Commonwealth v. Maddox

• Decision Date: 10 December 1982
• Citation: 307 Pa.Super. 524,453 A.2d 1010
• Parties: COMMONWEALTH of Pennsylvania v. Jeffrey MADDOX, Appellant.
• Court: Pennsylvania Superior Court

453 A.2d 1010

307 Pa.Super. 524

COMMONWEALTH of Pennsylvania v. Jeffrey MADDOX, Appellant.

Superior Court of Pennsylvania.

December 10, 1982

Argued Feb. 10, 1982.

Andrew Achman, Pittsburgh, for appellant.

Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Commonwealth appellee.

Before BROSKY, CIRILLO and POPOVICH, JJ.

CIRILLO Judge.

Appellant was arrested on February 5, 1980 and arraigned on the charges of murder, two counts of burglary and one count of criminal conspiracy. On August 26, 1980, appellant's motion to suppress his confession was denied after a hearing before the Honorable George H. Ross. A trial by jury commenced before Judge Ross in September 1980. On September 4, 1980, the jury found appellant guilty of second degree murder, criminal conspiracy and two counts of burglary. On December 4, 1980 appellant was sentenced to a term of life imprisonment on the conviction of second degree murder and five (5) to ten (10) years on one burglary count to be served consecutively to the term of life imprisonment. Sentences on all other counts were suspended. This appeal followed.

On appeal Mr. Maddox argues that the trial court erred: (1) when it denied his motion to suppress an unlawfully obtained statement made by him prior to arraignment; (2) because he was denied effective assistance of trial counsel, and (3) when it imposed an illegal sentence. We find no merit to appellant's arguments and affirm the judgment of sentence.

On February 3, 1980, at 11:10 p.m., Mary Buchewicz heard a hammering noise coming from the basement of the Strand Building, in Sharpsburg, Allegheny County, where her husband, Joseph Buchewicz, was custodian. While Mr. Buchewicz went to investigate the cause of the noises, Mrs. Buchewicz called the police. After completing the call, Mrs. Buchewicz started to follow her husband and upon reaching the stairwell, she heard her husband shout, "stay upstairs, two guys got me." Mrs. Buchewicz returned to her apartment and called the police again.

Sharpsburg Police Officer Michael Rapino was first to arrive at the Strand Building. When he reached the basement, he saw Mr. Buchewicz lying in the hallway unconscious with wounds in his chest. Officer Rapino never saw anyone in the immediate area, and Mr. Buchewicz died without ever regaining consciousness. Upon subsequent investigation, it was discovered that two offices in the basement of the building, one belonging to Adams Enterprises, and the other to National Home Products, had been broken into.

At 11:59 a.m. on February 5, 1980, Detective John Markel went to the Main De-Lite Restaurant to question appellant about the death of Joseph Buchewicz. Appellant agreed to accompany the detective to the Sharpsburg Police Station for questioning. Upon arrival at the station, one of the officers read appellant his Miranda rights which he agreed to waive. Appellant began to make a detailed exculpatory statement, but because of excessive noise and commotion in the Sharpsburg Police Station, Detective Markel asked appellant to accompany him to the Allegheny County Homicide Division in the Jones Law Building. They arrived at County Homicide at 12:58 p.m. At the Jones Law Building, appellant was confronted with some inconsistencies in his statement, and he began to inculpate himself. Appellant confessed to his participation in the burglary but claimed it was his companion who stabbed the victim. Appellant agreed to sign a written statement and started the narrative at 2:03 p.m. It was completed at 4:20 p.m., and at 4:22 p.m., appellant was formally placed under arrest. At 5:02 p.m., appellant was arraigned at the Coroner's Office on the charge of criminal homicide. The arraignment on the burglary and conspiracy charges took place at a squire's office in Sharpsburg at 7:08 p.m.

Appellant's first argument is that the trial court erred when it denied his motion to suppress the statement made at 2:03 p.m. He contends that the statement was improperly admitted into evidence in violation of the rule established in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977).

In Davenport, the Supreme Court of this Commonwealth held that if the accused is not arraigned within six hours of his arrest, any statement obtained after arrest but prior to arraignment shall not be admissible at trial. Therefore, the crucial issue in the application of the rule must turn on the time when appellant was placed under arrest.

Appellant contends that he was arrested sometime between 11:59 a.m., and the departure from the Sharpsburg Police Station to downtown Pittsburgh, rather than at 4:22 p.m., when he was expressly told he was under arrest. If the time of arrest was before 1:08 p.m., the arraignment on the burglary charges would have occurred beyond the six hour limit of Davenport.

The lower court agreed that the arrest occurred prior to 4:22 p.m., but found that the arrest took place at the time appellant started to incriminate himself, at 2:03 p.m.

In Commonwealth v. Benson, 280 Pa.Super. 20, 27, 421 A.2d 383, 386, 387 (1980), our court outlined the test to determine when an arrest has occurred. We wrote:

The test for the occurrence of an arrest has often been defined as the happening of any act that indicates an intention to take the individual into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Commonwealth v. Allessie, 267 Pa.Super. 334, 406 A.2d 1068 (1979). An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest. Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974). The question is viewed in light of the reasonable impression conveyed to the person subjected to the seizure rather than in terms of the subjective view of the police officer. Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974).

The detective who interviewed the appellant had asked him at 11:50 if he would be willing to speak with him regarding the incident. At the suppression hearing, Detective Markel testified in part:

Q. From 11:59 when you first met Mr. Maddox until you arrived at the Jones Law Building, at anytime was Mr. Maddox under arrest?

A. He was not.

Q. Did you advise him of such?

A. Yes, I did.

Q. Did you advise him that he was free to leave at any time?

A. Yes, I advised him of that and his Constitutional rights.

Detective Markel explained that he thought the Sharpsburg Police Department was too noisy and he therefore asked appellant if he would go to the Pittsburgh building. Appellant agreed. The detective's testimony clearly indicates that it was appellant's voluntary decision to accompany the detective. There is no indication that appellant was given reason to believe that the circumstances had changed since 11:50 when he was told he was not under arrest. In fact, the detective testified that he told appellant that he wanted to change locations because the Pittsburgh office had a "better atmosphere." In view of these circumstances, we cannot agree that appellant was placed under arrest before his arrival in Pittsburgh.

We agree with the lower court's finding that Mr. Maddox was placed under arrest prior to 4:22. Surely, when he began to incriminate himself both he and the police knew that he was no longer free to leave. Even placing the time of arrest at 2:03, however, arraignment at 7:08 was timely. See, Commonwealth v. Haggerty, 495 Pa. 612, 435 A.2d 174 (1981), in which a person was taken to police headquarters voluntarily at 11 a.m., interrogated, given a polygraph test and arraigned at 5:55 p.m. Our Supreme Court found he was not arrested until he began to admit involvement in the crime.

Appellant next alleges that his trial counsel was ineffective in not calling certain character witnesses and in not using expert witnesses to counter those called by the Commonwealth.

In assessing a claim that counsel has been ineffective, we are guided by the following principles:

[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests.

Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

The initial factor which must be considered in applying this reasonable basis standard is whether the claim which ... counsel is charged with not pursuing had some reasonable basis.

Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant contends that his attorney should have secured the presence of Anna Greisbaum, a woman with whom appellant had lived, and Alfred V. Milliman, an attorney who supervised a drug abuse program in which appellant had participated in 1973. As the trial court notes, "neither party had any knowledge of the crime, but they were merely former associates from Maryland." We agree with the trial court that the only possible use of these witnesses would have been as a character witness. They were apparently asked to be available as such at the time of sentencing. Counsel testified at a post-conviction hearing that he did not call the witnesses because they had nothing relevant to offer. His decision clearly had a reasonable basis. See, Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

Appellant also argues that his trial counsel should have sought experts to counter the testimony as to blood samples that had been given by the Commonwealth's experts.

In Commonwealth v. Rhodes, 272 Pa.Super. 546, 554, 555, 416 A.2d 1031, 1035 (1979), we explained:

The pertinent rule in this Commonwealth provides that trial counsel's failure to ...