Com. v. Weaver
| Decision Date | 14 April 1980 |
| Citation | 274 Pa.Super. 593,418 A.2d 565 |
| Parties | COMMONWEALTH of Pennsylvania v. Diane WEAVER, Appellant. |
| Court | Pennsylvania Superior Court |
Drew Salaman, Philadelphia, for appellant.
Edgar B. Bayley, Camp Hill, for appellee.
Before HOFFMAN, ROBERTS and LIPEZ, JJ. *
On February 16, 1978, a jury convicted appellant, Diane Weaver, of murder of the first degree and conspiracy. After denying post-verdict motions, the trial court sentenced appellant to concurrent terms of imprisonment for life for murder and 5 to 10 years for conspiracy. Appellant contends that (1) an inculpatory statement she gave police and introduced at trial should have been suppressed as involuntary; (2) the trial court erred in sustaining a witness' refusal to testify under the Fifth Amendment privilege against self-incrimination; (3) the trial court erred in ruling inadmissible the witness' out-of-court statement over a claim that the statement was against penal interest; and (4) the trial court erred in allowing admission of certain items of evidence. We affirm.
Appellant and Steven Barrick, a friend of appellant and her husband, Barry Weaver, conspired to kill her husband. On October 3, 1977, appellant called Barrick shortly before 3:00 A.M. and told him to come to her house while her husband was asleep. Barrick and appellant entered the bedroom and Barrick struck the victim on the head with a heavy metal flashlight. The blow only stunned the victim, who then resisted until killed. Barrick and appellant decided to tell the police that she had seen a black man kill her husband in a fight. When officers arrived, she told this story, without mentioning that Barrick had been present. Later, at a hospital to which appellant was brought for observation, she gave another statement in which she asserted that Barrick had killed the victim in self-defense when attacked without provocation. Appellant left the hospital and went home. Based on her statement, the police arrested Steven Barrick for killing the victim. Barrick agreed to give a statement if he could first talk with appellant. The police told appellant of Barrick's request and she came to the station about 10:00 P.M. After conversing privately with appellant for about half an hour, Barrick gave a statement asserting that he had killed the victim in self-defense. On October 7, a police officer brought appellant to the police station, where she gave a third statement admitting that she and Barrick had planned to kill the victim and twice tried to do so without success, that she had called him the night of the crime and told him to come over and that Barrick had then killed the victim. Subsequently, the police arrested appellant.
Appellant contends that her third, inculpatory statement was not voluntary because she was under emotional distress at the time, and the officers interrogated her even after she had indicated that she desired assistance of counsel. According to appellant, she was without food the entire day of the interrogation and the police harassed her into making the statement.
When the police brought appellant to the station, they informed her of her Miranda rights at length and she signed a rights form waiving her constitutional rights. During the course of the interrogation, they offered her food but she refused to eat anything. There were breaks in the questioning so appellant could spend some moments by herself. The investigating officers testified that appellant was not coerced into making the statement by mistreatment, threats or improper behavior, and was alert and spoke coherently. The suppression court determined that appellant's will was not overborne. We must respect the conclusion of the suppression court. See Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978).
During the investigation, appellant consented to take a polygraph examination. From the testing, Officer Wynn told appellant that she seemed to be holding something back and he thought she was concealing something. She replied that the matter concerned Barrick, and asked, "Do you think I need an attorney?" Wynn stopped the questioning and answered that he could not advise her on this matter. He stated that she would have to make the decision, that she could have an attorney immediately if she wanted one and that he would call an attorney for her if she wished. The officer again showed appellant the rights form, told her to think the matter over for a while and left the room. When he returned 15 minutes later, he once more informed her that he could not advise her of the need for an attorney, reviewed her Miranda rights and reiterated that she could stop the questioning. Appellant said that she had decided to give a full account of the incident and proceeded, without a request for counsel, to give the third statement.
We agree with the suppression court that appellant did not request counsel and voluntarily decided to give the statement. Whenever a person who has received Miranda warnings announces that he wishes to exercise his rights, the police must stop all questioning. Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973). Appellant however, only asked the officer whether he thought she needed counsel. This query did not reveal that appellant desired to invoke her right to assistance of counsel; to the contrary, it indicated that she had not decided whether to ask for counsel. The officer immediately stopped the investigation, informed appellant of her rights and let her make the decision. She then said that she wanted to tell the full story.
Appellant stresses that her decision was not voluntary because the officer told her he thought that she was concealing something, thereby pressuring her to give up her rights to silence and assistance of counsel. While the police may not coerce someone into a waiver of Miranda rights and may not attempt to persuade a person who has invoked his rights to retract his position, see Commonwealth v. Nathan, 445 Pa. 470, 285 A.2d 175 (1971), the officer here did not act improperly. He made the comment before appellant asked whether he thought she needed counsel, and, therefore, could not have been attempting to persuade her to abandon her rights. Appellant had consented to a polygraph test and the examining officer was seeking to learn the facts concerning the killing. His statement was an attempt to clarify the results he was receiving; it was not a ruse to trip appellant into confessing. In these circumstances, appellant's decision to give a statement without assistance of counsel was voluntary. See Commonwealth v. Hughes, supra (); cf. Commonwealth v. Nahodil, 462 Pa. 301, 341 A.2d 91 (1975) (); Commonwealth v. Hayward, --- Pa.Super. ---, 405 A.2d 926 (1979) ().
Appellant argues that the trial court erred in sustaining Barrick's claim of the Fifth Amendment privilege against self-incrimination. When appellant sought to have Barrick testify, Barrick refused to answer any questions other than those eliciting his name and address, asserting that the answers might incriminate him. The court asked counsel what facts he planned to establish through Barrick's testimony. Counsel stated that he intended to question Barrick about his knowledge of the marital problems between appellant and the victim, the circumstances of his friendship with the Weavers, his relationship with appellant and his observations of appellant's psychological state and physical appearance before the killing. The court ruled that Barrick had justifiably invoked the Fifth Amendment and refused to compel him to testify. Appellant contends that the court erred because it could not properly make its determination without a hearing and because Barrick had not shown that the answers to the questions counsel intended to propound would incriminate him.
For a court properly to deny a witness' claim of privilege under the Fifth Amendment, "it must be perfectly clear from a careful consideration of all the circumstances, that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency." Commonwealth v. Rolon, 486 Pa. 573, 406 A.2d 1039 (1979) (emphasis in original), quoting Commonwealth v. Carrera, 424 Pa. 551, 227 A.2d 627 (1967). When called to testify, Barrick had already been arrested and charged with killing the victim. His trial was scheduled to start the week after appellant's. The Commonwealth's evidence showed that appellant and Barrick were engaged in an affair and had decided to kill appellant's husband in order to get him out of the way. Some of the evidence showing motive for the killing was the victim's mistreatment of appellant and his suspicion that appellant was involved with Barrick. Thus, the questions appellant intended to ask Barrick would have required him to testify about matters directly bearing on issues to be raised at his own trial. The trial court correctly concluded that Barrick was not clearly mistaken in believing that the answers demanded possibly could have incriminated him.
In making this determination, the court did not need to hold a separate hearing. It knew the foundation for the indictment against Barrick, had heard appellant's proposed line of questioning and was able to recognize the dangers Barrick would face in answering those questions. When a court has no basis for sustaining a claim of privilege other than the witness' assertion of the possibility of incrimination, it cannot sustain...
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