*1 bеing statement It was with a confronted killing implicated Bey which co-defendant prompted Bey that this The fact himself to confess. happened place rather to take five hours after arrest than, significance; say, three hours is of no afterwards Bey’s companion was the had motivation fact my “fingered” Bey’s not, him. Thus confession was delay view, product any arraignment. reasons, For the aforementioned I dissent. J., joins
JONES, opinion. C.
Argued 17, 1975. Jan. July 7,
Decided *5 Norristown, J. apрellant. Peirce for Anderson, Moss, Nicholas, Milton Dist. 1st Atty., O. William T. Atty., Moore, Atty., Asst. Dist. Bernard Asst. Dist. A. Atty., Chief, Appeals Greenleaf, Stewart J. Dist. Asst. Div., Norristown, appellee. for EAGEN, J., O’BRIEN,
Before and JONES, ROB- C. ERTS, POMEROY, MANDERINO, and NIX JJ. OF THE
OPINION COURT EAGEN, Justice.
On November appellant, Herman Miller by Davenport, convicted was a of murder in the robbery, degree, conspiracy first to commit murder conspiracy robbery. to commit post After denial motions, a sentence of imprisonment life im- posed on the murder An conviction. additional sentence years seven to fifteen imprisonment imposed on robbеry conviction. conspiracy Sentences charges suspended. appeal judg- This one from the ments of sentence followed.1
A number of trial appeal. errors are asserted on this findWe none will, therefore, meritorious affirm judgments.
Initially, it is asserted that the trial erred court in overruling evidence, denying demurrer As appellate jurisdiction, 31, 1970, July see P.L. the Act II, § 202(1), 211.202(1) art. (Supp.1974-1975), § P.S. V, § art. 503(a), 211.503(a) (Supp.1974-1975). § 17 P.S. motion for a directed verdict made the defense at *6 completion the of Commonwealth’s case. ruling upon applied
In а demurrer the standard to be whether the of record inferences rea is and the sonably drawn the therefrom are sufficient to warrant finding beyond guilty, defendant a reasonable doubt, charged. Carroll, of the crimes Commonwealth v. (1971); 518, 443 Pa. 278 A.2d 898 Commonwealth Zeringo, Pa.Super. 300, 257 A.2d While proof the burden of it is Commonwealth, may well-settled that sustain wholly through burden circumstantial evidence. Com Cimaszewski, monwealth v. 141, 288 A.2d (1972). The Commonwealth’s established following: approximately
At January 14, 1:45 a.m. on Mil- Hawkins, ton asleep the victim, was home located his at Strеet, 5932 North Philadelphia, 19th he receiv- when Davenport. ed Following a visit from a brief conversa- tion, Hawkins went upstairs, dressed and left house company Davenport. in the of The two men entered a Mustang red racing stripe, by with a white driven black morning, male. At 8:00 the same a.m. Hawkins’ body lying roadway lifeless found of Gribbel Road, Royal Avenue, Wyncote near in the section of Township, Cheltenham Montgomery County. oc- Death curred between 2:30 and The 4:30 victim had suf- a.m. during fered a violent approx- assault which he sustained imately forty-five stab wounds. Articles of the victim’s clothing and two knives were found near the scene. pocket left rear ripped of victim’s off. trousers was No person. wallet investigators was found Police were identify body able to by as that of Hawkins inscription ring on a fingers. found on one of his
Blood surrounding corpse. stained the snow There large quantity was a of blood under the victim’s head. This was later type determined to be of B. Trou- blood subsequently Davenport’s apartment
sers seized from at type the time of his arrest contained of traces blood B. Testing type blood revealed to be A. evening January 8, 1970, approximately
On the five days killing, Byrd before the one Hawkins and David drinking Babydoll at the Bar located at 21st and Philadelphia. Davenport Kimble Streets in one and Wil- engaged liam in a Clifford Bartlett entered the bar and conversation with the of the con- the course victim. presence versation, Bartlett in the victim said to Davenport, January “I have the bills”. five On approximately day one death, before his Hawkins was Byrd. visited at his residence David Hawkins threw *7 a roll of ontо the asked bills drainboard sink and Byrd money. count the The of to to roll bills amounted forty approximately five hundred and dollars. Janu- On ary 19, 1970, Hawkins, five after the death of a days Spencer wallet was removed from a sewer at 21st and money, Philadelphia. Streets no wallet contained papers photographs, but contained and identification belonged which indicated the wallet Mrs. victim. Hawkins, however, money in found no the house after body her at husband’s was recovered. The sewer inlet Spencer and blocks Streets loсated within a few 21st Davenport’s of residence, the residence of the victim and Babydoll Bartlett, black the. William Clifford a Bar. registered male, was at the time as the owner of a red Mustang racing stripe, with a white similar to the one Davenport shortly off in the Hawkins and drove before employed victim met his death. had been May from of 1968 until June the of Sanitation Department Township. to of Cheltenham The truck assigned regularly which he had been collected trash Wyncote section, including the area of Road Gribbel Royal and Avenue. foregoing facts, together none of the with
While therefrom, inferences to be be drawn would reasonable individually, guilt sufficient when considered establish jury strength their collective is sufficient warrant doubt, finding Davenport beyond of guilty, a reasonable charged. the crimes challenging the
Davenport next raises several claims validity sample, of the seizure of a second blood subsequent blood into evidence at trial introduction type. following Davenport’s arrest, the January
On
County
police
Montgomery
offi-
coroner at
behest
type
sample
com-
cials extracted a
from him to
blood
pare
prior judicial
No
authori-
with that of the victim.
hearing
aon
zation was obtained for this seizure. At
(cid:127)
presented a
attorney
suppress,
the district
motion
application
for a second
search warrant
court
admitting
counsel, although
sampling.
blood
Defense
probable
a second
cause existed and
results of
opposed
application
untimely.
test
This blood
as
suppression
first,
found
would be identical to the
court
upheld
unnecessary
application,
to rule
grounds
legality
that Daven-
initial
seizure
port
of the blood
had consented
The evidence
thereto.
appeal to
test was introduced
at
into evidence
trial. On
Court,
re-
we reversed
conviction
*8
Pomeroy
manded the case for a new trial.
Justice
Mr.
stating,
opinion
support
filed
in
an
reversal order
alia,
properly
inter
was not
admit-
of the blood
that
trial,
ted at
because the record failed
demonstrate
Davenport
knowingly
intelligently
had
waived
submitting
еxtrac-
rights in
to the
Fourth Amendment
joined
Eagen
tion.
and Mr. Justice O’Brien
Mr. Justice
opinion.
Pomeroy
¡Roberts,
in
Mr. Jus-
Mr. Justice
in
join
tice Nix and Mr. Justice Manderino did
join
opinion,
Chief
but did
in the Court’s order. Mr.
See
Justice Jones noted a dissent.
Commonwealth
(1973).
Davenport,
Pa.
A.2d
trial,
Davenport’s
Prior to
second
Commonwealth
application
presented
for a
to the trial Court a second
warrant,
“petition
require a
blood
search
termed
granted
hearing argument,
sample”.
court,
The
after
sample
application.
then taken.
A second blood
was
de-
suppress
subsequent
A
motion to
this evidence
nied,
test were introduced
and the results of this blood
Davenport’s
into
at
second trial
November
pertaining
sec
to the
claim
first
present
sample
ond blood
is that
the Commonwealth
ing
grand
prior
trial
jury
first
its case to the
to his
investigation
effect certified that
it had concluded its
accordingly
presentment
based,
which the
by
investigation
continuing
precluded
should be
from
its
authority
securing
sample.
is cited
a second blood
No
thereby.
persuaded
for
claim,
аre not
this
and we
system of
grand jury
theory,
in our
the function of a
justice
the Common
criminal
is to ascertain whether
prima facie case. See
out a
wealth’s evidence makes
Secondly, related lag in argues thirty-nine month time between sample the extraction of the dictment and blood However, conten renders the seizure unreasonable. sample was tion the fact that the second blood overlooks long pursuant as secured to a search As warrant. requirements valid, search warrant was Fourth Amendment have been satisfied.
553 validity challenge the of the search Davenport does showing of suffi- it issued without a He claims warrant. probable cause. cient magistrate or other a
It well-established that
is
constitutionally
a
issuing authority may
issue
search
sufficient
with information
warrant until he
furnished
is
probable
cause for
persuade a
man that
reasonable
410, 89
States,
Spinelli
393 U.S.
search exists.
v. United
Aguilar
Texas, 378
584,
(1969);
L.Ed.2d 637
S.Ct.
v.
(1964);
108,
Com
1509, 12 L.Ed.2d
U.S.
84 S.Ct.
Garrett,
A.2d
632,
v. Jackson and
monwealth
331,
D’Angelo,
(1975);
437 Pa.
Commonwealth v.
in
(1970).
purpose
requiring,
Instantly, the information contained only the entire cation for the of not warrant consisted against Davenport, also but state circumstantial case given police investigators by co-felon, Wil ment his , robbery Bartlett,2 implicating Davenport in the liam sufficient murder of Hawkins. That this constituted beyond probable is cause for the issuance of the warrant question. sample, it
Lastly on the issue of the
blood
ex
urged
test
have been
the blood
results should
poisonous
tree”.
cluded as “fruit of
argues
precluded from
that the Commonwealth should be
type
introducing
because
this evidence of
blood
his
degree,
first
in the
Bartlett was convicted
murder
kill-
robbery
Hawkins
conspiracy for his
in the
involvement
conviction,
ing.
his state-
affirming
this Court held that
properly
lawfully
police
obtained
ment to
officials had been
Bartlett, 446 Pa.
into evidence. Commonwealth
admitted
knowledge
gained
through an un-
thereof was
originally
disagree.
constitutional seizure. We
gen
poisonous
The
of the
tree” doctrine had
“fruit
its
States,
Company
Lumber
United
esis
v.
Silverthorne
385,
182,
(1920). Even
40
The facts which gathered by the Commonwealth rant was based Davenport’s seizure of prior the first unconstitutional the Common- motivating factor behind blood. type Davenport’s blood ascertain decision to wealth’s fact in view evidentiary its value obvious ex- type of the blood type blood the victim’s both Davenport’s room at the trousers from tracted for the basis Since the arrest were same. timе of independent of totally antedated, and was seizure unconstitutional from the first any learned information properly type blood seizure, Cf. independent source. an from derived as admitted A.2d 573 230 Darwin, 155 Conn. v. State
555 alleges erred admit- the trial court next testimony pertaining ting into several items were irrele- Complaint is items made that these thereto. vant. if establish some
Evidence relevant tends fact at is or to make the fact to the case tends material Stewart, probable. v. sue more or less Commonwealth (1975); 461 Pa. A.2d 282 (1970). See also Myers, 266 A.2d 1953); Pennsylvania (4th Mc Henry, Evidence, ed. § *11 Cleary Evidence, (2d Cormick, of ed. E. Law § 1972). challenges the
Davenport initially irrelevant as knife, tes the and introduced at trial of second evidence recovery timony regarding by the photographs its and police. ques knife in us, however, the It clear that is conspiracy. tion was to the issue of relevant that The evidence at trial indicated Commonwealth’s clump police in a knife was discovered forty approximately and feet of one hundred bushes body was found. where the victim’s south site had The further that the homicide established place vicinity, the victim had taken in the immediate and forty-five differing of sizes. Ad- sustained stab wounds in ditionally, alive the com- the victim had last been seen context, pany of and In Bartlett. relevant link in the chain of circumstantial knife was a proof conspiracy. of question in alleged knife
It further ground on the of remoteness. should been excluded have days urged fifteen after It is that because was found from killing forty removed one feet hundred no there were body, of the victim’s location regard fingerprints or knife, bloodstains ing prohibited. been it should have generally
Remoteness, however, goes weight evidence, be accorded the admissibility. rather than its Henry, Pennsylvania 1953). Evidence, (4th ed. § especially present This is inso circumstances. site of nature, the homicide is residential heavily fact, intersecting one traveled. of streets body near which the victim’s was found is a cul-de-sac. The failure to find the knife the initial search of the scene is understandable because the knife was hidden clump in а bushes, and the absence of or bloodstains fingerprints explainable light expert on the knife is testimony exposure to the elements can ero- cause sion of these traces. lastly
It is contended that the admission of question proper knife was erroneous in that a foundation was not laid for its introduction. con This prosecution tention would have merit if this were a sole ly for charged. murder with no Since we conspiracy have pur determined that the knife was relevant for the pose proving conspiracy, thе existence of a judge admitting purpose. did not err it for that “Evi purpose though dence admissible for one not for another *12 may though admitted, limiting be instruction must be given requested.” if Johnson, Commonwealth Pa. 457 v. 554, 559, 632, (1974); 327 A.2d 635 Commonwealth v. Updegrove, 599, 413 Pa. (1964); A.2d 534 Mc 198 Cormick, supra, 52, Here, limiting no such in §§ requested. struction was therefore, properly
We, conclude the knife was admitted into evidence at trial.
Davenport further asserts that the victim’s wal testimony regarding let, recovery by police, its were improperly they admitted into evidence because ir were doubt, however, relevant. There can be little that this clearly robbery was evidence relevant to establish that a place attempt had taken and that to an had been made
557 discarding the wallet in destroy of the crime a sewer inlet. testimony regarding
Claim is also made that girl should have friend irrelevant Bartlett’s deputy chief permitted. judge The trial allowed been girl testify of the name of Bartlett’s detectives Mustang. appeared his red on the friend dashboard clearly irrelevant, testimony if it was Even werе Davenport. way prejudiced it harmless since in no judge commit It the trial is next asserted that charge jury. ted error two in his instances First, judge jury’s usurped func is said the trial suggesting jury. possible Read tion in to the inferences ing charge must, whole, as a we as Stoltzfus, (1975); 462 A.2d Com Pa. 337 873 (1972), Rose, monwealth v. A.2d impartial. charge fair we are convinced only judge The trial the evidence commented task, necessary explain to the its extent Moreover, clarify applicable principles. legal and to clearly judge occasions, the trial infоrmed on numerous jurors inde their recollection collective controlling. pendent on the conclusions A.2d Cf. Watts, Commonwealth v. 358 Pa. (1948); Project for also ABA Crimi See Standards by Jury, Justice, nal Relating to Trial 4- Standards § 7(a). judge’s the trial next claim is that charge indictment and
references to the bills authority grand jury proceedings constituted error. No alleged support claims of and we error, is cited only find them devoid of merit. The references of the trial bills in the of indictment were made course explanation charges *13 judge’s the dеfend for which carefully standing ant the court was trial. Additionally, any jurors they not ad- should draw cautioned grand jury verse inferences from the fact re- against Davenport. Hence, turned bills of indictment we judge acting proper find the trial err, did not but was discharge judicial responsibilities. of his
Davenport restricted, improperly next he contends was suppression at the hearing, introducing from evi- police to dence show that seizure certain blood- clothing linking soaked him to the con- homicide violated this, stitutional standards. As to disclоses record following:
Davenport police custody by was taken into officers exiting armed with an arrest warrant as he was from his rooming Davenport third-floor room in a house. scantily without time shoes otherwise clothed at the permission and asked re-enter to his room and don addi- clothing. granted tional Permission was and when Dav- enport accompanied re-entered room several his officers feet, approximately him. The room was nine twelve retrieving only furnished with a bed and While dresser. Davenport shoеs and additional items for clothe him- self, pair bed, an officer seized trousers from rags top jacket from some of the bureau a denim hanging open from a All of hook on an closet door. noticeably these were items stained with blood.
Prior trial, the first filed a motion suppress jacket trousers, rags the blood-stained seized, police related, as because the were arm- above ed with search warrant at the time of the seizure. suppress trial court denied the these items motion introduced into evidence at first objection. among things, assigned This, over other guidance appeal. as error to afford first order Pomeroy retrial, in the mandated Justice discussed Mr. assignment opinion disposing of error complaint appeal, mer- first and found the to be without expressed it. He constitu- the view that seizure was tionally “plain valid view enunciated under doctrine” *14 States, 234, in Harris United 390 U.S. v. S.Ct. (1968). L.Ed.2d 1067 trial, the the commencement of Daven-
Prior to port application suppress, the a inter alia, filed new to clothing. given in the motion bloodstаined reasons suppressed why particular this evidence should be as follows:
“(a) the of was conducted without issuance search warrant;
search “(b) stating to search was conducted without officers search; purpose
the defendant the of said “(c) illegal not officers were search was the because securing
placed danger physical harm the in of defendant-petitioner; arrest the of “(d) ample the se- opportunity after arrest to existed premises a search warrant.”
cure the and оbtain following hearing evidentiary ensued An the suppress which to was denied. While the motion concerning suppression of hearing court heard evidence spontaneously the trou evidence, it ruled other items of hearing jacket sers, rags and without were admissible regard the any circumstances of sei expressed the that the Su zure thereof. The court view the preme appeal that sei first Court had ruled constitutionally valid under of zure this was by bound “plain trial court was view doctrine” and the exception objectiоn entered ruling.3 or No ruling importantly, no was made and, more offer challenge fortify any testimony to introduce jacket. trousers, rags evidentiary use of the Pomeroy’s this, Justice Since Mr. the court was in error. represent appeal the views opinion disposing did not of the first Court, majority of not decisional. necessary Silverman, is not It A.2d 308 442 Pa. directing also appeal a retrial if order in first our here to decide admissibility de novo Davenport right granted to attack trial court. already admissible ruled of evidence Davenрort argues now if the court entered had evidentiary hearing regard into an seizure particular may these items evidence “the defendant present testimony per have chosen to that could have judge suaded the learned that the items seized were trial plain view.” But since made no effort court, present to introduce such evidence in *15 complaint appeal. not Cf. will be considered on this Glenn, v. A.2d 535 545, Commonwealth 459 Pa. 330 (1974), A. Clair, 418, v. Pa. Commonwealth 458 326 (1974). 272 2d
Davenport the trial court next asserts that grant failing to the to a dеfense motion dismiss erred sup alleged prosecution, because the of Commonwealth’s the pression Davenport had to an oral statement made of alleges he police following counsel his Defense arrest. Davenport believing had not made into was misled testimony giv any police, to the because of statement Davenport’s preliminary by of at en Detectives Chief hearing. however, reveals, before Dav- that months
The record given enport’s notice trial, counsel was defense writing to intrоduce the Commonwealth’s intention po- Davenport gave the trial into evidence at a statement Therefore, his even if we were subsequent lice to arrest. valid, legally present is claim to assume by rec- for the claim is contradicted the factual basis Hence, merit. contention is without ord. this statements alleged that certain
It is next
jury
argument
attorney during closing
to
the district
only
state
improper
require a new trial.
were
following
appeal4
this
properly
on
ment
before us
hence,
and,
objected
аt trial
not
4. The other statements
appeal. Com
properly
for
on
preserved
review
have not been
187,
Clair,
Agie,
Pa.
449
supra;
monwealth v.
(1972).
561 by prosecutor the defendant: comment reference to caught “He is red-handed with the blood victim objection by apartment.” trousers in An immediate specifi jury defense counsel sustained, Assuming cally disregard the comment. instructed attorney’s the bounds that the district assertion exceeded re no evidence, can discern fair comment we possibility sulting prejudice since prompt spe j udge’s thereof was removed challenged disregard cific instruction Martinolich, statement. Cf. Commonwealth v. (1974) denied, 419 U.S. A.2d 680 cert.
S.Ct. L.Ed.2d Finally, Davenport several other contentions5 raises hence, have and, which were not raised the trial court properly preserved appellate review. Com been for Clair, Glenn, supra; su monwealth v. Commonwealth v. pra.
Judgments affirmed.
NIX, J., concurs in the result. dissenting JJ., ROBERTS, and filed
MANDERINO opinions.
MANDERINO,
(dissenting).
Justice
Appellant’s
I
demurrer to
evidence should
dissent.
the.
in his
entered
have been sustained and
directed verdict
a.
thе
majority correctly
none of
The
notes that
favor.
proven by
together
rea-
prosecution,
the
with the
facts
by
(1)
the trial
a
made
These contentions are:
that
statement
objection to
overruling
judge in
defense counsel’s
the course
(2)
prejudicial;
that
the trial
admission of the second knife was
present-
judge
admitting
photographs
in
into
three
erred
evidence
by
home
showing
ed
of the victim’s
the Commonwealth
a view
it;
(3)
the trial
police
parked
that
with a
judge permitted
car
in front of
and
testify
Byrd
a conversation
to
to
certain David
the
Bartlett
in
he
presence
and co-felon
overheard between
victim
Davenport.
therefrom,
to
be suf-
sonable inferences
be drawn
would
individually.
guilt
I
ficient to establish
when considered
agree
however,
with their
that
cannot,
conclusion
strength
presented
of the evidence
is sufficient
collective
finding guilt beyond
to warrant a
a reasonable
only
my opinion,
In
be based
doubt.
a verdict could
such
conjecture,
suspicion, and surmise.
(dissenting).
ROBERTS, Justice
appellant
to ade-
that
failed
Because I cannot conclude
bloody
present
preserve
claim that
quately
and
his
“plain
jacket
trousers,
rags,
not in
view"
were
illegally seized,
they
I must
dissent.
preceding
suppression
filed
his
motion
applicability of the
trial, appellant
clearly questioned
Coolidge New
“plain
to this case. See
view” doctrine
Hampshire,
Because we new *17 hearing suppression a new peal, he was also entitled to suppression integral part this of his new trial. At as an 235, Davenport, A.2d 85 453 308 1. See v. Pa. (1973). post- question appellant in his raised this issue 2. There is no verdict motions. any hearing, to raise issue he should have been allowed adversely previous appeal. him Cf. decided 7, A.2d McCrory, 620, Kuchinic v. 625-26 n. correctly majority as the Here, n. 7 concludes, the trou- rule on whether Court did not sers, suppressed. The rags, jacket should have been appellant opportunity was therefore entitled to an hearing urge suppression suppression their at the new ruling admissibility. he and to obtain a their Because deprived opportunity, vacate the of that I would judgment sup- sentence and remand case pression suppression appellant’s court to claim. consider suppression If the court to have found been seized violation of fourth amendment I, Constitution of the or sec- States, United article tion Pennsylvania Constitution, a new trial required; supression would be if the court determined suppression properly refused, appellant would permitted appeal be an from that decision.
Argued Oct. 1974. July Decided