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COMMONWEALTH PENNSYLVANIA v. GERALD E. ZIMMERMAN (02/20/86)

filed: February 20, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD E. ZIMMERMAN, APPELLANT



Appeal from the Judgment of Sentence December 3, 1982 in the court of Common Pleas of Lancaster County, Criminal No. 2154 of 1980.

COUNSEL

Robert A. Longo, Lancaster, for appellant.

Henry S. Kenderdine, Jr., District Attorney, Lancaster, for Com., appellee.

Cavanaugh, Olszewski and Hoffman, JJ. Cavanaugh and Hoffman, JJ., concur in result.

Author: Olszewski

[ 351 Pa. Super. Page 7]

This appeal follows a judgment of sentence for murder of the first degree. Appellant has made numerous allegations of error. For the reasons that follow, we deem those allegations meritless and affirm the judgment of sentence.

On July 31, 1980, a young girl named Evelyn Fisher disappeared from her home. Her skeletal remains were found October 9, 1980, in the thick brush and foliage of the Welsh Mountains, about four miles from the girl's home.

Appellant was arrested and charged with homicide. Michael J. Perezous was appointed as chief defense counsel. Pre-trial motions were filed and a suppression hearing was

[ 351 Pa. Super. Page 8]

    held on February 18, 1981. The lower court ruled that statements made by appellant would be admissible in the subsequent trial. Following a hearing March 20, 1981, appellant was found competent to stand trial. A change of venue was granted to counter the effects of adverse advance publicity. Trial commenced April 27, 1981 in Northampton County.

Commonwealth's theory of the case was that appellant had lured the girl to his house, attacked her, then carried her to a secluded area where he bound her, assaulted her sexually, and left her for dead. In support of that theory, Commonwealth introduced evidence tending to establish that appellant had the motive, the opportunity and the means to commit the crime.*fn1

On May 6, 1981, appellant was found guilty of murder of the first degree and sentenced to life imprisonment. On June 2, 1981, appellant filed a pro se petition for appointment of new counsel. In it, he alleged ineffectiveness of

[ 351 Pa. Super. Page 9]

    trial counsel. New counsel was appointed and the allegations of ineffectiveness were explored more fully in an evidentiary hearing December 11, 1981. Post-verdict motions were filed, argued and denied. This appeal followed.

I

Appellant argues first that the lower court erred in failing to suppress statements made by him to the police during the night following Evelyn Fisher's disappearance. The thrust of these statements was that appellant had indicated a "possibility" that he could have harmed the Fisher girl. Appellant, at the time he gave the statements, was contemplating taking his own life or running away. He now contends that in light of his mental condition at that time, the statements could not have been voluntary. In the alternative, he argues that the statements must be suppressed because the police had failed to advise him of his Miranda rights.*fn2 We disagree.

The lower court made extensive findings of fact:

On the evening of July 31, 1980, Trooper Raymond Solt of the Pennsylvania State Police received a radio transmission to assist the Upper Leacock Township Police in a "possible hostage situation" taking place in Leola. At the time he received the radio transmission, Trooper Solt knew nothing of the disappearance of Evelyn Fisher.

Pursuant to the radio transmission, he went to the Leola Fire Company building and sometime between 11:00 p.m. and midnight of July 31, 1980, conferred with various Township police officers and other people, including defendant's sister, Deborah Kieffer and her husband Eugene Kieffer. The purpose of this conference was to inform Trooper Solt about the actions of the defendant,

[ 351 Pa. Super. Page 10]

    who was at that time in his apartment at 73-B Main Street, Leola, which was a couple blocks away from the fire company. There were no flashing lights or sirens used by police vehicles as they arrived at the fire company.

As a result of his conversation at the fire company, Trooper Solt learned for the first time that Evelyn Fisher was missing from her home in New Holland and that the defendant had seen her on that day (July 31, 1980). In addition he also learned from Deborah Kieffer that the defendant had some mental problems and that there was a loaded rifle in defendant's apartment.

It was ultimately decided that an attempt should be made to check out the defendant's apartment. Thus at about 12:40 a.m. on August 1, 1980, Trooper Solt together with three other Pennsylvania State Police, all dressed in civilian clothes, wearing flack vests and armed, approached the apartment door of the defendant. When Trooper Solt reached the door, he knocked on it and requested the defendant to come out. He knocked a second time, heard movement in the apartment and soon saw the defendant appear at the door.

At that time Trooper Solt identified himself to the defendant and explained he was there to see if Evelyn Fisher was in the apartment. The defendant told him to come in and check, which Trooper Solt did. Prior to doing this, however, he asked the defendant to accompany the other three officers. Trooper Solt made this request for his own safety since his information at that time was that defendant had a loaded weapon in his possession. Trooper Solt then walked through the apartment and saw neither Evelyn Fisher nor a weapon. He then left the apartment and went down to the police cruisers, where Zimmerman was standing along with the other state policemen who by this time had removed their flack vests and placed their shotguns back in the vehicles. At this time he obtained general information from the defendant, such as his address and place of employment so that he

[ 351 Pa. Super. Page 11]

    could complete his report, the purpose of which was simply to negate the presence of Evelyn Fisher in the apartment. After giving this information, the defendant spontaneously began talking about the events of July 31st. Also at about 1:12 a.m. the defendant gave Trooper Solt permission to look in his car. After that the defendant suggested that the police check the house he had been renting at 115 Ranck Avenue, New Holland, Pennsylvania, which was located near the residence of Evelyn Fisher and where, according to the defendant, Evelyn Fisher had been sometime during the afternoon of July 31, 1980.

Upon arriving at the premises at 115 Ranck Avenue, the police gained admission to the house, to which all the doors were locked, when the defendant removed a window to allow entrance. A search of that house as well as the garage to the rear of the house did not disclose the presence of Evelyn Fisher and the police and the defendant returned to Leola, where Trooper Solt apprised other police officers as to what had taken place to date.

Trooper Solt, before leaving Leola, gave his card to Deborah Kieffer and offered his assistance if there were any further problems. He then returned to the Pennsylvania State Police barracks to return equipment and then began heading for home. En route, he received a radio message to go back to Leola immediately because the defendant was threatening to commit suicide. Upon his arrival back at the defendant's apartment Trooper Solt conferred with the Kieffers and found out that a suicide note had been found at the apartment. At about 3:00 a.m., he again entered the apartment with defendant's permission. The defendant was lying face down on a bed and he asked Trooper Solt to come in to the bedroom and talk to him. Solt did this and at that time the defendant talked about his depression over his impending divorce and other family problems. The defendant also told Solt that he had held a gun to his head but did not have the courage to use it.

[ 351 Pa. Super. Page 12]

At about this time Trooper Solt suggested that the defendant needed mental treatment but the defendant said he had been at St. Joseph Hospital and did not like it there. Finally he agreed to go to the hospital and Trooper Solt contacted Crisis Intervention to start the commitment procedures. During much of this discussion of defendant's problems and the attempts to persuade him to go to St. Joseph Hospital, Eugene Kieffer, the defendant's brother-in-law, was with Trooper Solt and the defendant.

By 6:00 a.m. on August 1, 1980, the defendant had been taken to St. Joseph Hospital. Also there with him besides Trooper Solt were Deborah and Eugene Kieffer as well as a representative of Crisis Intervention, who conducted a preliminary interview. Trooper Solt stayed at the St. Joseph Hospital during the admission procedures because the defendant had requested him to do so and because it was not certain at that time if there was a bed available for the defendant. In addition, Solt had been requested by hospital authorities to act as the petitioner to have the defendant committed to the hospital. During this time at the St. Joseph Hospital the defendant had requested Trooper Solt's assistance in attempting to "put his day together" by going over the events of July 31, 1980. Sometime near the end of his stay at the hospital that morning, Trooper Solt was told by Eugene Kieffer that the defendant had asked him to get rid of fingernail clippings. Solt then had returned to the defendant and asked to take fingernail scrapings. The defendant was offended by this and said his nails were cut because the hospital regulations do not permit fingernail clippers and that he had known this from prior stays at the hospital.

Trooper Solt ultimately left the hospital around 8:50 a.m. on the morning of August 1, 1980 and because of the conversations concerning the fingernail clippings he asked the Kieffers to return with him to the Pennsylvania State Police barracks.

[ 351 Pa. Super. Page 13]

As a result of his conversation with the Kieffers at the barracks, he learned several things which the defendant had told the Kieffers either before Trooper Solt had arrived for the first time on July 31, 1980 or before he had arrived after being called back to defendant's apartment on August 1, 1980.

Several times after August 1, 1980, the Kieffers called the Pennsylvania State Police regarding things the defendant had told them. No one requested that the Kieffers report information to the ...


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