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COMMONWEALTH PENNSYLVANIA v. LOUIS B. STEWART (09/17/82)

filed: September 17, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
LOUIS B. STEWART, APPELLANT



NO. 942 PHILADELPHIA, 1981, Appeal from the judgment of sentence of the Court of Common Pleas of Delaware County, Criminal Division, at No. 4092 of 1979.

COUNSEL

Michael P. Dignazio, Media, for appellant.

David E. Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.

Wickersham, Beck and Popovich JJ.

Author: Beck

[ 304 Pa. Super. Page 384]

Appellant, Louis B. Stewart, was convicted by a jury of murder in the first degree. Post-verdict motions were timely filed by trial counsel who thereafter retired from practicing law. Appellant secured new counsel who filed supplemental motions alleging, inter alia, ineffective assistance of counsel. A hearing was held and post-verdict motions were denied. Appellant was sentenced to life imprisonment, and he appeals from judgment of sentence.

The facts underlying the instant appeal are uncontroverted. On July 30, 1979, the Upper Darby Police Department received a call informing them that a woman was unconscious at 7293 Glenthorne Road. The caller identified himself as Michael Fitzpatrick and gave the number of the telephone from which he was calling; that number corresponded to the phone in the deceased's apartment. The police proceeded to Glenthorne Road and discovered that there was no building with the given address. A second call was received by the dispatcher stating that the police were at the wrong address and that the building for which they were looking was down the street. The police ascertained that the correct address was 7293 Guilford Road, which road crosses Glenthorne Road. Upon arriving at the deceased's building, police observed appellant exiting the premises, waving to them and beckoning them to the scene. At the murder scene, appellant volunteered to the police officers that he was not the person who called them. He told them that a Michael Fitzpatrick had made the call. Upon entering the deceased's apartment, the police officers discovered the naked body of the seventy-four year old victim covered with feces and blood; her eyeballs had been removed from the sockets. There were no people either inside the victim's apartment or in the front section of the building. After noticing blood on appellant's clothing, the officers asked him

[ 304 Pa. Super. Page 385]

    if he would accompany them to the station. There he was read his Miranda [ v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] rights and arrested.

Appellant alleges initially that the lower court erred in allowing the taped telephone conversation to be played to the jury. The voice that was recorded, appellant argues, was not properly identified. It is clear, though, that when seeking to introduce testimony as to the content of a telephone conversation, the identity of the caller may be established by circumstantial evidence. Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977); Commonwealth v. Topa, 269 Pa. Super. 473, 410 A.2d 354 (1979); Commonwealth v. DeRohn, 444 Pa. 334, 282 A.2d 256 (1971). We find that the trial court did not err in concluding that there were sufficient indicia of reliability supporting the identification of appellant as the caller and accordingly find no error in admitting the taped conversation. As noted above, appellant was the only person in the vicinity of the victim's apartment, and he told the police officers that Michael Fitzpatrick, not he, had called them. The record reflects that Michael Fitzpatrick was incapacitated in the Delaware County Hospital at that time, making it extremely unlikely that it was he who placed the call. Also the facts that appellant was aware of the call, that he volunteered to the officers at the murder scene much of the information supplied in the telephone call, and that he was leaving the deceased's apartment when the police arrived, all point to appellant as the caller.

Appellant next objects to admission of the tape for any purpose because its "negligible" probative value was outweighed by its prejudicial impact. We find that the tape was logically relevant in that it tended to connect appellant to the crime as well as to explain the course of conduct of the police officers. This Court in Commonwealth v. Ryan, 253 Pa. Super. 92, 103, 384 A.2d 1243, 1249 (1978) (emphasis in original) held that the trial court was correct in admitting

[ 304 Pa. Super. Page 386]

    testimony as to radio broadcasts "to show the mental state of the police and explain their course of conduct." Accord, Commonwealth v. ...


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