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COMMONWEALTH PENNSYLVANIA v. NELSON CHARLES MIKESELL (02/04/88)

filed: February 4, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
NELSON CHARLES MIKESELL, APPELLANT



Appeal from the Judgment of Sentence of February 8, 1982, in the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC7406060, 7406061, 7406112.

COUNSEL

Charles E. Boyle, Pittsburgh, for appellant.

Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com.

Beck, Johnson and Hester, JJ. Beck, J., files a dissenting opinion.

Author: Hester

[ 371 Pa. Super. Page 212]

This is an appeal from the judgment of sentence imposed on February 8, 1982, following appellant's conviction of two counts of first degree murder by a jury. Appellant alleges numerous trial errors, fourteen instances of trial counsel's ineffectiveness, and a claim that imposition of consecutive life sentences is a violation of due process of law. We reject appellant's claims of error, and affirm the judgment of sentence.

On the night of September 18, 1974, appellant shot his estranged wife, Marilyn Mikesell, her companion, Joseph Malone, and his three-year-old daughter, Chris Mikesell, killing the two adults and wounding his daughter Chris. The shooting occurred outside the home of appellant's wife when the three victims arrived at the residence a few minutes before midnight. Police arrested appellant at his home an hour after the murders, gave him Miranda warnings, and took him to police headquarters.

At the police station, appellant was again advised of his Miranda rights, which he waived. He was interrogated from 2:30 to 4:00 a.m. on September 19, 1974, and denied any involvement in the crimes. He was then arraigned before a deputy coroner, where he asserted his right to an attorney. Following his arraignment, he was held in jail. Several hours later, at approximately 8:00 a.m., appellant told the police he wanted to make a statement. He was again advised of his rights, then gave an inculpatory statement which was tape recorded.

Prior to trial, appellant moved to suppress his confession and other physical evidence. Following a lengthy hearing on March 10, 1975, the motion was denied. Appellant was tried before the late Judge Arthur Wessel and a jury and was convicted of two counts of first degree murder on March 14, 1975. Post-trial motions were assigned to the late Judge Albert J. Fiok due to the death of Judge Wessel. Judge Fiok granted a new trial on the basis of improper jury instructions at the first trial.

[ 371 Pa. Super. Page 213]

On May 19, 1976, a second jury trial commenced before the Honorable Joseph H. Ridge. The jury returned a guilty verdict on two counts of first degree murder on May 25, 1976. Appellant's post-trial motions were denied, and Judge Ridge imposed two concurrent life sentences on August 6, 1976.

Appellant took an appeal, and on December 23, 1977, the Supreme Court of Pennsylvania reversed the judgment of sentence and remanded for a third trial. Commonwealth v. Mikesell, 475 Pa. 589, 381 A.2d 430 (1977). The court held that improper closing argument by the prosecutor had the unavoidable effect of creating in the jurors bias and hostility towards Mikesell and preventing an objective verdict. Id., 475 Pa. at 595, 381 A.2d at 434.

Following remand of the record, appellant moved to quash the indictment, alleging that the prosecutor's misconduct in the second trial was calculated to provoke a mistrial, and that retrial would constitute double jeopardy. The court heard argument on the motion on April 10, 1978, and subsequently denied the motion on May 19, 1978. Appellant appealed from the denial of his motion, and this court affirmed on October 26, 1979. Appellant's petition for allowance of appeal was denied by the supreme court on March 5, 1980, and the record was returned to the clerk of courts on March 19, 1980.

Prior to trial, appellant moved to dismiss the charges for violation of Pa.R.Crim.P. 1100, which requires that a new trial be commenced within 120 days after an appellate court remands the record for retrial. The trial court denied the Rule 1100 motion on June 27, 1980. Following several defense-requested continuances, appellant's third trial commenced on May 12, 1981, before the Honorable Loran L. Lewis and a jury. The jury found appellant guilty of two counts of murder of the first degree. Post-trial motions were denied, and on February 8, 1982, Judge Lewis sentenced appellant to consecutive terms of life imprisonment. No appeal was taken in 1982.

[ 371 Pa. Super. Page 214]

Subsequent Post Conviction Hearing Act (PCHA) proceedings, reviewed twice by this court, resulted in the filing of post-trial motions nunc pro tunc on July 1, 1986, as well as this appeal from judgment of sentence which was filed on December 8, 1986, following the denial of post-trial motions.

Appellant raises seven issues: 1) whether the trial court erred in refusing to suppress his confession and other physical evidence; 2) whether the trial court erred in denying his motion to dismiss under Rule 1100; 3) whether the trial court erred in refusing to grant a mistrial when the prosecutor's opening statement contained an allegedly prejudicial appeal to the emotions of the jury; 4) whether the court erred in permitting hearsay testimony from a Commonwealth witness; 5) whether the court erred in refusing to grant a mistrial after the prosecutor mentioned the "first trial" of appellant; 6) whether appellant was denied effective assistance of trial counsel; and 7) whether the court violated the double jeopardy clause when it imposed a more severe sentence following appellant's successful appeal of his second conviction.

Appellant's first argument is that the trial court violated the holding of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), when it refused to suppress his confession. Appellant asserts that during his preliminary arraignment before deputy coroner Phillips at 6:30 a.m. on September 19, 1974, he requested that an attorney be provided. N.T., 3/10/75, at 36-39. No counsel was provided, and appellant alleges that the police continued to interrogate him until appellant gave a tape recorded confession shortly after 8:00 a.m. the same morning. Edwards v. Arizona stated:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having

[ 371 Pa. Super. Page 215]

    expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Id. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386 (footnote omitted).

We reject appellant's argument. The record clearly supports the trial court's conclusion that appellant's confession followed his request to make a statement about what happened, a conversation he initiated without any prompting by the police N.T., 3/10/75, at 9-16. There was thus no violation of Edwards, and the trial court correctly denied appellant's suppression motion.

The second issue is whether there was a violation of the 120 day requirement of Rule 1100(e)(2) following appellant's appeal from his second conviction. Following the grant of a new trial by the Pennsylvania Supreme Court on December 23, 1977, the record was remanded to the common pleas court on January 11, 1978. Trial should have commenced on or before May 11, 1978, pursuant to Rule 1100(e)(2). The Commonwealth filed its first petition for extension on June 20, 1978, more than a month after trial should have begun. Although appellant's third trial did not take place until May, 1981, the only period at issue is the time from April 10, 1978, to June 20, 1978.

On April 10, 1978, the trial court heard argument on appellant's pretrial motions to suppress, to quash the indictment, and for recusal of the trial judge. Appellant was present at the argument, when his attorney, John H. Pope, informed the court that he intended to appeal to the supreme court if any of the several motions were denied. Appellant knowingly waived his rights under Rule 1100 to obtain appellate review prior to trial. The following colloquy took place on the record:

MR. POPE [DEFENSE COUNSEL]: Well, all right.

I believe, we have discussed, Mr. Mikesell, that in all probability the motion to quash would not be granted by

[ 371 Pa. Super. Page 216]

    court at this level and that there would be an appeal taken to Supreme Court. You and I discuss that?

THE DEFENDANT: Yes, we have.

MR. POPE: And you were aware that there was no possibility of your actual trial commencing within the hundred and twenty days. Is this right?

THE DEFENDANT: Right.

MR. POPE: So that, in effect, you knew that a continuance in some nature, either by this court or by the fact of an appeal was pending before the Supreme Court, will result in your trial not occurring within the prescribed hundred and twenty days?

THE DEFENDANT: Right, I understand that.

MR. POPE: And you were in agreement with that at that time and agreement occurring?

THE DEFENDANT: Yes, sir.

MR. POPE: Now, is there any change in your thoughts since we last discussed that?

THE DEFENDANT: Well, when this appeal goes up, if the court does deny it, then that is -- is that like an automatic continuance? Is this what this is on the issue to quash?

MR. POPE: Obviously, you cannot have the trial until the court decides whether you can have it or not.

THE DEFENDANT: The Supreme Court?

MR. POPE: The Supreme Court, yes.

The Supreme Court, assuming the lower court denies the motion and the Supreme Court affirms that denial, then it would be remanded back again and there would be another ...


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