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COMMONWEALTH PENNSYLVANIA v. LINDA SUE MOORE (04/21/88)

filed: April 21, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
LINDA SUE MOORE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC8409801.

COUNSEL

Paul R. Gettleman, Zelienople, for appellant.

Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.

Brosky, Del Sole and Hoffman, JJ.

Author: Brosky

[ 373 Pa. Super. Page 607]

This is an appeal from the judgment of sentence imposed as a result of appellant's conviction of voluntary manslaughter after a non-jury trial.

On appeal, appellant raises several allegations of trial counsel's ineffectiveness:*fn1 (1) that trial counsel failed to file a motion to suppress appellant's confession and object to its use during the trial judge's deliberation; (2) trial counsel's neglect in not objecting to the insufficiency and misleading character of the jury trial waiver colloquy; (3) trial counsel's failure to present a good character defense; (4) that counsel was remiss in not introducing the victim's extensive criminal record; and (5) the latter's blood alcohol level at the time of death; (6) trial counsel's dereliction in

[ 373 Pa. Super. Page 608]

    not investigating from where the gun used in the killing came by not interviewing known witnesses; and (7) trial counsel's failure to argue as a matter of law the defense of others. Appellant also asserts an evidentiary weight claim that the Commonwealth did not meet its burden of proving beyond a reasonable doubt that appellant did not act in self-defense. Finding no merit to any of these contentions, we affirm.

We will treat each allegation of ineffectiveness seriatim, keeping in mind the oft-repeated standard for assessing claims of ineffective representation. First, it must be determined whether the claim has arguable merit. If so, the inquiry then proceeds to ascertaining whether and how counsel's dereliction prejudiced his client. Once a court is able to conclude that counsel's choice had some reasonable basis designed to effectuate his client's interest, this query ceases. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). The law places the burden of demonstrating counsel's ineffectiveness upon the defendant, since the law also presumes effective stewardship. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985).

[ 373 Pa. Super. Page 609]

Appellant's initial claim of ineffectiveness is twofold. First, she alleges that counsel was derelict in failing to file a motion to suppress her purportedly inculpatory and involuntary statement given to Detectives Stotlemeyer and Amity because of her intoxicated state at the time of making her confession. However, nothing in the record is suggestive of her proffered incapacity. Detective Stotlemeyer testified that he detected a strong odor of alcohol about appellant. The record merely denotes that appellant told Detective Stotlemeyer that she had begun drinking at approximately 6:00 p.m. on the evening in question and that she had consumed, by the time of the subject incident, approximately between 8:30 and 8:45 p.m., three doubleheaders of straight gin (N.T. 134). This is not evidence of intoxication, see Commonwealth v. Kuhn, 327 Pa. Super. 72, 475 A.2d 103 (1984), and appellant has failed to supply any further substantiation for that conclusion. Commonwealth Page 609} v. Unger, 494 Pa. 592, 432 A.2d 146 (1980). Her confession given to Detective Stotlemeyer clearly recalls the events of that night, further diluting the validity of her claim. Id. Thus, since no basis exists on the record to support a motion to suppress her statement, counsel was not ineffective in failing to file this motion. Id.

The second prong of this attack contains two separate elements. The first relates to counsel's alleged ineffectiveness in failing to object to Detective Stotlemeyer's notes of appellant's confession being marked as a Commonwealth exhibit. She claims that these notes are not embraced within the hearsay exception of past recollection recorded and that failure to object to the admission of the notes constitutes ineffective stewardship. The record shows that Detective Stotlemeyer, while testifying from memory of the contents of appellant's oral statement, was asked by the trial court what epithet the victim had attributed to appellant when she offered to open another beer for him. Detective Stotlemeyer then asked the court if he could refer to the notes he took of appellant's oral statement. The report was given to him for the limited purpose of recalling what the victim had called appellant. It was then admitted as the Commonwealth's Exhibit 'B' without trial counsel's objection.

Appellant relies on Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973), which held that a writing to refresh a witness' recollection is admissible if that witness testifies under oath that he cannot recall from present memory the events recorded in the writing. In Canales, the witness, a police officer, testified from his present memory concerning the defendant's oral confession made to him. Throughout, he kept referring to his notes made during the confession. The notes were later admitted into evidence. The Supreme Court concluded that this was error, as the notes did not qualify as past recollection recorded. Here, however, Detective Stotlemeyer told the court that he could not remember what the victim had called the appellant without reference to his notes. When given

[ 373 Pa. Super. Page 610]

    the notes, Detective Stotlemeyer used them for the limited purpose of responding to the court's query. Thus, counsel could not be deemed ineffective for neglecting to object to evidence otherwise properly admitted. See Commonwealth v. Bright, 361 Pa. Super. 261, 522 A.2d 573 (1987). Moreover, and in any event, the notes admitted into evidence, from the testimony gleaned, are corroborative of appellant's own trial testimony. Thus, appellant could not demonstrate, under the second step of the ineffectiveness analysis, that admission of these notes without objection prejudiced her in any way. See Commonwealth v. Pierce, supra.

This leads us directly into the second facet of appellant's ineffectiveness attack regarding the admissibility of her confession. Appellant argues that the summation of her oral confession was impermissibly "sent out" with the trial judge, who was also the trier here, in violation of Pa.R.Crim.P. 1114 and that the trier would be inclined to give greater weight to the written summation, especially as it related to appellant's statement that the gun was a .25 caliber automatic with a clip.

First, Pa.R.Crim.P. 1114 only relates to material which a jury is not permitted to have during its deliberations. Interestingly, however, this Rule allows the jury to take with it "such exhibits as the trial judge deems proper." Id. Thus, had appellant's trial been by jury, that deliberative body would have been permitted, at the ...


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