Com. v. Webb

• Decision Date: 22 September 1980
• Citation: 491 Pa. 329,421 A.2d 161
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James WEBB, Appellant.
• Court: Pennsylvania Supreme Court

Page 161

421 A.2d 161

491 Pa. 329

COMMONWEALTH of Pennsylvania, Appellee, v. James WEBB, Appellant.

Supreme Court of Pennsylvania.

Argued April 18, 1980.

Decided Sept. 22, 1980.

[491 Pa. 332] Daniel M. Preminger, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Michelle Goldfarb, Asst. Dist. Attys., Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION

EAGEN, Chief Justice.

In a non-jury trial, James Webb was found guilty of murder of the first degree, arson, aggravated assault, simple assault, and risking a catastrophe. Post-verdict motions were denied, and Webb was sentenced to life imprisonment on the murder conviction; not less than ten nor more than twenty years imprisonment, concurrently, on the arson conviction; not less than two and one-half nor more than five years imprisonment, concurrently, on the simple and aggravated assault convictions. Webb then filed these appeals. ¹

The first assignment of error is the trial court's denial of a pre-trial motion to suppress the evidence of statements made by Webb to investigating police officers while he was in the hospital. It is argued these statements were involuntary and should not have been admitted as evidence because Webb's physical and mental condition at the pertinent time precluded a free and voluntary choice. Our scope of review is limited to determining whether the factual findings of the suppression court are supported by the record and whether the legal conclusions drawn therefrom are in error. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). The suppression court found the following facts in reference to the challenged evidence.

Webb was admitted to the hospital at 12:30 a. m. on December 16, 1976 in fair condition but suffering from second degree burns to the face, ears, and hands. The attending physician prescribed percodan, a painkiller which does not reduce an individual's sensorium, ² to reduce Webb's discomfort. Webb was advised, if the pain persisted or increased, he could have a sedative; but he made no such request. The attending physician spoke with Webb several times on December 16, and 17, 1976 and concluded Webb's sensorium was clear and well-oriented. A detective, at 10:35 a. m. on December 17, 1976, requested and received permission from the attending physician to speak with Webb. The detective advised Webb he was to be questioned about the arson death of Clarence Keyes which occurred on December 15, 1976. The detective read the Miranda ³ warnings, and, after Webb indicated he understood the warnings and was willing to answer questions, he was questioned by the detective until about 10:53 a. m. Although in discomfort, Webb appeared lucid, alert and cooperative, and not under the influence of narcotic medication. Webb was considerably improved on December 18, 1976, and his sensorium remained clear and well-oriented. Another detective interviewed Webb in the hospital on December 18, 1976 from about 9 a. m. to 9:35 a. m. after obtaining permission from the supervising nurse. Webb was again advised he was going to be questioned about the arson murder, was warned of his rights, and again indicated he understood. Webb answered some questions but then invoked his constitutional privilege to remain silent, and the interview ended. We find ample support for the foregoing findings of fact in the record.

Turning now to the suppression court's conclusions of law, we must determine, considering the totality of the circumstances surrounding Webb's questioning, whether his statements were a result of factors which overwhelmed his ability to exercise a reasoned choice. Commonwealth v. Hunt, 263 Pa.Super. 504, 398 A.2d 690 (1979).

The suppression court concluded the Commonwealth proved by a preponderance of the evidence that, on December 16 and 17, 1976, Webb's physical condition did not interfere with his ability to exercise an unfettered will. This conclusion is fully supported by the following facts. On both December 17 and 18, 1976, Webb was informed of his constitutional rights and indicated he understood those rights before submitting to the detectives' questioning. The drugs used in his treatment did not affect his ability to think clearly. His pain was apparently tolerable since he was offered a sedative but declined it. Finally, numerous conversations with the attending physician led that physician to conclude his sensorium was not impaired. Moreover, Webb exercised his right to remain silent during the second period of questioning. Given these facts, we are not persuaded the suppression court erred in concluding Webb's hospital statements were voluntary. ⁴ Cf. Commonwealth v. Perry, 475 Pa. 1, 379 A.2d 545 (1977) (plurality opinion concluding hospital confessions should be scrutinized closely).

Next, Webb claims his trial counsel was ineffective in three different instances. ⁵ Initially, Webb argues his trial counsel was ineffective for failing to file a motion to suppress evidence concerning clothing seized from the possession of his brother. This argument fails because a review of the record demonstrates a motion to suppress the evidence of this clothing was in fact made and denied. During the direct examination of Nathan Webb, appellant's brother, the Commonwealth sought to introduce into evidence the clothing worn by Webb when he was burned on December 15, 1976. At that time, Webb's counsel objected to its introduction, and the trial judge, in the interest of justice, entertained a motion to suppress. See Commonwealth v. Cooke, 260 Pa.Super. 528, 394 A.2d 1271 (1978); Pa.R.Crim.P. 323(b). The testimony already introduced at trial provided the facts and circumstances surrounding the seizure, and the court considered this testimony and allowed argument on the motion. During argument, additional evidence was presented by the Commonwealth, and the defendant was afforded the opportunity to present evidence. After hearing the evidence and argument, the court denied the motion. Furthermore, the propriety of the order denying suppression was also raised by trial counsel in post-verdict motions and considered by the court on its merits. Therefore, trial counsel cannot be found to have been ineffective for not seeking suppression since he did so. Since present counsel has not raised the merits of the court's ruling denying the suppression, we need not consider it. ⁶

Webb's next contention of ineffectiveness stems from trial counsel's failure to object to the Commonwealth's impeachment and cross-examination of its own witness without first pleading surprise. An examination of the underlying facts demonstrates this claim to be meritless.

The witness whose examination is in question is Webb's brother. Prior to trial, he had given a statement in which he said that Webb had admitted setting the fire. The Commonwealth called him as a witness and asked whether Webb had made any statements concerning the origin of the fire. He replied no, but Webb had indicated he was at the scene at the time of the fire. At that point, the prosecutor began asking whether the witness had given a different statement to the police investigators; he admitted he had and finally testified that his brother, the accused, had told him he set the fire.

Webb argues that, since the Commonwealth had not pleaded surprise, trial counsel should have objected to this impeachment and was thus ineffective for not doing so. It is well-established that counsel cannot be ineffective for failing to make baseless or fruitless objections. Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978); Commonwealth v. Gray, 473 Pa. 424, 374 A.2d 1285 (1977). Under the circumstances, it is obvious that, if an objection had been made, the Commonwealth would merely have entered a plea of surprise and then been allowed to conduct the examination in the manner it did. Hence, an objection would have been a futile gesture. See Commonwealth v. Duffy, 238 Pa.Super. 161, 353 A.2d 50 (1975); Commonwealth v. Settles, 442 Pa. 159, 275 A.2d 61 (1971); Commonwealth v. Gurreri, 197 Pa.Super. 329, 178 A.2d 808 (1962); Commonwealth v. Bartell, 184 Pa.Super. 528, 136 A.2d 166 (1957); Commonwealth v. Joseph, 182 Pa.Super. 617, 128 A.2d 121 (1956). Thus, trial counsel cannot be deemed ineffective in this instance...