COMMONWEALTH of Pennsylvania v. Harry James BRANTNER, Appellant
Supreme Court of Pennsylvania
Oct. 1, 1979
406 A.2d 1011
Argued May 22, 1979.
LARSEN, Justice, dissenting.
I dissent.
A review of the psychiatric and psychological reports does not demonstrate any evidence which would support the “heat of passion” defense. I would, therefore, affirm the ruling of the lower court (the Honorable F. Joseph Thomas) on this matter and deny the defendant‘s request for a new trial.
EAGEN, C. J., and O‘BRIEN, J., join in this dissenting opinion.
Gary E. Hartman, Dist. Atty., for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
OPINION
NIX, Justice.
This is an appeal from judgments of sentence of life imprisonment entered upon each of two jury verdicts finding appellant guilty of the first degree murder of Robert Witta and his female companion, Julia Egnatosky.1 Appellant testified at trial that early in the evening of November 5, 1976, he went to Witta‘s home to go deer hunting with Witta. Appellant entered the living room of the house and propped his rifle up against the inside door frame. At this time, Witta was in the living rоom seated on a love seat, and Ms. Egnatosky was in the kitchen. Appellant testified that Witta asked him if he had brought the money that appellant owed him, and when appellant replied that he was unemployed, Witta ordered Ms. Egnatosky to get a gun, and he himself pulled a carbine out from under his seat, operated the bolt, and aimed it at aрpellant. At or about the same time, appellant testified, Ms. Egnatosky entered the living room armed with a sawed-off shotgun. Appellant then started firing his rifle at Witta and Egnatosky. Appellant also testified that he then ransacked the house to give the appearances of a burglary or robbery, because he did not think anyone would believe his sеlf-defense story. On cross-
In a shotgun approach, apрellant urges that the Commonwealth evidence was insufficient as a matter of law to establish the presence of a specific intent to kill, which was required for a finding of murder of the first degree.2 He argues that the Commonwealth did not show any motive for the crime. It is, however, axiomatic that the Commonwealth is not required to prove motive to establish guilt even where the crime charged is murder of the first degree. Commonwealth v. Fugmann, 330 Pa. 4, 39 A.2d 838 (1944); Commonwealth v. Bussieri, 153 Pa. 535, 26 A. 228 (1893). See also, Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956) (arson); Commonwealth v. Truitt, 369 Pa. 72, 85 A.2d 425 (1951) (assault and battery); Commonwealth v. De Petro, 350 Pa. 567, 39 A.2d 838 (1944) (arson).
Another theory, urged by appellant to support his contention, is that the prosecution failed to establish a wilful, premeditated and dеliberate killing, was that the Commonwealth failed to refute the defense evidence indicating his incapacity to form a specific intent to kill. Appellant is correct in noting that this jurisdiction recognizes diminished mental capacity as a defense to a charge requiring a specific intent. Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). (Eagen, C. J. and O‘Brien, J. dissented). However, it cannot be sаid that the Commonwealth failed to produce evidence to rebut any inference that appellant was laboring under such a disability.
Appellant called a psychiatrist, who testified that on the day of the shooting, appellant had a schizoid personality and was paranoid; he further stated that on that day, appellant believеd he was in danger, acted in panic, and was not able to form a conscious intent to kill. The prosecution offered appellant‘s own statement reflecting a consciousness of the consequences of his acts, and also produced lay testimony going to establish appellant‘s sanity. Viewing all of the evidence in a light most favоrable to the Commonwealth, Commonwealth v. Williams, 476 Pa. 557, 560, 383 A.2d 503 (1978), we find the evidence more than sufficient to permit the jury to reject any suggestion of diminished capacity and to find that appellant intended to cause the death of his victims. See Commonwealth v. O‘Searo, 466 Pa. 224, 352 A.2d 30 (1976).
First, appellant argues for the adoption of a per se rule that would mandate a mistrial whenever it has become apparent that members of the jury panel from which the petit jury is selected have previously discussed some aspect of the case. In support of this proposition, appellant cites Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974). The Santiago decision is clearly inapposite. First, in Santiago it was clear that the extraneous communication contained highly prejudicial and inflammatory information which would not have been otherwise before the jury. Here there is nothing to suggest that any inflammatory or improper information was conveyed to the jurors during these discussions.3 Second, in Santiago the information was conveyed to the actual jurors hearing the case during the middle of trial, whereas, here the discussions occurred prior to the selection of the jury, and counsel, during voir dire, had the opportunity to question prospective jurors and determine what, if any, prejudice had been occasioned by the discussions. Additionally, each of the prospective jurors who disclosed on voir dire that they had participаted or heard the discussion of the case in the jury room was removed; one for cause by the defense, one by a defense peremptory challenge, and one by a Commonwealth peremptory challenge.4 It is to be remembered
The record in the present case indicates that each prospective juror was asked whether he or she had any opinion as to the guilt or innocence of the accused notwithstanding what was discussed in the jury room. Those persons selected for the petit jury stated that they had not been influenced by the discussions. Accordingly, we beliеve that this situation does not warrant the creation of a per se rule. The voir dire process, including the right to peremptory challenges and to challenges for cause, affords a defendant sufficient protection from prejudice without the imposition of the per se rule urged by appellant.
The second prong of apрellant‘s argument is that his questioning of the prospective jurors during voir dire was improperly limited by the trial judge. When appellant sought to question a prospective juror, who had admitted to hearing discussion of the case in the jury room, concerning the substance of the discussion, the prosecution objected and that objection was sustained by thе court. In so ruling, the court made it clear that counsel could not question the present witness as to what other jurors had said. The court did not, however, prevent defense counsel from asking each prospective juror whether he or she participated in the discussions or the substance of what the individual prospective juror discussed. Thе failure of defense counsel to
Recognizing the right of a party to inquire into bias or any other subject which bears on the impartiality of a prospective juror, the scope to be allowеd the examination on voir dire nevertheless rests in the sound discretion of the trial judge. Commonwealth v. Johnson, 452 Pa. 130, 305 A.2d 5 (1973); Commonwealth v. Biebighouser, 450 Pa. 336, 300 A.2d 70 (1973); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967); Commonwealth v. McGrew, 375 Pa. 518, 100 A.2d 467 (1953). Here it was within the trial court‘s discretion whether to accept or reject counsel‘s theory that racial prejudice could be established simply by a venireman‘s pattern of change of his residence. We are satisfied that the trial court was within its discretiоn in refusing to permit further questioning based upon that theory. As stated above, appellant was permitted to question veniremen directly on the subject of racial prejudice. Thus, we cannot say that appellant was denied his right to a fair and impartial jury.
We, therefore, must also reject appellant‘s argument on this point.
Next, appеllant argues that the trial court erred in denying a motion to suppress an inculpatory statement made by appellant during the booking process following arrest. In reviewing a suppression court‘s findings, we consider the evidence of the Commonwealth and so much of the defense evidence which, fairly read in the context of the record аs a whole, remains uncontradicted. Commonwealth v. Silo, 480 Pa. 15, 18, 389 A.2d 62 (1978). But see Commonwealth v. Lark, 482 Pa. 292, 300, 393 A.2d 1112, 1116 (1978) (Nix, J., opinion in support of reversal). Viewing the evidence in light of this standard, the facts are as follows: When appellant was arrested by the State Police, he was given his
Judgments of sentence affirmed.8
MANDERINO, J., filed a dissenting opinion.
MANDERINO, Justice, dissenting.
I dissent. The trial court‘s refusal to declare a mistrial when the jury received a fifteen foot piece of string from the tipstaff during its deliberations without the knowledge of the court or counsel was reversible error. The majority in affirming the trial court‘s decision ignores the language of
The majority employs a hindsight test and concludes that the string was “in the jury‘s presence for only five minutes and that no demonstration was ever conducted; [the foreman] also stated that the string was not a factor in the jury‘s deliberations.” Rather, the guide to bе used in determining whether the admission of the fifteen foot piece of string during the jury‘s deliberations was reversible error is
“Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial judge deems proper.” (Emphasis added.)
In the case before us, the provisions of Rule 1114 were ignored. First of all, the trial judge did not decide that the jury could have taken the string with it “upon retiring.” Instead, the decision was made by an employee of the court, a tipstaff, after the jury had retired. The Rule does not delegate the judgе‘s decision to anyone else, and the timing of the decision should occur before the jury retires. Second, the piece of string was not an “exhibit” properly introduced into evidence during the trial. Neither defense counsel nor
Additionally, this Court has said that the better procedure is “not to allow exhibits into the jury room which would require expert interpretation.” Commonwealth v. Pitts, 450 Pa. 359, 363, n.1, 301 A.2d 646, 650 n.1 (1973). Appellant argued at trial that the direction and angle of the shots supported the defendant‘s version of the facts, and if the string was to be used to establish the direction and angle of the shots, appellant‘s counsel could have presented an expert opinion on this issue. Even if wе accept the foreman‘s statement that no demonstration was conducted, how can it be said that some juror was not affected by seeing the string. After all, the jury asked for a fifteen foot piece of string. Why?
This Court has said that the propriety of the trial court‘s decision to allow the jury to have exhibits with them during deliberations should be examined in relationship to the issues raised during trial. Commonwealth v. Riggins, 478 Pa. 222, 233, 386 A.2d 520, 525 (1978). When applying this standard, it is obvious that the piece of string could have affected a juror‘s resolution of an important issue in the case. Accordingly, I must dissent from the trial court‘s refusal to declare a mistrial. Judgment of sentence should be reversed and appellant is entitled to a new trial.