*1 Appellant. Commonwealth v. Cannon, *2 1973. Before April 25, C. Jones, J., Submitted Nix and Mander- O’Brien, Roberts, Pomeroy, Eagen, JJ. ino, ap- 11.
Joseph Danella Kenneth 8. Harris, pellant. and Milton
Louis James T. Perez, Jr., Ra/nney Attorneys, M. Stein Assistant District Richard Attorney, First Assistant District and Arlen Sprague, Attorney, appel- Specter, District for Commonwealth, lee. September i:y Opinion Me. Ciuee Justice Jones,
19, 1973: On June 26, 1970, convicted degree murder the first and assault with intent to *3 ap|>eal kill.1 This is taken from a sentence of life imprisonment appeal on the of conviction murder. No judgment was taken from the of sentence for assault with intent to kill. pertinent appellant,
The facts are as follows: nine- years age, Bray teen of and Gail Cannon were married August September appellant of 1967. On 1, 1967, dispute. and his wife became involved in a marital appellant physically When abused Ms wife, she left apartment stay their parents, and went to with her Bray. Appellant Bray and Edna Ezra went to the day home to see his wife the she left and three times following day. the On Ms first three visits he was not permitted to see her. On last the visit, when he was again permission appellant pulled denied to see her,
1 Appellant acquitted charge was of the of assault with intent charges voluntary to kill. Indictments on manslaughter, in voluntary carrying manslaughter, deadly weapon and a concealed prossed. wore nolle mortally Ms wounded gun and Ms sweater under from Bray. He the then turned Edna Mrs. mother-in-law, gun mis- Bray, gun father-in-law, his Ezra but on appellant’s and ran to wife heard shots The fired. police. Appel- telephone the to bedroom her mother’s her. she fled to When pursued wounded and twice lant gave appellant and inflicted several chase basement, Bray left residence and was He then more wounds. away. apprehended three blocks memory Appellant had no at trial that he testified maintained that he “blacked out” He events. of these Bray remember just and did Mrs. shot before not day. following anything time the until some charges the court below with follow- refusing suppress (1) ing erred the court errors: (2) inculpating appellant’s custodial statement; (3) denying a the court mistrial; erred in the court jury incorrectly charged the on reasonable doubt and improperly (4) the court refused to on intent; voluntary manslaughter; below erred court question failing to submit of the appellant’s statement. voluntariness suppressed The claim that the court should have grounded upon is confession the contention capacity voluntarily, he not have the mental did knowingly, intelligently right waive his to remain appellant In this connection the silent. introduced the reports qualified psychiatric experts. of several medical This indicates that evidence chronic paranoid schizophrenic with but tendencies, that his *4 pre-trial, “fairly good was in condition, remission”. appellant also evidence There was was “oriented spheres”, there appel- in all was no indication that warnings, to understand lant not able the was conso- v. nant Miranda 384 (1966), Arizona, with U.S. 436 prior given giving him the which were of Ms state- ment.
393
incriminating
evidentiary
oí a defendant’s
The
use
process if it can be shown that
statement violates due
product of a
the statement obtained is
rational
not
Lynumn
free
v.
372 U.S.
intellect and a
will.
Illinois,
(1963);
(1963);
372
528
Townsend
293
Sain,
U.S.
v.
Commonwealth v.
432 Pa.
Holton,
247 A.
228
2d
11,
(1968) . The determination of whether a confession is
product
of
con
a rational intellect necessitates our
the circumstances. Davis
of
of
sideration
totality
(1966)
v. North
384 U.S.
v.
Carolina,
737
Blackburn
;
361
Ab
Alabama,
U.S. 199
Commonwealth v.
(1860);
(1971);
443
278 A.
Common
rams,
295,
supra;
wealth v.
ex
Holton
rel. Gaito
Maroney,
422 Pa.
A. 2d
In
this
171,
paranoid
instance, while
exhibits chronic
schizophrenia,
no
there is
evidence that his condition
prevented
understanding
significance
him from
of
inculpating
interrogators.
he
statement made to Ms
police
In
there is no
addition,
evidence that
took un
advantage
appellant’s
(See:
fair
of
condition.
Com
monwealth v.
434 Pa.
Willman,
ed he had attended the Glen Mills prejudicial possi- School2was because it alluded bility that he had committed other unrelated crimes. appellant’s stay The at Glen Mills first disclosed County facility The Glen Mills School a Delaware juvenile offenders. *5 by during Common- by cross-examination him you way, By refer to the I think did “Q. wealth: your testimony after- here this in one time at Testament gave you gave A. Who that Testament? noon. Who brought Glen Mills it home from Q. Yes. A. I it me? Bray give you as a a Testament Q. Did Mrs. School. stay wedding gift? at fact of No.” The during question- time Mills was raised second Glen you long appellant by had ing the court: “How of the A. I think the summer- Archer Street? it was lived on you Q. moved there? when first time of ’66. That was Leithgow Q. Q. From From Street. A. No. A. Yes. neigh- Q. same That is the where? Orianna Street. Q. over. blocks down, borhood? A. Three blocks two you long A. I did on North Orianna Street? How live up my I there mother moved when was know, don’t you Q. were at Glen Mills Glen Mills School. When A. 1964 to 1965.” School? refusing
We not believe the lower court erred do grant a mistrial under the instant circumstances. by were The allusions to Glen Mills not elicited sponta or but the court were offered by during neously questioning which probed stay matters his unrelated to at Glen Mills. Additionally, even if we assume that it was error to grant refuse to mistrial on the basis these of dis beyond it was harmless error closures, reasonable Chapman California, doubt. The U.S. appellant’s stay reference to at Glen Mills could not significant any way vitiate that defense and should compelled granting not have of a mistrial under these circumstances. challenges next of the court respect
on reasonable doubt and intent. With to rea- sonable doubt, court instructed the as follows: “Now, reasonable doubt referred to both attor- neys many has been set forth in of our decisions Pennsylvania Supreme as It is that follows: Court you cause to halt, hesitate, that would kind doubt import- highest affairs of to take action refuse your ance of own lives. *6 you you of after if have that kind a doubt
“Now, presented argued been before have the facts that have pro applied give yon, I both the as it to con, law you, a decision, then that cannot reach you you if find you type must have some of reasonable and that doubt is to be favor of doubt resolved the defendant and is so the that because Commonwealth therefore has not according yon, by the convinced law as described the you (Em beyond a Court, convinced reasonable doubt.” phasis argues added.) The that the court’s was erroneous instruction because reasonable doubt has required quantum never of doubt which would prompt juror to a to act if he found he could refuse reading not reach In a decision. the court’s instruction distinguish we find in its no reason to entirety, court’s definition of reasonable doubt from the Instruc approved expressly by tion this Court in Common (1973). wealth v. 303 A. Pearson, that, is merit to There no claim the court’s instruction here was fundamental error.
Appellant’s respect claim of error with court’s upon instruction on intent kill is based the follow- ing charge jury: to the
“The an intention of individual by is often shown gun deadly weapon his actions. The use aof or other part body on a vital you of the human are facts that may take into specific consideration to indicate intention to take human life. gun, example,
“You
fire
do not
a
for
into the hea.cS
of a man and then come
say,
into Court and
I
‘Well,
didn’t intend to kill him’. Ilis
speak
actions would
than
because
louder
the brain
words,
is such a delicate
injure
is almost
organ
you
a
death
bullet,
it with
that if
part of the
is a vital
that
Therefore,
to follow.
sure
gun
are
a
there
body
of a wound
the infliction
you may
to kill,
infer
intention
from which
facts
person
of
though
or
accused
the defendant
even
you
says
is
intend to
but that
kill’,
‘I
crime
didn’t
anyone else.”
and not
to determine
appellant’s posi
agree preliminarily with the
We
gun
part
although
a
of
on vital
the use of
tion that,
presumption
body
an intent
of
raises the
the deceased’s
merely
presumption
a factual
the inference
to kill,
may
to the
a rebuttal evidence
be overcome
which
contrary.
Ewing,
The evidence argu- his became in a lant and wife involved domestic apartment ment and that wife left their to stay parents. her There was with also evidence that appellant attempted visit his occa- wife on three Bray each sions and time was denied admittance to the Finally, household. there is evidence that the attempt last made one to visit his and wife was denied opportunity; Bray repay he asked Mrs. Bray money small as loan; Mrs. that, tendered the appellant, pulled he reached under his sweater, out gun and shot her. There is no indication he that was enraged adequate provocation. and no evidence of Un- der these the court’s refusal circumstances, to instruct manslaughter on was not error.
Finally, appellant challenges the court’s refusal to grant following request jury: to the considering “Before the truthfulness of the defendant’s you statement, written must first determine whether freely voluntarily such statement was made and you beyond are unless convinced a reasonable doubt voluntary, jury may the statement was not regardless consider of its statement belief in trustworthiness thereof.” cites Common *8 wealth v. 429 Pa. Heckathorn, 241 (1968) 534, A. v. Superior and Commonwealth McLean, 213 Pa. Ct. proposition 247 640 that the 3 Barnosky, See Commonwealth charge the it refused to when court committed error be- jury of voluntariness the issue that it must decide accuracy considering the de- the substantive fore inculpating Tleck- In accord with statement. fendant’s Procedure, of Criminal our Buies McLean, athorn and challenge right 323(j),4 the defendant’s insure Buie though even trial, at of his statement the voluntariness pre- aat statement admissible has ruled the court hearing. suppression trial distinguishes Ilecka- from this case
The fact which 323(j) in- renders Rule thorn and which McLean, present applicable, evidence did not is that but coerced, statement was at trial that his written giv- testify he not remember that did instead chose testimony interrogating ing of the officer it. Since freely given, appellant’s was that statement was testimony jury his was uncontradicted, and because justify a had facts before it to conclusion no involuntary. statement was Viewed this properly removed the issue of the court volun- context, of the without do- tariness from the consideration ing 323(j) holdings or the of Hecka- violence to Rule ihorn McLean.
Judgment affirmed.
Dissenting Opinion Mr. Justice Roberts: again majority’s I once dissent from the must hold ing request timely the trial after a court, coun refusing jury, commits no error sel, prosecution, voluntary manslaughter. a on murder See, Kenney, e.g., 562, 570, 297 admissible, “If tlie court determines that the evidence is such final, binding trial, except determination shall be conclusive and showing upon of evidence which unavailable, was theretofore nothing prevent opposing herein shall but such defendant from upon any ground except admissibility." (Empha at trial its evidence added.) sis
399
J., dissenting,
joined
A. 2d
798
794,
(1972)
(Egberts,
Pomeroy
v.
Commonwealth
and
JJ.);
Maxuerino,
(1972)
Pa.
297 A. 2d
818
468, 477,
817,
449
Davis,
In
To
Opposition
Affirmance,
J., Opinion
(Roberts,
Pomeroy
and
Common
joined
JJ.)1;
Manderino,
wealth v.
Pa.
285 A. 2d
509
506,
447
356, 364,
Banks,
(1971)
J., dissenting,
joined by Roberts,
(Pomeroy,
v.
Pa.
285
J.) ;
Matthews,
65, 77,
Commonwealth
446
2
A.
(1971)
J., dissenting).
2d
516
510,
(Robert’s,
In
obstructs and obfus
my view,
majority again
“
cates the
and well-settled rule that
‘where
salutary
an
an
indictment
offense which includes with
charges
in its
another offense of
lower
description
grade
or
find
accused
of the
degree,
jury may
guilty
less
in crim
offense;
universally applied
this rule
inal
under an indictment
murder,
cases, and,
charging
he convicted
may
voluntary manslaughter
defendant
conviction for the latter crime will be sustained
it
the evidence that
though
may clearly appear
from
. .
Com
guilty
higher grade.
defendant
fact
monwealth
283 Pa.
128 Atl.
Arcuroso,
84, 87,
668,
v.
670 (1925)
(citation omitted)
(emphasis
supplied);
444
Commonwealth v.
Pa.
281 A.
Hill,
323,
v.
(1971); Commonwealth
439 Pa.
Hoffman,
348, 266
;
A. 2d 726
Commonwealth
(1970)
v.
437 Pa.
Harry,
;
433
A.
671
Pa.
252
2d
525,
(1969); Commonwealth v.
244
431 Pa.
A. 2d 651
Cooney,
153,
(1968); Common
421 Pa.
220
571,
wealth v.
A. 2d 807
Pavillard,
(1966) ;
v.
420 Pa.
216 A.
Frazier,
Commonwealth
209,
411 Pa.
Commonwealth v.
191
(1966);
Frazier,
195,
Moore,
Commonwealth
(1963) ;
A.
369
v.
2d
1
Pomeroy
Opinion
Opposition
Mr. Justice
also filed an
In
468, 479,
817,
Affirmance,
(1972)
(joined by
A. 2d
Pa.
297
818
449
JJ.).
Manderiuo,
Roberts
2
Pomeroy
dissented,
65, 78,
also
446
Mr. Justice
Pa.
285 A. 2d
(joined by Roberts,
J.).
510, 516
400
Nelson,
v.
Commonwealth
(1959);
198,
v.
913 (1959);
152
2d
Pa. 359,
396
Common
A. 2d 825 (1949);
Pa.
66
427,
Steele,
Given the that return to power inherent dispensatory retains any absent manslaughter (even voluntary verdict which the trial a verdict), such support evidence to A. 2d at 570 297 n.1, Kenney, supra must accept, court does not citing cases) opinion, n.l (dissenting at 798 administration criminal proper fair and “the be jury murder trial every that justice [require] manslaughter?” elements of voluntary on the charged 812 (Cohen, 2d at 220 Povillará, supra 579, A. J., In it my judgment by Jones, joined dissenting, J.). all the be made aware of ought fully “The to jury does. to power and, indeed, right it has the verdicts Id. return.” Pomeroy Mr. Justice Manderino and
Mr. Justice
dissenting opinion.
in this
join
Opinion
Pomeroy:
Dissenting
Mr. Justice
made a
having
timely request for an in-
I
voluntary
on
must
manslaughter,
again
struction
note
with the law of this
disagreement
my
the trial
judge
allows
decline to
which
so charge
been
there has
no evidence
because
introduced to sup-
See,
a verdict.
Commonwealth v.
such
port
Kenney,
A.
297
570,
Mr. Justice Boberts and Mr Justice Manderino join this dissenting opinion. Appellants, Mfg.
Utter et v. Asten-Hill al., Co.