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submitted: May 16, 1988.


Appeal from the Judgment of Sentence June 8, 1987, in the Court of Common Pleas of Allegheny County, Criminal No. CC851 0105, CC850 9897.


Alonzo Burney, McKeesport, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.

Olszewski, Watkins and Cercone, JJ.

Author: Olszewski

[ 377 Pa. Super. Page 98]

This is an appeal from the judgment of sentence following appellant's conviction for first degree murder and robbery. Appellant was sentenced to a term of life imprisonment on the first degree murder conviction with a concurrent indeterminate sentence of five-to-ten years imprisonment on the robbery conviction. For the reasons stated below, we affirm the judgment of sentence.

The facts giving rise to appellant's convictions may be summarized as follows. On September 7, 1985 the body of 82 year-old Clyde Jackson was discovered in his apartment in the Hill District section of Pittsburgh. An autopsy revealed that Mr. Jackson had been beaten with a blunt object which caused twenty-three lacerations on his head, multiple abrasions and contusions on his extremities and fractures of both arms. Death resulted from multiple blunt force trauma to the head and limbs with the victim's vascular and cerebral atherosclerotic disease being a marked contributing factor.

A police investigation ensued and culminated with the questioning of appellant. Appellant, aware that the police

[ 377 Pa. Super. Page 99]

    were seeking him, contacted them and requested they come to the emergency room of Central Medical Hospital where he was being treated for injuries received in a fight. Upon a determination by hospital personnel that appellant would not be admitted to the hospital, appellant voluntarily accompanied Detective Anthony Condemi, of the Pittsburgh Police, to the Public Safety Building. Upon arrival at the Public Safety Building, appellant was advised of his Miranda*fn1 rights and executed a waiver thereof. After initially giving the police a false statement, appellant confessed to the beating of Mr. Jackson. Appellant was subsequently charged with one count of robbery and one count of criminal homicide.*fn2

Prior to trial appellant filed a suppression motion seeking to exclude inculpatory statements and all evidence derived therefrom. A hearing was held on this motion before the Honorable Raymond A. Novak of the Allegheny County Court of Common Pleas, Criminal Division. Judge Novak denied appellant's motion in part and granted it in part.*fn3 Thereafter, appellant waived his right to a trial by jury and proceeded to a bench trial with Judge Novak presiding. A verdict was entered by the court on March 13, 1986 finding appellant guilty of first degree murder and robbery.

Post-trial motions were not timely filed; however, the court granted appellant's motion to extend time to file post-trial motions. Thereafter, appellant filed a motion for new trial and/or in arrest of judgment. Subsequent to the

[ 377 Pa. Super. Page 100]

    filing of this motion, appellant filed pro se a petition alleging ineffective assistance of counsel and requesting court appointed counsel. Appellant was appointed his present attorney who filed post-trial motions and supplemental post-trial motions nunc pro tunc on appellant's behalf. These motions were denied by Judge Novak who subsequently imposed sentence on appellant. This timely appeal followed.*fn4

Appellant presents the following eight issues for our review:

I The trial judge erred in not suppressing the admissions/confessions of Appellant and in not suppressing all evidence obtained as a result therein.

II The trial judge erred in finding that Appellant was capable in waiving his right to a trial by jury.

III The trial judge erred in admitting photographs into evidence that were inflammatory and were not relevant to aid the trial judge in understanding the facts.

IV The prosecutor erred in arguing the law on felony murder regarding intent to kill preceding the intent to rob.

V The trial judge erred in finding Appellant guilty of robbery when there could only be speculation by the fact finder as to when the said [sic] Appellant formulated the intent to commit a theft; before, during, or after the killing of the victim.

VI The trial judge erred in finding the Appellant guilty of murder in the first degree based upon the evidence presented on the alcoholic state of Appellant before and after the killing of the victim.

VII The trial judge erred in ignoring the case law on the felony murder.

[ 377 Pa. Super. Page 101]

VIII Trial counsel for Appellant was ineffective and said errors prejudiced the outcome of the case.

Brief for appellant at Statement of Questions.

We now proceed to appellant's first claim that the trial court should have suppressed his confession and all evidence obtained as a result thereof. Specifically, appellant contends that the evidence at the suppression hearing showed that he was undergoing medical treatment when he was taken into custody and that he possessed only a sixth-grade education. Appellant further contends that the Commonwealth failed to establish that he understood and validly waived his constitutional rights. Before addressing the merits of appellant's claim, we set forth our standard of review in an appeal from the determination of a suppression court as reaffirmed by Commonwealth v. Hubble, 509 Pa. 497, 504 A.2d 168, cert. denied Hubble v. Pennsylvania, 477 U.S. 904, 106 S.Ct. 3272, 91 L.Ed.2d 563 (1986).

On review, our responsibility is to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975).

Id., 509 Pa. at 503-504, 504 A.2d at 171.

"If the suppression court has determined that the evidence is admissible, 'this Court will consider only the evidence of the prosecution's witnesses and as much of the evidence for the defense as fairly read in the context of the record as a whole, remains uncontradicted.' Commonwealth v. Kichline, 468 Pa. [265] 264, 280, 361 A.2d 282, 290 (1976); see Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 1878, 6 L.Ed.2d 1037 (1961) (Opinion of Frankfurter, J.)" Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977).

Hubble, 509 Pa. at 503-504, 504 A.2d at 171.

In determining whether a confession, obtained as a result of a custodial interrogation, is admissible, the accused's Miranda rights must have been explained to him and he must have knowingly, voluntarily and intelligently

[ 377 Pa. Super. Page 102]

    waived these rights. Commonwealth v. D'Amato, 514 Pa. 471, 526 A.2d 300 (1987). Further, the Commonwealth must show by a preponderance of the evidence that the confession was voluntary. The test for determining whether the confession was voluntary and the waiver of the Miranda rights was valid is a totality of the circumstances. Id., 514 Pa. at 481-483, 526 A.2d at 305. Factors which must be looked to in reaching this determination include the following: 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 any other conditions which "may serve to drain one's powers of resistance to suggestion and undermine his self-determination." Id., 514 Pa. at 481-483, 526 A.2d at 305, citing Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768 (1975) (citations omitted).

The facts giving rise to appellant's confession and the obtaining of the physical evidence were summarized by the trial court as follows:

In this case, Detective Anthony Condemi testified at the suppression hearing that the defendant voluntarily accompanied him to the police station for questioning (N.T. 3/4/86, p. 10). After arriving at the police station, Detective Condemi requested that the defendant execute a Pre-interrogation Warning Form (Commonwealth Exhibit 2). The form, which outlines the defendant's constitutional rights, was read and explained to the defendant. The defendant indicated that he understood his rights and he signed the form (N.T. 3/4/86, pp. 12-13). After signing the form, the defendant gave an oral inculpatory statement indicating his involvement in the death of Clyde Jackson (N.T. 3/4/86, p. 15). The defendant was then arraigned on the charges of Criminal Homicide and Robbery (N.T. 3/4/86, p. 17). After arraignment, the detectives, at the direction of the defendant, went to two areas and retrieved certain evidence (i.e., a tire iron and a pair of tennis shoes) (N.T. 3/4/86, p. 18). When they arrived back at the police station, detective Condemi

[ 377 Pa. Super. Page 103]

    requested that the defendant put his statement on tape. The defendant refused saying that he wanted to wait until his father arrived with a lawyer (N.T. 3/4/86, pp. 18-19, 43-45).

Trial court opinion 9/28/87, pp. 6-7.

Also pertinent to our review of appellant's claim is the following excerpt from the testimony of Detective Condemi of the Pittsburgh Police:


Q Did [appellant] at any time in the execution of the waiver or during the interview indicate that he had any trouble understanding you or Detective Serafini?

A No, sir.

Q At any time did he indicate to you that he was having any problems with his physical condition or having any medical problems that were bothering him?

A No, sir.

Q Did he indicate to you at any time that he was under the influence of any alcohol or drugs, whether prescribed or not, during the course of this interview.

A No.

Notes of testimony March 4-7, 1986, pp. 20-21.

The above quoted testimony, in conjunction with the rest of the evidence presented at the suppression hearing, supports the findings of the trial court that appellant's waiver of his Miranda rights and resulting confession were voluntary and thus admissible. Appellant's contention must therefore be dismissed as meritless.

The appellant next contends that the trial court erred in determining that he was capable of waiving his right to trial by jury. Appellant asserts that he has a very low I.Q., that he only has a sixth-grade education and that the questioning of appellant by the trial judge indicates that "it was obvious that the trial judge had serious doubt regarding the understanding by the appellant of the waiver of the jury trial which he so definitely needed." Appellant's brief at

[ 377 Pa. Super. Page 104]

Argument II. This contention is completely lacking in any merit.

The following is an excerpt from the colloquy engaged in by the trial court and appellant:


"Q What is your name?

"A David Carter.

"Q How old are you, David?

"A 22.

"Q How far did you go in school?

"A Sixth grade.

"Q Do you read, write and understand English?

"A Somewhat.

"Q You understand me now?

"A No.

"Q You certainly speak English ...

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