Appeal from the Judgment of Sentence April 8, 1985 in the Court of Common Pleas of Philadelphia County, Criminal No. 563-567 March Term, 1984. Appeal from the Judgment of Sentence April 8, 1985 in the Court of Common Pleas of Philadelphia County, Criminal No. 0558, 0560, 0561, 0562 March Term, 1984.
F. Emmett Fitzpatrick, Jr., Philadelphia, for Mays, appellant in No. 1076.
Edmund E. DePaul, Philadelphia, for Bland, appellant in No. 1162.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee in No. 1162.
Maxine Stotland, Philadelphia, for Com., appellee in No. 1076.
Cavanaugh, Olszewski, and Tamilia, JJ.
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This is an appeal from judgments of sentence imposed after appellants Mays and Bland were convicted of second degree murder, robbery, and conspiracy. Appellant Mays presents several issues for our review: (1) whether the incriminatory statements of his co-defendant were properly admitted; (2) whether it was proper to introduce evidence of his post-arrest silence; and, (3) whether the court erred in refusing to discharge the jury after they admitted they were deadlocked. Appellant Bland claims his trial was commenced in violation of Pa.R.Crim.P. 1100. Both appellants claim the court erred in declining to charge the jury on the offense of voluntary manslaughter. We find that neither
[ 361 Pa. Super. Page 557]
appellant has established an entitlement to relief; accordingly, the judgments of sentence are affirmed.
On February 17, 1984, appellants entered the decedent's apartment in Philadelphia and demanded that the victim "give up the stuff." When the victim denied having any "stuff," Mays kicked him in the chest while Bland, holding a gun, threatened to kill the victim if he moved. After a continued struggle, Bland kicked the victim and Mays directed Bland to "just kill him." Bland then shot the victim and both men fled. Mays and Bland were arrested on February 20, 1984. Following their convictions, post-verdict motions were denied and appellants were sentenced to mandatory terms of life imprisonment for murder in the second degree. In addition, Mays was given a concurrent term of two and one-half to five years for conspiracy and Bland received a term of two and one-half to five years for possession of an instrument of crime and conspiracy.
Appellant Mays first challenges the admission of co-defendant Bland's incriminating statements. We decline to address the merits of this issue as appellant Mays has not preserved it in his written post-trial motions. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (only those issues included in written post-verdict motions are preserved for appeal).
Appellant Mays next contends that the court improperly allowed the Commonwealth to introduce evidence of his post-arrest silence.*fn1 The Commonwealth had called a rebuttal witness, Sgt. Joseph Leonardo of the Reading Police Department, who testified that he had taken both appellant and his co-defendant into custody. The officer also testified that appellant refused to give a statement after being advised of his Miranda rights. (R.R. 346a, N.T. 609). Immediately following the officer's remarks, the prosecutor requested a sidebar conference to explain that the witness
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had stated prior to trial and in the presence of two other officers, that appellant had expressed a willingness to give a post- Miranda statement. (R.R. 346a-353a, N.T. 609-616). The prosecutor expressed surprise at the officer's remark, noting that it was inconsistent with his prior statements, and stressed that she wished to downplay the incident in front of the jury. (R.R. 347a, 352a, N.T. 610, 615). The court excused the panel, and counsel examined a witness who was present when the prosecutor interviewed Sgt. Leonardo. Contrary to Sgt. Leonardo's testimony, the witness testified that appellant indicated a desire to make a post-arrest statement. (N.T. 620). Immediately ...