*1 participate in consideration JONES, J., C. did or decision case. dissenting opinion. J.,
NIX, filed a (dissenting). NIX, Justice Dissenting Opin my for the reasons stated
I dissent ion 342 A.2d Hargrove, Commonwealth v. 462 Pa. July 7, 1975). (filed A.2d Pennsylvania
COMMONWEALTH BROWN, Appellant. George D. Pennsylvania. Supreme Court of Argued May 2, 1974. July 7, 1975.
Decided *5 Jr., Myers Atkinson, Phil- Atkinson, Zack, Nolan N. & adelphia, appellant. for Fitzpatrick, A. Atty.,
F. Emmett Richard Dist. Sprague, Atty., Richman, 1st Asst. Asst. David Dist. Goldblatt, Atty., Appeals Div., Chief, Dist. H. Steven Philadelphia, appellee. for JONES, O’BRIEN,
Before J., EAGEN, C. and ROB- ERTS, MANDERINO, POMEROY, JJ. NIX and THE
OPINION OF COURT POMEROY, Justice.
Appellant by jury in the of murder convicted degree first by shooting Bo- the death of one William gier on December 1969. Post-trial. motions were de- judge dissenting nied banc, court en one and a sen- imprisonment, imposed.1 appeal tence of life fol- This lowed. jury
1. The Aft- recommended that Brown be sentenced to death. motions, however, post-trial er sought denial of ob- Brown assignments of error. Appellant nine has advanced *6 of the errors al determined that none we have Because trial, leged requires granting a will affirm the of new we judgment the of sentence.2 established
The evidence Commonwealth’s night 8, 1969, Brown and another on the of December running they Philadelphia. As were a bar in robbed by a hold-up they the the were observed from bar after captured police officer, pursued the co-fel them who and nearby by entering escaped on. The a defendant arrest building, second the he broke into the house. Once inside Margaret occupied by apartment being a floor then Mrs. year son, Ardies, old were Mitchell and her eleven who gun through the door. At awakened when Brown burst he had point, the informed the Mitchells just merely to hide out robbed a bar and that he wanted everything in house be cool.” the “until would Learning third a from the Mitchells that there was tenant, Mitchells Bogier, floor forced the William Brown then accompany Bogier’s apartment. Brown him to Bogier money him. Bo- confronted and from demanded gier trousers money in said that what he had was his boy whereupon pocket, the Mitchell Brown ordered he Bogier’s boy clothing. search The found which $5 turned Dissatisfied with over to defendant. sum, Bogier in the chest. small Brown shot once accomplished, Mitchells and the This Brown forced the Bogier go him floor while wounded with from floor to prohibition preventing imposi- tained a in this writ of Court Supreme light of the death in of of the tion sentence the decision 238, Georgia, of the United in Furman 408 U.S. Court States 2726, (1972). S.Ct. L.Ed.2d challenged, Although sufficiency it 2. of the evidence was not duty February P.L. is this Court under the Act of degree § § 1187 in in the first P.S. cases murder evidence review the entire record whether to determine re- offense. Our sufficient to establish all the elements of that in was so suffi- view this has satisfied us that the evidence case cient. more for the house ransack Mitchell had Ardies Brown approximately up found money. $77 The turned search pennies. jars in pocketbook and two in Mrs. Mitchell’s third order, to the group on Brown’s returned, then The compelled again Mitchell Ardies floor, he once where approximately clothing. Bogier’s This time $50 search Declaring that he had jacket. in found or $60 been Bogier money more than had known that had had Bogier more times. previously, five Brown shot found head, chest These struck the victim bullets proved thigh, and fatal. forcing the rampage with Brown
The mad continued money. renewed search Mitchells downstairs *7 boy was trussed found, no more was the Mitchell When proceeded up placed in then and the bathroom. Brown rape Mitchell, her in the to which he shot Mrs. after Returning boy, him times Brown three head. to the shot boy Miraculously nor his moth- in the neither the head. testify wounds; er from their both were able died trial to the above occurrences.
Following orgy Mitchell the the house of violence at girl Brown fled to the friend and the mother home of his trial, child, At Miss of his one Mae Robinson. Stella gave gun, appellant Robinson testified that her a which away, telling she soon threw her at time that he the same just people had shot three on He de- Ginnodo Street. boy, lady scribed a a a man. Two them as little months later Brown of Bo- was arrested for the murder gier and the related crimes.
Appellant’s allegation first of the refus- error concerns grant quash al of trial his in- court motion to appel- That dictment. motion based on the fact that was May preliminary hearing lant at the time his on incompetent 1970 had been found trial on to be to stand offense, another a unrelated and had committed to been permitting mental institution. It is contended that hearing deprived under those circumstances the accused process hearing law,
of due and also that violated Pennsylvania of the Mental Health and Men- Section .409 below, tal Retardation Act of Like the court we 1966.3 right conclude that the has his waived assert alleged impropriety proceedings against him; this in the we therefore do reach the merits of the claim. above, preliminary hearing
As noted was May 6, held quash on motion 1970. No the indictment April very day was until filed that trial was Jury began April scheduled commence. selection on jury and the April 21, was sworn on 1971. Whichever of these two dates is to be the one considered began, appellant’s which trial it is clear that mo untimely tion procedure under our rule of criminal governing filing applications pre the time for the relief,4 trial quash of which a motion to is one. quash
The any motion to fails to set forth reason might which excuse its At the untimeliness. time the motion court, was submitted however, to the defense counsel stated that the motion was filed he as soon as be came grounds aware that there were for it.5 Defend counsel,6 ant’s other however, present prelimi at the 3. 409(a) provides: Section person “Whenever who has been charged with crime is committed in accordance with either sec- act, tion 407 or 408 of proceedings against the criminal him *8 stayed shall be commitment, for the provided duration of how- ever, Attorney that the may for the Commonwealth submit grand jury indictments to the involving charge.” such ofAct Oc- 20, 1966, Special tober IV, § Sess. No. P.L. art. 50 P.S. § 4409. 4. Pa.R.Cr.P. Appendix provides (Supp.1974-75), P.S. in pertinent part: pretrial application “no be if shall considered made days less than ten opportunity before trial unless therefor did not exist or the attorney or his defendant not of was aware grounds application.” the for the 5. It is to be noted that neither in the motion itself nor at oral ar- gument applicability was the of Section 409 the of Mental Health and Mental particular argument specifically Retardation argued. Apparently Act that post-trial was raised for the time on first motions. appellant represented 6. The by at trial two counsel. objected hear hearing specifically to the there nary and ground had deter ing going that it been forward on the cooperate with to able mined that the defendant was incompetent It is thus to stand and was trial. counsel counsel trial apparent at least one of the defendant’s that condition, not of his if mental was aware of defendant’s hearing. commitment, preliminary the the of time delay presenting the motion The eleven month in cannot, quash ground the of mental state defendant’s concerning knowledge therefore, be of excused for want it. refusal
Second, appellant error the claims as partic grant for of of the trial his motion court bill Bill for ulars. The motion “Petition was denominated a Evidence,” but its of Particulars and Examination of pretrial reality in motion text indicates that it was a for discovery. governed such, must be As its consideration by procedure, P.S. 310 of our criminal Rule rules of Appendix (Supp.1974-75). pretrial dis That rule limits covery the the written statements and confessions “exceptional and defendant himself circumstances unless compelling warranting additional reasons” are shown virtually discovery. all of Appellant’s petition requested gathered connec by evidence the Commonwealth excep showing case, tion with thiá but it no contained ex compelling such tional reasons for and circumstances discovery. properly tensive The motion denied.7 Court, appeal argued 7. defendant’s On to this it now alleged marginal competence “exceptional circum- constitutes Furthermore, presses required by stances” only the rule. requests he discovery two of his which he contends granted: (1) of the have and addresses should been the names witnesses; police (2) summary ac- of the Commonwealth’s question tivity Putting with case. aside the connection (we exceptional whether or not there were in fact circumstances trial, immediately prior note that counsel informed defense competency challenge be defendant’s court there would no prejudiced trial), appellant was to stand fail to see how we requests. the denial these Appellant witnesses contended that he needed the names of impartiali- purposes for the of the dire in order to insure voir *9 588
Appellant that the erred in next contends trial court holding denying a suppress motion to without his blanket hearing on the The court denied the motion be- motion. 323(d) comply requir- cause it with. Pa.R.Cr.P. failed par- ing suppress contain, alia, that motions to inter support ticular in the motion. Defense facts counsel gave specific include as the reason for the failure to by cooperation facts the lack of the defendant. dissenting judge dis The on the court en banc below ground appellant been af sented on the that should have opportunity in order forded the his motion amend appel comply argument by pressed rule, with the an now argues hand, Commonwealth, lant. The on the other a properly that the motion without even dismissed hearing, relying on the decision of this Court Comm (1971). Turra, 192, onwealth 442 Pa. A.2d 96 suppress stated, We there “it is clear that the motion to 323(d) of requirements did not conform to the of Rule Pennsylvania Procedure, it Rules of Criminal was error for it or direct the court below to consider hearing 195, (footnote thereon.” at Id. at 275 A.2d omitted). Pearson, Pa. Cf. Commonwealth v. Appellant suggests Tur (1973). A.2d 481 actually supports ra he entitled view .that permitted the amend because our mandate in that case comply suppress file a motion to did procedure. with the criminal at A. rules of Id. brief, however, ty appellant’s jury panel. of the As conceded read to the names of the Commonwealth’s witnesses were venire panel by prosecutor, any po- who then asked if of the jurors any tential the witnesses. knew actions, summary police it As to the need for a of the necessary had no other claimed that this was because counsel line-up way learning participated of a in which the defendant slayer and at he was identified as the Mrs. Mitchell. which police sta- The fact that Mrs. Mitchell had identified Brown at tion however, line-up, brought during had her cross-ex- been out hearing May 6, preliminary almost one amination year prior to trial.
589
201,
Pa.
Hall, 451
v.
also Commonwealth
2d at 98. See
(1973).
Even
hearing
suppress
to a
his motion
to amend
titled
conclude
motion,
unable to
on
we are
allow
the trial court
prejudiced by
the failure
in
Appellant now
hearing.
conduct a
amendment or
sought to
principally
he
which
forms us that the evidence
by
testimony given Mrs.
suppress was the identification
identification
relating
out-of-court
trial
to an
Mitchell at
right to
by
denied his
her,
that he was
made
and asserts
Rich
v.
Commonwealth
counsel at that
identification.
Testimony con
(1974).8
167,
man, 458 Pa.
Appellant’s further by may tainted Mitchell have been identification Mrs. allegedly identification uncounselled out-of-court following an An in-court identification must also fail. illegal into evi identification is admissible out-of-court circumstances, if, considering totality it dence had an inde determined that the in-court identification “ ‘sufficiently pendent distinguishable to be origin ” Wade, purged primary v. of the taint.’ United States 1149, 218, 241, 1926, 1939, 18 L.Ed.2d 388 U.S. 87 S.Ct. an (1967). In Mitchell had 1165 the instant case Mrs. range opportunity to observe the defendant close slay morning between one on the and two hours independent ing. clearly This fact alone establishes an origin identification, wit, for her her observa in-court tions v. at the time of the occurrence. Commonwealth disputes 8. The contention that Commonwealth its brief line-up was uncounselled. 590 243,
Hall,
(1974);
456 Pa.
Commonwealth
Appellant’s fourth claim relates to the exclu
potential jurors
expressed
opposition
sion of
who
total
penalty.
the death
It is contended that the exclusion of
jurors,
way
such
which exclusion in no
violated
stan
Witherspoon
Illinois,
dards
forth in
set
U.S.
(1968),
jury
88 S.Ct.
20 L.Ed.2d
in a
resulted
prosecution-prone.
which was
The United States Su
*11
preme
Witherspoon
rejected
specifically
Court in
itself
claim,
such
516,
1774,
U.S. at
Next,
objects to the admission at
relating
trial of
up
evidence
to the
which
events
led
to
killing
Bogier,
of
sequel
killing.
and also the
to the
argument
The
is that such evidence, concerning
it
as
did
other
allegedly
by
crimes
appellant,
committed
was ad
purpose
mitted for the
appellant’s
showing
sole
of
crimi
disposition.
nal
agree
We do not
that such evidence was
inadmissible.
generally
While it is true that
evidence of
crimes other than the one for which the defendant
is
being tried
admissible,
is not
there are certain well-de
exceptions
fined
Among
to that rule.
these is the “same
transaction”
gestae” exception.
or
McCormick,
“res
Evi
dence,
(2d
at
1972).
190
448
ed.
In
§
Commonwealth v.
Williams,
(1932),
307 Pa.
591 evidence saying exception, that such spelled out act criminal or prior conviction “such admissible where of sequence or was one of part chain, of a formed a trial, history of the event acts, part or of the became development the facts.” of part of the natural or was v. See also Commonwealth A. at Id. 160 607. (1963); Commonwealth Ross, 81 Pa. A.2d be (1955). We Wable, 80, 84, A.2d Pa. they as events, sordid the other the evidence of lieve that they exception because were, admissible under re rampage which part parcel the violent were of they neces Bogier; were sulted in the death William picture day sary complete questioh, in of the disposition No error prove general. criminal Brown’s story, which the permitting the full committed integral part, an be murder was told. assignment
Appellant’s of error relates sixth identifying testimony to the into admission evidence day green army jacket on the worn testimony of the That on re-direct homicide. was elicited girl Robinson, Mae the defendant’s examination of Stella error, it friend, The a Commonwealth witness. who was testimony, allowing *12 this re-direct since argued, was beyond scope This it went the of cross-examination. judge has wide claim It is that a must fail. clear trial may proof vary discretion to the normal order of permit party bring rel to examination out re-direct inadvertently to party evant failed evidence which the supra, bring McCormick, on direct examination. § out 64; 32 at are satisfied 98 C.J.S. 419. We Witnesses § case. that there was no of discretion in See abuse Collins, also 882 Commonwealth v. 440 269 A.2d Pa. (1970); Padgett, A. Commonwealth v. 428 Pa. 237 (1968). 2d 209 appel argument
The the seventh advanced testimony lant also relates to the of He Miss Robinson. 592 testimony relating gun
claims that certain her to the which she coerced had received from the defendant was apprise the trial her of her con because court refused rights privi stitutional relative the Amendment Fifth lege against or self-incrimination. this be error Whether not, appellant standing “it is settled that to as law lacks alleged deprivation sert the of another’s constitutional rights.” 128, 131, Butler, Commonwealth v. Pa. (1972); Stafford, A.2d see also Commonwealth 252, 299 (1973). 450 Pa. A.2d 590
Appellant argues next the that trial court erred refusing psychiatric to admit into evidence re written ports purpose prove for attempting appellant’s insanity. alleged psychiatrists None of the who au reports presented thored as The a witness. objected reports Commonwealth to the admission objection ground and the trial court sustained the on the they hearsay. agree. McCormick, supra, were We 588. §
Finally, appellant objections has raised several judge’s to the charge. trial At the conclusion of the charge, however, appellant specifically excepted only to give refusal of proposed the court two of his points charge. will therefore limit our considera We tion propriety rulings. of those two Commonwealth v. Clair, 418, 326 (1974). Pa. A.2d 272
(1) appears It from the that on record several during interrupted pro occasions trial ceedings with comments directed at witnesses and his lawyers. Appellant own contends that were instructions required jury they to caution the not to consid were er guilt, such making outbursts in their determination of and that it charge. request error to refuse the so to *13 authority given No proposition, is for such a nor do we any. know of charge jury did that the
The trial court
could consider
charge
generally.
the demeanor of witnesses
Such a
was
charge singling
correct and no additional
out the de-
necessary.
meanor of the defendant was
(2)
charge
The trial
also declined to
court
insanity. Appellant
the issue of
this
Brown’s
claims that
testimony
appellant’s
through
issue was introduced
own
Pa,
In
Demmitt,
trial.
Commonwealth
(1974),
A.2d
we made reference to how the issue
insanity may be
in the
raised: “There must be evidence
case from whatever
that
na
source
he did not know the
quality
ture and
it
of his
that he did not
that
act or
know
wrong.”
was
Id. at
Judgment of sentence affirmed. MANDERINO, NIX and JJ., in the concur result. ROBERTS, J., concurring opinion. filed a ROBERTS, (concurring). Justice I am agree “generally unable to evidence crimes other than the one for which the defendant being admissible, tried is not certain [with] well-defined exceptions . . . .” Ante at 90. The traditional “rule” of vague exclusion is so overlap- riddled with and ping “exceptions” that it enlightening would be more say more candid to “exceptions” have become the rule and the exception. traditional “rule” is an *14 other offenses
Therefore, my view, of in “‘[e]vidence any purpose other than may if relevant be received part the disposition on the of or propensity show mere ” crime.’ Commonwealth commit the defendant (1972) (con 258, Boykin, 33, 298 A.2d 450 Pa. J.); joined by Jones, opinion Roberts, J., C. curring of 404(b). accord, Fed.R.Evid. subject, all as is
However, prior is evidence of offenses is probative evidence, if its value to exclusion relevant may danger offered outweighed by “the that the facts hostility prejudice, unduly jury’s the emotions of arouse of the Law sympathy.” Handbook or McCormick’s (foot- Cleary 1972) (2d ed. E. at 438-39 Evidence § Furthermore, omitted). Accord, 403. note Fed.R.Evid. admitted, is the defendant my view, if evidence such charging limiting upon request instruction entitled permitted inference jury draw the that it is not other offenses that defendant from the evidence of predisposed the crime to commit character was charged. Wigmore, at 300-01 1 J. Evidence See § supra (3d McCormick, 59, at 135-36. 1940); ed. § crimes commit case, In the evidence of the other clearly purposes by appellant other relevant for ted propensity disposition to murder than to show his or Bogier Bogier. Any account of the murder William appellant’s criminal acts that not include other would did incomplete confusing. Therefore, that I conclude be jury probative placing before “whole value outweighed including appellant’s crimes, story,” other rea prejudice, least the trial court could the risk of or at Appellant request a sonably have concluded. did so object limiting instruction, specifically nor did he charge. from the court’s absence of such an instruction John 1119(b); cf. Commonwealth v. See Pa.R.Crim.P. (1974). Ac son, 554, 559, A.2d 457 Pa. appellant’s the ad cordingly, agree contention that I was reversi of his other offenses of the evidence mission ble is without error merit. ei- appellant’s are other claims agree I
Because review, appellate preserved for ther or not without merit I concur the result.
Decided