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

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., ...


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