Appeal from the Judgment of Sentence of January 22, 1987 in the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CC8501883; CC8502062
Vincent R. Baginski, Assistant Public Defender, Pittsburgh, for appellant.
Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
Wieand, McEwen and Hoffman, JJ.
[ 373 Pa. Super. Page 317]
This appeal is from the judgment of sentence for first degree murder and carrying a firearm without a license. Appellant contends that (1) the suppression court erred in (a) denying her motion to suppress her statement to police on the ground that her arrest was illegal; (b) denying her motion to suppress her statement to police because it was given without benefit of Miranda warnings; (c) overruling her objection to a leading question; (d) admitting a carbon copy of the search warrant in violation of the best evidence rule; and (e) reopening the record to allow the admission of the original search warrant; (2) the verdict is against the weight of the evidence in light of her defense of mental illness; (3) the evidence is insufficient to support a conviction for first degree murder in light of her defense of mental illness; (4) the trial court erred in prohibiting appellant's expert witness from rendering an opinion regarding the legal definition of mental illness; (5) her sentences are illegal because they should have merged; and (6) the sentencing court, when sentencing appellant on the weapons offense, failed to state adequate reasons on the record for
[ 373 Pa. Super. Page 318]
its deviation from the Sentencing Guidelines. For the reasons that follow, we affirm the judgment of sentence for first degree murder, we vacate the judgment of sentence for carrying a firearm without a license and remand the case for resentencing.
On February 5, 1985, appellant was arrested and charged with homicide in relation to the killing of her former husband. Following a jury trial, appellant was found guilty of first degree murder and carrying a firearm without a license. Appellant was sentenced to a term of life imprisonment for first degree murder and a concurrent term of two-and-one-half-to-five-years imprisonment for carrying a firearm without a license. This appeal followed.
Appellant first contends that her arrest was illegal because the arresting officers were outside of their municipal jurisdiction and, therefore, the lower court erred in denying her suppression motion.*fn1 The Municipal Police Jurisdiction Act (Act), 42 Pa.C.S.A. §§ 8951-8954, provides that a police officer may act outside his or her primary jurisdiction in certain enumerated instances. See Id. § 8953. Appellant argues that the police officers' actions in this case do not fall within any of the circumstances identified by the Act. Here, at approximately 9:27 p.m. on February 5, 1985, McKeesport Police Officer Willard received a radio call regarding a possible homicide in McKeesport. Upon arriving at the victim's home, Officer Willard spoke with the victim's son, who stated "My mother shot my dad." N.T. March 14-22, 1986 at 44. Officer Willard then sent a radio dispatch to police officers in White Oak, an adjoining municipality, stating that appellant was involved in a shooting and asking them to check appellant's White Oak home. Id. at 46. Officer Gironda, of the White
[ 373 Pa. Super. Page 319]
Oak Police Department, received the radio dispatch and proceeded to appellant's home. Id. at 22. Upon discovering that appellant was home, Officer Gironda parked his car outside her home and requested assistance from the McKeesport and White Oak Police Departments. Id. at 23. Officers Willard and Tirpak of McKeesport, as well as two White Oak police officers, arrived on the scene. Officers Gironda, Willard, and Tirpak approached appellant's house and asked her to come outside. Id. at 24-25. When appellant came outside, Officer Gironda put handcuffs on her. Id. at 47. Officer Gironda then read the Miranda warnings to appellant. Id. at 26. Officer Gironda testified that he could not remember which officer actually told appellant she was under arrest. Id. at 34. White Oak police officers then placed appellant in a White Oak police car and transported her to the McKeesport police station. Id. at 54. Although McKeesport police officers were present at the time of appellant's arrest in White Oak, we conclude that appellant effectively was arrested by Officer Gironda, and under authority of the White Oak Police Department. Thus, the Municipal Police Jurisdiction Act does not apply. Accordingly, the suppression court did not err in concluding that appellant's arrest was lawful.*fn2
Appellant next contends that the suppression court erred in denying her motion to suppress her post-arrest statement to police because it was given without the benefit of Miranda warnings. A person must be informed of his or her Miranda rights prior to custodial interrogation by police. Commonwealth v. Sites, 427 Pa. 486, 490, 235 A.2d 387, 389 (1967). Custodial interrogation is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way." Id., 427 Pa.
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at 492, 235 A.2d at 390 (emphasis supplied) (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). "'Interrogation' is police conduct 'calculated to, expected to, or likely to evoke admission.'" Commonwealth v. Brantner, 486 Pa. 518, 527, 406 A.2d 1011, 1016 (1979) (quoting Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969)). When an inculpatory statement is not made in response to interrogation by police officers, however, "the statement is classified as a volunteered statement, gratuitous and not subject to suppression for lack of warnings." Commonwealth v. Whitley, 500 Pa. 442, 445, 457 A.2d 507, 508 (1983) (citations omitted).
Here, it is uncontested that appellant was in custody at the time she made an inculpatory statement to the police. The record reveals, however, that the statement was not the result of an interrogation by the police. At the suppression hearing, Officer Gironda testified that after appellant was placed under arrest, he began to advise her of her Miranda rights. N.T. May 14-22, 1986 at 26. Appellant interrupted him several times while he attempted to inform her of her rights. Id. Officer Gironda further testified as follows:
Q. When she interrupted you, what did she say? Use whatever language she said.
A. She said, "Are you in on this fucking thing?" I said, "Roxie, I have got a job to do." And she looked at me, and she said, "I had a job to do, and I did it tonight."
Id. at 27-28. Officers Willard and Tirpak then finished advising appellant of her rights. Id. We cannot conclude that Officer Gironda's response to appellant's question, particularly in light of her continued interruptions, was conduct designed to evoke an admission. See Commonwealth v. Brantner, supra (admission made in response too "Hi, Harry. Apparently we have a little problem, and I need to take your photograph." was not result of interrogation). Thus, for Miranda purposes, appellant's statement was volunteered and need not be suppressed simply because
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it was made before the police could finish giving her the Miranda warnings. Accordingly, we conclude that the suppression court correctly denied appellant's suppression motion on this ground.
Appellant next contends that the suppression court erred in overruling her objection to a leading question. It is well-established that the allowance of leading questions lies within the discretion of the trial court and a court's tolerance or intolerance of leading questions will not be reversed absent an abuse of discretion. See, e.g., Commonwealth v. Beasley, 504 Pa. 485, 495, 475 A.2d 730, 735 (1984); Commonwealth v. Bell, 328 Pa. Superior Ct. 35, 51, 476 A.2d 439, 448 (1984). "A leading question has been defined as one which puts the desired answer in the mouth of the witness." Commonwealth v. Dreibelbis, 493 Pa. 466, 476, 426 A.2d 1111, 1116 (1981).
Here, appellant objects to the following question posed by the district attorney to Officer Willard:
Q. Were you present at the time that [appellant] said to Gironda, "Are you in on this fucking thing, too, Gironda?"
MR. BAGINSKI [attorney for appellant]: Object to that ...