testimony and the medical records were adequate to prove the nature and location of the wounds; however, in Commonwealth v. McClain, supra, 325 Pa.Superior Ct. at 37, 472 A.2d at 634 this court approved the trial court's reasoning that the allegedly prejudicial evidence would "better convey to the jury the injuries received than the clinical comments of an Emergency Room doctor."

For the foregoing reasons, we conclude that the probative value of the victim's jeans was not outweighed by the possible prejudicial effect of their admission.

Appellant's third argument is that there was insufficient evidence to support the robbery conviction. This issue has not been properly preserved for review as it was raised in post-verdict motions in "boilerplate" fashion. In Commonwealth v. Holmes, 315 Pa.Superior Ct. 256, 461 A.2d 1268 (1983) this court held that a post-verdict motion must specify in what respect the evidence was insufficient to support the verdict. Appellant's post-verdict motion stated in conclusory terms that the court erred in denying the defense demurrer and the motion for a directed verdict and that the Commonwealth failed to prove the elements of robbery beyond a reasonable doubt. The appellant did not specify why he should have been granted a demurrer or directed verdict, or which elements of the crime were not established. Therefore, in accordance with Holmes, supra we find this issue to be waived. ³

Appellant also contends that the prosecutor's comment during closing arguments regarding appellant's failure to produce a certain witness constituted prosecutorial misconduct warranting a new trial. While comments which cause the jury to draw adverse inferences from the absence of a witness are often improper, see e.g., Commonwealth v. Brown, 492 Pa. 320, 424 A.2d 1211 (1981), the record clearly indicates that the prosecutor's statement was made in direct response to the closing comments of appellant's counsel. Appellant's counsel stated;

Is Jimmy Mr. Lester? Where is Jimmy? Why didn't he come in here and say 'I am Jimmy. My name is James Lester. Grover Taylor lived with me. He gave me the camera. I gave it to Carbo.'

During her closing argument, the prosecutor responded,

"Where's James Lester? Where is Jimmy? He was living with Grover. The Commonwealth is supposed to put him on?"

This issue was addressed by the Pennsylvania Supreme Court in Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365 (1984). There the Court held that a prosecutor's remarks during summation which drew attention to the absence of testimony by a certain individual, were not cause for reversal when the remarks were inspired by defense counsel's own statement which initially drew attention to the absence of that testimony, and implied that the jury should draw an inference favorable to the defendant. We find that the Floyd case is dispositive of this issue, and therefore, reject appellant's argument.

Appellant's fifth argument is that for sentencing purposes, his conviction of aggravated assault should have been merged with the robbery conviction. ⁴ Appellant was sentenced to prison terms of ten to twenty years on the robbery ⁵ conviction and five to ten years on the aggravated assault ⁶ conviction, to be served consecutively. Appellant argues that these sentences should have been merged, thereby reducing the sentences for these crimes from fifteen to thirty years to ten to twenty...