Com. v. Witman

750 A.2d 327

COMMONWEALTH of Pennsylvania, Appellant, v. Zachary P. WITMAN, Appellee.

Superior Court of Pennsylvania.

Submitted January 18, 2000.

Filed March 28, 2000.

Hugh S. Rebert, Dist. Atty., York, for Commonwealth, appellant.

Thomas L. Kearney, York, for appellee.

Before DEL SOLE, TODD and TAMILIA, JJ.

TAMILIA, J.:

¶ 1 The Commonwealth appeals from the May 7, 1999 Order suppressing certain evidence necessary for the criminal homicide prosecution of appellee, Zachary Witman.

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879, 880-881 (1998) (citation omitted). Upon careful and independent review of the record, we find the suppression court's findings of fact to be well supported.

On October 2, 1998, thirteen year old Gregory Witman was killed in his home in New Freedom, Pennsylvania. Gregory's brother, the [appellee] Zachary Witman, placed a 911 telephone call requesting emergency assistance at approximately 3:17 p.m. EMT, fire, and police personnel responded to the Witman home. EMT and fire personnel were the first to arrive at the scene. The Southern Regional Police Department arrived at approximately 3:25 p.m. Officer Sean Siggins was the first law enforcement officer on the scene. An EMT approached Officer Siggins and advised him that "he had a crime scene." Officer Siggins observed the [appellee] standing in the garage with EMT Weigle. Officer Siggins observed that the [appellee] was in an excited state, and was holding a telephone. Blood was visible on the telephone as well as the [appellee's] hands and shirt. Officer Siggins spoke briefly with the [appellee], and testified regarding that conversation as follows:

He [the appellee] at first just said he had to call his mom, he had to call his mom. I requested—I got some information from him, his name, why we were there. He said that he was home sleeping. He left a key in the door for his brother to get home. He heard a thud downstairs like something was getting thrown against the wall, came downstairs, found his brother, and called 911.

After speaking with the [appellee], Officer Siggins walked to the doorway in the garage leading to the laundry room in the house and observed Gregory's body on the laundry room floor.

Chief James Childs arrived at the scene at approximately 3:30 p.m. He met Officer Siggins on the driveway and instructed the officer to conduct a canvass of the neighborhood after he had composed himself. Chief Childs observed Gregory's body from the doorway into the laundry room, then returned to his car to get crime scene tape. He instructed the Deputy Fire Chief to assign a fire fighter to mark a police area. The police area was marked with tape establishing the perimeters of the crime scene and sealing it off from unauthorized persons. A list was maintained upon the instruction of Chief Childs of all who entered the perimeters of the crime scene.

Chief Childs then approached the [appellee], who "was screeching in a high pitched voice" and indicating that he had to call his mother. Chief Childs also observed blood on the front of the [appellee's] sweatshirt. Chief Childs then went to where EMT Neal was standing near the door and spoke to him concerning what the EMT had observed. EMT Neal indicated that he did not know if there was anyone else inside the house. Chief Childs then conducted a "security sweep" of the premises to determine if anyone was inside.

While conducting the "security sweep" Chief Childs indicated that he saw droplets of blood on the linoleum kitchen floor. In the hallway he saw large amounts of blood on the floor, as well as a broken table, a jacket, a book bag, and a key ring neck chain. He then proceeded into the family room, then into a "formal room," then in the foyer where he observed blood on the front door and on the walls. From here he could again see the book bag and the broken stand. Chief Childs then went upstairs, observing that all the doors were closed save for the bathroom door, through which he could see a towel on the floor. He went into and quickly scanned all of the upstairs rooms before going back downstairs. Chief Childs went through what he described as a formal dining room, through the kitchen, and out the door to the outside of the house where he radioed for further assistance.

At this time, Chief Childs followed the [appellee] as he and EMT Weigle walked to the ambulance which was at the end of the driveway. Chief Childs saw Detective Goodfellow arrive at the scene, and approached him. Chief Childs told Detective Goodfellow what his observations had been and that a crime scene had been established. Then Chief Childs and Detective Goodfellow approached the ambulance together. Chief Childs identified himself to the [appellee] and asked if the [appellee] could "help us with this incident." The [appellee] gave a brief statement before becoming visibly upset, and asked Chief Childs to call [his] mother. Specifically, Chief Childs testified concerning the [appellee's] statements as follows:

At this point he told me he [the appellee] was upstairs sleeping. He heard the front door open, heard the front door close. He heard what appeared to be a struggle. And the whole time he's talking to me and relaying this, his voice was elevating, lowering, quivering. And each time he would talk I would have to ask him to calm down and try to speak softly and more clear so I could understand what he was saying.

He then said he heard what appeared to be a struggle. He came downstairs, observed blood on the floor of the hallway, went out into the kitchen and found his brother laying on the floor. I then asked him did he see anyone or hear anything. He said no, and all he kept saying at that point [was] that his brother was suffering, just suffering, just suffering and repeatedly saying that.

He started to become physically upset again where his voice was screaming. He asked to call his mother. He was worried about his dad. I reassured him that we would take care of contacting his parents, and then he looked at me and said, would you please call my mother.

...

I said I would call his mother. How do I get in touch with her? He then told me that her phone number is on the refrigerator door on a piece of paper.

While the record is unclear, it appears that the [appellee] left for the hospital in the ambulance at approximately 3:45 p.m. Chief Childs instructed Officer Boddington, who had arrived upon the scene, to follow the ambulance and secure the [appellee's] clothing. After speaking with the [appellee], Chief Childs and Detective Goodfellow re-entered the house where Chief Childs indicated to Detective Goodfellow what evidence he had seen on his initial protective sweep. Thereafter, Chief Childs requested the Pennsylvania State Police Crime Scene Investigation Unit to respond to the scene. He also obtained the [appellee's] mother's telephone number from the refrigerator, as the [appellee] had requested, and placed a call to her from a neighbor's home. Chief Childs also called the Airport Police Division of BWI Airport to attempt to locate the [appellee's] father when his flight arrived from Chicago.

It is unclear exactly when Mrs. Witman, the [appellee's] mother, arrived at the household from her work, however it appears to have been between fifteen minutes to an hour after the [appellee] was taken to the hospital. When Mrs. Witman arrived, Chief Childs approached her at the end of the driveway. His testimony on direct examination concerning what happened next was as follows:

A. ... I walked up to her, put my arm around her. I again told her I was sorry for the loss of her son. I then started explaining to her what we were going to do as far as what we needed to do as far as processing the crime scene to obtain clues, evidence, to help us do our investigation.

Q. What did you say to her specifically?

A. I told her we were going to process the crime scene.

Q. Okay. And when you advised her of that, what did she respond?

A. Well, she wanted to go down and see her—she kept saying she wanted to see her baby. I told her that I couldn't allow her to do that because I wanted to maintain the integrity of the scene.

Q. What did she say when you told her you wanted to maintain the integrity of the crime scene for processing?

A. She told me I better do my job and find out who did this.

...

Q. Why didn't you get a search warrant at that point after you had these discussions with the [appellee's] mother?

A. I felt that, you know, after me advising her what we were going to do to her residence, I just—you know, nothing was ever transpired saying no, we couldn't do this, or yes, we could do this. I just assumed that, you know, she knew what I wanted to do and what the detective team was going to do. I explained to her that we called in people that were specialized in processing crime scenes, photographs, and I just—we just did it.

Two members of the State Police crime scene unit arrived at approximately 4:30 and 5:30 respectively. The Chief County Detective from the Office of the District Attorney reported to the crime scene as well as the first assistant district attorney and a deputy district attorney. The state trooper from the crime scene investigation unit who arrived at 4:30 began to photograph the outside of the Witman residence, and the crime scene unit began to process the scene at 5:30 upon Trooper Woodcock's arrival. Preliminary

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