No. 332 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Cumberland County Criminal Division, No. 852 of 1977.
Drew Salaman, Philadelphia, for appellant.
Edgar B. Bayley, Camp Hill, for appellee.
Hoffman, Roberts and Lipez, JJ.*fn*
[ 274 Pa. Super. Page 597]
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
[ 274 Pa. Super. Page 598]
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).
[ 274 Pa. Super. Page 599]
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 ...