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COMMONWEALTH PENNSYLVANIA v. HERBERT TUCK (09/14/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: September 14, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
HERBERT TUCK, APPELLANT

No. 3140 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 80-05-1322 & 1324

COUNSEL

Bonnie B. Leadbetter, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cavanaugh, Montemuro and Hester, J.

Author: Hester

[ 322 Pa. Super. Page 331]

In a non-jury trial, Herbert Tuck, appellant, was found guilty of voluntary manslaughter. Appellant's conviction stemmed from an incident in which he shot and killed his concubine, Deborah Humphrey, at Latona Street in Philadelphia on April 24, 1980. Post-verdict motions were denied and appellant was sentenced to not less than five years nor more than ten years.*fn1 Appellant then filed this appeal.

[ 322 Pa. Super. Page 332]

The first assignment of error is the trial court's admission of two written custodial statements given by appellant to the police shortly following his arrest. Specifically, appellant argues that the suppression court erred in denying the motion to suppress the statements because appellant's emotional and mental state at the pertinent time precluded a knowing and voluntary waiver of his Fifth and Sixth Amendment rights required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Our scope of review of the denial of a motion to suppress is well-established. The suppression court must make findings of fact and conclusions of law in determining whether the evidence obtained was in derogation of the defendant's rights. On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of any inferences and legal conclusions drawn from the court's findings. Commonwealth v. Eliff, 300 Pa. Super. 423, 446 A.2d 927 (1982). In determining whether the record supports the court's findings of fact, we are restricted to reviewing the evidence presented by the Commonwealth and so much of the evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Eliff, supra.

The suppression court found these facts: Following the shooting death of Deborah Humphrey on April 24, 1980, appellant was taken into police custody at approximately 5:30 p.m. and transported in a police squad car to the homicide division. Appellant was accompanied by his sister, and neither he nor his sister was handcuffed. Tuck and his sister arrived at homicide headquarters at approximately 6:00 p.m. At approximately 6:30 p.m., appellant met with Detective English in an open area of the homicide division. English advised appellant he was going to be questioned about the shooting and gave him the requisite Miranda warnings. Appellant indicated a waiver of his Miranda

[ 322 Pa. Super. Page 333]

    rights and expressed his willingness to give a statement. Appellant gave a statement which lasted until approximately 8:30 p.m.*fn2 During the course of the interview with English, appellant was alert and attentive. He did, however, frequently interrupt the interview by jumping up and exclaiming, ". . . tell me Debbie isn't dead." After each such interruption, appellant regained his composure and continued with the interview. Following the interview, appellant requested a drink of water and the opportunity to use the bathroom. English honored appellant's request. At approximately 8:40 p.m., appellant requested to make a telephone call to his family. Upon the granting of this request, appellant engaged in a twenty minute telephone conversation. At 9:00 p.m., appellant asked English if he could speak with his sister. English permitted appellant to privately talk with her in an interview room. During their conversation period which lasted approximately thirty minutes, English learned that a search of the crime scene had produced a gun found in the bathroom. At about 9:35 p.m., English led appellant into an interrogation room, advised him of the discovery of the gun and rewarned him of his Miranda rights. Appellant again indicated a waiver of his Fifth and Sixth Amendment rights and expressed his willingness to give a statement.*fn3 During this second interview

[ 322 Pa. Super. Page 334]

    which lasted until 10:20 p.m., appellant walked about agitatedly, interrupted the questioning with several emotional outbursts, cried, and again exclaimed, ". . . please tell me Debbie isn't dead." After each such interruption, Tuck regained his composure and continued with the interview. We find ample evidence in the record to support the suppression court's findings of fact.

Turning now to the suppression court's conclusion of law challenged in this appeal; it found appellant's two statements to have been given following an intelligent and voluntary waiver of his Miranda rights. This conclusion is fully supported by the following facts: though testimony by the officers at the crime scene described appellant's emotional state as "hysterical", the record nevertheless establishes that his sensorium was not impaired.*fn4 At the crime scene, appellant exhibited no problem communicating with the officers present. He understood and followed their various instructions and voluntarily accompanied them to homicide headquarters. Before leaving the crime scene, appellant asked for his nerve medication, thus exhibiting

[ 322 Pa. Super. Page 335]

    the presence of mind to care for his own physical well-being. During the ride to headquarters, despite being visibly upset, he repeatedly asked whether the victim was alive or dead.

At headquarters, appellant was informed by English that he was to be questioned about the Deborah Humphrey shooting. English read appellant his Miranda rights from a standard form 75-Misc.-3, Police Interrogation Card. Appellant verbally answered the seven comprehensive Miranda questions appearing on the reverse side of the form. Appellant's responses, which were typewritten onto the interview sheet and initiated by appellant, established a knowing and voluntary waiver. Appellant then gave his first statement, a lengthy exculpatory statement to detective English which contained coherent and responsive information. Though appellant interrupted the interview at different times by exclaiming ". . . tell me Debbie isn't dead", he regained his composure and continued with the interview. English testified that appellant demonstrated a willingness to talk about the incident, was alert, and responsive.

Following the first interview, appellant requested to satisfy his biological needs and was permitted to do so. Subsequently, he requested to phone his family. This request was honored and he engaged in a normal telephone conversation with a family member for approximately twenty minutes. He also requested to speak privately with his sister and did so for about one-half hour. Prior to giving his second statement, appellant again was given his Miranda rights. In response to English's request, appellant supplied answers to the comprehensive questions appearing in the standard police form sheet and his responses were hand-recorded in the appropriate spaces. The sheet was handed to appellant who read, initialed each of the recorded answers and signed the bottom of the sheet. Appellant's responses established a voluntary waiver of his Miranda rights. Appellant gave a second statement to English which contradicted his exculpatory first statement. It

[ 322 Pa. Super. Page 336]

    contained coherent and responsive information. English then presented the four-page interview sheet which contained both statements to appellant and requested him to read and sign it if its contents were accurate. Appellant read each page and signed his name at the bottom of each page.

Despite appellant's periodic outbursts during the time he gave the statements, we are convinced that appellant possessed sufficient sensorium to freely and voluntarily waive his constitutional rights. The mere fact appellant was excited and emotional following the shooting death of his girlfriend does not compel us to conclude that appellant did not know what he was doing; quite the contrary, since the record establishes that he was alert, rational, responsive and sufficiently composed to enable him to validly waive his constitutional rights prior to making the statements. Appellant understood the nature of the questioning, was advised on two occasions of his Miranda rights prior to giving the statements and responded in a manner indicating a waiver of them. See, Commonwealth v. O'Bryant, 479 Pa. 534, 388 A.2d 1059 (1978), cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978). Accordingly, we affirm the suppression court's denial of the motion to suppress since its determination that appellant intelligently and voluntarily waived his Miranda rights is amply supported by the record.*fn5

The second assignment of error is an ineffectiveness challenge to the representation provided appellant by his

[ 322 Pa. Super. Page 337]

    court-appointed trial counsel, Donald G. Joel, Esquire.*fn6 The gravaman of appellant's claim is not that trial counsel's representation lacked any "reasonable basis designed to effectuate his client's interest," see Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Instead, post-verdict counsel alleges that appellant was deprived of his Sixth Amendment right to counsel because of a "complete breakdown of communication" between appellant and trial counsel (Post Trial Hearing, N.T. 3-7, 45). Specifically, appellant alleges that the trial court erred in refusing to allow Joel to withdraw when he requested to do so at the guilty plea colloquy.

A survey of the record reveals the following. After the suppression court's ruling on appellant's pre-trial motion to suppress, the case proceeded to jury selection. Following selection of the jury but before formal commencement of trial, appellant advised Joel that he wished to enter a guilty plea. Joel conferred with appellant and advised him against tendering the plea. Despite Joel's advice, appellant chose to tender the plea. A guilty plea colloquy was conducted over a two-day period. Our perusal of this portion of the transcribed record indicates that Joel and appellant communicated without any indication of either hostility, mistrust or irreconcilable differences. In fact, appellant repeatedly expressed his satisfaction with Joel's representation.

During his testimony at the colloquy, appellant stated that the deceased victim had been accidently shot when he attempted to wrestle the gun from her hand. Because of this testimony, the trial judge ordered appellant's plea to be withdrawn and announced that the case would proceed to trial. At this point, Joel conferred with appellant and then requested the court to grant him leave to withdraw. Joel stated on the record that he did not want to further represent appellant, that he was having difficulty communicating with him and that he wanted to withdraw as counsel. Joel's

[ 322 Pa. Super. Page 338]

    motion to withdraw was denied and as a consequence, Joel represented appellant in a bench trial.

At a post-trial evidentiary hearing before the lower court, Joel explained the actual facts and circumstances which preceded his motion to withdraw and his motives for the motion. Joel testified that appellant became emotional, fearful and confused after hearing the court order the withdrawal of the guilty plea. It was at this particular point in time, when appellant became upset, that Joel was unable to communicate to him (Post-trial Hearing, Oct. 14, 1981, N.T. 22-3, 37). Joel's testimony at the evidentiary hearing also revealed his self-serving reasons for making the motion to withdraw.*fn7

While we in no way condone the actions or self-serving attitude of trial counsel, we do not conclude that trial counsel's actions or attitude caused appellant to be without effective representation.

Our study of the record belies appellant's assertion that a communication problem between him and Joel rendered Joel's representation constitutionally inadequate. At no time during the proceedings below did appellant express that he disliked his attorney, that he distrusted him, that he was dissatisfied with counsel's strategies or that he and his attorney had any disagreement. In fact, Joel permitted appellant to attempt to tender a guilty plea though he did not agree with the strategy. During the bench trial which commenced only two days after the motion to withdraw was made, appellant did not display a lack of confidence toward Joel or complain about the representation he was receiving. The record also demonstrates full and effective communication between appellant and Joel at trial. At

[ 322 Pa. Super. Page 339]

    trial, appellant chose not to testify on his own behalf only after a full discussion with Joel. We note further that the momentary breakdown of communication between appellant and Joel at the guilty plea colloquy had no bearing on the defense ultimately presented at trial. In fact, appellant admits that trial counsel was well-prepared and competent.

Of course, irreconcilable differences between an attorney and his client or a complete breakdown of communication between them could result in the denial of a defendant's right to competent representation. See, Commonwealth v. Tyler, 468 Pa. 193, 360 A.2d 617 (1976) (court appointed counsel and defendant agreed that an irreconcilable difference existed as to the manner in which the trial should be conducted). However, we do not consider a momentary breakdown in communication between appellant and Joel supportive of such a conclusion in this case. See, Commonwealth v. Kittrell, 285 Pa. Super. 464, 427 A.2d 1380 (1981); Commonwealth v. Olivencia, 265 Pa. Super. 439, 402 A.2d 519 (1979). See generally, Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (Sixth Amendment right to counsel does not include right to a meaningful attorney-client relationship and therefore found no abuse of discretion in the denial of defendant's request for a continuance where defendant's attorney was fully prepared and ready for trial). In fact, the record establishes the absence of any evidence to support a conclusion that either hostility, irreconcilable differences or communication difficulties between appellant and Joel prevented effective representation.

The grant or denial of court-appointed trial counsel's petition to withdraw is within the sound discretion of the trial court, see Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975), and as such, should not be overturned unless we find an abuse of discretion. Based on the foregoing, we find no abuse of discretion in the trial court's denial of trial counsel's motion to withdraw.

Judgment of sentence affirmed.


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