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Commonwealth v. Boczkowski3/23/2004
egal conclusions respecting the lack of custody, the Miranda waiver, and police respect for appellant's rights once invoked. Hence, this suppression claim fails.
Appellant's second claim of suppression court error is that the court erred in denying suppression of his affirmative nods which, he claims, occurred during custodial interrogation and more than six hours after his arrest, in violation of the so-called "Davenport/Duncan" rule. Having already found that appellant was not in police custody for purposes of suppression of evidence during this time period, we find no merit to this claim.
Finally, appellant claims that the suppression court erred by denying his motion to suppress the affirmative nods he made in response to questioning that occurred during custodial interrogation, and after he had invoked his right to counsel. Appellant cites Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880 (1981), a case which indeed involved custodial interrogation. Appellant argues that when he initially agreed to accompany police officers to the station house in the early morning hours of November 7, 1994, he mentioned the name "Jim Herb." At approximately 10:15 a.m., he notes, after the polygraph examination was complete, he stated, "This is pretty serious; maybe I should call someone." When appellant later explicitly asked to speak to counsel, the attorney he asked for was James Herb. Reasoning backwards from that fact, appellant argues that his earlier two references -- invoking the name "Jim Herb" and later saying that maybe he should call "someone" -- were themselves invocations of his right to counsel, which should have precluded police from questioning him without an attorney.
The Commonwealth responds that appellant was not in police custody at the relevant time and, thus, Edwards does not apply; that police, in an abundance of caution, read appellant the Miranda warnings does not change that fact. In the alternative, the Commonwealth notes that, although appellant had mentioned the name Jim Herb, which the officer accompanying appellant recognized as the name of an attorney, appellant did not express any desire to contact Attorney Herb at that time. Further, the Commonwealth argues that appellant's later, vague statement about whether he should call "someone" did not constitute an invocation of his right to counsel.
Since we have determined that appellant was not in police custody at the time he was questioned, appellant's Edwards claim, which is predicated upon the assumption that he was in custody, necessarily fails. In addition, we agree with the Commonwealth that the suppression hearing record supports the conclusion that appellant's earlier references were at best equivocal and that he did not, in fact, request to contact an attorney until after he made his affirmative nods. Accordingly, the suppression court properly refused to suppress evidence concerning the head nods.
III. Claims of Guilt Phase Trial Court Error
Appellant raises seven evidentiary claims and three claims that the trial court erred in its charge to the jury. The admissibility of evidence rests within the sound discretion of the trial court, and such a decision will be reversed only upon a showing that the trial court abused its discretion. Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (citing Commonwealth v. Jones, 683 A.2d 1181, 1193 (Pa. 1996)).
Appellant's first evidentiary claim is that the trial court abused its discretion by admitting cumulative evidence pertaining to the death of appellant's first wife, which resulted in undue prejudice to appellant and compromised his right to a fair trial. Appellant argues that "twenty-one percent" of the Co
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