*1 the function of a is. We cy jury have enough —truth giving” sentencing entities: “mercy judge, parole board, governor, majority etc. Now the would have a jury leave the realm of truth and become enmeshed in the social one engineering. perverts world of This of the foun- i. e. the democracy, jury system. dations our Any confu- I, sion in this case was due to this jury perversion. therefore, dissent.1
NIX, J., joins opinion. in this dissenting
Argued Nov. 1976. April
Decided
1978.
legal
ably
adopt
very
I1.
rational set forth
Nix
Justice
Anthony
his
Manning,
dissent in Commonwealth v. Michael Francis
Before C. and O’BRIEN, ROBERTS, POMEROY, MANDERINO, NIX and JJ.
OPINION THE OF COURT NIX, Justice.
As a a result of forcible intrusion into the homes of Mr. and Mrs. Gerald Shoemaker Mollo, and Mr. and Mrs. both residences situated Delaware County, appellant was sub- indicted,1 sequently tried and convicted by a jury various including murder of charges, the first degree, burglary, robbery, larceny, assault and battery, and conspiracy. After charged pertinent 1. The was with violations of the sections seq.; of Act of June P.L. et § 18 P.S. 4101 et seq. life a of imprison- trial motions disposition post sentence the murder indictment. imposed Following was under ment given was Hearing, opportu- Post a Conviction nunc tunc.2 appeal pro file direct nity this of the events which lead to these summary A capsulized hours early morning reveals convictions to be F.B.I. 16, 1971, purporting agents three men July residence. As Mr. at the door of Shoemaker knocked door, the men three rushed into answered Shoemaker argument, and the three After some struggle the house. Mr. and Mrs. and tied Shoemaker gagged men bound over The pipe. cellar a men were upside them down one half hour to forty-five approximately in the house for The three property. men then and stole certain minutes Mrs. came to the Mollo residence. Mollo went next door to on a door, turning porch light but after answer the window, she through fright- men became at the looking came from up for her husband. Mollo called ened and time the men broke front door at which the basement Mollo, wounding at Mr. him. fatally shot and fired glass children, the house the Mollo ransacked men then bound later arrested and identified was Appellant and departed. Mollo the leader of and Mrs. and Mrs. Shoemaker by Mr. crimes.3 had these perpetrated group were made the sur identifications Photographic the court “out which were suppressed victims viving It is now claimed that caution.” an abundance *4 not A permitted. in-court identifications eminently it clear that the record makes review of Mollo had ample opportunity and Mrs. Mrs. Shoemaker independent have made an the incidents to appellant agreed was entitled to a direct 2. The Commonwealth expired. prescribed period filing had appeal although for raised, sufficiency of the Although we have examined 3. support conviction and we satisfied that to the murder evidence 15, 1870, 15, 2, February P.L. P.S. § § it is Act sufficient. (1964). It well tion. is established in jurisdiction this that in deter- mining whether or not the witness admissible, an accused is applicable test whether, granting establishment of the primary the evi- illegality, to dence which the instant objection is made has been come the exploitation of the or illegality instead by means
sufficiently distinguishable to be
of the
purged
primary
328,
taint.
v. Spencer,
Commonwealth
442 Pa.
Here, the court a suppressed photographic identifica tion, stating opinion its that it did so out of an abundance Accepting caution. the court’s as to finding the existence taint, primary this we agree that the record established basis for that court’s conclusion that these witnesses had sufficient opportunity observing appellant independent of any suggestive might influence that have occurred aas result of the photographic display. Mrs. Mollo observed porch light first under the through glass window in the front door when he was only inches away from her. Throughout the ordeal she viewed him in four different rooms. While Mrs. Mollo and appellant kitchen, were in the she to him and asked him to spoke gun In put down. bedroom, her son’s Mrs. again Mollo and appellant spoke to each other. Mrs. Mollo also viewed base ment. The witness described of these each locations where she was in the immediate presence of appellant well lighted. *5 also indicates a suffi- of the Shoemakers
The to observe Shoemaker tes- opportunity appellant. cient by fairly good the leader lighting he observed tified. to six feet within home for was five his appellant when minutes, again and in kitchen of fifteen approximately the three men testified she saw his home. Mrs. Shoemaker with argued in room where Shoemakers living testified that she had Additionally, Mrs. Shoemaker leader. bedroom and that she and with a discussion the kitchen cellar at the both in were time. same descriptions appel- three detailed gave witnesses except- on of the murder and police morning
lant to fit We appellant. the descriptions ing discrepancies, minor did abuse learned court below its therefore hold that the the in-court identifications. discretion in permitting has set forth numerous other Although appellant contention need be addressed only other arguments the ineffectiveness of trial is the claim of juncture at this pre have not been arguments properly The other counsel. unless it review and would be waived for appellate served to pursue preserve that the failure can be established trial inadequacy. was because of counsel’s questions these we stated on numer stewardship assessing In counsel’s is whether the applied the test occasions that ous some reasonable elected counsel had of action course interests, client’s Common to effectuate his designed basis Common Hosack, wealth Pa. 235 A.2d Maroney, Washington ex rel. wealth (1967): however, that our emphasize enough, strongly “We cannot assistance is deemed constitu- and counsel’s inquiry ceases we able that the once to conclude tionally effective some reasonable chosen counsel had course particular his interests. The test to effectuate client’s basis designed reasonable, more other alternatives were not whether of the record. Although evaluation hindsight employing *6 must, weigh the alternatives we the balance in tips favor finding effective assistance as soon as it is deter- mined that trial counsel’s decisions had any reasonable basis.” rel
Commonwealth ex
v.
Washington Maroney,
127
supra,
5,
Pa. at 604
In the instant case some of the although claims of ineffective assistance of counsel can answered based on record, independent review the others cannot be deter hearing. mined absent an such evidentiary One in claim volves counsel’s failure to call an alibi witness. We could only speculate she was perhaps unavailable or her have testimony might not been beneficial. It is not our role speculate order to determine the reasonableness of the alternative selected where an particularly hear evidentiary could ing elicit the reasons for possibly counsel’s decisions. For this reason we vacate the judgment of sentence and remand the matter an evidentiary hearing on ques tion of trial counsel’s ineffectiveness. If the hearing court ineffective, finds that trial counsel was a new trial should be If awarded. the court finds that trial counsel was not ineffective, the judgment sentence is to be reinstated. J.,
JONES, former C. did not in the participate decision of this case. J.,
MANDERINO, dissenting filed a opinion.
MANDERINO, Justice, dissenting. case, I dissent. In this in-court identifications were made witnesses who had pre-trial made photographic identifi- cations of appellant. These pre-trial identifications were trial suppressed by the court because were they secured under highly suggestive circumstances. Such photographic procedures identification created a substantial risk of mis- California, identification. v. 440, Foster See 394 U.S. 89 States, 1127, L.Ed.2d 402 Simmons United S.Ct. 377, 88 L.Ed.2d 390 U.S. S.Ct. un- permitted
in-court identifications in-court proposed it first shown that less was were reliable. tions is a one-on-one confrontation
An in-court identification highly a witness and the accused under suggestive between Fowler, As stated Commonwealth circumstances. 203-04, (1976): 19-20 Pa. one person
“Trial observed involving a crime a one-on-one confrontation the time of *7 those at even than suggestive present circumstances more trial, During confrontations. one-on-one pretrial that the defendant present witness knows accused, arrested, being has and is the courtroom trial, may the crime. Prior such circumstances tried for to the may or not known yet have occurred yet who will Thus, point of a witness witness. trial, at the defendant finger an accusing prosecution unless the establishes by be prohibited at suppression hearing evidence convincing clear and will be trial identification proposed that the witness’s on witness’s observation the time based reliably was not crime, that the identification induced at the between the witness’s observations occurring events in-court crime the witness’s identifica- time of the added.) (Emphasis tion.” of in-court identi- nature suggestive of the highly
Because witness basis” for the fications, “independent hearing to trial or outside the prior established tion must be assure the in-court identi- in order to the fact-finder witness able to Evidence was reliable. fication is pre-trial “line-up conducted fairly out accused in pick some assurance that in-court identifi- procedure provides evidence, such the in-court iden- Without cation reliable. effectively cannot be highly suggestive which tifications tested.