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COMMONWEALTH PENNSYLVANIA v. MICHAEL UPCHURCH (05/08/86)

submitted: May 8, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL UPCHURCH, APPELLANT



Appeal from the Judgment of Sentence September 11, 1984 in the Court of Common Pleas of Philadelphia County, Criminal No. 634-638 September 1983.

COUNSEL

Martin W. Bashoff, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Olszewski and Beck, JJ. Wieand, J., concurs in the result.

Author: Olszewski

[ 355 Pa. Super. Page 430]

The appellant, the first of three, appeals the result of sentencing from the crimes of criminal conspiracy, possessing an instrument of crime, robbery and murder, second degree, for which he was found guilty by a jury. This appeal raises numerous issues, which, after a careful review, we reject. All appellant's allegations, however, will be addressed seriatim.

The facts, as taken from the trial court, reveal the following. On Saturday, July 9, 1983, at approximately 2:00 a.m., seventeen-year-old Thomas Murphy was shot while riding his ten-speed bicycle in the 7200 block of Woodland Avenue in West Philadelphia. In an effort to avoid his attackers, Murphy continued to pedal his bike crossing the city line into Darby, Delaware County. At a distance of approximately 900 feet from the point of attack, Murphy crashed into a parked car and collapsed to the ground. Cynthia Leonard observed the victim as he rode past her apartment building on Main Street in Darby. Leonard ran over to Murphy when he crashed into the car and observed two bullet holes in his body. Leonard also heard Murphy state, "A Nigger shot me." (N.T. 306, 1-10-84).

Murphy was rushed to Fitzgerald Mercy Hospital where he was pronounced dead approximately three hours after the attack. An autopsy performed by the Delaware County Medical Examiner, Dr. Dimitri Contostavlos, on July 9, 1983, revealed the cause of death to be loss of blood due to two gunshot wounds to the trunk. The manner of death was ruled a homicide.

At trial, the Commonwealth's evidence established that at approximately 2:00 a.m. on July 9, 1983, Thomas Murphy left the house of his girlfriend, Colleen Doogan, located in the 6100 block of Wheeler Street, and began to pedal home on his bicycle. (N.T. 302-303, 1-10-84). At approximately the same time, the defendants Joseph Council, Michael Upchurch and Michael Johnson, along with one Mary Alice Smith, were exiting the Birthday Bar located at 7250 Woodland Avenue. (N.T. 231-233, 1-10-84). Upon observing

[ 355 Pa. Super. Page 431]

Murphy on the bicycle, defendant Council stated, "Here comes a white boy. Let's get him." (N.T. 205, 337, 1-10-84). Shortly after these words were uttered, defendant Upchurch pulled out a revolver and fired two shots at Murphy, striking him in the chest and in the back. (N.T. 425, 1-11-84). As the victim continued to ride away, all three defendants, as well as Mary Alice Smith, fled the scene.

Acting on information supplied by Smith, the police obtained arrest warrants for the defendants. Michael Johnson and Joseph Council were arrested on July 22, 1983. Michael Upchurch was apprehended on the following day, July 23, 1983.

Defendant Upchurch was charged under September Term, 1983: no. 634 criminal conspiracy; no. 635 possession of an instrument of crime, generally; no. 636 robbery; no. 637 involuntary manslaughter; and no. 638 murder, voluntary manslaughter. The bills charging involuntary manslaughter were subsequently nolle prossed as to all three defendants.

On January 4, 1984, the defendants' motion to suppress an arrest and oral and written statements were heard with the Hon. Albert F. Sabo presiding. On that same date, the defendants' motions were denied.

On January 9, 1984, upon being arraigned, defendants pleaded not guilty as to all bills. The jury, having been duly impanelled, was sworn and/or affirmed and the trial proceeded before the Hon. Albert F. Sabo. As to defendant Upchurch, the jury returned a verdict of guilty, murder in the second degree; guilty, robbery; guilty, criminal conspiracy; and guilty, possession of an instrument of crime. Sentencing was deferred pending the disposition of post-trial motions. Presentence investigations and psychiatric evaluations were ordered. Defendant Upchurch was sentenced on bill no. 638 to life imprisonment at the State Correctional Institution at Graterford; on bill no. 634 to not less than five nor more than ten years to run consecutive to

[ 355 Pa. Super. Page 432]

    bill no. 638; on bill no. 635 to not less than two and one-half nor more than five years to run consecutive to bill no. 634; and bill no. 636 merged with bill no. 638 for sentencing purposes. Upchurch was also assessed $15.00 towards the Victim's Compensation Fund.

I.

Appellant's first issue deals with the court's denial of his motion to suppress his confession. He alleges that during questioning, he was interviewed by two different police personnel, Detective Dougherty at first and then Officer Riley. He was advised of his Miranda rights by Detective Dougherty (N.T. 198-199). Appellant contends now that he should also have been mirandized before speaking with Officer Riley, to whom he gave the statement he wants suppressed. We disagree.

The appellant correctly sets out the criteria to be evaluated in reviewing this issue as: (1) the time lapse between the last Miranda warnings and the appellant's statement; (2) interruptions in the continuity of the interrogation; (3) whether there was a change of location between the place where the last Miranda warnings were given and the place where the appellant's statement was made; (4) whether the same officer who gave the warnings also conducted the interrogation resulting in the appellant's statement; and (5) whether the statement elicited during the complained-of interrogation differed significantly from other statements which had been preceded by Miranda warnings. Commonwealth v. Ferguson, 444 Pa. 478, 282 A.2d 378 (1971).

The time difference here was four and one-half hours and the move was between rooms of the same building. The detective was initially present when Officer Riley took over so there was a minimal break of continuity. In addition,

[ 355 Pa. Super. Page 433]

    the second statement did not differ significantly from other statements but rather differed in degree of culpability. We ...


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