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07/30/97 COMMONWEALTH PENNSYLVANIA VS ROMAN ELLIS

July 30, 1997

COMMONWEALTH OF PENNSYLVANIA VS ROMAN ELLIS, APPELLANT


Appeal from the Judgment of Sentence June 22, 1995 in the Court of Common Pleas of Allegheny County, Criminal No. CC9406360, 9407677, C8598645. Before O'BRIEN, J.

Before: Cirillo, P.j.e., and Johnson and Ford Elliott, JJ. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.:

FILED: JULY 30, 1997

Roman Ellis appeals from the judgment of sentence of the Court of Common Pleas of Allegheny County. We affirm.

During the early morning hours of May 1, 1994, four men were peacefully sleeping in a house located in the Stanton Heights section of Pittsburgh, Pennsylvania. Three of the men, Thomas Balistrieri, David Muto, and Thomas Urban, rented the home. The fourth man, Richard Wonderley, was one of Mr. Muto's friends. At approximately 3:00 a.m. the men were jolted awake by the sound of screaming and yelling. Four African-American males (one of whom was later determined to be Ellis) burst into the residence demanding money and narcotics. Mr. Balistrieri was first to come in contact with the intruders. One intruder viciously threw him to the floor and then bludgeoned him in the face with the handle of a handgun, causing his eye to bleed profusely. The intruder then reached in Balistrieri's pocket and retrieved fifty dollars and his car keys. Mr. Balistrieri pleaded with his assailant that he was unable to breathe The assailant responded by inserting the barrel of his gun into Balistrieri's mouth.

While one intruder was assaulting Balistrieri, another struck Mr. Wonderley in the head with a gun and ripped a gold ring off his finger. Yet another intruder smashed Mr. Muto in the side of the head, shoved him to the ground, and fished two hundred dollars from his pocket. One of the intruders barked to the others, "I know him (referring to Muto). Cover him up." Muto was then blindfolded with a pair of shorts and his arms were tied behind his back. Muto was carried down to the basement. The intruders quickly restrained Wonderley and Balistrieri and threw them downstairs on top of Muto like a pile of dirty laundry.

As the other intruders were busy placing the residents in the basement, Ellis combed the upstairs area for narcotics. While a couple of the intruders were carrying Urban to the basement, Urban was able to momentarily break free of his captors' grasp and dash for the steps. One of the intruders yelled, "Get him," to which the other intruders responded with a hail of gunfire in Urban's direction. Multiple shots were fired striking Urban ten times, mortally wounding him. Ellis, meanwhile, descended the steps into the spray of bullets and was himself wounded. As the gunfire ceased, one of the assailants said, "Let's go Tiger," after which the intruders immediately fled. Two of the intruders drove away in Balistrieri's car, while the others fled on foot. Balistrieri immediately untied himself and the others and ran to a neighbor's house to call for assistance.

Upon questioning by the police, Muto explained that he knew "Tiger," one of the Intruders. He told police Tiger's real name was Leonard Smith. Based upon this information, Pittsburgh police detectives interviewed Smith who told police that he, along with three others including Ellis, committed the crimes that occurred in the Stanton Heights house while looking for money and drugs. Detective Robert McCabe was subsequently informed that Ellis was presently being treated for a gunshot wound at Presbyterian Hospital. Detective McCabe proceeded to the hospital to speak with Ellis. After recuperating, Ellis was arrested and placed on trial for his role in the crimes. The jury found Ellis guilty of second-degree murder, burglary, robbery, aggravated assault, unlawful restraint, criminal conspiracy, and unlawful possession of a firearm. Ellis was then sentenced to life imprisonment without parole on the second-degree murder charge and a consecutive sentence of five to ten years imprisonment for aggravated assault. No further penalties were imposed on the remaining charges. Post-sentence motions were filed and denied. This appeal followed. Ellis presents the following questions for our consideration:

1. Did the court err in refusing to suppress appellant's statement to police on the ground that he was not in custody?

2. Did the court err in not [sic] holding an evidentiary hearing with regard to defense counsel Rothman's sabotaging of Ellis's case by providing information to the Commonwealth?

3. Did the court err in refusing to admit into evidence letters from the defecting witness to appellant that would have revealed her motive to lie?

4. Did the court err in permitting a medical doctor to testify that pain medication did not affect the ability to tell the truth?

5. Did the court err in refusing to admit evidence of promises to a Commonwealth witness?

6. Did the court err in elaborating on the 8.306 co-conspirator charge?

7. Did the court err in the sentencing of appellant with regard to the prior record score, deadly weapons enhancement and reasons for the aggravated range?

8. Was trial counsel ineffective in not preparing her client to testify in the suppression hearing; in not adequately interviewing important witness Edge; in not having Edge's love letters read to the jury and in not offering them into evidence; in failing to object when detective McCabe implicated appellant with hearsay; in not objecting to references to gangs; in not objecting to the reference to protective custody; in withdrawing the alibi charge; and in jury selection?

Ellis first claims that the suppression court erred in finding that he was not in custody at the time he made a statement to police. Our standard of review of an order denying a motion to suppress evidence is limited to determining whether the findings of fact are supported by the record and whether the legal Conclusions drawn from those facts are in error. Commonwealth v. Crompton, 545 Pa. 586, 682 A.2d 286 (1996); Commonwealth v. Chambers, 528 Pa. 403, 598 A.2d 539 (1991). In making this determination, this court may only consider the evidence of the Commonwealth's witnesses, and so much of the witnesses for the defendant, as fairly read in the context of the record as a whole, which remains uncontradicted. Id. If the evidence supports the findings of the trial court, we are bound by such findings and may reverse only if the legal Conclusions drawn therefrom are erroneous. Id.

Ellis contends that the suppression court erred in refusing to suppress his statements to Detective McCabe at the hospital because he was subjected to custodial interrogation and did not knowingly, voluntarily, and intelligently waive his Miranda rights. Specifically, Ellis claims that the interrogation conducted by Detective McCabe was custodial, because Ellis felt he was not free to leave the hospital. Moreover, Ellis asserts that due to the lingering effects of the anesthesia administered before surgery and subsequent administration of pain medication his mind was clouded at the time of Detective McCabe's interrogation, and, therefore, he was unable to voluntarily waive his Miranda rights.

The Fifth Amendment right to counsel and the concomitant rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) are only triggered when an individual is undergoing actual "custodial interrogation." Commonwealth v. Reed, 400 Pa. Super. 207, 215, 583 A.2d 459, 462 (1990). "Whether a person is in custody for Miranda purposes depends on whether the person is physically denied his freedom of action in any significant way or is placed in a situation which he reasonably believes that his freedom of action or movement is restricted by this interrogation." Commonwealth v. Williams, 539 Pa. 61, 74, 650 A.2d 420, 427 (1994) (citations omitted). The subjective intent of the interrogating officer is not relevant to a determination of whether an interrogation was custodial. Rather, the paramount focus is on whether the individual being interrogated reasonably believes that his freedom of action is being restricted. Id.

Before an individual may be subjected to custodial interrogation, he or she must make a knowing and intelligent waiver of his or her privilege against self-incrimination and right to counsel after adequate warning as to those rights. Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994); Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983). The test for determining whether a waiver is knowing and voluntary is multi-faceted. In order to determine the voluntariness of a waiver, we must ascertain whether the waiver was the result of an intentional choice that was not subjected to undue governmental pressure. Commonwealth v. Cephas, 361 Pa. Super. 160, 522 A.2d 63 (1987). To determine whether the waiver was knowing and intelligent, we focus upon the defendant's cognitive processes, i.e., whether the defendant was aware of the nature of the choice that he made in relinquishing his Miranda rights. Id.

In the present case, the suppression court concluded that Ellis was not in custody at the time of his interrogation, and, thus, was not entitled to assert his Miranda rights. In drawing this Conclusion, the court found credible the testimony of Detective McCabe. Detective McCabe testified that he requested and received permission from the hospital staff prior to talking with Ellis. Detective McCabe also stated that Ellis agreed to answer some questions, but did not want to talk in Ellis' room. With the assistance of a nurse, the two proceeded to a lounge at the end of the hall. The detective further stated that he did not promise or threaten Ellis in any manner, nor did he physically restrain him or order that Ellis be physically restrained at any time prior to questioning Ellis In fact, Detective McCabe testified that had Ellis refused to talk with him, he "would have let him go and would try to build the case a little more solid." The trial court chose not to credit Ellis' testimony that he felt that he was not free to leave the hospital, because an unnamed doctor had told him that if he attempted to leave the hospital he would have been arrested and that he could not leave his room without notifying hospital security. See Commonwealth v. Moore, 436 Pa. Super. 495, 501, 648 A.2d 331, 333 (1994) (citations omitted) ("It is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence."). Based upon the facts presented during the suppression hearing, we cannot conclude that the court erred in finding that Ellis was not in custody. Crompton, (supra) . See Commonwealth v. Smith, 382 Pa. Super. 288 555 A.2d 185 (1989) (even though defendant was the subject of police investigation, he was not in custody for Miranda purposes when officer interviewed him at the hospital; officer did not restrain defendant in any way); Commonwealth v. Fento, 363 Pa. Super. 488, 526 A.2d 784 (1987) (same).

Even if we were to conclude that Ellis was in custody, and, therefore, entitled to receive Miranda warnings, we find that Ellis did receive such warnings and knowingly, intelligently, and voluntarily waived his rights. See Williams, (supra) ; Chacko, (supra) ; Cephas, (supra) . Prior to any interrogation, Detective McCabe read Ellis his Miranda rights. Ellis responded that he understood his rights and wished to waive them. In addition, Detective McCabe gave Ellis a form detailing the fact that he was advised of his rights and agreed to waive them. Ellis was not forced in any way into waiving his rights. Moreover, although Ellis was medicated and had undergone surgery earlier in the day, there is absolutely no evidence that his cognitive functions were impaired. *fn1 Ellis' statements, therefore, were properly admitted. Williams, (supra) ; Chacko, (supra) ; Cephas, (supra) .

Ellis next asserts that the trial court erred by failing to hold an evidentiary hearing regarding Joyce Edge's withdrawal of her original statement outlining the early morning events of May 1, 1994. It is well settled that a new trial based upon after discovered evidence will only be granted if the evidence: (1) has been discovered after the trial and could not have been obtained prior to the Conclusion of the trial by the exercise of due diligence; (2) is not merely cumulative or corroborative; (3) will not be used solely to impeach the credibility of a witness; and (4) is of such a nature and character that a different verdict will likely result if a new trial is granted. Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986). Trial counsel became aware of Joyce Edge's change in her statement to the police a few days before trial began. The trial court properly denied the request because the new evidence came to light before the Conclusion of the trial. Furthermore, trial counsel had an opportunity to cross-examine Joyce Edge on the stand as to why she changed her story.Buehl, (supra) . In reviewing the record, we agree with the trial court and find that Ellis is not entitled to a new trial.

Ellis' next challenge, that the trial court erred in refusing to admit letters written by prosecution witness Joyce Edge, is quite simply a blatant mischaracterization of the record. Contrary to. Ellis' assertion, the letters were explicitly admitted as evidence. Although the letters were admitted, the trial court refused to permit the jury to have the letters in their possession while deliberating. Ellis contention, therefore, is more properly characterized as whether the trial court erred in refusing to permit the jury to possess the letters during deliberations.

Pennsylvania Rule of Criminal Procedure 1114(1) explains in pertinent part, "Upon retiring, the jury may take with it such exhibits as the trial Judge deems proper . . . " Pa.R.Crim.P. 1114. Our courts have Interpreted this rule to mean that the decision to permit or refuse access to trial exhibits is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Bango, 454 Pa. Super. 339, 685 A.2d 564 (1996); Commonwealth v. Fox, 422 Pa. Super. 224, 619 A.2d 327 (1993). Here, the letters were extensively used on cross-examination of Ms. Joyce. The jury was well aware of the contents of the letters and their relevance, i.e., to demonstrate that Joyce had a motive to lie. We conclude, therefore, that the trial court did not abuse its discretion. See Commonwealth v. Thomas, 372 Pa. Super. 349, 539 A.2d 829 (1988) (trial court did not abuse its discretion in refusing to permit the jury to possess during deliberation a prosecution witness' notes that defense counsel extensively used on cross-examination of the witness).

Ellis' next two issues relate to the admissibility of evidence at trial. The Supreme Court of this Commonwealth has held that "the admission of evidence is a matter vested in the sound discretion of the trial court, and an appellate court may reverse only on a showing that the trial court abused its discretion." Commonwealth v. Seiders, 531 Pa. 592, 596, 614 A.2d 689, 691 (1992). Accord Commonwealth v. Cook, 544 Pa. 361, 676 A.2d 639 (1996); Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985); Commonwealth v. Patosky, 440 Pa. Super. 535, 656 A.2d 499 (1995). In order to be admissible, evidence must be relevant; evidence is relevant if it logically tends to establish a material fact, makes a fact at Issue more or less probable, or supports a reasonable inference or presumption regarding a material ...


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