Pugliese v. Com.

• Decision Date: 09 March 1993
• Docket Number: No. 0918-91-4,0918-91-4
• Parties: Mark Allen PUGLIESE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 16

428 S.E.2d 16

16 Va.App. 82

Mark Allen PUGLIESE v. COMMONWEALTH of Virginia.

Record No. 0918-91-4.

Court of Appeals of Virginia.

March 9, 1993.

J. Michael Solak, Berryville (Kevin A. Bell, Hall, Monahan, Engle, Mahan & Mitchell, Winchester, on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and FITZPATRICK, JJ.

COLEMAN, Judge.

Mark Allen Pugliese was convicted by a jury of murder as a principal in the second degree and robbery. For the reasons that follow, we affirm the convictions.

On May 19, 1990, Arthur P. Beckmann, Jr. left his home in Philadelphia, Pennsylvania to go to Louisville, Kentucky. On his way, he picked up a hitchhiker, Eugene Davis. The two were later seen at a Winchester, Virginia bank where Beckmann took a twelve hundred dollar cash advance on his credit card. On the evening of May 21, Beckmann went with Davis to the Winchester apartment of Davis' friend, David Ebert. Mark Allen Pugliese also was at Ebert's apartment. The four men partied together. In the early morning hours of May 22, the four men left Ebert's apartment in Beckmann's van, ostensibly in search of a late night bar. Beckmann drove. Ebert was in the front passenger's seat, and Pugliese and Davis sat in the back.

Later that day, the van was found burning in a secluded area of Winchester. The State Police discovered Arthur Beckmann's body in a ditch along Route 50 in Clarke County. The body had four gunshot wounds to the head. Money, credit cards and jewelry were still on Beckmann. His wallet contained a card with the names of Pugliese and Pugliese's mother on it. The police also found the victim's hat with one bullet hole in it approximately one mile from where the body was found.

Shortly after the crimes, Pugliese was seen with between four to six hundred dollars in his possession. On May 23, Pugliese went to Brenda Hall's home and asked her where he could buy drugs. He told her that he had approximately one thousand dollars to spend. Brenda Hall purchased drugs for Pugliese three times that day. He gave her a total of three hundred dollars. Pugliese also was known to have maintained contact with Eugene Davis for several months after Beckmann's murder. They were seen socializing together on several occasions.

The police arrested Pugliese for Beckmann's murder on September 10, 1990. After the police read him his Miranda rights, Pugliese asserted his right to remain silent and contends he requested counsel. The two arresting officers, Officer Gregg and Officer Shevokas, did not recall Pugliese asking for counsel. Nevertheless, a couple of hours later, Pugliese waived his right to remain silent by so indicating on a printed Miranda waiver form. Thereafter, he gave a recorded statement disclosing the events leading up to Beckmann's murder. In his statement, Pugliese repeated several times that he was telling the truth and was willing to take a lie detector test.

In his statement, Pugliese admitted that he was in Beckmann's van when Eugene Davis shot the victim. He stated that they had left Ebert's apartment to look for a bar. By the time they left the apartment, Pugliese said he was quite intoxicated. Before leaving the apartment, Davis had mentioned to Pugliese that he intended to "hustle" Beckmann. Pugliese explained that by "hustle," he understood Davis to mean cheat him out of money. He did not expect Davis to use a weapon to get money. As they were riding in the van, Davis told Pugliese that he was going to shoot Beckmann. Pugliese claimed, however, that he did not take Davis seriously. Davis then shot Beckmann, who was driving the van, once in the back of the head. Pugliese and Ebert gained control of the van and brought it to a stop. Davis asked Pugliese and Ebert to help him remove Beckmann from the van. Davis dragged Beckmann from the van into a ditch, while Pugliese and Ebert waited in the van. Beckmann was not dead from the first shot, so Davis shot him three more times in the head. According to Pugliese, Ebert was upset with what Davis had done and began to yell profanities at Davis. In response, Davis threatened Ebert with his gun. The three men drove Beckmann's van back to Ebert's apartment, where all three unloaded the van. They took approximately twelve hundred dollars in cash, of which Pugliese said he received two hundred dollars. Pugliese then drove the van, with the other two men accompanying him, to a secluded area where the three doused it with gasoline, and each of them threw matches to set it afire.

I. CONFESSION--WAIVER OF RIGHT TO COUNSEL

We hold that the trial judge did not err in ruling that Pugliese voluntarily and knowingly waived his Fifth Amendment rights to remain silent and to have counsel present during a custodial interrogation. An accused in custody may waive his fifth amendment rights, but the Commonwealth must prove by a preponderance of the evidence that the waiver was made voluntarily, knowingly and intelligently. Goodwin v. Commonwealth, 3 Va.App. 249, 252, 349 S.E.2d 161, 163 (1986) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)).

If, while in custody, a person invokes the right to have counsel present, the police may not resume interrogation until counsel has been made available or until the individual re-initiates communications and waives his or her right to counsel. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). If a confession is obtained in violation of Edwards, it is presumed to have been the result of an involuntary waiver of Fifth Amendment rights and, therefore, any evidence obtained as a result thereof is inadmissible. Id. 451 U.S. at 487, 101 S.Ct. at 1886. Whether an individual requested counsel is a factual determination, and that finding will not be disturbed on appeal unless clearly erroneous. Mills v. Commonwealth, 14 Va.App. 459, 468, 418 S.E.2d 718, 723 (1992) (citing Fisher v. Nix, 920 F.2d 549, 552 (8th Cir.1990), and United States v. Hagan, 913 F.2d 1278, 1282 (7th Cir.1990)). In this case, the trial judge, after hearing conflicting testimony from Pugliese and Officers Shevokas and Gregg, found that Pugliese did not request counsel while in custody. While the two officers testified that they had no recollection of Pugliese requesting counsel, that is an event which police officers would be expected to observe and remember if it had occurred. See Norfolk & W. Ry. v. Greenfield, 219 Va. 122, 130-31, 244 S.E.2d 781, 785 (1978). As a fact finder, the trial judge was entitled to believe and accept this testimony. Viewing the evidence in the light most favorable to the Commonwealth, the testimony of the two officers supports the trial judge's finding that Pugliese did not request counsel. Accordingly, the Edwards rule does not apply.

Police officers may not resume interrogation of a person in custody who has asserted his right to remain silent unless they have "scrupulously honored" that right. Michigan v. Mosley, 423 U.S. 96, 102-04, 96 S.Ct. 321, 325-26, 46 L.Ed.2d 313 (1975). A statement procured in violation of Mosley is presumed to have been obtained by an involuntary waiver of Fifth Amendment rights and, therefore, it is inadmissible. Id. 423 U.S. at 99-101, 96 S.Ct. at 324-25. Whether a person's decision to remain silent has been "scrupulously honored" requires an independent examination of the circumstances. Id. 423 U.S. at 104-05, 96 S.Ct. at 326-27. In making this determination, an appeals court is "bound by the trial court's subsidiary factual findings unless those findings are plainly wrong." Wilson v. Commonwealth, 13 Va.App. 549, 551, 413 S.E.2d 655, 656 (1992).

After hearing conflicting testimony, the trial judge found that Pugliese re-initiated the discussion with the police after first asserting his right to remain silent and that he thereafter made a voluntary and knowing waiver of that right. The evidence to support that finding was that Pugliese marked out on the Miranda form his earlier designation that he chose to remain silent and affirmatively specified that he waived his right to remain silent. Also, Officers Gregg and Shevokas testified that they did not ask Pugliese any questions after he first invoked his right to remain silent, and that, thereafter, Pugliese, who had just appeared before the magistrate, initiated the discussion and changed his waiver designation. The police officers advised Pugliese of his Fifth Amendment rights three times over the course of two hours, and they did not resume interrogation until Pugliese requested that they do so.

Furthermore, Pugliese's confession was not obtained by a promise of leniency. A confession by an accused may be involuntary if it is obtained by a promise of leniency. Hutto v. Ross, 429 U.S. 28, 30, 97 S.Ct. 202, 203, 50 L.Ed.2d 194 (1976) (per curiam). A "promise" has been defined as "an offer to perform or withhold some future action within the control of the promisor." United States v. Fraction, 795 F.2d 12, 15 (3d Cir.1986); see also Hawkins v. Lynaugh, 844 F.2d 1132, 1139 (5th Cir.1988). A "promise" does not, however, include "a prediction about future events beyond the parties' control or regarded as inevitable." Id.

Officer Gregg told Pugliese that the Commonwealth's attorney would most likely believe a statement made by the first person to come forward who had been involved in the event. Officer Gregg's statement promised nothing. At most, it was a suggestion that the Commonwealth's attorney might look favorably upon the first person to cooperate. The officer made no promise and merely speculated about decisions that would be made by the Commonwealth's attorney, decisions beyond Officer Gregg's power to control. See Lynaugh, 844 F.2d at 1139 (police officer's statement that he believed that the court would be lenient toward a defendant who confessed was not a "promise of leniency"). Officer...