Commonwealth v. Reiss , 440 Pa. Super. 151 ( 1995 )

DEL SOLE, Judge:

Appellant, who was tried and convicted by a jury of numerous charges resulting from burglaries which occurred on the campus of Pennsylvania State University, takes this appeal from the Judgment of Sentence he received. On appeal he makes numerous claims, which upon review of the law as it applies to the facts of this case, we find to be without merit.

Initially, Appellant challenges the trial court’s rulings with respect to the suppression of evidence. He claims that the Pennsylvania Constitution prohibits the use of deceptive practices of the part of police to gain entry into a home, an event which he asserts occurred here. Further he submits that his indication that he wished to speak to an attorney on a written consent form should have been honored, and since it was not, all statements made subsequent to that indication should have been suppressed. Because the resolution of these claims rests on the particular facts of this case, we begin by recounting them.

As part of an ongoing investigation, Mr. Leon Gefert was arrested by police and later agreed to cooperate with them. Gefert advised the police that he knew Appellant was involved in stealing computers and other equipment and agreed to go with an undercover officer and attempt to meet Appellant at his apartment to confirm that he had possession of these items. After telephoning Appellant agreed Gefert traveled to Appellant’s apartment with the officer and introduced him to Appellant as a cousin. While Appellant and Gefert talked, the officer noticed computer equipment which matched the description of the equipment which had been reported stolen. After exiting, the undercover officer met with Officer Sowerby in the back of the building and advised him of his observations inside Appellant’s apartment. Sowerby and a criminal investigator, John Wilson, then went to Appellant’s door, knocked and announced themselves as police. Appellant answered the knock, and Sowerby advised him that they were there to investigate stolen computer equipment and asked if Appellant would consent to a search of the apartment. Appellant was read his Miranda rights, and was read and responded verbally to a consent form. He was then given the form to fill out and sign, which he did, and the search proceeded, yielding many stolen items of equipment. Appellant pointed out the location of many of the items and advised the officers from where they had been obtained.

Appellant’s first claim concerns the undercover officer’s actions in gaining entry into Appellant’s apartment under a misrepresentation. Appellant argues that the Pennsylvania Constitution, Article I Section 8, affords defendants greater protection than that afforded under the federal constitution, and that the deceptive practice employed in this case must cause the fruits of this search and any later search to be suppressed. Although the question of deceptive police practices under thé Pennsylvania Constitution is interesting and novel, it need not be reached under the circumstances presented in this case. While it was acknowledged that the police gained entry through a ruse and from that entry made observations of what they perceived to be stolen goods, the police did not seize the property on this occasion, nor did they use the information acquired while in the apartment in support of an effort to obtain a warrant. If either of those events had occurred, it would be necessary for us to undergo the extensive analysis of our Pennsylvania Constitution and the role of deceptive police practices as it relates to our state’s protection of privacy. However, under the undisputed facts of this case, after Gefert and the undercover officer left, two other officers arrived at Appellant’s apartment, advised Appellant of their identity and purpose and gained entry with Appellant’s permission to search. Thus, while it may be argued that true consent was not given at the time of the initial search by the undercover officer, this situation did not give rise to the receipt of evidence in this case. The actual search and seizure which formed the basis for the charges filed against Appellant came after Appellant gave his consent to people he knew were police officers and for a purpose for which he was advised.

In Commonwealth v. Haynes 395 Pa.Super. 322, 577 A.2d 564 (1990), the police deceived the defendant concerning the reasons why they asked him to accompany them to the Public Safety Building. While the defendant agreed to go to clear up an outstanding bench warrant, the police desired to have him travel into their jurisdiction where he was questioned about his participation in a homicide. Although the court reviewed the deception issue under a Fourth Amendment analysis, the court included general statements of law which apply to questions of whether a consent was valid. The court stated:

That common thread is that the deception must not pertain to the consent itself, in some sense it must be collateral to the content of the permission voluntarily granted. Thus, the accused must know what is being consented to, and if the police exceed the scope of that consent, then they have passed their limits of permissible deception. This is consistent with the line of cases which have held that if the accused does not understand what it was that was consented to, then the consent is invalid.

Id. at 337, 577 A.2d at 572. (citations omitted.)

In the instant case, although Appellant was deceived by the undercover officer’s identity and purpose for entry, no evidence was gathered directly as a result of his entry. The police did not use information gathered by the officer to obtain a warrant, nor did the undercover officer seize incriminatory items at that time. Rather the officer advised others of what he saw, and then police knocked on Appellant’s door and sought his consent for a search. At this time Appellant was not being deceived. He knew that the police were at his door, he knew why they were there and he knew that they wished to search for stolen equipment. There is no indication from the record that the consent given by Appellant in this case was anything other than freely made and informed. This conclusion makes any discussion of the propriety of the undercover officer’s actions unnecessary. See Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989) (where even if police acted outside their jurisdiction, the warrantless search was justified by the freely given and informed consent of the homeowners.) Contrast Commonwealth v. Daniels, 410 Pa.Super. 275, 599 A.2d 988 (1991) (where consent found to be invalid because it was the product of an illegal detention and not the result of an independent act of free will.)

Regardless of our conclusion concerning this first issue, Appellant argues that the evidence and statements made to police officers at his apartment should be suppressed because he indicated on the consent form that he wished to speak to an attorney. The form is printed on one page and consists of five questions and a signed statement. Appellant answered, “yes” to every question, including the one which read “Do you want to consult your attorney?”. In contradiction, Appellant signed the following statement a few lines down on the same page:

I, Eric Reiss (signed) have read this statement of my rights and I understand what my rights are, I do not want the advice of an attorney at this time. I understand what I am doing and know that I can have the advice of counsel at anytime. No promises or threats have been made to me nor has pressure or coercion of any kind been used against me to obtain my consent.

Appellant signature again appears at the bottom of the page following this statement.

Appellant argues that because he answered the question concerning his desire for an attorney affirmatively on the consent form, all questions to him should have ceased, and because they did not, his responses should have been suppressed.

The test for determining whether an accused’s statements are voluntary and whether a waiver is valid is the totality of the circumstances. Commonwealth v. Carter, 377 Pa.Super. 93, 546 A.2d 1173 (1988). Thus the fact that Appellant responded “yes” to the question regarding an attorney on the consent form, must be looked at as part of entire circumstances.

The police investigator on the scene testified at the pre-trial hearing that Appellant was read his Miranda rights, he had no questions about what was said, and he never indicated that he desired to have an attorney present. Appellant was then given the written form and went over the contents of it with Officer Wilson. Wilson testified that he read the form to Appellant and asked for verbal responses. According to Wilson’s testimony, Appellant indicated that he would consent to a search and that he answered “no” when questioned as to whether he wished to consult with an attorney. Appellant was then handed the form and asked to respond in writing to the questions and to sign the waiver on the bottom. The signed copy was returned to Officer Wilson and the search then proceeded without objection or any mention of an attorney by Appellant. Wilson testified that the first he became aware of the affirmative response to the question regarding an attorney was when he was advised that a suppression hearing was to be held on the matter. Wilson further testified that Appellant was “extremely cooperative”, and characterized him as “the most cooperative person in this situation that I have ever encountered in my professional career.”

The trial judge in this instance accepted the Commonwealth’s version of events which led the court to conclude that Appellant’s oral responses evidenced voluntary cooperation. Assessing the credibility of witnesses is clearly not an appropriate function for an appellate court. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982). In this case the details of the events which transpired regarding the consent, coupled with the fact that Appellant made conflicting statements regarding his desire for an attorney on the consent form itself, leads sufficient support for the court’s refusal to suppress evidence.

In his next three claims Appellant objects to action taken by the trial court. First he asserts that the court erred in failing to grant his request to strike nine jurors for cause. These people were employees of Pennsylvania State University. Appellant reasons that because the University was the subject of his criminal activity, the jurors could not be impartial based upon their situational and financial relationship to the University.

A challenge for cause should be granted where a prospective juror has such a close relationship, familial, financial, or situational with a party that the court will presume a likelihood of prejudice or one is demonstrated by conduct and answers to questions. Commonwealth v. Colson, 507 Pa. 440, 490 A.2d 811 (1985). The test the court should employ for determining whether a prospective juror should be disqualified “is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.” Id. at 454, 490 A.2d at 818. In this case the court questioned the prospective jurors and was satisfied with their statements that they would be fair and impartial. Accordingly, we are unable to conclude that the trial court abused its discretion in refusing to strike these individuals from the jury.

We also find no abuse of discretion in the trial court’s decision limiting the defendant’s cross examination of Leon Gefert. When Appellant’s counsel sought to ask Mr. Gefert if he was aware of that the maximum penalty for burglary was 10 to 20 years, the Commonwealth’s objections were sustained. We find no abuse of discretion in this ruling since counsel was permitted to question Gefert about his pending burglary conviction and the fact that his cooperation with the police was done with the hope of receiving consideration for ARD.

Appellant’s remaining claim regarding the admission or exclusion of evidence concerns what Appellant characterizes as the admission of uncharged and unrelated crimes committed by him. Appellant complains that his taped interview with the police, which was not only heard by the jury but also transcribed for the jurors, contained inculpatory statements regarding other criminal activity. For purposes of review we note that Appellant has failed to identify for this court exactly which statements he finds objectionable in the seventeen page transcribed copy of his interview. See Pa.R.A.P., Rule 2132, 42 Pa.C.S.A. Furthermore, the trial court noted that defense counsel chose to wait until mid-trial to propose redaction of the tape and editing of the transcript. This action would have required a considerable delay and the court concluded it was not necessary in view of the fact that defense counsel was fully aware of the contents of the tape prior to trial. The court also noted that it found nothing in the tape which required redaction and the entry of the tape was critical to the Commonwealth’s case to rebut the defense of police coercion. Under these circumstances we find no merit to Appellant’s claim.

Appellant next objects to the sufficiency of the evidence produced by the Commonwealth to establish the value of the items stolen which formed the basis for the theft convictions. Appellant argues that only the retail value and not the fair market value at the time of the crime was ascertained, therefore, the value should be set at less than $50.00 and the offenses graded as misdemeanors of the third degree. We fail to see the logic of Appellant’s reasoning. Appellant was being tried for the burglary and theft of computer equipment which in many instances was valued by the witnesses as being worth many thousands of dollars. The Commonwealth presented witnesses who were familiar with the equipment and its costs and so testified for the jury. The jury was only required to decide whether the stolen equipment was valued above a certain amount. In every instance it would have been illogical to conclude that the value did not exceed $50.00. “The Commonwealth is not required to establish the precise market value of the stolen property. Rather the Commonwealth must present evidence from which a reasonable jury may conclude that the market value was at least a certain amount.” Commonwealth v. Hanes, 361 Pa.Super. 357, 365, 522 A.2d 622 (1987). We cannot conclude that the jury did not have before it sufficient evidence from which it could make a reasonable determination of the value of the items in question.

Lastly Appellant complains that the court erred by not stating on the record at sentencing the reason for the imposition of a sentence of total incarceration. A review of the sentencing transcript indicates that a presentence investigation was conducted in this case as well as a sentencing memorandum prepared on behalf of Appellant. Appellant’s counsel advised the court that an individual in the local school district was willing to accept Appellant to do community service, he reminded the court of Appellant’s cooperation with authorities and spoke of the devastating impact Appellant’s crime has had on his family. Although the court did not specifically list the reasons why it believed it was necessary to incarcerate Appellant for a period of time, the requirement that a court make such a disclosure on the record is satisfied where the judge has the benefit of a presentence report. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Where the court has been informed by means of a presentence report, the sentencing court’s discretion should not be disturbed. Id. Because Appellant has failed to provide us with any reason to conclude that the court abused its discretion, we affirm the Judgment of Sentence in this case.

CIRILLO, J., files a dissenting opinion.