*1 override the other aforementioned considerations which weigh heavily permitting favor of the use the January 9 statement as evidence at trial.
We affirm suppression the denial motion as to the January 9 statement and reverse as to the statement of January 5.
Judgment of sentence reversed case remanded for proceedings with opinion. consistent relinquish We jurisdiction.
Submitted 1983. Sept.
Filed 1983. Petition for Allowance of Appeal Denied Jan. 1984. *2 Seidman, Philadelphia, appellant. for
Michael Alan Lawler, Attorney, District Philadel- B. Assistant Robert Commonwealth, appellee. phia, ROWLEY, POPOVICH, WIEAND and JJ. Before POPOVICH, Judge: appeal
This is an from the of of Order the Court Common Philadelphia Pleas of denying County appellant’s, Adolfo Hearing Carrillo’s (PCHA) petition. Post-Conviction Act § amendеd; P.S. seq., 1180-1 et as reenacted Pa.C. §§ We S.A. 9541-9551. affirm.
The salient facts are as In follows: trial non-jury before Bonavitacola, the Honorable Alex adjudged of guilty shooting death of Santiago and posses- Garcia sion an instrument of crime. Boiler-plate mo- post-trial tions that questioned sufficiency of the evidence were filed by brief, Subsequently, counsel. counsel concerning raised issues confession suppressibility the part commission error on judge the trial allowing certain hearsay testimony into In evidence. re- *3 sponse allegations to the proffered counsel, by appellant’s judge the trial ruled the only upon of the evi- sufficiency waived, dence and held all other despite issues the submis- of a supplement sion brief to the motions. It did so on the Blair, basis Commonwealth v. 460 Pa. A.2d 331 213 (1975). apрeal,
On the same counsel who represented appellant throughout raised, the process criminal in addition to vari- categorized ous matters reviewing the as assailing court the sufficiency evidence, of the three relating issues to the admissibility statement, of an inculpatory during secured an interrogation in which police officer acted interpret- as the er for the Spanish-speaking appellant. Supreme
Our Court the ruling sustained on court’s counts, including all Blair, and, waiver issue under thus, declined to decide propriety of the circumstances under which the inculpatory statement was and secured its admissibility Carrillo, at trial. Commonwealth v. 483 Pa. (1978) (Manderino,'J., Dissenting). A.2d 16, 1979, August
On appellant filed a pro se PCHA that, alia, petition claiming prior (David inter counsel Wein- stein) incompetent bеcause: Constitutionally
(a) Petitioner’s protect Counsel Failed to Rights set forth Constitution secured Pennsylvania. State of for (b) meritorous issues preserve Counsel failed to [sic] Appellate Review. petition at se PCHA
(Appellant’s pro concerned alleged by errors remaining The upon encroached assertions that Commonwealth right perjured testimony, its use of inadmissible appeal, case at inculpatory proving statement its hearsay request, (private) Additionally, trial. Id. petition, and filed an amended PCHA appointed counsel was part that: represented relevant which and is relief petitioner eligible 9. Your is entitled that:
(c) His sentence are as a result of convictions and following:
(1) A introduced at the trial of confession was illegally secured being unlawfully case its despite had in that he never before been petitioner from the justice with the criminal arrested and was unfamiliar in Puerto Further, he was and raised born system. for a Philadelphia, Pennsylvania resided in Rico and no absolutely English length spoke of time and short Further, English. not or write and could read detec- interrogating used homicide *4 an uneducated and Ract Streets was tive 8th [sic] who was ineffective and was Policeman Philadelphia interpreter and was competent professional not a and Further, expert interpreting. neither learned nor experienced interpreters and educated professional, De- upon request Police readily were available Further, considering Spanish the size of the partment. in Philadelphia, professional, experienced cоmmunity all be available at and educated should Con- analogous to the instant one. times situations sequently, the confession your obtained from petition deregation done so in process his due and [sic] rights; constitutional
(2) petitioner Your did not knowingly intelligent- and ly right waive his to a trial jury;
(3) “interpreter’s” The during translation the interro- gation petitioner to the interrogating detective who repeats same was hearsay;
(4) A mistrial should have been moved for counsel granted and where the Assistant District ac- Attorney petitioner cused of tampering awith witness and so informed the judge trial and request was made for petitioner’s revocation of bail; all of which prejudiced and finder; biased the fact
(5) The judge trial failed to comply with Rule 1123 of the Rules of Procedure; Criminal
(6) Your petitioner was reprеsented pre-tri- at the al, trial post-trial proceedings in this matter counsel in that: ineffective
(a) Said counsel failed to raise the specific issues that are stated above as well as others that during occurred all proceedings;
(b) neglected Counsel to effectively and competently petitioner advise as to what a waiver a jury trial meant taking into account petitioner’s background, in- telligence, ethnic origin, lack of ability communicate in an English speaking system and the nature of the charges; and
(c) Counsel specific failed file issues in post- motions; alia, verdict inter those as stated above as well as others that arose during the proceedings. This in spite of the requiring law’s him to do so less his client be deemed to have waived them.
10.....
11. Present present counsel will testimony from petition-
er, counsel, etc.
12. ... *5 in resulting petitioner’s
13. The matters alluded to above liti- finally sentence have neither been conviction and nor gated waived.
(Record D-10) No. Thereafter, a supplemental counsel submitted appointed (1), (c) of Point amending PCHA section petition paragraph not a interpreter to that the “was complain police supra, D-12) (Record No. impartial party.” neutral and third hearing, presided the PCHA Before the commencement of Blake, court an official over the Honorable Edward J. (Luisa Ramirez) the Court of Com employed by keep in Philadelphia County of was sworn to mon Pleas occurring proceedi at the appellant apprised of what was ngs.1 Rivera, Frank to the stand first witness take was
The He interpreter (Spanish English) to for court. offiсial he aware years interpreter, that in Alk as an was stated his stage at the earliest of being present of interpreters preliminary and summary proceedings judicial process, e.g., sentencing. the time set hearings, up including to However, interroga- at an he “never been asked” to be had that, on (N.T. opined He also based tion. 2/23-24/81 good knowledge of person if a had experience, why no reason languages there was Spanish English interpreter. quali- not as an He person could serve such he “meant outside the statement with the caveat that fied court, felt, (N.T. 11) In the he of 2/23-24/81 at Court.” termi- legal have some knowledge should person nology. appellant, testify 41-year-old
The next witness was He stated he arrived through did so Ms. Ramirez. and he in to his from Puerto Rico returned Philadelphiа . 1975; then here yet 1973 and came back homeland read, English. As for write or understand unable interpreters, paid by City Philadelphia, are while 1. These principal Court Their function is serve the employees of the court. Philadelphia Municipal inter- and the Common Pleas Court preters. *6 Spanish, he remarked going “up to or half of part seventh grade” (N.T. 15) in Puerto Rico. 2/23-24/81 at Appellant arrested, also indicated that he had never been either in or Puerto Rico Philadelphia.
Recalling events on the the shooting, appel- date of lant remembered being interviewed for about 4 at hours police headquarters (the by an Officer Ruiz interpreter), in uniform, who was still in the presence of a black detec- tive. In the words of appellant, he felt ill “physically (N.T. and nervous and fearful.” very 17) 2/23-24/81 at during On various occasions the course of the interrogation, appellant revealed that had difficulty communicating Ruiz, with Officer both e.g., individuals would have “repeat” questions and answers so that the other could comprehend being what was said. trial, appellant
Prior to told of meeting with counsel about an hour in in his office the company appellant’s of husband, niece’s who as interpreter. acted They discussed of repayment money the bail signing of a paper to the pertaining waiver For jury trial. as appellant counsel, was made to understand “it was easier or better for him [appellant’s trial to convince one as person counsel] opposed (N.T. at 2/23-24/81 29 & No twelvef.]” aspect discussed, other of a jury trial was recalled “in appellant, any way оther than just that” recited. Id. Appellant essence, went on to in testify, despite thoroughness of Judge resulting Bonavitacola’s colloquy, the waiver of his right to by jury, answers he gave the product were “fear” As “nervousness”. it, appellant frames “I had no knowledge what he [Judge explaining was because nobody had explained Bonavitacola] (N.T. 37) And, it to me.” 2/23-24/81 at appellant said he did not tell judge] “dare about jury because [the [his] lawyer already (N.T. had told not to take a jury.” [him] 32-33) at 2/23-24/81 Rodriquez,
Louis appellant’s niece’s husband and inter- preter at meeting, appellant’s corroborated version of what transpired Attorney Weinstein’s office. With
testimony, and after the documents into submission two appellant’s hospitalization evidence reflective of in-patient (on 22, 1976) (from March and treаtment a physician 15, 1976), April July prior to and after the date (on 23, 1976), of the homicide June counsel for rested.
The case for the present- Commonwealth consisted of the counsel, of appellant’s prior Attorney ment Weinstein. Attorney What Weinstein testified to odds respects various with recollection of what oc- Weinstein, curred For example, Attorney between two. *7 although not to recall the exact able number times he appellant, “meetpng] met with did remember with him on occasions in office in several the Courtroom.” [his] (N.T. 55) 2/23-24/81 at Appellant only testify could having counsel, meetings hearing two with one at the bail and the other prior at counsel’s office to trial.
Also, Weinstein’s view of the discussion with appellant indicated a much more detailed conversation in which аppellant: advised
1) right the absolute to a trial by jury; 2) people twelve would be selected at random from socie-
ty; 3) he could in help process; the selection 4) object made; he could to the selections 5) jury case; would have to decide unanimously possible prejudiceness based on the of the jury because their appellant’s nationality and belief that
killing outgrowth fight, was the of a street a judge more competent would be to render a decision. However, counsel stated that the jury decision to waive a ultimately appellant’s, but it was his recommendation to do so. Counsel did not waver on cross-examination. completion After the of Weinstein’s testimony, hearing this, Following Order, ended. the PCHA court entered an accompanied by Opinion, denying appellant’s request for relief. appeal This followed.
The questions presented Court, although not sequence exact they appear brief, appellant’s are: 1. Did the trial Court fail to comply with Rule 1123 of
the Rules of criminal procedure? 2. Did the defendant knowingly and intelligently waive right to a trial? jury 3. Was trial counsel ineffective because he filed “boiler-
plate” post-verdict motions which resulted in specific trial issues being considered as waived both the trial Court and the Supreme Court?
4. Is the use of a Philadelphia police officer as an
interpreter during a defendant’s interrogation a deni- al of process? due issue,
As
the Rule 1123
we
although
observe that
it was raised in the amended PCHA petition
counsel in
paragraph (5),
(c)
subsection
of Point 9 and in the appellate
Court,
brief to this
it was
pursued
not
at the time
PCHA hearing. This fact is
substantiated
PCHA coun
sel’s own statement to the effect that “the
issue
th[e]
case” concerned the use of a police officer as the interpreter
at appellant’s interrogation, and as to
whether
*8
rights
“1123
were violated ... was another issue” that was
never scrutinized
(N.T.
at the hearing.
2/23-24/81 at 18 &
25) Accordingly, we will not consider
question.2
the
Com
Sullivan,
monwealth v.
472 Pa.
(1977).
We
that
initially,
the jury trial waiver
was
colloquy
conducted with the aid of an official court
interpreter.
waiver,
2. Even if we held there was no
our review of the trial
transcript
judge
1)
reveals
appellant
the
advised
right
of:
to file
motions;
post-trial
2) the time
they
frame within which
had to be
filed; 3)
consequences
failing
motions;
the
4)
of
to file the
and
the
counsel,
right
him,
tо the assistance of
prepara-
without cost to
in the
(N.T.
156-157) Thus,
tion of the motions.
at
10/22/76
based on the
Pa.R.Crim.P,
aforesaid,
requirements
of
1123 were satisfied.
delineat-
requirements
concedes that the
Although appellant
Williams, 454 Pa.
312 A.2d
ined Commonwealth v.
(1973)
knowing
intelligent
and
waiver
prima
for a
facie
(see
3-9;
Appel-
trial
met
N.T. 10/20/76 at
jury
of a
were
21),
speak
he “did not
argues
Brief at
he
that because
lant’s
the criminal
English,
justice
was unfamiliar with
or write
answering the
because his
only
questions
and was
system
trial[, tjrial
effectively
a
counsel
lawyer
non-jury
wanted
to have a
trial and on this
right
jury
interfered with his ...
21-22)
Brief at
(Appellant’s
ineffective.”
basis alone was
despite
testified that
hearing, appellant
At the PCHA
colloquy,
which indicated his
gave during
he
answers
understanding
happening
of what was
and
voluntari-
nervous,
actions, he, nonetheless,
feeling
of his
was
ness
fearful,
permit
didn’t
sick and
all
“which
physically
[him]
Furthermore,
(N.T.
33)
2/23-24/81 at
to understand.”
already
Weinstein had
told
Attorney
remarked that because
judge]
dare tell
about
jury,
him to
a
he “didn’t
waive
[the
...(N.T.
32)
at
2/23-24/81
jury
'
appellant’s argument
countered
with
The Commonwealth
that
there were various
testimony
Weinstein’s
Attorney
aspects
at which all
meetings
appellant
between he and
case,
by jury,
cons of a trial
were
including
pros
Also,
Attorney Weinstein
importantly,
discussed.
and most
that,
go non-jury
the advise to
testified
albeit
persistently
his,
ultimately appellant’s.
decision to do so was
59)
(N.T.
According Attorney
at 57 &
Wein-
2/23-24/81
on
recom-
stein,
rely
told him that “he would
appellant
[his]
(N.T.
62)
2/23-24/81 at
jury.
mendation” to waive
evidence,
court,
all the
hearing
The
after
PCHA
right
jury
waived his
found
a fact
as.
and,
concluded as a mаtter
knowingly
voluntarily,
(PCHA
Opinion
court
that his waiver was valid.
law
record,
fact,
are
findings
supported by
when
Such
May,
Commonwealth
upheld
appeal.
entitled to
on
be
(1979).
especially
This is
so on
485 Pa.
125 (1982),petition for of appeal September 1, allowance denied 1982. Since it is not the function of an to appellate court in a engage de novo testimony evaluation elicited at a id., PCHA hearing, we will not ruling disturb the by made here. PCHA court Moreover, issue, on the waiver want point we out that after appellant disclosed that he did not anything know trials, jury about because was the first time had he been in court pills and he was taking prescribed nervous condition caused couple operations had he undergone, the trial court took painstaking care to insure that appellant “understood” the ramifications his waiver right and his to proceed to trial by jury he so wished. if Hooks, See 40, Commonwealth v. 483 Pa. 528 A.2d (1978).
Throughout
appellant
the colloquy
repeatedly answered
in the affirmative when asked if he
understood what
occurring
regard
right
to the
that
was relinquishing
and if he was
responding
all of
truthfully
questions.
Appellant will not now
say
be heard to
his responses
were not truthful. To do so
go
would allow an accused to
through the
any
and,
motions at
waiver hearing
subse-
collaterally
quently,
validity
attack the
of a colloquy giving
rise to the
waiver
involuntarily, unintelligently
un-
knowingly entered because of
responses given
false
questions
As
asked.
stated previously, the PCHA court’s
ruling on the propriety of the waiver issue is to be given
deference
this Court when the facts support
ruling,
on
especially
issues of credibility, even if the record could
support a contrary holding.
Lutz,
See Commonwealth v.
(1981);
Pa.
The third issue raised labels counsel filing “boiler-plate” ineffective for post-verdict motions that *10 126 issues, evidence sufficiency ques- all for the of
caused save tion, the purposes by held waived for of review both to be appeal. and our Court on Supreme court first, the to appellate only way
At counsel states that client the rectify misfeasance is to remand to allow his this to file motions nunc tunc. opportunity post-verdict pro breath, However, in that the issues be requests the next this Court. considered case,
In
the
in
we are inclined
of
record created
light
to
the issues
amended
presented
appellant’s
treat
filing
original
petition
equivalent
post-tri-
as
to the
of
PCHA
Jones,
Pa.Super.
300
al motions. See
v.
Commonwealth
338,
reason
remand.
(1982).
A.2d 644
We see no
to
446
treat-
position
seem to endorse such a
Appellant’s
would
ment,
the
to handle the claims
importunes
for he
Court
.
third
can
Having disposed
appellant’s
prong,
of
we
raised.
last,
of
interesting,
and most
now turn our attention to
is,
police
the use of a
appellant’s complaints, that
whether
a denial
interpreter, during interrogation,
officer as an
words,
process.
due
In
holds
of
to
other
right
that
that an
whо
process required
“due
[was]
trained,
have been afforded
experienced
impartial
both
Brief at
(Appellant’s
[to him].”
aforesaid
Ergo,
preserve
trial counsel’s failure
review,
appellate
urges
appellant,
issue
trial and/or
counsel
held less than effective. Before we
being
warrants
averment, first,
we
can address
merits of
charge
underlying
need
whether
issue
to determine
merit. Commonwealth v.
arguable
of ineffectiveness
of
(1978);
183,
Pa.
A.2d 971
Sherard, 483
394
Commonwealth
295,
Then,
(1981).
A.2d 231
Pa.Super.
v.
285
427
Jennings,
merit,
our
arguable
if the
is found
underlying issue
be
to a
the course
shifts
determination
whether
inquiry
counsel
some reasonable basis aimed at
chosen
had
Evans,
his client’s interests. Commonwealth v.
promoting
(1980);
85, 413
489
A.2d 1025
Commonwealth ex rel.
Pa.
(1967).
Pa.
427
Nonetheless, it cannot be overlooked that the Legislature has specific taken steps to deal with topic this exact when it § cоmes to the deaf. In 42 Pa.C.S.A. Legislature 8701 the provided: has
§ Interpreters 8701. for the deaf
(a) Interrogation.—Upon the per- arrest of deaf any son, and prior to interrogation, arresting officer shall make available to such person an interpreter who shall be present with such person throughout the interrogation.
(b) proceedings.—In Criminal any criminal proceeding in which a defendant is deaf the appoint court shall interpreter to assist the throughout defendant the pro- ceeding.
(c) Oath.—The interpreter shall swear or affirm that he will interpretation make a true to the deaf person and that he will repeat the statements of the deaf person to the best of his ability.
(d) Definitions.—As used in this section following shall words have the given meanings to them subsection:
“Deaf.” Persons who are deaf or whose hearing is sо impaired that they are unable to understand or communi- cate the spoken English language.
“Interpreter.” A person qualified and trained to trans- late for or communicate persons. with deaf Any person certified by the National or Local Registry Interpret- ers for the Deaf or similar registry shall be considered qualified for the purposes of this section.
The requirement of an interpreter for the deaf has been extended to any proceeding before a agen- Commonwealth § cy. See 1964-1982). Pa.C.S.A. 505.1 (Supp. Also, the appointment or employment of an has been provided for in general or special court-martials or other § military court inquiries. 51 However, Pa.C.S.A. 5507. Legislature has not seen fit to extend the use of an interpreter to criminal proceedings, specifically interroga- tions, a suspect where has difficulty speaking or under- standing the English In language. light of the law cover- deaf, ing the it is not presumptuous say that the General Assembly has specifically eschewed enactment of simi- *12 legislation lar in regard to non-English-speaking persons § subject to interrogation. 1921(c)(5) See Pa.C.S.A. (Supp. 1964-1982).
The most that Legislature done, has through Act Judiciary Repealer (Act 1978, Act April 28, P.L. No. eff. 1978), June is to consolidate the matters concerning appointment of interpreters courts of § pleas common (previously at 17 P.S. 1875 and 28 P.S. § § 441) under 42 Pa.C.S.A. 2301 (“Appointment of personn
el”).3 provides:
3. Section 2301 Appointment § 2301. of Personnel (a) rule.—Subject any general General to inconsistent rules or stat- utory provisions each: (1) Judge justice may appoint and district and fix the duties of necessary persоnal staff. (2) may appoint Court compensation and fix the and duties of necessary compensation personal administrative staff and fix the of staff. absence, Having established at least this Common- wealth, legislative of of supportive appel- either or case law position, lant’s find it we instructive examine manner federal) in which (both other state jurisdictions have dealt with the situation.
As Bias, is collected at Disqualification, Annotation: of One as Interpreter Offered 6 A.L.R.4th Testimony, 158, the author therein remarks:
Numerous language cases have contained one way or lending support another that it is at generality least better practice to a appoint person disinterested as interpreter____ However, a substantial number cases have recognized that it is not neсessarily at least reversi- ble error to or appoint relative friend of a witness or party interpret, where no especially competent other interpreter is available. annotation,
Cases throughout the frequently applying recognized broadly that the principle appointment of an rests in the of the wise discretion court whose judgment not be may overturned unless abused, finding or of prejudice absence in the circum- stances, have held that no reversible error was commit- ted by trial courts who appointed interpreters (1) non-English-speaking witnesses a friend or relative of (3) agency judicial system may Other or unit of the unified appoint compensation necessary and fix the and duties of central personal staff and staff. (b) judicial Oath of office.—Each member or board commis- person shall, sion appointed and each other who office to an office, entering upon before the duties of his take and subscribe the specified oath (relating or affirmation in section 3151 to oath of office). *13 (c) County provisions (a) staff unaffected.—The of subsection are solely codify statutory intended provi- and consolidate former subject nothing sions on the same and in such subsection shall be limit, modify deny existing construed to powers preroga- or or officers, county tives of or judges, by staff other other than elected county, appoint the compensation a electorate of and to fix the reasonable personnel county of such classes of as such officers have heretofore been do authorized to law. 42 Pa.C.S.A. § 2301.
130 case, ...; (2) ...; (3) or in criminal witness victim a other governmental
a law or enforcement officer offi- interpret prosecution cial to witness in a crimi- nal case,____ added)
(Emphasis § § Id. Accord Wharton’s at Criminal Evidence 404 2[a]. (13th Ed.1972). find that on the subject impartial
We
unbiased
interpreters
position consistently
adhered to
most
courts,
terms,
in the
although stated
different
reflected
made
Appeals:
statement
Tenth Circuit Court
in the nature of
a disinterested
things,
interpret
While
er is
of a
impartial interpretation
essential to an
witness’
testimony, at the same time the trial court is necessarily
accorded a
in determining
wide discretion
the fitness of
person called,
and the exercise of that discretion will
not be disturbed on review
the absence of some evi
People
dence frоm
prejudice
which
can be inferred. See
Valencia,
v.
407,
68;
People v. Rar
27
150 P.
Cal.App.
din,
DeBaca v. Pueblo
9,
59;
Santo
255 Ill.
99 N.E.
38,
73;
P.
Domingo,
10 N.M.
60
See annotation 172
923, 941,
(c).
A.L.R.
Subsection
States,
v. United
190,
(10th Cir.1953).
Lujan
209 F.2d
192
Salsedo,
Accord
States v.
318,
(9th
United
607 F.2d
320
Carrion,
12,
United States v.
Cir.1979);
(1st
488 F.2d
14-15
denied,
cert.
Cir.1973),
907,
1613,
416 U.S.
94 S.Ct.
40
States,
(1974);
Chee v. United
L.Ed.2d 112
449
F.2d 747
(9th Cir.1971), disapproved
Davis v. Unit
grounds,
on other
States,
ed
233,
1577,
(1973);
411 U.S.
93
Additionally, germane bar, as is to the case it has been on the stated “rulings appointment unequivocally
131 reach qualifications interpreters do not constitu of Cowan, Cir., proportions. See Fairbanks tional v. 6 551 problems may be with the 97, 99. Whatever there F.2d testimony interpreter] to go sufficiency [an of of Carter, Soap v. added) (Emphasis evidence.” 632 F.2d denied, cert. 872, (10th Cir.1980), 939, 874-75 451 U.S. 101 2021, (1981). 327 68 L.Ed.2d S.Ct.
Therefore,
of the
and the
preceding
because
safe
an
guards already
judicial
afforded
accused
our
system
the form
pre-trial, post-trial
review,
of
appellate
we
per
se rule
appellant’s
adopt
refuse
invitation to
a
that
bias,
is
there
an inherent
and a
process
violation
due
rights, whenever
officer
police
upon
is called
to serve as a
at an
interpreter
interrogation.4
Rather,
defendant’s
we
of the
interpreter
are
mind that
contention that an
was
biased, prejudiced or unfair
toward the affected non-Eng
lish-speaking
must
defendant
be borne out
the record.
LaSalle,
Wainwright
See
v.
(5th
414
1969);
F.2d 1235
Cir.
States,
Lujan
State,
v.
supra;
United
LaCount v.
supra;
People
Torres,
v.
supra; People v.
Murрhy,
304,
276 Ill.
Banusik,
v.
State
(1916);
114 N.E.
640,
609
84 N.J.L.
64 A.
States,
see
v.
supra;
also Chee United
(1906);
State v.
994
Coria, supra;
State,
but see Gonzales v.
Even
occurred
impropriety
court to hold that no
suppression
officer to act as
assignment
police
of a
interrogation,
conclude that it was
interpreter at
we
386 U.S.
Chapman
California,
harmless
best. See
(1967);
824,
Angel, age
day
question
recounted how
*16
friends,
house,
and
playing
was
the
with his brothers
him in
came to the door.
let
step-father
whеn his
Someone
pistol lighter—a cigarette
and when he asked for his little
of a
retrieved it from
lighter
shape
pistol—Angel
the
him,
upstairs.
receiving
lighter, Santiago
After
the
told
shooting.”
come after me. There’s
to
some
going
“don’t
be
(Vol. I,
26) Nevertheless, Angel
N.T. 10/20/76 at
followed
corner,
his
around the
a distance of
one-
step-father
about
block,
there,
half
to Norris and Marshall Streets. Once
Angel stopped and stood
the firemen’s station. He was
by
hand,
appellant,
gun
running
able to see the
with a
out of a
door to a
Angel
back
house on Norris Street.
then
observed,
(Carrillo)
the
as he
“stood in the middle
appellant
Mueller,
Cir.1977).]” Louisell,
(6th
fied and thus tainted statement/confession. (which testimony appel- Based on the of the witnesses included the lant) hearing, persuaded suppression at the we are not to alter the appellant’s inculpatory passed court’s determination that the remarks constitutional muster. (Vol. I, of the street and fired the shot.” N.T. first 30) 10/20/76 Santiago falling at was observed reacted, Angel, sidewalk. as run- Appellant recalled and, ning Santiago feet, firing at a of about 8 up distancе two more shots at the victim he laid on the sidewalk. (Vol. I, 31-32) Angel After the shooting, 10/20/76 N..T. brother-and, thereafter, get went to waited victim’s police the arrival of the to tell them what had happened. child, Richard, 12, gave The age testimony second consist- brother, ent with that of his Angel. Koch, transported
Officer individual Santiago who the hospital (Santiago) pronounced where he dead on was arrival, seeing nothing in the victim’s recalled hand as officer him head on lying first observed with and shoulders The of the remaining portion body lying sidewalk. was in the street. It not until body was the officer searched the at the hospital lighter-type that he found a in the gun fact, front In right, pants pocket. victim’s the Common- Carlin, expert, wealth’s ballistics Officer identified the ob- ject cigarette lighter as a not even work as “d[id] cigarette (Vol. I, lighter supposed to work.” N.T. 10/20/76 at
Halbert forensic medi- Fillinger, pathologist assistant cal City examiner for testi- County Philadelphia, wounds, fied that the victim sustained two bullet one above the left collar bone and the other the left He behind ear. gave also testimony ethyl that the alcohol .30. victim’s defense, In his own the stand took and recount- *17 ed how on June 1976 he and his wife traveled a distance sister-in-law, some blocks to visit his He who was sick. had been sitting yard company family when, members for half approximately about an hour at abusive, p.m., 6:45 Santiago verbally arrived and became he paced back and forth in the of the Initial- middle street. ly, the remarks aimed at family, were the entire but then they alleged- were directed at the solely appellant. This barrage of epithets continued fоr hour to an hour-and-a- an half, yet appellant nothing. stayed did absolutely “just He open there with mouth because had never had any [his] [he] II, (Yol. [Santiago] troubles with before.” N.T. 10/21/76 at 109) drunk, and, thus, Appellant Santiago said seemed his remarks did not make him Carrillo angry; “completely (Vol. II, 110) ignored him.” N.T. 10/20/76 at Santiago left hours, returned, after about IV2 but time with beer cigarettes, up and took where he left off from the middle of the street. This second session lasted for about appellant getting hour without angry, despite the victim (in supposedly calling “faggot” him Spanish “cuckold” the word is “cabrón” and means somebody else’s wife is man, II, running with another Vol. N.T. 10/21/76 at 67 & 112).
Thereafter, appellant says Santiago left but returned a third time. back, When he came appellant’s version depicts the victim as having his hand hidden as he approached the accused. As he stood 15 feet approximately from the appellant, he came down off of the sidewalk and fell in the street, middle of the right in front of the accused. At this point, as told by appellant, up victim lifted his hand and aimed a gun at him. This everyone, caused except appellant, to run into the sister-in-law’s house. Appel- lant took parked street, cover behind a truck in the “[a]nd that’s when shot to defend [him]self, because it was [he] with the (Vol. fear that had that had to do this.” [he] [he] II, 100) N.T. 10/21/76 Appellant firing admitted to his weapon twice as the victim “was about 20 directly feet from away The appellant Id. testified that as he [him].” getting behind the truck the victim “started to go (Vol. II, backwards.” Next, N.T. 10/21/76 at appellant pointed out that as shot, he fired the first victim “was going backwards.” Id. Following second shot, appellant weapon truck, threw the underneath the ran back into wife, the house and helped who had asked to upstairs. be taken Appellant waited there until the police came.
Moreover, appellant did not deny making a statement to authorities, and said it consisted of exactly what he had *18 (Vol.
just having II, testified occurred. N.T. 10/21/76 at 101) cross-examination,
On appellant testified that he pur- .38 chased the revolver 5 months incident before the from a vendor on the street and that he carrying it his sock on day question “only (Vol. protection.” II, [his] was, N.T. 10/21/76 at This purportedly, only the second appellant time that had carried weapon on his person. The remaining portion appellant’s defense con- testimony sisted of of relatives present at the scene during thе time of the shooting, which tended support appel- lant’s version.
The trier of fact did not believe appellant’s accounting guilty charged. found him appeal, On our Supreme Court likewise found sufficient evidence to support judgment Carrillo, of sentence. Commonwealth v. supra. aforesaid,
Based on the say we cannot that the admission of the Carrillo statement was so that prejudicial the only recourse to grant appellant trial, a new minus the presentment of the into statement evidence the prosecu- that, tion. findWe even if we were to dismiss the content statement, of the (eyewitness evidence accounts and the appellant’s own damaging testimony) is otherwise support- ive of the verdict. differently, Stated this Court determines that there is no possibility” error, “reаsonable that conceding for the sake of argument occurred, that one could have contributed to the verdict. Commonwealth v. Story, supra.
Finding the claims of the meritless, to be we affirm the Order of the PCHA court.
WIEAND, J., files concurring statement which is joined ROWLEY, J. WIEAND, Judge, concurring: I join all but the portion final of the majority’s opinion. I agree rights constitutional were not violat- ed statement, because inculpatory given in Spanish, was *19 English by police translated into officer. I also that agree argument a contrary would have lacked merit and that counsel, therefore, was not failing pre- ineffective for in post serve issue trial motions. Because of this conclusion, I it unnecessary find to consider whether trial, error, Commonwealth’s use of the if statement at would have been harmless.
Superior Pennsylvania. Court of
Submitted Jan. 1983. Sept.
Filed 1983. Appeal Petition for Allowance of Denied Dec. 1983.