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decided: May 22, 1987.


Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County as of December Term, 1981, Nos. 1994-1997.


Daniel M. Preminger, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Division, Alan Sacks, Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Papadakos, JJ. Zappala, J., did not participate in the consideration or decision in this case.

Author: Larsen

[ 514 Pa. Page 476]


Joseph Carmen D'Amato, appellant, was convicted by a jury of murder of the first degree and sentenced by that jury to death. He now brings a direct appeal to this Court*fn1 challenging the determination by the suppression court that his confession was admissible at trial, asserting that he was denied a fair trial due to certain allegedly improper remarks by the prosecutor, and claiming that he was denied the effective assistance of trial counsel. We affirm the conviction and the judgment of sentence of death. The record discloses the following.

Several residents living in or near the 2800 block of South Sydenham Street in South Philadelphia heard two gunshots (some of the residents thought they heard firecrackers) shortly after 10:00 p.m. on March 19, 1981. One of the residents, a former Philadelphia police officer, looked out from the rear of his house and observed a yellow or beige two-door coupe automobile in a parking lot across the back alley. He observed a white male "staggering, trying to flee the area, [who] looked as if he'd been injured." Notes of Testimony (N.T.), Trial February 1, 1983 at 52. Another resident heard the injured man, Anthony Petrone, exclaim "Oh my god -- I'm shot. I'm shot." N.T. Trial January 31, 1983, at 98-99. The ex-police officer also observed two white males entering on either side of the car and watched as the car left the parking lot with its lights out and sped away. Other residents observed a yellow or beige or light brown midsize car, possibly an Oldsmobile or a Pontiac, exiting the parking lot and the alley with its lights out and two males in the car. Some witnesses heard a loud scraping sound, as of metal scraping against stone.

[ 514 Pa. Page 477]

A Philadelphia police officer, who also lived in the 2800 block of South Sydenham, heard the gunshots at 10:05 p.m. and was the first to reach the victim, who was bleeding from a bullet hole in his right cheek. At this point, the victim was badly injured, and was thrashing about, speaking and screaming incoherently. The officer attempted to find out the name of his assailant, but the only intelligible word that the officer could understand was the word "Al." The victim was taken to nearby Methodist Hospital where he was pronounced dead at 12:20 a.m. the following morning. The cause of death was multiple gunshot wounds to the cheek and head, and to the left side of the front of his chest. He was also wounded in his hand (in an apparent unsuccessful attempt to protect his face). The cause of the wounds were two .38/.357 caliber bullets*fn2 that were probably fired from two different barrels, according to the Commonwealth's ballistics expert. No murder weapon was ever found.

Appellant became the chief suspect in another homicide, the shooting death of Anthony Bonaventura in Philadelphia on March 18, 1981, and an arrest warrant for that homicide was issued for appellant on April 7, 1981. Shortly thereafter, following investigation, Philadelphia police requested and obtained the issuance of a Federal Bureau of Investigation fugitive warrant on a charge of unlawful flight to avoid prosecution. On December 8, 1981, appellant and his girlfriend, Bernadette McFarland, were apprehended by F.B.I. agents in Newton Falls, Ohio, near Youngstown. Philadelphia police were notified of appellant's arrest and Detectives Michael Chitwood, Philip Checchia and Sergeant Daniel Rosenstein left Philadelphia by car that evening, arriving in Youngstown at approximately 2:30 a.m. on December 9, 1981.

The Philadelphia officers first saw appellant at about 11:50 a.m. later that morning at appellant's hearing in Akron before a United States Magistrate on the federal

[ 514 Pa. Page 478]

    fugitive warrant. At this hearing, appellant was advised by the magistrate of the charges against him, of his rights to remain silent and to counsel, and of his right to post bail to obtain his release. Following this arraignment hearing, appellant spoke with Sergeant Rosenstein regarding extradition, and agreed to waive extradition and return to Philadelphia. A state court proceeding was then held at the Barberton, Ohio courthouse, at which appellant was advised by the presiding judge of his right to contest extradition. After executing a waiver of extradition form, appellant was turned over to the custody of the Philadelphia police officers and returned to Mahoning County Jail in Youngstown for the night. The following morning, December 10, 1981 at about 6:30 a.m., appellant and Ms. McFarland were picked up and transported by the Philadelphia police officers together to Philadelphia, arriving at the Philadelphia police administration building at 1:57 p.m.

While at the administration building, appellant gave three separate written confessions, preceded in each instance by Miranda warnings,*fn3 to three homicides in the Philadelphia area. Between 3:45 p.m. and 4:50 p.m., appellant confessed to the murder of John Amato in February, 1981; from 5:01 p.m. to 6:05 p.m., appellant confessed to the murder of Anthony Petrone; and from 6:06 p.m. to 7:25 p.m., appellant confessed to the murder of Anthony Bonaventura.*fn4

Regarding Anthony Petrone (the victim herein) appellant stated that he had seen the victim at a restaurant known as Cozy's at 16th and Ritner Streets. Appellant was alone

[ 514 Pa. Page 479]

    eating dinner when the victim came up to appellant and asked him if he was still interested in an insurance fraud scheme involving stealing and "cutting up" appellant's girlfriend's (Ms. McFarland's) car, a 1979 yellow two-door Oldsmobile Cutlass. Appellant suggested the two go for a ride to talk about it as the restaurant was crowded. They left the restaurant and drove off in Ms. McFarland's car, driving to a parking lot nearby.

In the parking lot, appellant (who said he had taken quaaludes that evening) became suspicious that the victim was "setting him up" for the killing of John Amato, and told Anthony Petrone to get out of the car. Appellant "got mad and crazy," walked around to the victim, pulled a two-shot .38 caliber Derringer (with two "over-under" barrels) from his coat pocket, and shot the victim twice at close range. Appellant stated that he had been alone when he shot Anthony Petrone.

Appellant was arraigned at 7:33 p.m. on December 10, 1981 before a judge of the Municipal Court of Philadelphia.

Pre-trial motions to suppress appellant's confessions and to suppress evidence seized during several searches conducted by law enforcement officers in Philadelphia and Ohio were filed, and a hearing was held on June 7, 1982. Following argument, Judge Murphy of the Court of Common Pleas of Philadelphia County, denied appellant's pre-trial motions on June 17, 1982.

After extensive voir dire proceedings beginning January 18, 1983, trial commenced on January 31, 1983. Appellant's confession was, understandably, the critical and most damaging evidence introduced at trial. The confession was corroborated by the witnesses from the 2800 block of South Sydenham area (who observed a car matching the description of Ms. McFarland's car leaving the parking lot), by witnesses who had seen both the victim and appellant at Cozy's Restaurant on the evening of March 19, 1981 (although they had not been observed together), and by William Boyle who testified that he gave appellant a .38 caliber Derringer earlier that day (which he later that day reported

[ 514 Pa. Page 480]

    as stolen to the police). In defense, appellant attempted to demonstrate to the jury that his confession of December 10, 1981 was involuntary because the Philadelphia police officers threatened to prosecute members of appellant's family for aiding and abetting appellant's escape unless appellant gave a confession.

On February 8, 1983, the jury returned a verdict of guilty of murder of the first degree. A sentencing proceeding was conducted the following day pursuant to section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711, and the same jury sentenced appellant to death based on its finding of one aggravating circumstance (that appellant had been convicted of another offense, the murder of John Amato, for which a sentence of life imprisonment had been imposed, 42 Pa.C.S.A. § 9711(d)(10)) and no mitigating circumstances.

Post-verdict motions were denied and appellant was formally sentenced on July 25, 1984. This automatic appeal, in which appellant is represented by new counsel, was then filed.

Initially, although appellant does not challenge the sufficiency of the evidence, we hold that the evidence is clearly sufficient beyond a reasonable doubt to sustain his conviction for murder of the first degree for the willful, intentional slaying of Anthony Petrone.*fn5 We proceed, therefore, to appellant's allegations in support of his request for the granting of a new trial.

Appellant first contends that the lower court erred in denying his motion to suppress his confession which appellant alleges was involuntary and obtained as a result of unnecessary delay between arrest and arraignment in violation of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and our rules of criminal procedure. We reject this contention.

[ 514 Pa. Page 481]

An accused may, of course, relinquish his constitutional right to remain silent. The waiver of that right must be knowing, intelligent and voluntary. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A confession given as a result of custodial interrogation is admissible only if the accused's Miranda rights, including the right to remain silent and the right to counsel, have been explained to him and he has knowingly, voluntarily and intelligently waived those rights. See, e.g. Commonwealth v. Barry, 500 Pa. 109, 113-15, 454 A.2d 985 (1982); Commonwealth v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984).

The test for determining the voluntariness of a confession and the validity of the waiver of the right to remain silent is the totality of the attending circumstances. E.g. Commonwealth v. Fahy, 512 Pa. 298, 311, 516 A.2d 689, 695 (1986); Commonwealth v. Whitney, 511 Pa. 232, 241, 512 A.2d 1152 (1986). In examining the totality of the circumstances surrounding a confession, we have looked to a myriad of factors including the duration and methods of interrogation, the conditions of detention, the manifest attitude of the police toward the accused, the accused's physical and psychological state, and "all other conditions present which may serve to drain one's powers of resistance to suggestion and undermine his self-determination." Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975). See also, Commonwealth v. Bracey, 501 Pa. 356, 364, 461 A.2d 775 (1983) citing Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961) and Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). Also a relevant factor in determining the voluntariness of the confession is the length of time between arrest and arraignment, specifically whether an "unnecessary delay" has attended arraignment. Commonwealth v. Coach, 471 Pa. 389, 393, 370 A.2d 358, 360 (1977) (citations omitted).

Our standard of appellate review of a suppression court's determination adverse to the criminal defendant is as follows:

[ 514 Pa. Page 482]

When we review the ruling of a suppression court we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error.

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985); Commonwealth v. Whitney, supra, 511 Pa. at 239-40, 512 A.2d at 1156-57.

Applying the foregoing principles to the suppression court's ruling in the instant case, we must affirm its determination that appellant's confession was voluntary. The suppression court made extensive findings of fact, most of which are not in dispute. Those findings include the following: appellant was advised of his Miranda rights upon his arrest by F.B.I. agents in Ohio prior to their interrogation of him, after which he confessed to the murder of Anthony Bonaventura but denied his involvement in the Anthony Petrone and John Amato homicides; Philadelphia police officers had no contact with appellant until December 9, 1981 when they attended appellant's preliminary arraignment before a federal magistrate who advised appellant of the charges against him, and of his rights to remain silent and to obtain counsel; appellant voluntarily waived extradition before an Ohio state judge after being informed of his right to contest extradition; appellant was questioned for the first time by Philadelphia police officers at 5:20 p.m. on December 9, 1981, after being again advised of his Miranda rights and of the charges against him, to obtain background information only; appellant called his family the evening of December 9, 1981; appellant was lodged overnight on December 8 and 9, 1981 at the Mahoning County Jail; appellant was handcuffed to Ms. McFarland during their trip from Youngstown to Philadelphia which began on December 10, 1981 at 6:30 a.m. and ended at 1:57 p.m. with arrival

[ 514 Pa. Page 483]

    at the police administration building; during the trip with the three police officers, appellant and Ms. McFarland stopped at least twice to eat (breakfast and lunch), to walk around, and to use restroom facilities; no questions were asked of appellant during this trip; appellant was advised of his constitutional Miranda rights at 3:15 p.m. prior to the confession of the murder of John Amato, again at about 5:00 p.m. prior to the confession to the murder of Anthony Petrone, and again at about 6:06 p.m., prior to the confession to the murder of Anthony Bonaventura; appellant was arraigned in Philadelphia at 7:33 p.m. on December 10, 1981. The suppression court also found that appellant made no complaint of mistreatment to either the federal magistrate or the Ohio state judge, that no officer of either the Philadelphia Police Department or the F.B.I. engaged in any conduct calculated to coerce appellant to waive his right to remain silent, and that when arrested appellant appeared responsive, calm, and uninjured.

Ms. McFarland testified at the suppression hearing on behalf of the defense. Her testimony was in most respects consistent with the police officers' accounts of appellant's arrest and transport, except that she described a mysterious stomach ailment that befell appellant and rendered him too ill either to eat or to waive his constitutional rights to remain silent and to counsel. She also testified that appellant, who had a tenth grade education, could barely read or write. The suppression court stated:

This Court found Ms. McFarland's testimony unworthy of belief, and instead relied on that of Sergeant Rosenstein and Detective Chitwood, who spent some seven hours with [appellant] on the day of his confessions and both of them were unshaken in their testimony that [appellant] seemed oriented as to time and place; was alert, cooperative and understanding; and answered the questions posed by Detective Chitwood before each statement indicating that he understood his rights and was willing to waive them.

Suppression court slip op. at 13, Appellant's brief at 76.

Based on these findings, the suppression ...

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