No. 1296 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, Nos. 1858 and 1610 of 1980.
Robert T. Panowicz, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Spaeth, President Judge, and Wieand and Montemuro, JJ.
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Following trial by jury in the Court of Common Pleas of Luzerne County, appellant, Shawna Lore, was found guilty
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of the following offenses: criminal conspiracy to commit criminal mischief;*fn1 criminal mischief;*fn2 criminal conspiracy to commit abuse of corpse;*fn3 abuse of corpse;*fn4 criminal conspiracy to hinder apprehension or prosecution;*fn5 and hindering apprehension or prosecution.*fn6
Appellant's timely filed motion for a new trial and/or in arrest of judgment was denied and appellant was sentenced by the Honorable Arthur D. Dalessandro to six (6) consecutive terms of imprisonment with a minimum total duration of eleven (11) years and a maximum total duration of twenty-two (22) years.
Thereafter, appellant's petition to modify sentence was denied following a hearing and this appeal ensued. Appellant has alleged, and we review herein, the following assignments of error: (1) the suppression court's failure to suppress certain inculpatory statements made by appellant; (2) the suppression court's limiting appellant's cross-examination of a witness at the suppression hearing; (3) the suppression court's refusal to grant appellant a continuance to further develop evidence pertinent to the suppression hearing; (4) the lower court's refusal to grant appellant's demurrer and her motion in arrest of judgment, (5) the lower court's admission into evidence of a picture of the decedent; (6) the lower court's determination of the grade of the charge of hindering apprehension or prosecution as a felony of the third degree; (7) the lower court's imposition of consecutive sentences on the separate criminal conspiracy counts; (8) the alleged excessiveness of the sentences imposed by the lower court; (9) the alleged inadequacy of the statement of reasons for the sentences imposed; and (10) the lower court's reliance on allegedly improper considerations in sentencing appellant.
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We affirm in part, reverse as to the convictions for criminal conspiracy to commit criminal mischief and criminal mischief, and vacate as to the sentence imposed for criminal conspiracy to commit abuse of corpse.*fn7
This case arose out of the events immediately following the shooting death of John McNulty. In the early morning hours of November 8, 1979, McNulty accompanied the appellant, whom he had met earlier that night, to the residence of George Peters at 61 Carbon Lane in Wilkes-Barre, Luzerne County. Once inside the residence, a dispute ensued between McNulty and Raymond Ziomek, appellant's boyfriend. Ziomek shot and killed McNulty.
Over the course of the following two days, appellant, George Peters, and John Noss, a friend of Ziomek, assisted Ziomek in the concealment and/or destruction of all evidence of McNulty's death. At appellant's trial, the combined testimony of Peters and Noss established the following with regard to appellant's involvement: (1) appellant helped Ziomek and Peters clean the room in which McNulty had been shot; (2) appellant cleaned the cellar steps of the Peters residence over which McNulty's body was dragged; (3) appellant accompanied Noss and Ziomek to the Wyoming Valley Mall where they obtained an ax, Drano and lye, and then all three returned to the Peters residence; (4) appellant removed a sheet of plastic covering McNulty's body as it lay in the cellar of the Peters residence; (5) appellant untied a belt which had been used to bind McNulty's hands; (6) appellant went through McNulty's pockets; (7) as Noss and Ziomek dismembered McNulty's body, appellant held garbage bags open in order for the head, arms and legs to be placed in them; (8) appellant understood that the bags were to be thrown into the Susquehanna River; (9) appellant was in the cellar constantly throughout the dismemberment; (10) appellant cleaned the cellar floor, where the body had lain, with buckets of water and by shoveling dirt; (11) appellant carried bags containing the disassembled components
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of McNulty's body up from the cellar; (12) appellant placed the bag containing McNulty's head into a bucket; (13) appellant carried bags containing body parts out to McNulty's automobile; (14) after the bags were loaded into the automobile, appellant and Noss accompanied Ziomek as he drove McNulty's automobile to the Breslau Bridge over the Susquehanna River; (15) Ziomek and Noss tossed McNulty's torso into the river and appellant threw the remaining bags in; and (16) Ziomek, Noss and appellant then proceeded to a coal stripping area where Ziomek set fire to McNulty's automobile.
On November 23, 1979, appellant was arrested on matters unrelated to the McNulty homicide. However, appellant was thereafter questioned regarding that homicide and on November 28 and 29, respectively, appellant made two inculpatory statements.
As related by Trooper Charles Casey of the Pennsylvania State Police on direct examination at appellant's trial, the substance of appellant's November 28, 1979 statement included the following assertions: (1) after arriving at the Peters residence with McNulty, appellant watched as Ziomek and Peters argued; (2) Ziomek shot McNulty; (3) Ziomek dragged McNulty's body into the cellar and covered it up; (4) Noss and Ziomek later dismembered the body and placed it in garbage bags; (5) Noss and Ziomek carried the bags to McNulty's automobile; (6) Noss, Ziomek and appellant traveled to the Breslau Bridge and the bags were tossed into the river; and (7) Ziomek burned the car.
Appellant's November 29, 1979 statement was recorded on tape and the tape was subsequently played before the jury at appellant's trial. This statement included the following additional inculpatory remarks: (1) appellant cleaned the steps and the rug going into the cellar of the Peters residence after Ziomek dragged McNulty's body over them; (2) appellant accompanied Noss and Ziomek to the Wyoming Valley Mall while they obtained a hatchet, Drano and lye; (3) appellant, Noss and Ziomek later went down into Peters' cellar and Ziomek announced his intent to dismember
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McNulty's body; (4) appellant removed the plastic sheet and the debris covering the body; (5) appellant got garbage bags from upstairs and threw them into the cellar; (6) appellant was upstairs and heard "cutting" noises from the cellar; (7) appellant took a bucket of water into the cellar and poured it over a spot where the body had been laying; (8) after Noss and Ziomek finished dismembering the body, appellant again took a bucket of water into the cellar, poured it over the remaining blood stains, and shoveled dirt over the spot where the body had been dismembered; and (9) appellant threw one of the bags in the river.
Immediately prior to the commencement of appellant's trial on November 17, 1980, her counsel made the following oral motion:
The second motion that I would make at this time is that this morning from the Public Defenders' Office, a Judy Kleiman and a Russ Thomas had indicated that at the time that Mrs. Lore had made certain statements to the District Attorney that they had evidence of some needle marks on her arms and that they indicated that she had not slept for a number of days or hours. At this time I would present the Court with an oral motion on a suppression of the statements given by Mrs. Lore. I found that out this morning and I did not have an opportunity to present a written motion to the Court for the suppression of that evidence.
N.T., November 17, 1980, at 16. (Appellant had earlier filed omnibus pretrial motions, however, these did not contain a motion to suppress.) The lower court permitted a hearing to be held on the above motion; at the conclusion of which, the motion was denied.
Appellant's first assignment of error alleges that the suppression court erroneously denied appellant's motion to suppress the inculpatory statements made by her on November 28 and 29, 1979. Appellant argues that, because she was tired and experiencing the physical and psychological effects of narcotic withdrawal, her November 28 and 29, 1979 statements were not intelligently, knowingly and voluntarily
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made and, therefore, were not the product of a constitutionally effective waiver of the rights afforded her under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).*fn8
In reviewing the action taken by the suppression court in admitting appellant's statements into evidence, we are guided by the standard enunciated in Commonwealth v. O'Bryant, 479 Pa. 534, 388 A.2d 1059, cert. denied, 439 U.S. 990, 99 S.Ct. 589, 58 L.Ed.2d 664 (1978):
[T]his Court must consider only the evidence presented by the Commonwealth and so much of the evidence for the defense as fairly read in the context of the record as a whole, remains uncontradicted . . . . Where the suppression court's findings have ample support in the record, they may not be disturbed on appeal.
Id., 479 Pa. at 537, 388 A.2d at 1061; see also Commonwealth v. Taylor, 494 Pa. 399, 403, 431 A.2d 915, 917 (1981).
Moreover, we are mindful of the fact that the admissibility of the challenged statements need not be proven beyond a reasonable doubt. It is sufficient if the Commonwealth satisfies the court by a preponderance of the evidence that the legal requirements for admissibility have been met, that is, that appellant herein waived her constitutional
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rights voluntarily, knowingly and intelligently. Taylor, supra; Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
The Commonwealth called three witnesses to testify at the suppression hearing, Trooper Casey, Detective Chester Dudick of the Wilkes-Barre Police Department and Detective Frank Ratchford of the Kingston Police Department, all three of whom had contact with appellant between November 23 and 29, 1979, the former two having been present when appellant made the statements in question. As to the apparent physical and psychological condition of appellant at the time of the November 28, 1979 statement, Detective Dudick testified that appellant appeared normal and at ease. Appellant was coherent and responded intelligently to the questions posed. Detective Dudick testified that appellant did not mention any drug withdrawal symptoms or complain of any discomfort. Trooper Casey essentially reiterated Detective Dudick's observations regarding appellant's condition on November 28. As to appellant's condition at the time of the November 29, 1979 statement, Detective Dudick testified that appellant was asked if she was on drugs and responded negatively. Appellant did not complain of any withdrawal symptoms. Detective Dudick further testified that he felt there was no reason to ask appellant questions concerning any possible sleeplessness because she appeared very alert. Trooper Casey similarly testified that, on November 29, appellant appeared "well-rested." Detective Ratchford testified that, on the dates when he met with appellant, she did not "shake", appear "nauseous" or mention any withdrawal symptoms.
Appellant introduced medical records from the Luzerne County Women's Detention Center, where appellant was incarcerated on the dates in question. These records indicated that, on November 24, 1979, there were "needle marks" on appellant's arms. During the suppression hearing, appellant exhibited to the court three needle marks, one on the inside of each elbow and one on the back of her right hand. Appellant testified to a long history of drug usage
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and that, during the week immediately prior to her arrest on November 23, 1979, she was injecting morphine or demerol at least every three hours. However, her testimony indicated that her usual drug intake was significantly less prior to that week. After describing the symptoms of morphine and demerol withdrawal as including shaking, muscle spasms, nausea, vomiting and hot/cold flashes, appellant testified that, on the dates in question, she was only "shaky" and "nauseous". Appellant further testified that between November 24 and 29, 1979, her nighttime sleep was fitful.
The suppression court found:
[B]oth statements given by the defendant [appellant] were made voluntarily, intelligently, knowingly and understandingly . . . . [T]here was no mental or physical disease or disability existing at the times of the giving of both statements. . . . Defendant was in full command of her faculties and knew very well what she was doing, what the subject matter was, and what the contents of her statements were and their possible future use.
N.T., November 17, 1980, at 127.
After a careful review of the record and in light of the legal standards set forth above, we find that the suppression court's admission of appellant's November 28 and 29, 1979 statements was proper.
Appellant's next assignment of error contends that the suppression court erred in limiting appellant's cross-examination of Detective Ratchford regarding the symptoms of withdrawal from various narcotics.
The pertinent portions of the Commonwealth's direct examination of Detective Ratchford proceeded:
Q. Have you had occasion to experience or have you had occasion to observe people under the influence of drugs?
Q. Specifically, Demerol and Morphine?
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Q. Based upon that experience, would you tell us whether or not the Defendant [appellant] exhibited any of those symptoms?
A. Not in my opinion, not ...