Commonwealth v. Leveille
| Decision Date | 24 July 1981 |
| Citation | 289 Pa.Super. 248,433 A.2d 50 |
| Parties | COMMONWEALTH of Pennsylvania v. Peter William LEVEILLE, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Nov. 10, 1980.
Joseph A. Massa, Jr., Warren, for appellant.
Richard A. Hernan, Jr., Dist. Atty., Warren, for Commonwealth appellee.
Before PRICE CAVANAUGH and HOFFMAN, JJ.
On August 2 1979, a jury found appellant guilty of arson, causing a catastrophe, and burglary. Following denial of post-verdict motions and imposition of sentence, appellant took this appeal, in which he contends that several inculpatory statements which he made while in custody were improperly admitted into evidence. Finding appellant's contentions to be unpersuasive, we affirm the judgment of sentence.
On February 2, 1979, a fire of suspicious origin destroyed several buildings in the Borough of Tidioute, Warren County. The next day, at approximately 7:45 p. m., appellant was arrested by local police while hitchhiking on an area highway. Although the charges on which appellant was arrested were unrelated to the fire, the record establishes that at the time of his arrest police suspected appellant of having set the blaze. Appellant was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), arraigned on the arrest charges, and, at approximately 9:10 p. m., taken to the local barracks of the state police where he was questioned about both the arrest charges and the fire. Appellant agreed to take a polygraph test, and after the polygraph operator challenged his truthfulness, appellant admitted at approximately 2:05 a. m. on February 4, that he had set the fire. [1] Appellant then requested a lawyer, and at approximately 3:15 a. m., appellant's present counsel arrived and consulted with appellant privately for at least ninety minutes. Thereafter, appellant was again given Miranda warnings, and at approximately 4:50 a. m., with counsel present, appellant gave an oral confession which was tape recorded and later introduced at trial. Appellant was then formally charged with the offenses of which he now stands convicted.
Appellant contends first that his tape recorded confession was of such poor audio quality that it should not have been admitted into evidence. The record reveals that the trial judge listened to the tape at a pretrial conference and determined that it was sufficiently audible to be admitted. Subsequently, the tape was played for the jury, over appellant's objection, on the second day of the three-day trial. Approximately three-and-one-half hours after they had retired to deliberate, the jury asked to hear the tape once again. In a colloquy with the trial judge, the jury foreman explained that the jurors' request resulted from their inability to agree on what they had heard on the tape. The foreman attributed the jury's difficulty in part to the quality of the tape, but he did not claim that the recording was inaudible. [2] Both appellant and the Commonwealth opposed replaying the tape, and the trial judge ultimately denied the jury's request. The jury then resumed their deliberations and arrived at their verdict within forty-five minutes.
Although we have found no Pennsylvania appellate decisions directly on point, we are guided by cases from other jurisdictions which have considered the issue presented. In State v. Donato, 414 A.2d 797 (R.I.1980), the Supreme Court of Rhode Island stated:
Most jurisdictions ruling on the admissibility of sound recordings of imperfect quality or partial inaudibility have held that a recording will be admissible unless the inaudible portions or omissions are so substantial as to render the recording as a whole untrustworthy. United States v. Avila, 443 F.2d 792, 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971); State v. Dye, 60 N.J. 518, 531, 291 A.2d 825, 831, cert. denied, 409 U.S. 1090, 93 S.Ct. 699, 34 L.Ed.2d 675 (1972); see Bentley v. State, 397 P.2d 976, 979 (Alaska 1965); State v. Salle, 34 Wash.2d 183, 193, 208 P.2d 872, 878 (1949). Furthermore, these courts would leave the matter of the admissibility of such recordings to the sound discretion of the trial court. See United States v. Avila, 443 F.2d at 795 (5th Cir.), cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258 (1971).
414 A.2d at 805. Accord, United States v. Lawson, 347 F.Supp. 144, 147 (E.D.Pa.1972) (collecting cases). See also Smith v. State, 272 Ind. 328, 397 N.E.2d 959, 962-63 (1979) ("the focus is upon whether the recording taken as a whole, or a crucial segment thereof, is of such poor quality that it is likely to lead to jury speculation as to its contents"); People v. Sacchitella, 31 App.Div.2d 180, 295 N.Y.S.2d 880 (1968) (same). See generally Annot., 57 A.L.R.3d 746, 752-54 (1974) (collecting cases).
Applying these principles to the present case, we are convinced that the trial judge did not abuse his discretion in admitting the tape recorded confession. The judge carefully listened to the tape in camera before trial "and had no difficulty in audiobility (sic)." Lower Court Opinion at 5. Although the judge did "acknowledge that the tape was not of the best quality," id., he nonetheless concluded that it was distinct enough to identify the speakers and understand what was being said. Moreover, the jury's request to have the tape replayed does not, as appellant suggests, warrant the conclusion that the unintelligible portions were so substantial as to render the recording as a whole untrustworthy. Although the jury foreman indicated that the tape was hard to hear, his colloquy with the trial judge indicates that the jurors' primary difficulty was in agreeing on exactly what they had heard, a common problem among jurors called upon to recall several days' testimony. Moreover, the trial transcript reflects that the court reporter apparently was able to comprehend most of the tape and identify the speakers. See note 2 supra. Under these circumstances, we think it proper to defer to the trial judge, who necessarily was in a superior position to determine the audibility of the tape and its trustworthiness as evidence. [3]
Appellant contends next that his tape recorded confession should have been excluded as the product of the coercive circumstances which occasioned the suppression of his earlier statement to the polygraph operator. As noted above, however, appellant's first confession was suppressed because it was obtained in violation of the six-hour rule of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and not because it was the product of any coercion. See note 1 supra. [4] Moreover, even if appellant's first confession were the product of coercive circumstances, exclusion of his taped confession on that basis would not have been warranted. After giving his first confession, appellant conferred privately with his attorney at state police headquarters for at least ninety minutes. He then gave his taped confession in the presence of counsel. Our Supreme Court approved the admission of a confession given in similar circumstances in Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977). There, as here, the defendant confessed after an unhurried conference with, and in the presence of, counsel. Our Supreme Court emphasized the effectiveness of counsel's presence as a safeguard against compulsion, and concluded that the defendant's opportunity to confer freely with counsel before confessing sufficed to purge the taint of any prior illegalities. See also Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978); Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976); Commonwealth v. Mastrota, 269 Pa.Super. 485, 410 A.2d 360 (1979). Similarly here, appellant's extended conference with counsel before giving his taped confession was sufficient to insulate the confession from the effect of any prior coercive circumstances. Thus, appellant's contention is without merit.
Appellant contends finally that the suppression court should have suppressed additional inculpatory statements which he claims were the product of custodial interrogation not preceded by the giving of Miranda warnings. In reviewing the denial of a motion to suppress, we "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 Riggins, 451 Pa. 519, 522, 304 A.2d 473, 474 (1973) (quotations omitted). So viewed, the facts relevant to appellant's contention may be summarized as follows. While awaiting trial in this case appellant was incarcerated in the Erie County Jail. [5] Early on the morning of June 13, 1979, appellant reported that he had been sexually assaulted by an inmate, and he requested that the incident be investigated. Consequently, authorities at the jail contacted the Erie Police Department, and Detective Sergeant William Turner was assigned to investigate the matter. At that time Turner neither knew appellant nor was aware of the charges on which appellant was being held; he knew only that he was to investigate a complaint of sexual assault which had been lodged by one of the inmates at the jail. Turner did not learn of the charges against appellant until he arrived at the jail to commence his investigation. Once there, Turner interviewed appellant about the incident. In response to questioning, appellant informed Turner that his assailant had been able to force him to submit to the assault because he knew certain information about appellant. Turner then asked appellant to describe this information. Appellant responded that he had told his assailant that he had set the fire in Tidioute, describing his activities to the assailant...
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