filed: May 6, 1983.
COMMONWEALTH OF PENNSYLVANIA
JOSEPH GEORGE ROMERI, APPELLANT
No. 465 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County, Criminal, at Nos. 1368 and 1369 of 1978.
Thomas J. Calnan, Jr., Allentown, for appellant.
William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.
McEwen, Johnson and Watkins, JJ.
[ 314 Pa. Super. Page 283]
We here review an appeal from the judgment of sentence imposed after appellant was convicted by a jury of murder in the second degree, burglary, theft by unlawful taking, receiving stolen property and criminal conspiracy. Appellant was sentenced to serve a term of life imprisonment upon the murder conviction and a consecutive term of from two to seven years upon the other convictions.
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Stella A. Bremmer was eighty years of age when she was bludgeoned to death on November 9, 1978. Four days later, appellant voluntarily accompanied two officers to the Allentown Police Station for questioning. Since appellant was not yet 17 years of age, the police provided for the presence of his mother, who with appellant was apprised of the Miranda warnings. Appellant thereafter gave and subsequently wrote and signed a statement admitting his complicity in the killing of Stella A. Bremmer during the commission of the burglary of her home. The juvenile probation officer of appellant, as well as another juvenile officer, were present with appellant and his mother when appellant made his statement, and the mother herself signed as a witness to the execution of the statement by her son.*fn1
The record reflects that appellant and co-defendant, Michael Reinhard, after consuming a quantity of marijuana,
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gained entry to the house of Mrs. Bremmer through an open rear window. Appellant and the co-defendant then searched the house and took a small amount of money. The co-defendant testified that while he was in the kitchen he heard "muffled sounds" from upstairs, as a result of which he ascended the stairs, and saw appellant standing with a pipe over the bloodied body of Stella Bremmer.
Appellant testified that in addition to smoking marijuana, he ingested LSD, two or three bottles of ale and a swallow of whiskey or wine. He further testified that he was not certain whether or not he hit the victim, but since his accomplice told him he struck Stella Bremmer, he therefore believed that he inflicted the blows. Appellant also indicated uncertainty as to whether the statement he made to Detective Monahan was part of his honest recollection.
The record reflects that appellant, while incarcerated, wrote a letter to his mother in which he stated, inter alia:
Prior to the trial, the court denied the following applications of appellant: (1) a petition to transfer the case to juvenile court; (2) a motion to suppress the statement to Detective Monahan; and (3) a motion for bail.
On the morning of trial, April 2, 1979, a local daily newspaper reported upon the court opinion and order that denied the petition of appellant to transfer the case to the juvenile court. That same article also reported upon the opinion and order of the court that denied the petition of co-defendant Michael Reinhard for transfer to juvenile court.
Appellant, prior to the empaneling of a jury, moved for a change of venue as a result of the newspaper article, but the court held the motion under advisement. That evening, another local newspaper reported the "plea for venue
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change". Upon completion of voir dire, the trial judge denied the motion of appellant for change of venue.
Appellant asserts that the trial court erred when it refused to dismiss for cause four prospective jurors who had read or discussed the newspaper article of April 2, 1979, and had been thereby challenged for cause. Our eminent President Judge William F. Cercone, in Commonwealth v. Lucchese, 233 Pa. Super. 273, 279, 335 A.2d 508, 511 (1975), delineated the principle pertinent to this issue:
[T]he fact that a juror has read a newspaper account concerning the accused and the crime at bar does not require that the juror be excluded for cause. It must be shown that the juror has formulated a fixed opinion precluding him from reaching a verdict based solely on the evidence produced at trial . . . .
The Pennsylvania Supreme Court reiterated this principle when the eminent Justice Robert N.C. Nix, Jr., in Commonwealth v. Hoss, 469 Pa. 195, 200-01, 364 A.2d 1335, 1338 (1976), declared:
The mandate for a fair and impartial jury does not require that the prospective jurors be free of all knowledge of the facts and circumstances surrounding the incident which forms the basis of the trial.
Thus, the critical question where members of the panel have been exposed to pre-trial media publicity, is whether or not they are capable of casting aside any impressions or opinions they may have formed and render a verdict based solely upon the evidence presented to them during the course of the trial.
The en banc opinion of the Common Pleas Court provided the following description of the effort to secure an impartial jury:
[T]he Court, in recognizing the weight that a judicial opinion would receive in the community, took care to insure the selection of an impartial jury for trial. Wide latitude on voir dire examination was extended by the
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Court in recognition of the problem; every defense challenge for cause was granted where a prospective juror had read a recent newspaper article involving the case -- whether or not that prospective juror had any recollection of the newspaper account or had formed an opinion. Of the fourteen (14) jurors seated, not one had read the allegedly prejudicial publicity.
Our review of the record does not indicate that any juror had an opinion that was fixed so as to preclude a deliberation and decision solely upon the evidence. As a result we conclude there is no merit to this contention of appellant.
Appellant next asserts that he was arrested without probable cause at his place of employment. He argues, therefore, that any statements subsequently made were the fruit of an illegal arrest and, for that reason, should have been suppressed. "In reviewing the findings of the suppression court, this court must determine whether the record 'supports the suppression court's factual findings and the legitimacy of the inferences and conclusions drawn from those findings. In making this determination, 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. Crissy, 304 Pa. Super. 38, 450 A.2d 89 (1982) (quoting Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976) and Commonwealth v. Hunt, 280 Pa. Super. 205, 421 A.2d 684 (1980)).
The suppression hearing record reflects that investigating officer Gerald Monahan, who was dressed in civilian clothing and accompanied by a juvenile officer, located appellant at his place of employment, identified himself and said: "I would like to talk to you. Would you mind coming down to the police headquarters with me?" Detective Monahan testified that he informed appellant that he was not under arrest stating: "You aren't getting blamed for a thing. I just want to talk to you." The detective further testified that he asked appellant "if his mother would come with
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them", indicated that the conference would take about an hour, and offered to return appellant to his place of employment at the termination of the interview. The record clearly establishes that appellant was aware that he was not told that he was under arrest, and that after locating Mrs. Romeri, appellant, of his own volition, accompanied the officers to the police headquarters. The record further reflects that before being questioned, appellant was apprised of the Miranda rights and of the right to a private conference with his mother and his probation officer, who was, at his request, made available to him for counseling. It was not until after appellant made his confession that he was told he was under arrest.
The determination of when an arrest occurs depends on an evaluation of all the surrounding circumstances. Commonwealth v. Crissy, supra, 304 Pa. Superior at 42, 450 A.2d at 91. An arrest may be constructive or actual, id., and is accomplished by "any act that indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest." Commonwealth v. Bosurgi, 411 Pa. 56, 68, 190 A.2d 304, 311 (1963), cert. denied, Bosurgi v. Pennsylvania, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963) (quoting 5 Am. Jur.2d, Arrest § 1, p. 695). See also Commonwealth v. Holmes, 482 Pa. 97, 393 A.2d 397 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974). "An arrest may thus be effectuated without the actual use of force and without a formal statement of arrest." Commonwealth v. Benson, 280 Pa. Super. 20, 27, 421 A.2d 383, 386 (1980). See also Commonwealth v. Holmes, supra; Commonwealth v. Crissy, supra; Commonwealth v. Haggerty, 282 Pa. Super. 369, 422 A.2d 1336 (1980), rev'd on other grounds, 495 Pa. 612, 435 A.2d 174 (1981); Commonwealth v. Allessie, 267 Pa. Super. 334, 406 A.2d 1068 (1979). However, the question of when an arrest occurs is determined by an objective standard, namely, the reasonable impression conveyed to the person subjected to seizure or detention rather than the subjective view of such person or of the arresting officer.
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juvenile with the 'protection which his own immaturity could not.' Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 1213, 8 L.Ed.2d 325 (1962). Accord, Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).
Commonwealth v. Thomas, 486 Pa. 568, 571, 406 A.2d 1037, 1038 (1979). (footnotes omitted). See also Commonwealth v. Williams, 309 Pa. Super. 63, 454 A.2d 1083 (1982) (1982). The Supreme Court thereby accepted the view expressed in the Thomas dissent by our distinguished colleague Judge Edmund B. Spaeth, Jr., joined by our eminent President Judge William F. Cercone, that:
Any other interpretation of the Supreme Court's requirement of an 'interested adult' would make no sense, for it would read the Court as saying that its requirement could be satisfied in either of two mutually inconsistent ways: either by affording the juvenile access to one of two parties initially interested in his welfare -- an attorney or parent -- or by affording him access to a person only casually interested.
Commonwealth v. Thomas, supra 486 Pa. at 572, 406 A.2d at 1038 (quoting the dissent of Judge Spaeth in Commonwealth v. Thomas, 258 Pa. Super. 332, 441-42, 392 A.2d 820, 825 (1978)).
Nonetheless, we will not disturb the finding of the hearing judge that the mother of appellant and juvenile probation officer Zydel were "interested adults" since the hearing judge actually based his conclusions upon the notions that the Supreme Court declared to be decisive in such situations:
[W]e note the dissent of Judge Spaeth in Thomas. However, we are satisfied that the reasons for his dissent in Thomas are not present in the case. In Thomas, Judge Spaeth disagreed with the majority's conclusion that a prison counselor was an 'interested adult' for the purpose of an effective juvenile Miranda waiver. In the case at bar the defendant's mother, unquestionably an 'interested adult' was present and there is no question that the Miranda rights were fully explained to her and
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the defendant. Judge Spaeth also concluded that the police made no reasonable effort to afford the appellant access to an 'interested adult.' Again the facts in our case are contrary to that conclusion, because the police, at the defendant's request, brought in Probation Officer Zydel, who the defendant regarded as an interested adult, and Ms. Zydel once again informed the defendant and his mother of the Miranda rights. Finally, Judge Spaeth in his Thomas dissent concluded the police impermissibly interfered with such access to an 'interested adult' as was provided by remaining in the room while the juvenile conferred with an adult. However, in the present case it is undisputed that the juvenile, his mother and the Probation Officer had the fullest privacy.
Appellant next argues that the trial court erred in denying his petition to transfer the murder charge from adult to juvenile court. If appellant is to prevail, he must show a gross abuse of the broad discretion of the hearing judge who refused the transfer application. Such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based upon partiality, prejudice or ill will. Commonwealth v. Bey, 249 Pa. Super. 185, 375 A.2d 1304 (1977).
The pertinent portion of the Juvenile Act provides:
Section 6322. Transfer from criminal proceedings
(a) General rule. -- . . ., if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, . . . If it appears to the court in a criminal proceeding charging murder, that the defendant is a child, the case may similarly be transferred and the provisions of this chapter applied . . . .
42 Pa.C.S.A. § 6322. It is thus clear under the Juvenile Act that a criminal proceeding charging murder by a juvenile
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of the alleged homicide (e.g., inquiry into whether the killing was committed in an aggressive, violent or wilful manner, whether the safety of the community requires lengthy incarceration, whether it is more desirable to dispose of the entire offense in one court should the juvenile's associates in the alleged homicide be adults not within the juvenile jurisdiction).
Id., 462 Pa. at 623 n. 13, 342 A.2d at 106-07 n. 13. (citations omitted) (emphasis in original) See also Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980). In any event, the law is clear that any transfer determination under the Juvenile Act is within the sound discretion of the Common Pleas Court. Commonwealth v. Pyle, supra 462 Pa. at 618, 342 A.2d at 104 (1975); Commonwealth v. Barber, 275 Pa. Super. 144, 151, 418 A.2d 653, 660 (1980).
Appellant alleges in his brief that the hearing court relied almost entirely on the "enormity of the crime" to deny the petition to transfer and that the trial court, therefore, abused its discretion by applying an improper standard, thereby ignoring the historic purpose of the juvenile court system. Our review convinces us that both the certification hearing court and the court en banc adequately reviewed and properly disposed of this claim. The record reflects that while the hearing court took into consideration the youth of appellant, the testimony of the psychologist and the psychiatrist concerning appellant was not favorable. Certainly the "enormity of the crime", the manner of its commission which the court described as "particularly vicious", and the character of appellant as reflected by his letter to his mother seeking her assistance to enable him to "get away with murder" were factors of considerable influence upon the decision of the court to proceed with trial in the criminal court. Our careful study of the entire record and the briefs leads us to share the conclusion of the hearing judge that appellant failed in his burden and did not establish the amenability of a trial in the juvenile court system. As the hearing judge opined in holding the case inappropriate for transfer to Juvenile Court:
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We have weighed and considered the evidence presented to Joseph Romeri's personal makeup, character, maturity, family and home situation, his previous contact with law enforcement agencies, his direct role in the killing of Mrs. Bremmer as well as his almost complete, callous disregard to the enormity and horror of his actions. We simply do not believe that Romeri's need for care, guidance and control as a juvenile is outweighed by the state and society's need to apply legal restraint and discipline as an adult. Accordingly, we conclude that the evidence does not affirmatively demonstrate that Romeri is amenable to treatment as a juvenile.
Appellant further contends that the court erred in allowing the initiation and prosecution of the non-homicide charges in adult court. He voices the argument that when a juvenile is charged with homicide it should not cause the automatic certification of non-homicide charges to criminal court and urges that the proper procedure for charging a juvenile with homicide and other related charges which arise out of the same incident is to: (1) initiate the non-homicide charges in juvenile court; and (2) thereafter certify such charges to criminal court. We conclude that the Lehigh County en banc opinion properly decided the issue when it determined that the criminal adult court had jurisdiction over the lesser related charges as well as the murder charge. It is clear that such charges constituted an integral part of the murder offense. Since the juvenile court, in the first instance, had no jurisdiction over the murder charge and since the lesser related charges were integrally related to that charge, the hearing court did not err when it denied the motion of appellant to transfer the lesser related offenses to juvenile court. See Commonwealth v. Keefer, 470 Pa. 142, 367 A.2d 1082 (1976), cert. denied, Keefer v. Pennsylvania, 434 U.S. 1009, 98 S.Ct. 717, 54 L.Ed.2d 751 (1978), reh. denied, 435 U.S. 938, 98 S.Ct. 1514, 55 L.Ed.2d 534 (1978).
Appellant next argues that the trial court improperly denied a motion to limit evidence under Pennsylvania
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Rule of Criminal Procedure Rule 305 E by allowing into evidence the letter written by appellant to his mother. The letter had been a subject at pre-trial proceedings and, therefore, there is no basis for any claim that the Commonwealth failed to disclose the existence of the letter. Appellant cites Pennsylvania Rule of Criminal Procedure 305 B that requires the Commonwealth to permit counsel for the defendant to inspect and copy such evidence. As we have already noted, the letter was the subject of pre-trial proceedings which would, of course, have afforded counsel the opportunity to inspect the letter and counsel for appellant does not contend the Commonwealth refused his request to further inspect or copy that exhibit. We conclude, therefore, that the trial court properly ruled upon this issue. Cf. Commonwealth v. Gibson, 271 Pa. Super. 499, 414 A.2d 364 (1979) (where defense counsel was aware at suppression hearing that only eyewitnesses to crime initially failed to identify defendant, no merit to contention that Commonwealth withheld evidence).
Appellant proceeds to contend that it was error to permit voir dire on the death penalty, since the result of such an empaneling was a "death-qualified" jury. Appellant contends, therefore, that this jury selection procedure excluded "persons who indicated they would be most conscientious in applying the reasonable doubt standard" and included persons "more apt to convict -- or convict of a higher degree."*fn2 In addressing this issue, the Pennsylvania Supreme Court in Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976), stated:
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In Witherspoon [ v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied, Witherspoon v. Illinois, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968)], the Supreme Court of the United States refused to accede to this argument because the data there before it were 'too tentative and fragmentary', 391 U.S. at 517-18, 88 S.Ct. at 1776-1775, 20 L.Ed.2d at 782. This Court likewise rejected the same contention in Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971) because it was 'without persuasive foundation and is mere speculation.' 445 Pa. at 35, 282 A.2d at 28. See also Commonwealth v. Hudson, 455 Pa. 117, 314 A.2d 231 (1974); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971).
Commonwealth v. Martin, supra 465 Pa. at 162, 348 A.2d at 405. See also Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981) (Larsen, J., dissenting); Commonwealth v. Ashburn, 459 Pa. 625, 331 A.2d 167 (1975). Accord Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981), mod. and reh. denied, 671 F.2d 858 (5th Cir.1982), recalled, 677 F.2d 20 (5th Cir.1982), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982). It is clear, however, that a conviction by a death-qualified jury will be reversed if the defendant so convicted can prove that such jury was prone to favor the prosecution in the determination of guilt. Witherspoon v. Illinois, supra 391 U.S. at 517-18, 88 S.Ct. at 1774-75, 20 L.Ed.2d at 782-83. See also Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 302 n. 8, 370 A.2d 309, 313-14 n. 8 (1977); Commonwealth v. Roach, supra 444 Pa. at 371, 282 A.2d at 384.
Our careful study of the entire record leads us to conclude that this contention of appellant is based upon pure speculation. Appellant has failed to introduce any evidence to support his claim that the exclusion of prospective jurors opposed to the death penalty prejudiced him. Rather, the record establishes that the trial court permitted appellant to engage in extensive individual voir dire, affording
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him an ample opportunity to secure a competent and fair jury.
Appellant also asserts that several errors were committed in the charge provided by the trial judge to the jury. We have reviewed each of the contentions of appellant and conclude there is no merit to any of the assertions of error. It is well settled in Pennsylvania that appellate review of the charge of the court for prejudicial and reversible error requires that the charge be read and considered in its entirety since error will not be predicated upon isolated excerpts of the charge. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); Commonwealth v. Todaro, 301 Pa. Super. 1, 446 A.2d 1305 (1982). Our study of the charge of the court leaves us with the conclusion that the charge as a whole was adequate and proper and did not contain any reversible error.
We have completed a thorough review of the entire record as well as of the briefs of the parties and conclude that the distinguished court en banc, specifically the learned Judges Maxwell E. Davidson, David E. Mellenberg and James N. Diefenderfer, has in an able and thorough opinion, very perceptively addressed and quite correctly ruled upon the remaining contentions of appellant.*fn3
Judgment of sentence affirmed.