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HomeMy WebLinkAbout99-0426 criminal3. S26013/00 COMMONVVEALTH OF PENNSYLVANIA, : IN/HE SUPERIOR COURT OF Appellee : PENNSYLVANIA : V. GARY DEAN BARRICK, : Appellant : No. 216 MDA 2000 Appeal from the .JUDGMENT OF SENTENCE November 23, 1999 In the Court of Common Pleas of CUMBERLAND County CRIMINAL, No. 99-0426 BEFORE: CAVANAUGH, EAKIN and MONTEMURO*, 33. MEMORANDUM: Gary Dean Barrick appeals from the judgment of sentence of life imprisonment imposed after he was found guilty by a jury of first degree murder and weapons offenses. We affirm. The facts, as gleaned from the record and viewed in the light most favorable to the Commonwealth, show that in the early morning hours of February 3, 1999, appellant, a thirty-four year old bi-sexual male, left a party in the company of his eighteen year old girlfriend, Veronica Vera, with whom he had been loudly and profanely arguing. He drove Vera to a remote campground where he killed her with a single gunshot through the roof of her mouth, disposing of her body in a nearby creek. He killed Vera for two reasons: 1) he suspected she had engaged in sexual relations with someone else and 2) he suspected she was the cause of appellant's estrangement * Retired 3ustice assigned to the Superior Court. J. S26013/00 from John Morrow, a teenage male who was a target of appellant's ardor,z When Vera failed to return home on February 3, 1999, her mother reported her missing to the police. During the course of their investigation into Vera's disappearance, the police determined that appellant was the last known person to be seen with her. On February 10, 1999, two state police officers appeared at appellant's home. Appellant agreed to assist them in their investigation and, over several hours, showed them the route he and Vera had driven on the night she disappeared. He told the officers that at one point, Vera got out of his car and began walking back toward the party and he never saw her again. Appellant agreed to come to the police barracks later that day to make a formal statement. Several hours later, appellant arrived at the barracks. He was given a visitor's pass and was taken into a conference room where he gave a statement. He was repeatedly told he was not under arrest and that he was free to leave at any time. No /~/iranda warnings were given at that time. Miranda v. Arizona, 384 U.S. 436 (1966). The statement he gave was entirely consistent with his earlier accounts and he made no incriminating or inculpatory comments. Thereafter, the officers asked appellant if he would agree to take a polygraph test regarding the information he had provided. ~ During the party, Morrow told' appellant and the victim that he never wanted to see either of them again. ' 2 - 3. S26013/00 Appellant immediately agreed. He was informed of his rights and signed the following waiver: I do hereby voluntarily request and authorize Holly FEGLEY, a Polygraph Examiner for the Commonwealth of Pennsylvania, to interview me with respect to the following investigation: MISSING PERSON. I also request and authorize Holly FEGLEY to conduct a Polygraph Examination upon me, and if necessary, to interview me following said Polygraph Examination. I further specify and waive any and all rights to privacy that I have and may have with respect to the interview and the taking of the Polygraph Examination. The following are my Constitutional Rights. By signing my name at the bottom of this form, I acknowledge that I have read and fully understand these rights: I have an absolute Right to remain silent. Anything I say can and will be used against me in a Court of Law. I have the Right to talk with an attorney before and have an attorney present with me during questioning, if I so desire. If I do decide to answer any questions, I may stop at any time I wish. WAIVER I fully understand the statement advising me of my Rights, and I am willing to answer questions. I do not want an attorney and I understand that I may refuse to answer any questions at any time during the questioning. No promises have been made to me, nor any threats made against me. I understand the Polygraph Examination is voluntary and that nobody can force me to submit to this examination. I further stipulate that I have no mental or physical deficiency that would interfere with this Examination. I hereby authorize the Pennsylvania State Police to disclose, both orally and in writing, the results and opinion of the Polygraph Examination and statements made by me to all interested parties. I understand that such results and opinions may prove unfavorable to me. I -3- 3. S26013/00 further understand that anything I say, whether during the interviews or the Polygraph Examination, can be used against me in a Court of Law. Fully understanding this, ! release, forever hold from harm, liability or damage to me as a result of the Polygraph Examination, the Examiner, the Pennsylvania State Police and its Officers. ! request that the interviews and Polygraph Examination begin at this time. The waiver was signed at 5:10 p.m. The polygraph test was then administered. During the interview which followed the administration of the polygraph test, appellant made incriminating statements regarding Vera's disappearance to Corporal Fegley. At approximately 8:35 p.m., Corporal Fegley became ill and could not continue the interview. Trooper Miller relieved her and concluded the interview within twenty minutes, during which time appellant admitted to the murder.2 Appellant's pre-trial motion to suppress the confession was denied and the confession was admitted into evidence at trial. During trial, it was established that on the evening prior to the murder, appellant was seen in a neighborhood tavern wearing a woman's 2 During the portion of the interview conducted by Trooper Miller, appellant changed his version of events several times. He initially admitted that he took Vera to a deserted campground next to a creek but averred that she fell and hit her head on a rock. He later stated she "took a bullet" accidentally while trying to stop appellant from committing suicide. He eventually admitted killing Vera by sticking the gun barrel in her mouth and pulling the trigger. Appellant gave police the location where her body might be found. Spent shell casings and a skull fragment were recovered within hours at the designated spot. Vera's body, however, was not recovered until twelve days later, approximately 1.5 miles down-stream in water three feet deep. The interview and tape-recording of appellant's confession were concluded at 8:56 p.m. -4- 3. S26013/00 wig. 3ohn Morrow testified that whenever appellant wore a wig, it meant that "something was wrong." Appellant told Morrow that wearing a wig signaled a display of "his alternate identity." When appellant arrived at the party at Morrow's home in the hours before the murder, he was wearing a wig. The Commonwealth admitted appellant's wig into evidence at trial over defense objection. · Appellant now appeals from the judgment of sentence and challenges the denial of his motion to suppress the confession and the admissibility of the wig. The standard when this court reviews a suppression motion is that we must first determine whether the factual findings are supported by the record, and then determine whether the inferences and legal conclusions drawn from those findings are reasonable. Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997). We may consider the evidence of the witnesses offered by the prosecution, as verdict winner, and only so much of the defense evidence that remains uncontradicted when read in the context of the record as a whole. Id. at 197. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court below were erroneous. Commonwealth v. Luv, 557 Pa. 570, 575, 735 A.2d 87, 90 (1999). Appellant claims that after Corporal Fegley became ill and could not continue questioning, appellant's constitutional rights should have been re- issued before the resumption of questioning by Trooper Miller. Thus, he argues his earlier waiver was invalid and the confession should have been suppressed. We disagree. -5- 3. S26013/00 This court has never created a prophylactic rule that a suspect must be rewarned of his constitutional rights everytime a custodial interrogation is renewed. Commonwealth v. Bennett, 445 Pa. 8, 15, 282 A.2d 276, 279 (1971). Rather, we view the totality of the circumstances in each case to determine whether repeated warnings have become stale or remote, i'd. Factors that are relevant to such an inquiry are: [T]he length of time between the warning and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether the statements obtained are materially different from other statements that may have been made at the time of the warnings. Id. These criteria, though not mandatory, guide us in determining whether there has been a "clear continuity of interrogation." See Commonwealth v. Hoss, 445 Pa. 98, 112, 283 A.2d 58, 66 (1971). This court has had ample opportunity to apply the Bennett factors in order to delineate what constitutes a "clear continuity of interrogation." See Commonwealth v, Sones, 478 Pa. 172, 178, 386 A.2d 495, 498 (1978) (warnings not stale when incriminating statement given three hours after warnings were given in the same room and same warning officers conducted the interview); Commonwealth v. Gray, 437 Pa. 424, 432, 374 A.2d 1285, 1289 (1977) (warnings not stale when given a little over two hours before incriminating statement, warnings were given in the same room and different officers conducted the interview); Commonwealth v. Bennett, 445 Pa. 8, 15-16, 282 A.2d 276, 280 (1971) (warnings not stale where given just under five hours before interrogation, defendant was moved a distance of a few miles, and the statement was given to an officer other than the warning officer); Commonwealth v. Ferguson, 444 Pa. 478, 481, 282 A.2d 378, 379-80 (1971) (rewarning not necessary when warnings were given seven and one-half hours and three hours before interrogation and in the same room, but while different officer conducted -6- 3. S26013/00 the interrogation with warning officer present). But see Commonwealth v. Wideman, 460 Pa. 699, 708-09, 334 A. 2d 594, 599(1975) (warnings were stale when given twelve hours before incriminating statement was elicited, defendant was moved to different rooms and the interview was conducted by different officers); Commonwealth v. Riggin$, 451 Pa. 519, 527-28, 304 A.2d 473, 478 (1973) (defendant should have been rewarned of his constitutional rights where statement was elicited seventeen sleepless hours after initial warnings were given, warnings were given in car and confession was given in a room in the police administration building and different officers gave the warning). Commonwealth v. Scott, __ Pa. __, ,752 A.2d 871,875-76 (2000). Keeping the Bennett factors in mind, we conclude there was a clear continuity of interrogation and that the State Police were not required to rewarn appellant of his rights. Appellant was read his rights by Corporal Fegley and he executed a written waiver in her presence approximately three and one-half hours before he made his first incriminating statement to her. During the period of time before his first incriminating statement, there were only momentary lapses in the interview process to allow appellant time to take short breaks. After appellant made his first incriminating statement, Corporal Fegley began feeling ill (due to pregnancy) and she called Trooper Miller into the interview room. Shortly thereafter, Corporal Fegley left the interview room and Trooper Miller concluded the interview alone. The record is silent as to whether the waiver was executed in the same room in which the confession was elicited, but both waiver and confession clearly occurred in the same building. While appellant's full confession was to an officer other -7- 3. S26013/00 than the one who read him his rights, we conclude this single factor does not compel a finding that the officers were required to rewarn appellant. The suppression court concluded that based on the totality of circumstances, appellant's motion to suppress his confession "on the basis that he was not re-Mirandized by Trooper Miller is without merit." After careful review, we find no error in the court's factual findings or legal conclusion and we dismiss appellant's claim challenging the denial of his motion to suppress his statement.3 3 Appellant also argues that he executed a "selective" waiver of his right to remain silent and that any statement he made to Trooper Miller should have been suppressed because he only agreed to be interviewed by Corporal Fegley. This claim has not been preserved for our review as it was not a basis on which appellant initially sought suppression of his confession. The alleged basis for suppression presented to the suppression court was that appellant was not properly rewarned of his constitutional rights before Trooper Miller took over for Corporal Fegley. It is well-established that, where there are multiple grounds upon which either to seek or to oppose suppression of evidence, failure to preserve or pursue any one of them results in a waiver of that ground on appeal. See e.g. Commonwealth v. O'Donnell, 559 Pa. 320, 332-333, 740 A.2d 198, 205 (1999) (defendant's challenge to admissibility of confession on basis of voluntariness only precludes appellate review of suppression court's ruling on basis of unlawfulness of arrest); Xn re D.M., 556 Pa. 160, 161, n.1, 727 A. 2d 556, 557 n.1 (1999) (defendant's challenge to suppression order based upon state constitution waived where Rule 1925(b) statement refers only to U.S. constitution); Commonwealth v. Glass, 718 A.2d 804 (Pa.Super. 1998) (two bases for challenging validity of search on appeal held waived since not presented to the suppression court); Commonwealth v. Laurenson, 470 A.2d 122, 126 n.2 (Pa.Super. 1983) (defendant waives on appeal challenge to statement based upon lack of awareness of nature of investigation where trial challenge was to voluntariness based upon intoxication). Because, the claim of selective waiver was not presented to the suppression court as a basis for suppression of appellant's confession it cannot be raised on appeal and we deem the issue waived. -8- ]. S26013/00 Appellant next challenges the admission into evidence of his woman's wig. He claims that the prejudicial effect of the wig outweighed its probative value and that the wig was inadmissible because it represented the needless presentation of cumulative evidence of his bi-sexuality, tended to inflame the jury and branded him as a cross-dresser. We disagree. The admissibility of evidence is a matter addressed solely to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion. Commonwealth v LaCava, 542 Pa. 160, 174, 666 A.2d 221, 227 (1995). Evidence is considered relevant if it logically tends to establish a material fact, tends to make the fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact. Zd. at 174, 666 A.2d at 227-228. Relevant evidence may still be excluded if its probative value is outweighed by its prejudicial effect. Commonwealth v. Kitchen, 730 A.2d 513, 519 (Pa. Super. 1999) (quoting Commonwealth v. Palmer, 700 A.2d 988 (Pa.Super. 1997)). However, since all Commonwealth evidence in a criminal case will be prejudicial to the defendant, exclusion of otherwise relevant evidence will only be necessary where the evidence is so prejudicial that it may inflame the jury to make a decision based on something other than the legal propositions of the case. As this Court has noted, a trial court is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts form part of the history and natural development of the events and offenses with which the defendant is charged. Zd. -9- ]. S26013/00 Here, the trial court opined that evidence of appellant's "alternate identity" which included the wearing of a wig, was relevant to prove the Commonwealth's theory of motive, i.e., that the killing occurred, in part, as the result of a jealous rage involving appellant's sexual passion for Morrow. We see no abuse of the trial court's discretion in admitting the wig under these circumstances. In any event, even if the wig was improperly admitted we would find the error to be harmless given the overwhelming nature of the untainted evidence of guilt presented at trial. Commonwealth v. Townsend, 747 A.2d 376, 381 (Pa.Super. 2000) (citing Commonwealth v. Story, 476 Pa. 391,383 A.2d 155 (1978)). The judgment of sentence is affirmed. Pr( honotary Date: - lO-