*1 “incapacity” the appellants’ The Court does not discuss is “incapacity” such 311(2) under Section but says 412, 4. Given p. inference.” At n. probably “permissible that the and the fact appellants the intellectual of capacity “incapacity” causes of an Bureau has not shown that remedied, of parental rights cannot or will not be 311(2). In re under appellants cannot be terminated § 636, (1975). Additionally, Geiger, 459 Pa. 331 A.2d if the rights terminate constitutionally parental state cannot L., without fault. In re William parent “incapacitated” 1228, dissenting 322, (Concurring 383 A.2d Manderino, J.; J.) Nix, opinion dissenting opinion note that the Bureau returned important It is also in the of the son but case appellants retarded child to the parental their perform believed could they appellants for one “incapacitated” duties! if the are Surely parents for the other. they child would be NIX, joins in this dissent.
Robert B. Goldblatt, Dep- Rendell, Dist. H. Atty., Edward G. Steven Chief, Lawler, Appeals Law, Robert B. uty Atty. Dist. for Haines, McLaughlin Gaile Div., Atty., E. Asst. Dist. Clifford appellee. for Barthold, Atty., Philadelphia, Asst. Dist. O’BRIEN, ROBERTS, POM- EAGEN, and Before C. EROY, LARSEN, and JJ. NIX THE COURT
OPINION OF O’BRIEN, Justice. Brown, was convicted of murder X.
Appellant, Theodore in the Court of conspiracy degree the and criminal of first life was sentenced to He Philadelphia. Common Pleas of degree first conviction for the murder imprisonment conviction, the the conspiracy ten for years and five to to each other and to sentences consecutively sentences to run appealed crimes. He serving was for other appellant to this court for murder conviction judgment of sentence conspiracy sentence for the appealed judgment and Court, appeal which certified Superior conviction to to this court. Price on Decem-
This case arose from the death of James Price 29, 1974, Philadelphia. Holmesburg ber at Prison there, co-defendants was an inmate as were Theodore John Griffin.1 evidence first that there insufficient issue, we review decide this will support the verdict. To which we set forth the evidence the standard apply Rose, 264, 267-68, Pa. Commonwealth v. A.2d (1975): whether, “The test of the evidence sufficiency to the most favorable viewing light evidence in *4 inferences favor- drawing proper Commonwealth, the of fact could reason- able to the trier had of the crime ably have found that all of elements doubt. beyond been a reasonable established pass of fact to Moreover, it of the trier province is the to be weight and the upon credibility of witnesses . The . fact-find- accorded the evidence produced. all, none the evidence. er is free to believe or part, ” (Citations omitted.) . Moody separate trials. and Griffin received death, appellant, Moody On the date of Price’s Block, security in. were all inmates of D a maximum Griff were area of Prison. The inmates of D Block Holmesburg it, leave nor were other inmates permitted permitted to enter it was seen without an institutional escort. Price at m. m. that p. alive 8 a. on the date of his death. At 3:15 Harris, in a day, Philip guard, body a found Price’s dead body vacant cell while a routine check. The was making Dr. hanging by a sheet from the of a ventilator. grating Examiner, Halbert Fillinger, Philadelphia Assistant Medical examined the and found that death resulted from body strangulation by ligature consisting a of three shoelaces around together. ligature wrapped tightly braided The was Fillinger Price’s neck when the was discovered. also body instru sharp noted that the victim had been tortured with a discovered, ment After the all of prior body death. the inmates on D Block were locked their cells. One inmates, Hunter, Calvin called Harris over to his cell and said, there, killed that back didn’t Hunter “They guy they?” information about the to the authorities and gave killing Hunter preliminary hearing. hearing, testified at a At that testified that while locked in his cell on the day incident, he Price walk appellant, Moody, saw Griffin and by in the direction of the vacant cell. He then heard someone times, several me.” yell “Help, killing Appellant, they’re Hunter’s cell without Griffin then walked and the appellant’s decedent. Hunter died before trial court, therefore, hearing testimony admitted his preliminary into The the verdict foregoing supports evidence. evidence of murder of first degree. his allega- next errors at trial. One of alleges that showing
tions was that it was error to admit evidence inmates, convicted, he was with three other of mur- along Prison on dering Holmesburg August Samuel Molten 1973. We agree. do not at trial for Molten’s murder appellant’s evidence
indicated at that trial and his co-defendants Islam, religious sect members of the Nation of *5 the had Appellant the Black Muslims. known as commonly him gave the This position title of Lieutenant within sect. Molten was of its tenets. for the enforcement responsibility Elijah about because he made remarks derogatory murdered Muhammed, evi- the of the Nation of Islam. The founder position dence also appellant’s in the instant case establishes further as a Lieutenant in the Black Muslims. The evidence that Price was with federal authorities co-operating shows case prosecuting in District of who were a the Columbia Muslims, involving the of seven members Hanafi killing rival Price seven group implicated to the Black Muslims. case, including and Griffin. Black Muslims in that is evidence the of his There that decedent killed because co-operation in Hanafi case. The court below the Muslim the the conviction on basis prior admitted the evidence of killing that it was relevant to show a motive for Price. The court’s action was correct. a crime
Evidence
a defendant has committed
that
other
he or she
tried for is admissible
being
than
one
for
if
other crime is of a
nature
purpose
that
similar
in time. the two crimes
not far
apart
were
Terry,
(1975).
notes of Hunter’s from the violated the Sixth Amendment United testimony him of to cross-ex- by depriving right States Constitution his do witness at a agree. amine witnesses. We If a subject under oath and is preliminary hearing testifies cross-examination, testimony the notes of constitution- may ally be admitted at a trial if the subsequent witness is *6 Green, 149, 1930, unavailable. California v. 399 90 U.S. S.Ct. 26 (1970). L.Ed.2d 489 Hunter was under oath at preliminary hearing and his co-defendants were present and each had his own attorney. All three defense attorneys cross-examined of a Hunter. death witness is sufficient to allow the testimony introduction of Duncan, from a preliminary hearing. Commonwealth v. 62, Pa. (1977). A.2d 1051
Appellant’s final argument
newspaper
concerns a
article about the case that he claims
A
prejudiced
jury.
prospective juror testified that a newspaper article concern
ing this homicide was accessible to
of the jury
members
panel who
awaiting questioning.
The trial
ex
judge
jurors
amined the
at the end
the selection
process
determined that none
exposed
of them had been
to the
article. Appellant
now
that he should have been
permitted to
jurors
re-examine
who had
been select
already
ed. Appellant
argument
waived that
to raise it in
by failing
post-verdict motions. We will not
it.2
consider
Common
Blair,
31,
wealth v.
The judgments of are sentence affirmed.
MANDERINO, J., took no part in the consideration or decision of this case.
NIX, J., files a concurring opinion.
EAGEN, J., ROBERTS, J., C. concur in the result. NIX, Justice, concurring.
I concur in the result reached of this majority Court in the I I appeal. instant adhere to the position expressed Stasko, 373, 387-89, Pa. (1977) (Nix, A.2d 357-58 concurring), regarding the use of preliminary hearing testimony. Appellant argued jury improperly in the court below that exposed pretrial publicity panel been and that should have discharged argue but did not that he should have been allowed jurors question. re-examine on account of the now in article