*1 the order of reasons, For I would reverse the foregoing reinstate the order of the trial the Commonwealth Court and court.
FLAHERTY, J., joins dissenting opinion.
Supreme Pennsylvania. Court of Jan. 1982.
Argued July Decided 1982. Denied Nov. Reargument *3 Media, for Rensler, Bell, Jr., D. W. Van Barry Clarence appellant. Prosecutor, ap- Philadelphia, A. Sp.
Richard Sprague, pellee. LARSEN, ROBERTS, NIX, O’BRIEN, J., and C.
Before HUTCHINSON, JJ. FLAHERTY, and McDERMOTT OPINION NIX, Justice. charges on three from a conviction a direct appeal
This is
the death of
result of
as a
degree
of murder of the first
trial
At
and
Yablonski.1
Charlotte
Joseph, Margaret,
Mr. Boyle,
to establish
offered evidence
Commonwealth
kill
conspiracy
in a
instigated
participated
appellant,
from
wrest control
Yablonski,
attempting
who was
Joseph
As a
(UMW).
Union
of the United Mine Workers’
Yablon-
Joseph
found
result of
conspiracy,
1970.2
killed in January
were
ski,
daughter
his wife and
most
to this
challenges
sets forth a
Appellant
myriad
merit
without
are totally
conviction.
them
Many
recent
will address only
We
and do not require explication.3
substantial
raised.
questions
more
in Commonwealth
of our decision
1. This retrial was the result
(1977)
reversed the
wherein we
Boyle, 470 Pa.
Appellant
the trial
who also
argues
judge,
presided
trial,
at the first
a motion of recusal
by refusing
committed reversable error
a new trial. Recusal is
requiring
required whenever there is substantial
jurist’s
doubt as to a
to
Commonwealth v.
ability
preside
Knighton,
impartially.4
490
16,
Pa.
415
Commonwealth v. Perry,
(1980);
A.2d 9
468
515,
Pa.
Goodman,
Commonwealth v.
364
(1976);
A.2d 312
358,
454 Pa.
The mere
in an
participation by
presiding judge
earlier
stage
neither
proceeding
suggests
exist
ence of actual
nor
a basis for a
impropriety
provides
finding
of the appearance
U.S.
Lowrey,
impropriety.
77
(E.D.Pa.1948) affirmed
dismiss the
under Rule 1100?
(f)
appellant
process
Whether
was denied due
law?
(g)
denying
points
charge?
Whether
court erred
certain
(h)
charging appellant
Whether
the court erred in
would be re-
sponsible
co-conspirators.
for the acts of his fellow
jurist’s impartiality
question
4. A
called into
whenever he has
fairly
ability
preside objectively
doubts as to his
and
in the
proceeding
or where
there exists factors or circumstances
reasonably question
jurist’s impartiality
in the matter. Common-
wealth Perry,
(1976);
468 Pa.
491 seeks to his Appellant support position by arguing the be charged bias can demonstrated the rulings by the at the challenged jurist second trial. He contends the record reflects pattern bias and that he is entitled to the award of a new trial over presided a different judge. Goodman, 360, 311 supra, A.2d at 653-654.
The fact that the presiding judge’s in the former rulings trial were similar to his rulings the retrial does not, alone, standing establish pattern a. conduct which would a or compel finding of bias If partiality.6 rulings at the second trial a fair discretion, exercise of constituted fact that the trial judge ruled in a similar manner previously circumstances under similar is to be expected.
Appellant cites as illustrative of the of the court prejudice to Mr. ruling relating admission Boyle’s daughter’s pro hac vice and the exclusion of the accused at side bar and in-chambers conferences. These were rulings correct clearly and in no a way suggested prejudice the court against appellant.7 The other alleged erroneous to demon- rulings
stage.
Goodman,
358,
See
Pa.
A.2d 312
(1976).
significant
6.
allegation
It is
that there is no
that the court received
any
extra-judicial
inspired
information from an
source that
have
prejudice
See,
against
appellant.
a
e.g.,
Corp.,
U. S. v. Grinnell
563,
1698,
(1966); Berger
S.,
384 U.S.
86 S.Ct.
On intro- prosecution requested permission noted, duce the to the transcript entire As jury. previously portion transcript containing Turnblazer’s confes- sion was deleted. An to a reference of objection Boyle’s first trial and conviction in the was overruled. transcript
The Commonwealth maintained that the fact of Mr. first Boyle’s trial and conviction was information necessary for the assess the properly appellant’s charge the Commonwealth favoritism in its treatment of displayed Mr. The Turnblazer. Commonwealth’s for seek- explanation ing for Turnblazer in the federal re- leniency proceedings sulted from Turnblazer’s the first trial of cooperation during Mr. Boyle. contend that Turnblazer’s They *7 that trial in measure about the of large brought conviction This, course, Boyle. of was in to the defense’s response contention that the Commonwealth’s favorable of treatment Turnblazer was to influence designed at the testimony second trial. Mr. Turnblazer’s in the federal sentencing matter occurred after the completion first trial and before the commencement of the second trial. the fact of an earlier
Ordinarily, trial in a resulting conviction would have no relevance in Here, a retrial. however, the tactic taken the defense in Turn- attacking blazer’s made credibility relevant, that information sup- as plying reason position Commonwealth at the sentencing of Turnblazer. The prosecution’s case rested heavily upon the jury’s acceptance offered by the witness Turnblazer. The defense on cross examina- tion had attempted establish that the le- comparatively nient treatment accorded to Turnblazer was the result collusion Prosecutor Special and the FBI to elicit damaging Mr. testimony against at the second trial. The reference to the first trial and conviction and Mr. Turnblazer’s role in about that bringing result was obviously relevant in permitting the jury consider whether the sentence imposed was appropriate light of Turnblazer’s court’s sentencing was called to the which
prior cooperation, attention. stresses contest the but relevancy does not
The appellant
It is
that the
argued
of this evidence.
prejudicial impact
the resultant
outweighed by
prejudice
is far
value
probative
the earlier trial and
the fact of
revealing
that flowed from
that even when
observed
frequently
conviction. We have
in its
relevant,
the trial court
to be
evidence is determined
outweighs
it if the prejudicial impact
discretion
exclude
may
53,
Ulatoski,
v.
472 Pa.
its
value. Commonwealth
probative
Glover,
446 Pa.
186 (1977);
371 A.2d
Commonwealth
(1972)
opinion);
Here the relevancy Turnblazer was not credibility defense tactic. The of his acceptance rather issue, jury’s collateral but of the prosecution. to the success was critical noted, the first was national- trial court as the Additionally, dire disclosed that six members the voir ly publicized of the earlier trial and were aware admitted they circumstances, we do all of these conviction. Under to the earlier of this reference prejudicial believe the effect *8 evi- value of the probative the outweighed so proceeding the of a fair trial and requires dence as deprive appellant to award of a new trial.9 the admission evidence as error into assigns
Appellant in earlier proceedings. of of his portions certain by allowing jury Appellant hear Tumblazer’s that the to 9. also claims unduly transcript, prosecution Tumblazer’s sentencing bolstered the concerning credibility made individuals because of statements cooperation. honesty We do not believe that the and Tumblazer’s response represented to the an inordinate evidence Commonwealth’s challenge Tumblazer’s truthfulness. defense’s efforts to
495
statements,
After the
introduction
these
the Common-
wealth proceeded to establish that
were untruthful.
It
they,
argued
is
that
did
in his
Boyle
Mr.
second trial
testify
and therefore evidence
his
as wit-
impeaching
credibility
ness was not
Scoleri,
relevant. Cf. Commonwealth v.
571,
Pa.
(1968);
The factual objection from which this setting arises is as trial, follows: Exhibit in the instant was a of what copy purported to be the minutes of an Board Executive meeting of the UMW held in 1970. These minutes January stated Pass, a co-defendant, had the informed Board of the formation of the Research and (R Information Committee & I Committee) at the 1968 Denver Convention the organi- zation.10 It was the the theory Commonwealth’s case that the in placing this statement the was part minutes of the design to conceal transfer of used to money pay assassins who killed Yablonski members. family In attempting disassociate himself from connection any with plot this to murder, testified at first trial Boyle his that he had no involvement preparation copy (Ex. minutes 68) which Pass delivered to Tumblazer. At the trial, second the Commonwealth read to testi- mony from the earlier Boyle, proceeding, touch- denying ing Thereafter, these papers.11 a fingerprint expert testified on Boyle’s been found fingerprint exhibit. arrangements $20,000 Boyle 10. Mr. Pass made with Mr. secure be used to hire the murderers of the The Yablonskis. Research & (R Committee) Information I Committee & formed as a was front to paid launder the funds to be to the hired assassins. Boyle’s testimony regard- The dissenters’ characterization of Mr. ing handling question of the minutes inaccurate. Nowhere portions in the relevant of this Mr. does assert that Moreover, question. he had no of the events in recollection if the *9 of the record The also introduced that portion prosecution with sitting from the first trial wherein had denied Boyle a 1972 It was claimed during airplane trip. Turnblazer that and Turn- during trip Boyle the Commonwealth of the The Com- aspects conspiracy. blazer had discussed called, trial, monwealth at the second a witness who testified in sat beside during had fact Turnblazer Boyle flight. the Commonwealth also introduced during
Additionally, before the 1972 Boyle’s testimony grand second trial at the trial of Prater and his testimony co-conspirator at his first trial to show that on each occasion he testimony of the of the R given explanation different formation I& Committee. is correct in that since he did not
Appellant stating trial, in the second as a witness was not testify credibility in issue and therefore there was no basis for the allowance of evidence to demonstrate his as a witness. unreliability Scoleri, Cf. Commonwealth v. Commonwealth ex rel. supra; v. Commonwealth ex rel. Marino Sprangle Maroney, supra; Butler, It is also Meyers, supra; supra. clear that the evidence was to purpose introducing this untruthfulness, establish since the facts that Boyle’s appel Turnblazer, lant Exhibit 68 and sat next to had handled the 1972 could have been established during airflight, evidence, direct without reference to statements on Boyle’s Moreover, those even where evi subjects. impeachment admitted, it be as substantive properly dence is used Gee, A.2d 875 evidence. Commonwealth Boyle’s imply handling that Mr. of the minutes in dissenters seek denial, question qualified support constituted a this too is without (N.T. reading a fair the record. We believe that Boyle 7-85) justify concluding that Mr. would a factfinder 7-76 — touching categorically question. the minutes We note denied appellant further that in his brief also views his trial as a categorical qualified rather than a denial. Agent fingerprint FBI show that Use of an ... during fírst Boyle was found on exhibit C-8 when defendant touching trial the defendant had denied ever exhibit C-8. Brief, Appellant’s p. 24. *10 Tucker, Commonwealth (1976); 584, v. Pa. 307 452 A.2d 245 v. DePasquale, Commonwealth (1973); 500, 424 Pa. 230 A.2d 449 (1967).
Nevertheless,
cannot
ultimate con
accept
we
appellant’s
clusion that
the admission of this
was
testimony
error. The
justification for the admission of this
was not
testimony
purpose
upon his silence at
improperly commenting
the second
as
his
impeachment
trial nor
as a
credibility
witness, but
as
rather
substantive
evidence
his guilt.
This jurisdiction
long recognized
has
princi
evidentiary
that
ple
false or
or
making
contradictory
conflicting
statements
accused are
by the
admissible “since the jury
may infer therefrom that
with
were made
an intent
they
divert suspicion or to mislead the
or other
police
authorities,
or to
innocence,
establish an alibi or
hence are
indicatory
of guilt.”
Bolish,
Commonwealth v.
500, 525,
381 Pa.
113
v.
464, 476
A.2d
Cristina,
Commonwealth
Accord
(1955).
481
44,
cert. denied 440 U.S.
Pa.
391
(1978)
925,
A.2d 1037
99
1255,
Commonwealth v. Gock
(1979);
S.Ct.
59
479
L.Ed.2d
ley,
The fact
that
exercised his
right
silence
during the second trial did not insulate him from the conse
quences of his earlier
testimony.
long
It has
been recog
nized that
from an earlier
may
trial
be introduced
in the prosecution’s case against a defendant
regardless of
whether that defendant
takes the
or not in
stand
the second
proceeding. Commonwealth v.
139 Pa. 383, 21
Doughty,
A.
288 (1891);
House,
6 Pa.Super.Ct.
93
also,
See
Harrison
(1897).
U.S.,
v.
392 U.S.
88 S.Ct.
2008, 20
U.S.,
Walder v.
(1968);
L.Ed.2d 1047
347
U.S.
74
354, 98
S.Ct.
U.S.,
Edmonds v.
L.Ed.
(1953);
503
(D.C.Cir., 1959); U.S. v. Slayton, 1213, (D.C.Va., 1973); Smith F.Supp. Grunewald, (S.D.N.Y., 1958). F.Supp. otherwise, held, unless a statute directs
It is generally takes the stand in defendant in a criminal case who his asserting privilege his own behalf and testifies without as privilege waives the thereby self-incrimination against him against so that it be used given to the testimony fact of the same case.3 The in a trial subsequent does the stand at the second trial defendant does not take at the former given the use of prevent admissible. Heller v. United trial, if it would otherwise be States, Cir., 1932, 286 57 F.2d certiorari denied U.S. *11 Simmons, 1908, v. 1298; State 567, 647, 76 L.Ed. 52 S.Ct. McPherson, v. 77 State 277; Or. 78 Kan. 98 P. 155, 169 P. King, v. 1021; 1917, 102 Kan. State 151, 149 P. State, v. 557; 1929, 112 Tex.Cr.R. 13 Scherpig S.W.2d A.L.R.(2d) p. in cases to that which in 5 See the annotation twenty jurisdictions are collected---- effect from States, 108, 112-13 (D.C.Cir., v. United 273 F.2d Edmonds 1959). jurisdiction. in this recognized has been long
This principle In House, (1897). Ct. Pa.Superior House the Superior Court stated: of a defend- testimony proposition
The general
on
second trial
him
a
against
cannot be used
ant
the witness
indictment,
upon
if he elects not to go
same
case, and is not
in the
stand,
urged
present
is not strongly
be
He cannot
authority.
or
principle
well founded upon
if he
himself,
gives
but
against
evidence
give
compelled
against
it used
object
having
he cannot
it voluntarily
testimony
as far as that
privilege,
constitutional
him. His
reclaimed in
concerned, waived,
any
is
and cannot be
in
indictment. As was said
trial of the same
subsequent
or
Moreover, the taken first trial testimony from the introduced at the second trial was admissible” as “otherwise a voluntary Although admission. of Mr. Boyle responses standing neutral, alone appear coupled when with the evidence of their those assist in falsity proving statements his consciousness guilt and efforts to avert suspicion. This evidence of the earlier false statements had indepen- dent probative value and was to the submitted properly to be considered proof as of a consciousness of guilt.
As a corollary argument appellant contends trial judge refused to permit defense counsel into the to read record applicable balancing portions the records the prior proceedings to or explain rebut the introduced portions This forth the argument Commonwealth. sets bald assertion that segments the prior introduced distorted any without those attempt portions specify the record that would have changed clarified or meaning of the evidence these portions introduced. We have read the prior in context and no indication of find a distortion or unfairness. Hence we that this claim conclude is also without merit.12
Accordingly, Judgments are Sentence affirmed. J., HUTCHINSON, filed a opinion. concurring FLAHERTY, J., filed dissenting which ROB- opinion JJ., and LARSEN, *12 ERTS joined.
FLAHERTY, Justice, dissenting. I dissent. in this Notwithstanding jurisdiction authority in support the that an principle evidence of accused’s false statements to is, or other police authorities generally, admis- charge by appellant The the dissenters was not that afforded an opportunity explain prior totally to statements without factual support. testimony This was offered the Commonwealth its testimony case in explain chief. The defense was free to offer to these obvious inconsistencies the and/or to establish truthfulness of Boyle’s Moreover, noted, responses. previously Mr. as Mr. has specify segment any prior testimony failed to of his which would explanation have constituted an a or have indicated distortion of portions those introduced the Commonwealth. con- guilty of the accused’s
sible as circumstantial evidence conduct, error to admit it was and, thus, of guilty science in the instant case. such evidence of the Commonwealth’s times during presentation Several appel- from excerpts into evidence case, the read prosecutor not elected trial, appellant since lant’s in his testimony prior After introducing trial now in question. to testify presented the Commonwealth appellant’s prior testimony, misstatements contained that the testimony evidence prior evidence consisted challenged of fact. Specifically, the following: he did not recall
1. Appellant’s prior Executive of the UMWA Pass minutes giving co-conspirator and that he did 22, 1970 Board meeting January Pass, to delivery minutes having prepared remember immediately by testimony followed evidence which was from the FBI obtained indicating witnesses prosecution bearing that meeting minutes of Turnblazer a copy fingerprint; appellant’s sat trial that he prior at his
2. Appellant’s testimony counsel, to flight on general with Ed UMWA Carey, Jury. a Grand to before Pittsburgh testify assistant executive Richards, appellant’s witness Suzanne testified 1969-1972, subsequently appel- during period on co-conspirator accused Turnblazer lant sat instead with he was seated testified already flight. Turnblazer stated, that, during flight, appellant with and appellant (hereinafter & Information in reference to Research UMWA like some of the are committeemen, boys “It looks I”) “R & back grand jury get we finish with talking, and when it”; on and a lid try keep district and Grand Pittsburgh Jury, to the 3. Appellant’s trial, at his own trial, prior and Prater’s co-conspirator an organized pursuant R I Committee was that the & Pass, Turnblazer made at a among agreement appellant, wit- contrast, two Commonwealth in 1968. In convention Turnblazer, testified that Pass and nesses, co-conspirators in 1969 to finance the was invented R I Committee the & *13 (The Yablonski murder. is that theory Commonwealth’s was “kicked back” the committeemen to Pass for money by purpose murder, and that this financing financing scheme was authorized by appellant.) and,
The hence, relevance of appellant’s prior admissibility that he testimony did not recall Pass the minutes of giving the UMWA Executive Board even meeting questionable on the Commonwealth’s for there is theory admissibility, a substantial difference between the where a wit- situation ness states an event and one affirmatively his recollection of where, here, as no witness states he has recollection. Further, testimony forwarded minutes indicating appellant of the to Pass meeting does not undercut significantly appellant’s statement he no of furnishing recollection the minutes to Hence, Pass. of the this instance Common- wealth’s attempt establish consciousness of appellant’s is to be guilt questioned.
Appellant’s prior introduced the Common- testimony, wealth for the purpose of contradicted its other being evidence, provided circumstantial evidence of guilt weakest kind—evidence which was also consistent perfectly with See, New, innocence. Commonwealth v.
205-206, 47 A.2d (1946) 460-461 and cases cited therein. The cumulative effect of the at- prosecution’s repeated tempts to stigmatize and, hence, as a dishonest appellant “bad” man have return influenced a verdict of guilt. Deceit, however, make; does not a murderer and danger conviction upon based a defendant’s deceitful character is acute in a case such as this where particularly the evidence of guilt consists solely co-conspirators, which is looked with disfa- upon vor because it emanates polluted from a source. corrupt See, Sisak, 262, 265, 259 A.2d Pa. 430 (1969).
The trial court’s prior exclusion additional testimony, “falsehoods”, offered by appellant, explain apparent enhanced the for It would have been opportunity prejudice. unfair to have discredited appellant *14 inconsistent statements his first trial use of prior at by an to having provided opportunity explain without appellant Where, here, appellant as has previous those statements. statements, the to explain prior not been given opportunity of the discrediting forecloses introduction evidence. fairness See, House, (1897). 6 Pa.Super. in indicates review evidence this case that A careful to prejudicial the evidence of “falsehoods” was appellant’s therefore, I a new trial. would, grant the defense. JJ., LARSEN, join dissenting opinion. and this ROBERTS HUTCHINSON, Justice, concurring. and I was tried convicted fairly
Because believe appellant more sufficient proper a which before it than jury affirming I concur in to determine his guilt, evidence conviction. to comment on one issue
However, I am constrained
trial,
resulted
raises.
his second
which
At
appellant
his
us,
exercised
constitu-
appellant
conviction now before
Nevertheless,
prosecution
tional
not to
right
testify.
of
portions
allowed to
into evidence
was
read
to other
contrary
were
portions
the first
trial. Those
at
admitted
and were
direct evidence
the Commonwealth
lied to conceal his
appellant
of establishing
the purpose
concealment
involvement,
jury
from
deliberate
which
The admission
this
guilt.
infer
could
consciousness
clear
long standing
authority
on
testimony was based
prior
Nix. Opinion
cited
Justice
in the decisions of
court
this
dissent
out
Court,
correctly points
ante
255. The
In
is weak.
guilt
evidence
that such circumstantial
prosecu-
to avoid
flight
it is
evidence
analogous to
respect
record, I do not believe its
whole
Considering
tion.
of this conviction. Neverthe-
reversal
admission warrants a
to establish
must
guilt
use of
less, such prior
to
admission is not
be lightly
and its
be
scrutinized
closely
condoned,
very point
assume
lest we
permit
contradictory evi-
issue, the truth of the Commonwealth’s
advised
would be well
I believe trial
judges
dence.
consider this factor
in future cases in
whether or
deciding
to exercise their
in favor of
discretion
admissibility.
Thus, the trial
should first
is other
judge
determine there
strong evidence of
guilt,
Coyle,
See
Pa.
447 A.2d DECEMBER, 1981, In the Matter ALLEGHENY COUN- JURY, Mott, TY INVESTIGATING GRAND Palma Peti- J. Mott, tioner No. at Louis F. Petitioner No. 24. Supreme Pennsylvania. Court of
Argued June 1982. Decided July Robert Colville, Riester, E. Kim Atty., Dist. W. Deputy Dist. Kemal Atty., Mericli, Dillon, Alexander Leo M. Asst. Dist. Attys., for Pittsburgh, respondent. Gondelman,
Harold petitioners. Pittsburgh, O’BRIEN, Before J., ROBERTS, C. NIX, LARSEN, FLAHERTY, HUTCHINSON, McDERMOTT and JJ.
ORDER PER CURIAM:
Petitions denied.