No. 156 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, of McKean County, at No. 106 Criminal 1980
John L. Doherty, Pittsburgh, for appellant.
Jay Paul Kahle, Smethport, for Commonwealth, appellee.
Rowley, Montemuro and Van der Voort, JJ.
[ 320 Pa. Super. Page 428]
The appellant, Carmen P. Musolino, was convicted of second degree murder by a jury in a trial conducted before the Honorable William F. Potter, Court of Common Pleas, McKean County. Motions for new trial and in arrest of judgment were denied and the appellant was sentenced to life imprisonment. This is an appeal from the Judgment of Sentence.*fn1
The salient facts are as follows: The appellant was arrested on May 28, 1980, for the murder of one Jean V. Engel. The homicide occurred on the evening of May 21, 1980 at the home of the victim in Bradford, Pennsylvania. The appellant was arrested in Bradford Hospital where he was undergoing treatment for injuries sustained from a suicide attempt. Nearly four hours after the appellant's admission to the hospital, the District Attorney obtained from him a detailed confession of the homicide which was transcribed and admitted into evidence at trial.
Before his confession, and in response to a thorough explanation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the appellant
[ 320 Pa. Super. Page 429]
requested that he talk to Father Henry Andrae, a priest with whom the appellant was familiar. Upon Father Andrae's arrival, the appellant was permitted to confer with him in private. After this conference, the Miranda rights were again explained to the appellant.
On October 22, 1980, a suppression hearing was conducted before the Honorable William F. Potter. During this hearing it was made clear that Father Andrae, if called as a witness, would invoke the priest-penitent privilege as set forth under section 5943 of the Judicial Code.*fn2 The District Attorney proceeded to question Father Andrae about an alleged telephone call made to him by the appellant regarding both the homicide and the appellant's subsequent attempted suicide. Father Andrae, as predicted, refused to answer these questions, and asserted the privilege.
During the trial on October 27, 1980, the District Attorney called Father Andrae to the witness stand. Appellant's defense counsel objected to having the priest questioned in front of the jury. Upon this objection, a sidebar conference was held wherein defense counsel indicated to the court that at the time of the suppression hearing, the District Attorney was made aware that Father Andrae would invoke the priest-penitent privilege.*fn3 The trial judge ruled that there existed no privilege since any information that the priest was obligated to withhold was disclosed by the appellant in his confession. The District Attorney then proceeded to ask Father Andrae a series of questions with regard to the appellant's alleged telephone call. Throughout this questioning Father Andrae consistently invoked the privilege.
On appeal to this court, the appellant makes the following arguments: (1) the District Attorney, in obtaining the appellant's confession, took unfair advantage of the appellant, who allegedly was incapable of knowingly and intelligently waiving his Miranda rights and, therefore, the confession
[ 320 Pa. Super. Page 430]
was improperly admitted at trial; (2) the appellant was denied a fair trial when the District Attorney was permitted to call Father Andrae to the witness stand and question him knowing that Father Andrae would invoke the priest-penitent privilege; (3) the appellant was denied a fair and impartial trial when the trial court, in its charge to the jury, imparted certain prejudicial remarks; (4) the appellant's trial counsel was ineffective in failing to object both to the fact that the jury was not sequestered and to the fact that the District Attorney, who obtained the appellant's confession, was also the prosecuting attorney. We shall discuss these claims of error seriatim.
Appellant's first argument is that his confession was obtained in violation of his Miranda rights. In support of this argument, the appellant contends that his confession was not voluntary since it was made while he was in an impaired physical and mental condition and that he was denied his right to counsel at the time of his confession.
In determining whether a confession is voluntary, this court must consider the totality of circumstances including the duration and method of questioning, the conditions of detention, the manifest attitude toward the appellant, the appellant's physical and psychological state and all other conditions which serve to drain one's power of resistance to suggestion and undermine his self-determination. Commonwealth v. Betrand, 484 Pa. 511, 399 A.2d 682 (1979); Commonwealth v. Smith, 470 Pa. 220, 368 A.2d 272 (1977). Ultimately, the test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice. Id.
Having reviewed the entire record, we find no support for the appellant's argument. The interrogation lasted for approximately one hour. The appellant at all times possessed a rational and intelligent understanding of his role in the homicide and was anxious to relate to the interrogating officials everything that he knew. Furthermore, immediately following the confession, Dr. Widad Bazzoui,
[ 320 Pa. Super. Page 431]
a psychiatrist then employed as a consultant to the Bradford Hospital, interviewed the appellant. At trial Dr. Bazzoui testified that throughout this interview, the appellant was not only alert, lucid and cognizant of his surroundings, but that he understood all that had transpired during his confession.*fn4
The appellant also claims that he was under the influence of drugs and alcohol which made him vulnerable to interrogation. This argument is also unsupported by the record. In Commonwealth v. Cornish, 471 Pa. 256, 370 A.2d 291 (1977), the Supreme Court noted that before attempting a hospital interrogation, the proper procedure for determining the accused's physical and mental impairments, is for the interrogating officers to obtain an expert medical appraisal of the accused's condition. See also, Commonwealth v. Hunt, 263 Pa. Super. 504, 398 A.2d 690 (1979). This precautionary measure was followed in this case. Before interrogating appellant the District Attorney consulted the appellant's examining physician with regard to the appellant's physical and mental condition. The physician informed the District Attorney that no drugs were administered to the appellant and that the appellant did not appear to be under the influence of drugs or alcohol.*fn5
The appellant contends further that he was denied his right to have an attorney present during his confession. It is clear from the record that the District Attorney conscientiously advised and reassured the appellant of all of his Miranda rights. At one point he told the District Attorney, "I don't know whether I should have a lawyer or not."*fn6 The appellant asserts that this was a request for an attorney that the District Attorney refused to honor. We disagree.
[ 320 Pa. Super. Page 432]
Before any questions were asked, the following colloquy took place:
MR. KAHLE: Carmen, I don't know if any of these fellows told you who I am or not. I'm Jay Paul Kahle, District Attorney. You may or may not have heard my name. You may know who I am.
I'm here and I'd like to ask you some questions with regard to Jean Engel and Jean's death.
Now, first, let me say to you at this point, yesterday you talked to some officers and they gave you some warnings, some statements that they wanted you to understand. I want to repeat those to you today.
Now, let me say one thing to you. Maybe it's a little hard for you to talk. The gal is taking this down, Mrs. Milliron so you can't indicate yes and no you have to say it to us yourself.
MR. KAHLE: Let me read these for you. You have the right to remain silent. You don't have to talk to us at all. Anything you say here today can be used against you and will be used against you and will be used as evidence against you in Court if there were a trial. You have the right now to talk to a lawyer. You can do that before we ask you any questions. You can have him here, do you understand that?
MR. KAHLE: You don't have to be able to afford a lawyer. If you can't afford a lawyer we'll have one appointed to represent ...