Commonwealth v. Santiago

OLSZEWSKI, Judge:

On September 13, 1985, a jury found appellant Salvador Carlos Santiago guilty but mentally ill of murder in the second degree, robbery, theft by unlawful taking, receiving stolen property, crimes committed with firearms, firearms not to be carried without a license and former convict not to own a firearm. Timely post-trial motions were filed and denied and Santiago was sentenced to life imprisonment. This timely appeal followed.

On appeal, Santiago raises seventeen (17) issues for our consideration:

I. Whether the jury verdict of September 13, 1985 is contrary to the evidence?
II. Whether the jury verdict is contrary to the weight of the evidence?
*58III. Whether the pre-trial suppression hearing judge, President Judge Glenn McCracken, Jr., erred when he decreed that the arrest of the defendant was legal, and that the arrest warrant was issued upon probable cause?
IV. Whether the pre-trial suppression judge, President Judge Glenn McCracken, Jr., erred when he decreed defendant’s statements to Pittsburgh City Police Detectives, Ronald Freeman and Terry Hedinger and PSP Joseph Holtman and Corporal John P. Wherthey, should not be suppressed as violative of defendant’s Fifth and Fourteenth Amendment Rights?
V. Whether the pre-trial suppression hearing judge, President Judge Glenn McCracken, Jr., erred when he decreed that the defendant’s taped statement to Pennsylvania State Police Trooper, Joseph Holtman, and Corporal John P. Wherthey, was not a result of delay from arrest to preliminary arraignment?
VI. Whether the trial judge, Francis X. Caiazza, erred when he allowed inflammatory descriptions of the gunshot wounds from the pathologist, which exceeded the bounds of relevancy and were highly prejudicial to Defendant?
VII. Whether the trial judge, Francis X. Caiazza, erred when he allowed the opinion testimony from Pennsylvania State Trooper, Darryl Mayfield, which was not unequivocal and was not within a reasonable degree of certainty.
VIII. Whether the trial judge, Francis X. Caiazza, erred when he allowed the Pittsburgh Police Detective, Terry Hedinger, to testify as to the oral statements of Major Anderson advising defendant of his rights?
IX. Whether the prosecutor/assistant district attorney, J. Craig Cox, after being instructed by the trial judge, Francis X. Caiazza, during cross-examination of Fred P. Gallo, Jr., psychologist, as to the examination of the Defendant to the events of January 15, 1985, surrounding the shooting, again inquired of Dr. Jonathan Him*59melhoch, psychiatrist, as to the events surrounding the shooting, which caused the defense to object, for the same constituted prosecutorial misconduct, since it appeared that the defendant had to exercise his Fifth Amendment Right to remain silent?
X. Whether the prosecutor/assistant district attorney, Thomas Minnett, committed prosecutorial misconduct in the closing summation to the jury:
A. When he displayed, demonstratively, the murder scene directly in front of the family of the victim, with the intent to inflame the passion of the jury;
B. When he made reference that the defense was attempting to divert the jury’s attention from important facts of the case;
C. When he argued that the defense was arguing three (3) to four (4) different defenses, or inconsistent defenses which were illogical and inconsistent, for the defense had argued that the defendant did the shooting but was insane and didn’t imply any other defenses;
D. By the prosecution’s reference that the jury could presume specific intent and malice?
XI. Whether the trial judge, Francis X. Caiazza, erred when he instructed the jury as to defendant’s burden of proof as to “legal insanity” by preponderance of the evidence, and mental illness beyond a reasonable doubt which is violative of both Federal and Pennsylvania Constitutions?
XII. Whether the trial judge, Francis X. Caiazza, erred when he submitted a single verdict slip as to homicide charges, which was misleading?
XIII. Whether or not the pre-trial suppression hearing judge, President Judge Glenn McCracken, Jr., erred when he permitted the in-court identification of the defendant by James Suttles?
XIV. Whether the trial judge, Francis X. Caiazza, erred when he allowed district attorney/assistant district attorney, Thomas Minnett, to elicit testimony from the *60prothonotary concerning the defendant’s prior sentence of incarceration?
XV. Whether the trial judge, Francis X. Caiazza, erred when he allowed the deputy warden, Dominic Farina, to testify as to the defendant’s incarceration at the time of trial before the jury?
XVI. Whether the trial judge, Francis X. Caiazza, erred when he precluded evidence from Frankie Mack as to a telephone conversation in the presence of a Youngstown Police Officer on January 15, 1985, where an unknown white male related to her “for $1,000.00 I will give your car back”?
XVII. Whether the trial judge, Francis X. Caiazza, erred when he allowed FBI agents to testify that the defendant had been charged with the Federal offense of Unlawful Flight to Avoid Prosecution?

With respect to issues I and II, the record discloses that boilerplate challenges to the sufficiency and weight of the evidence were raised in the post-trial motions. As it is well established that boilerplate challenges to the weight and the sufficiency of the evidence fail to preserve the issues for appellate review, we find that these two issues have been waived. See Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983). Even if we were to find these issues have not been waived, however, we agree with the trial court that these challenges are meritless. See Opinion 3/27/87 at 2-7.

With regard to appellant’s issues III, V, VI, VII, VIII, IX, X, XII, XIII, XIV, XV, XVI, and XVII, we are persuaded by the reasoning of the Honorable Francis X. Caiazza, and accordingly, affirm on the basis of the trial court’s excellent opinion as to these issues. Thus, two issues — IV and XI— remain for our consideration.

In issue IV, appellant claims that the inculpatory statements made during questioning by the police were admitted into evidence in violation of his fifth and four*61teenth amendment rights.1 Before addressing the merits of this claim, we are reminded that upon review of a ruling by a suppression court, an appellate court need only determine whether the record supports the factual findings of the lower court, and question whether the inferences and legal conclusions drawn from those findings are legitimate. Commonwealth v. Chamberlain, 332 Pa.Super. 108, 111, 480 A.2d 1209, 1211 (1984). If the suppression court has determined that the evidence is admissible, we will consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Chamberlain, supra.

According to the notes of testimony from the suppression proceedings, Santiago was arrested by FBI agents in Washington, D.C. on April 4, 1985. After being advised of his Miranda2 rights by an FBI agent, appellant invoked his right to remain silent and he requested an attorney. No further questioning took place. On April 5, 1985, counsel was appointed and appellant was arraigned before a United States magistrate on the charge of unlawful flight to avoid prosecution, 18 U.S.C. § 1073.3

On April 6, 1985, two detectives from the Pittsburgh Police Department traveled to the facility in Washington, D.C. where Santiago was being held and requested to speak to him. Appellant was advised by an official of the detention facility that the Pittsburgh detectives wanted to question him, but was told that he did not have to speak to the detectives unless he so desired. Appellant expressed a willingness to talk to the detectives and signed a consent form to that effect. Appellant was advised of his Miranda rights, which he waived, and was then questioned by the *62Pittsburgh police officers. During the course of the questioning, appellant made several inculpatory statements.

On April 8, 1985, troopers from the Pennsylvania State Police presented Washington, D.C. Police Department officials with arrest warrants for Santiago. Thereafter, the Washington D.C. Police Department lodged charges against appellant as a fugitive from justice. Appellant was taken before the local judicial authority where, with the representation of counsel, he waived extradition. That same day, the charge brought against appellant by the federal authorities was dismissed.

Immediately after the federal charges were dismissed, Pennsylvania State Police sought to interview appellant. At that time, appellant was asked to give a videotaped statement. Appellant did not immediately respond to the request. Thereafter, appellant and the state troopers engaged in some conversation as to the possible charges against him. Appellant then asked one of the troopers if he knew how he was going to die; appellant also stated that he deserved to die for what he had done. N.T. 6/18/85 at 55. The troopers explained the possible sequence of events in the prosecution, and, in response to a second request to give a videotaped statement, appellant informed the troopers that he would give a taped statement on the way back to Pennsylvania.

Shortly thereafter, in a second conversation with Santiago, the state troopers asked to speak to appellant concerning the gun which had been used during the commission of the offenses. The troopers also told appellant that it was necessary to advise him of his rights. After being assured that the questioning would only relate to the use of the gun, appellant agreed to talk. He was then given the Miranda warnings. Appellant orally waived his Miranda rights and proceeded to answer the questions regarding the use of a weapon. While returning to Pennsylvania, appellant refused to make any statement to the troopers but he did indicate that he would give a statement when they reached their destination. Upon their arrival at the State Police *63Barracks in New Castle, Pennsylvania, appellant was asked to make a statement and he agreed. After being advised of his Miranda rights, which he waived, appellant was interrogated.

Appellant now contends that the inculpatory statements made to the Pittsburgh police officers and the Pennsylvania State Troopers should have been suppressed because they were obtained after he had invoked his rights to remain silent and to consult with an attorney. In support of his argument, appellant contends that the circumstances of this case are similar to those at issue in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (per curiam), reh’g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), and thus, that his inculpatory statements should have been suppressed under the rule of that case.

In Edwards, the Supreme Court of the United States held that once an accused has invoked the right to have counsel present during custodial interrogation, further interrogation must cease until counsel has been made available, unless the accused initiates further conversation with the police. Edwards, 451 U.S. at 484-485, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386. See 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); Commonwealth v. Waggoner, 373 Pa.Super. 23, 37-41, 540 A.2d 280, 287-288 (1988); Commonwealth v. Petrino, 332 Pa.Super. 13, 480 A.2d 1160 (1984), cert. denied, Petrino v. Pennsylvania, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1985). Central to the holding in Edwards was the fact that after the accused asserted his right to have counsel present during questioning, the police resumed the interrogation without giving Edwards access to an attorney. Under such circumstances, the Supreme Court concluded that additional safeguards were necessary before an accused may validly waive the right to counsel. Edwards, 451 U.S. at 484, 101 S.Ct. at 1884, 68 L.Ed.2d at 386.

Although we agree with appellant that Edwards is applicable to the present case, we find that case is not

*64controlling. Instantly, appellant was informed of his rights to remain silent and to have an attorney present immediately upon being arrested by the federal authorities. Appellant exercised his rights and counsel was promptly made available to him. Importantly, however, the police officers from the Commonwealth did not seek to interview appellant until after he had consulted with an attorney. In this way, Edwards is distinguishable. Unlike the facts before the Court in Edwards, appellant was given the opportunity to consult with an attorney after invoking his rights and prior to being interviewed by the police officers from Pennsylvania. Further, unlike the facts at issue in Edwards, appellant willingly agreed to speak with the police officers from Pennsylvania; prior to the initiation of any questioning by those officers, appellant was given the Miranda warnings, which he waived. Because appellant was given the opportunity to consult with an attorney after being informed of his Miranda rights by the federal authorities, and because appellant thereafter agreed to speak with the police officers from Pennsylvania, appellant’s statements to the Pennsylvania police officers amounted to a valid waiver and, thus, were admissible.

In the remaining issue before us, appellant asserts that the trial court erred in instructing the jury as to the burden of proving legal insanity and mental illness. The jury instructions in question are as follows:

A defendant must prove insanity defense by a preponderance of the evidence. That is, by the greater weight of the evidence. If the defense is proven, the defendant is entitled to a verdict of not guilty by reason of legal insanity.
* * * * * *
Now, guilty but mentally ill becomes a possible verdict when a defendant offers but fails to prove a legal insanity defense. A jury may return such a verdict when it finds beyond a reasonable doubt that the defendant committed the crime alleged and that the defendant, although *65the jury did not find him legally insane, was mentally ill at the time of the crime.
* * * sit * *
Legal insanity must be proven by a preponderance of the evidence, while mental illness must be proven beyond a reasonable doubt.

N.T. 9/11/85 at 66, 67, 68-69. Appellant submits that the instructions in question were violative of both the federal and state constitutions. Specifically, appellant claims that the statutory provision for a verdict of guilty but mentally ill, 18 Pa.C.S. § 314, violates due process guarantees by shifting the burden of proof to the accused. For the following reasons we find appellant’s claim to be without merit.

Upon review of a challenge to the constitutionality of a statute, we are reminded that a strong presumption exists in favor of the constitutionality of all lawfully enacted legislation. See Daly v. Hemphill, 411 Pa. 263, 271, 191 A.2d 835, 840 (1963). The party making such a challenge must demonstrate that the statute in question clearly, palpably and plainly violates the constitution. Commonwealth v. Doty, 345 Pa.Super. 374, 387, 498 A.2d 870, 876 (1985), cert. denied, Doty v. Pennsylvania, 479 U.S. 853, 107 S.Ct. 185, 93 L.Ed.2d 119 (1986).

It is well established that the Commonwealth carries a never-shifting burden of proving beyond a reasonable doubt all the elements of a crime. See, e.g., Commonwealth v. Bishop, 472 Pa. 485, 489, 372 A.2d 794, 796 (1977). Due process requires that the prosecution prove beyond a reasonable doubt every Tact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375 (1970). A state may, however, impose a “burden of proof” on a criminal defendant in regard to any affirmative defense which relieves the accused of criminal responsibility but does not negate an element of crime. Commonwealth v. Hilbert, 476 Pa. 288, 297, 382 A.2d 724, 729 (1978); Commonwealth v. Shenkin, 337 Pa.Super. 517, 524, 487 A.2d 380, 384 (1985). Hence, we *66must discern whether the statutory provision at issue here improperly shifts the burden to the defendant to disprove any fact essential to the crime charged.

Section 314 of the Crimes Code provides:
(a) General rule. — A person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.

18 Pa.C.S. § 314(a) (emphasis added). Section 315, which deals with the insanity defense provides:

(a) General rule. — The mental soundness of an actor engaged in conduct charged to constitute an offense shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that the actor was legally insane at the time of the commission of the offense.

18 Pa.C.S. § 315(a) (emphasis added). A plain reading of these two statutes makes clear that while an accused bears the burden of proving legal insanity by the preponderance of the evidence, the ultimate burden of proving the elements of a crime beyond a reasonable doubt remains with the Commonwealth. The defendant has only the burden of producing relevant evidence indicating that his state of mind was other than that which is shared by normal reasonable men and women. Such provision is not constitutionally suspect. See Commonwealth v. Terry, 513 Pa. 381, 394 n. 14, 521 A.2d 398, 404-405 n. 14, cert. denied, Terry v. Pennsylvania, — U.S. —, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987). See also Commonwealth v. Trill, 374 Pa.Super. 549, 590-594, 543 A.2d 1106, 1127-1128 (1988) (in upholding the constitutionality of Section 314 under equal protection and due process attacks, this Court thoroughly examined and approved of the statutory scheme). Moreover, the Supreme Court has noted that a state’s choice of procedures to be used in a criminal proceeding would not be subject to *67proscription under the due process clause unless that decision offends some principle of justice so deeply ingrained in the traditions and conscience of the citizenship of the country as to be fundamental. Patterson v. New York, 432 U.S. 197, 207, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281, 286-287 (1977). We find no fundamental principle offended by the statutory provisions now in question. By requiring the defendant in a criminal proceeding to prove insanity by the preponderance of the evidence or, alternatively, by requiring that the factfinder find mental illness beyond a reasonable doubt, Sections 314 and 315 of the Crimes Code place the burden of proving the affirmative defense of insanity on the defendant but does not shift the burden to the defendant to disprove any fact essential to the offense charged. Nothing in § 314(a) requires that the accused prove mental illness beyond a reasonable doubt. See Trill, supra. See also Commonwealth v. Johnson, 373 Pa.Super. 312, 324-326, 541 A.2d 332, 338-339 (1988) (reviewing an application of Section 314(a) upon challenges to the weight and the sufficiency of the evidence).

Likewise, the court’s charge to the jury which virtually mirrors the language of Section 314, does not place the burden of proving mental illness beyond a reasonable doubt on the defendant. Rather, the factfinders were clearly advised that the Commonwealth bore the burden of proving beyond a reasonable doubt every element of the crimes charged. See County Court of Ulster County v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 791 (1979) (in criminal cases the ultimate test of any evidentiary device’s constitutional validity in a given case is whether the device undermines the factfinder’s responsibility at trial based on evidence adduced by the state, to find the ultimate facts beyond a reasonable doubt). Finding no basis for appellant’s due process attack on the constitutionality of Section 314 and, in turn, on the instructions issued to the jury, we affirm the judgment.

Judgment of sentence affirmed.

POPOVICH, J., concurs and dissents with an opinion.

. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court of the United States declared that an accused has a fifth and fourteenth amendment right to have counsel present during custodial interrogation.

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

. This charge was dismissed on April 8, 1985.