Appeal from the Order and Judgment of July 9, 1982 in the Court of Common Pleas of Erie County, Criminal Division, No. 333A & 333B of 1981
Thomas E. Kuhn, Erie, for appellant.
Paul J. Susko, Assistant District Attorney, Erie, for Com., appellee.
Rowley, Del Sole and Cercone, JJ.
[ 363 Pa. Super. Page 566]
After a trial by jury appellant, James Davis, was convicted of first degree murder, two counts of criminal attempt to commit murder, two counts of aggravated assault and various weapons offenses arising out of a multiple shooting in which one victim was killed and two victims were shot and severely wounded.
The salient question, inter alia, for our disposition is: whether police violate an accused's constitutional rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when after thoroughly informing the accused of these rights, they ask for clarification of the accused's conflicting statements regarding intent to invoke or waive his constitutionally protected rights.
In addressing this case of first impression in Pennsylvania we turn to a brief account of the facts as elicited at trial:
On the evening of December 21, 1980, the Erie police responded to a report of a multiple shooting at a residence
[ 363 Pa. Super. Page 567]
on the city's east side. Davis, the appellant here, fled the scene of the shooting, but moments later was arrested by the police at his grandfather's home when he relinquished the firearm used in the crimes. According to the evidence at trial appellant entered the residence armed with a unlicensed .22 caliber magnum revolver, shot and killed Alberta Collins, a 38 year old woman and shot and wounded two other women, one of whom was almost nine months pregnant and lying on a bed in a room adjoining the one in which he shot and killed Alberta Collins. Appellant was twice given Miranda warnings, once on his way to the police station and again in the interrogation room at police headquarters. On his way to the interrogation room appellant was upset, crying and repeatedly stated, "I'm sorry, I'm sorry, what did I do?, why did I do it?." He then became violent and the police had to restrain him to prevent injury to himself or the police. When he regained his composure the police informed him of his constitutional rights under Miranda to which he gave every evidence of fully understanding. He said to the police that he wanted to talk about and make a statement regarding the crimes under investigation. Having said this, he was given a form on which were enumerated his rights under Miranda. Two questions to be answered at the bottom of the form contained a waiver proviso. To the first question, "Do you understand each of these rights I have explained to you," appellant answered by writing the word, "yes" and his initials thereafter. To the second question, "Having these rights in mind do you wish to talk to us now?", appellant wrote "No". At trial the police officers, testified that they were baffled by the written "no" answer in light of appellant's oral statement immediately prior thereto that he wanted to make a statement regarding the crimes under investigation. As a result, they asked why he wrote "no" to the second question and appellant answered that he meant, "I don't want an attorney." After this exchange, the appellant wrote the word "yes" to this second question and his initials thereafter in substitution of the word "No". Appellant then made his oral statement regarding the
[ 363 Pa. Super. Page 568]
crimes involved in this case which the officers reduced to writing. The appellant signed the statement and initialed its pages.
Specifically appellant argues that the lower court erred by refusing to suppress his statement to the police. He alleges, that under the pressure of in-custody interrogation, he was subjected to undue mental stress and did not mean to change his "No" answer to a "Yes" answer to the waiver question. And in addition he states he was incompetent to give a statement as he was under the influence of alcohol or drugs.
The Supreme Court of Pennsylvania has explained our role as a reviewing court on suppression issues.
When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence obtained was in violation of the defendant's constitutional rights. Pa.R.Crim.P. 323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). On review, this court must "determine whether the record supports the factual findings of the court below and the legitimacy of the inferences drawn from those findings." In doing so, we will consider "only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted." (citations omitted.) Commonwealth v. Davis, 491 Pa. 363, 368, 421 A.2d 179, 181 (1980).
Commonwealth v. Carbaugh, 356 Pa. Superior Ct. 42, 514 A.2d 133 (1986).
The detectives' testimony on behalf of the Commonwealth at both the suppression hearing and trial was as follows:
Detective H. Gregory Strickland explained appellant's initial negative response:
I asked him to answer question number two, and he wrote a no in there. At this point either myself or Sergeant Turner, I'm not sure wish [sic], he indicated
[ 363 Pa. Super. Page 569]
after I read to him that he wanted to talk to us, and I think [sic] was myself or Turner said, "What do you mean no after you already indicated you wanted to talk to us?" He said, "I don't want an attorney." So, we said, "Do you want to talk to us?" And he said, "Yes." We scratched out the no and we told him he would have to write a yes if you wanted to talk to us.
Detective William Turner testified:
I was watching the defendant very closely . . . and I noticed that he wrote no, and I commented, "No?" Because we had already gone through, do you want to talk to us about it, and the question was said to him, and he answered verbally. "Do you want to talk to us about what happened, understanding we have gone through the five rights? Do you understand each of these rights? And he answered, "Yes." Greg [Detective Strickland] said to him, "Having these rights in mind, do you wish to talk to us now? And he said, "Yes," and Greg said, "Okay. Answer the question. Write your answer in." And he wrote, "No," and I said, "No?" And he said, "No." I said, "You just said you wanted to talk to us." "Yeah, I don't want an attorney," I haven't the faintest idea, but that is exactly what he said.
It was after this exchange that appellant explained he did not want an attorney and wrote the word "yes" and his initials in answer to the second question. The suppression court found that appellant's complaints of the pressure he felt during the interrogation and his allegations of drug or alcohol influence were not credible and that his oral statement to the police was made voluntarily, understandingly and intelligently in an atmosphere free and clear of any attempt of coercion, threats or cajoling on the part of the police.
Our Pennsylvania Supreme Court has consistently refused to adopt a per se rule of incapacity to waive constitutional rights based on mental or physical deficiencies. Rather, we are to look at all the circumstances to determine if a knowing and intelligent waiver was effected.
[ 363 Pa. Super. Page 570]
to determine whether appellant wanted to make a statement as he first orally indicated or whether he wanted to remain silent as he ...