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COMMONWEALTH PENNSYLVANIA v. BERNARD CARY DUFFY (01/15/86)

submitted: January 15, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD CARY DUFFY, A/K/A BERNARD C. DUFFY, APPELLANT



Appeal from Judgment of Sentence entered in the Court of Common Pleas, Criminal Division, Allegheny County, on October 10, 1984 at Nos. CC83079A/8307477A.

COUNSEL

Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Cavanaugh, Olszewski and Kelly, JJ.

Author: Kelly

[ 355 Pa. Super. Page 148]

This is a direct appeal from judgment of sentence entered in the Court of Common Pleas of Allegheny County on October 10, 1984. The appellant was charged by information with Criminal Homicide and Firearms Not to be Carried Without a License as a result of a fatal altercation between the appellant and Rudy Ryder in the early morning hours of August 2, 1983 outside the Wagner Club, an after-hours bar.

On April 6, 1984, a jury found the appellant guilty of Voluntary Manslaughter and Firearms Not To Be Carried Without a License. Post-trial motions were filed and denied. On October 10, 1984, the appellant was sentenced to a term of from five (5) to ten (10) years on the Voluntary Manslaughter charge, and a concurrent term of from two and one half (2 1/2) to five (5) years on the firearms charge.

The appellant raises five issues on appeal. He argues that the trial court erred: in failing to suppress his "involuntary" statements to the police; in permitting use of a prior conviction to impeach the appellant; in refusing to give a requested instruction on Homicide by Accidental Misadventure; in finding the evidence sufficient to sustain a Voluntary Manslaughter conviction; and in finding the evidence sufficient to sustain a conviction for Firearms Not to be Carried Without a License. We find no merit in the appellant's allegations of error and accordingly affirm the judgment of sentence.

Appellant's first contention is that the trial court erred in failing to suppress his allegedly involuntary statements to the police. The appellant contends "that his lack of sleep,

[ 355 Pa. Super. Page 149]

    alcohol consumption, and shock over the shooting incident negated his ability to voluntarily and intelligently waive his rights as guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before making an inculpatory statement." (Appellant's Brief at 9).

The appropriate standard for appellate review of the finding of a suppression court is for the appellate court to consider the evidence of the Commonwealth and so much of the defense evidence as fairly read in context of the record as a whole, remains uncontradicted. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147, 151 fn. 5 (1980), Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985), cert. denied, U.S. , 106 S.Ct. 349, 88 L.Ed.2d 297 (1985).

"[T]he ultimate test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice of its maker." Commonwealth v. Smith, 470 Pa. 220, 225, 368 A.2d 272, 275 (1977), quoting Commonwealth v. Alston, 456 Pa. 128, 133, 317 A.2d 241, 243 (1974). All circumstances "which may serve to drain one's power of resistance to suggestion and undermine his self-determination" must be considered. Commonwealth v. Fleck, 324 Pa. Super. 227, 471 A.2d 547 (1984).

Succinctly, the police officers each testified that the appellant's demeanor was calm and that he showed no signs of intoxication. They testified that the appellant was given full Miranda warnings and agreed to waive his rights orally and in writing. The "Pre-interrogation Warning Form" which the appellant signed was produced and entered into evidence. Thus, there was sufficient credible evidence upon which to base the findings of the learned trial judge. See also Commonwealth v. Thomas, 266 Pa. Super. 529, 405 A.2d 945 (1976). The appellant's first contention on appeal is, therefore, without merit.

The appellant next contends that the trial court erred in permitting the use of the appellant's prior crimen falsi conviction. The appellant alleges that:

[ 355 Pa. Super. Page 150]

At the conclusion of the defense case and prior to Mr. Duffy taking the witness stand, the Commonwealth surprised the defense by indicating that he intended to use a prior crimen falsi conviction of Mr. Duffy to impeach his credibility. (T.T. 235). Mr. Duffy's record was unknown to the defense counsel at the time of trial and any criminal record was not forwarded to the defense as required by the Pennsylvania Rules of Criminal Procedure. (Pa.R.C.P. 305(B)(1)(c)). The alleged offense took place in 1977 when Mr. Duffy was 18 years of age. (T.T. 235). The defense was placed at a tactical disadvantage in that it had already presented several witnesses based on the conclusion that Mr. Duffy could not be impeached by a prior record because he had no prior record."

(Appellant's Brief at 12).

It is true that when the admissibility of prior convictions is an issue, the trial court should conduct an in camera, Bighum*fn1 hearing prior to the commencement of trial, in order that the defendant may weigh his or her decision to testify at trial. It is error for the court to deny the defendant such a hearing. See Commonwealth v. Hill, 302 Pa. Super. 377, 448 A.2d 1090 (1982). However, in Commonwealth v. Tangle, 349 Pa. Super. 574, 504 A.2d 193 (1986), this Court held that the Commonwealth did not have the exclusive responsibility to request a pretrial, in camera, Bighum hearing to determine the admissibility of prior convictions to impeach the defendant; and, thus, did not waive the right to use impeaching material by failing to request a hearing.

In Commonwealth v. Jennings, 335 Pa. Super. 404, 484 A.2d 409 (1984), this Court considered the failure of the trial court to conduct a pretrial Bighum hearing, among other factors, in determining that the trial court abused its discretion in permitting the use of the prior conviction evidence for impeachment purposes. However, in Commonwealth v. Richardson, 347 Pa. Super. 564, 500 A.2d 1200 (1985), Commonwealth v. Kearse, 326 Pa. Super. 1, 473 A.2d 577 (1984),

[ 355 Pa. Super. Page 151]

    and Commonwealth v. Toomey, 321 Pa. Super. 281, 468 A.2d 479 (1983), this Court upheld the trial court's decision to allow prior conviction evidence to be admitted for impeachment purposes in spite of the fact that no pretrial Bighum hearing was held.*fn2

In Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978), our Supreme Court stated:

We here reiterate, and to some extent, refine the factors that should be considered in the balancing equation. It is to be stressed that the list is not to be considered exhaustive or exclusive, but rather illustrative of the type of considerations that should influence the decision.

482 Pa. at 39, 393 A.2d at 367. It is clear that the trial court is required to balance each of the factors favoring and disfavoring admission of the prior record evidence in making its determination. Absence of a pretrial Bighum hearing and consequent protestations of prejudice are certainly factors to be considered in this analysis.*fn3

In reviewing the trial court's decision to admit prior conviction evidence we may only reverse where the trial court has abused its discretion. Roots, supra; Kearse, supra. In making this determination in the instant case we will first consider whether the appellant was prejudiced by the absence of a pretrial Bighum hearing. Next, we will consider the factors set forth in Roots.

Initially, we note that we do not accept the appellant's characterization of the facts. The appellant seeks to create the illusion that the prosecution sprang the appellant's prior conviction on the defense at the end of the trial ...


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