*1
205
United
v.
motion
e.g., Bradley
See,
severance.
States, 433 F.
States
United
Cir.
(D.C.
1969);
Lee,
428
F.
917
Cir.
cert.
404
denied,
2d
(6th
1970),
Baker v. United
U.S.
92
1017,
S. Ct. 679
(1972);
States, 401 F.
958
2d
Cir.
cert.
(D.C.
1968),
denied,
Commonwealth v.
400 U.S.
91 S. Ct.
965,
367
(1970);
Patrick,
416
Common wealth v. DuVal, Appellant. *3 1972. Before Argued J., January Jones, C. and Man- Eagen, Nix Roberts, Pomeroy, O’Brien, JJ. DERINO, for appellant. L. Segal,
Bernard Attorney, Assistant District Harris, B. Stephen him for Common- F. District Attorney, Clark, Ward appellee. wealth, by 1973: Me. Justice
Opinion July 2, Pomeroy, DuVal was convicted a George Appellant fol- of voluntary manslaughter and, of the crime sentenced motions, was lowing post-trial denial comes years. appeal This direct of six twelve term L. 427, the Act of March P. 31, 1860, §57, us under 19 P.S. §1182.
Five are advanced convic- why appellant’s reasons cannot stand. One of five—that the Common- tion including charge wealth erred not of involuntary bill indictment manslaughter presented grand jury—was presented the court below *4 and under post-trial motion settled principles will not this Court. decided Of the four remaining now reasons, require one will con- appellant’s fact be reversed. We viction will reach additionally and de- three remaining cide two of contentions because are almost certain to they the Common- recur should retry appellant. elect to wealth Invocation, Against Privilege Self-Inerimina- I. McCabe and D’Ulisse
tion the Witnesses Springbett, Phillip Jr., The victim оf the C. crime, Pennsylvania visiting shot at the Levittown, was while George defendant-appellant, and home of DuVal, Marilyn the Common- his D’Ulisse. mistress, It theory Springbett had traveled Levit- wealth’s Joan mistress, town effect reconciliation his falling recently whom he McCabe, with had had out temporarily up and who had taken residence with According defendant DuVal and Miss D’Ulisse. Springbett Commonwealth, relations Miss between during Springbett’s McCabe deteriorated still further persons together visit and while all four in the Springbett kitchen in the late Joan struck afternoon, anger. McCabein This action so infuriated DuVal that he fеtched a .45 calibre from service revolver bed- Springbett room, returned to the kitchen and shot the chest.
Answering placed by a call for assistance one of the Squad appeared two the local women, Eescue on Springbett lying scene to find near death and to ob- exiting driving away. serve a man the house and No Squad member identify of the Eescue was able to weapon defendant DuVal as that man. The murder along leading was found in a away lot vacant the road from the residence. DuVal/D’Ulisse preliminary hearing,
At Jury pro- at the Grand ceedings, during corpus hearing a habeas concern- ing defendant’s bail, two women witnesses shooting Originally explanation testified. their had burglar been that an unknown had entered the house Springbett. and had murdered before Later, the Grand changed Jury, both of them their stories to that detailed Jury testimony above. Between the time of the Grand *5 be- both women trial, however, DuVal’s and start in the charges might that perjury came concerned lawyer. attorney That consulted they offing attorney of Bucks district the assistant contacted of the beginning or four before days “three County on de- trial In held after hearing dire.” voir assist- rеcord, motion to supplement fendant’s fol- recounted conversation attorney ant district lows: came D’Ulisee)] McCabe (the attorney of
“[He I ‘I that intend to know you me and want up said, on trial.’ to take the stand girls not permit it them?’ Because stuck “I ‘Do you represent said, another at- represented by they mind that my the time. torney at I
“I answer but believe was, recall what don’t [his] that he had not entered yet I from him that elicited for them. his appearance him ‘I I don’t know that, said that—I said
“And I because as under- you’re saying, take what how to that it is intention saying, your are you stand what I not in the but do know trial, take stand they I’ll not know their what is, what their intention intention is tested.’ their intention until is, I I him of the fact was reminded “And then prelimi- had testified at the they fact that aware at the of them had testified Grand one nary hearing, corpus had testified at a habeas of them and two Jury, hearing. clear that as far I very
“I
him,
terms,
said
women had
their
these
waived
concerned,
young
they
whether
any event,
would
but
privilege,
I
would wait
privilege
trial,
not invoke
would
moment.”
assistant
abide that
district
and have
he related the
stated
substance of
then
attorney
conversation
district attorney.
quoted
above
the first
the Commonwealth
day
trial,
On
called Joan
time her lawyer
(the
at which
McCabe,
person
spoken
same
who had
with the assist-
previously
himself
ant district
introduced
to the court
attorney)
witness,
and entered an
on behalf of the
appearance
*6
existed
thereby eliminating
may
whatever doubts
in
in
the mind of the
to
district
as
attorney
whether
fact he represented Miss McCabe. When called
the
Miss McCabe
state
her name
stand,
nothing
would
but
and
to all else claimed her
Amend-
address, and
Fifth
ment
against self-incrimination.
privilege
Out
the
the trial
hearing
jury,
judge decided that
the
privilege
witness had waived her
by
prior
on
testifying
occasions. The
was returned and the
was
jury
witness
directed to
in
testify.
refused,
She
was declared
con-
and
led
in
tempt
was
off
the
court,
custody
objection
sheriff. Defense counsel made
throughout.
Miss
D’Ulisse
then
Marilyn
was
at-
the same
called,
entered an
on her
torney
appearance
behalf,
same events followed as with the witness McCabe. Miss
also
escorted
D’Ulisse
from the courtroom
Again
sheriff.
defense counsel
objection.
made timely
We view the above as reversible error under our re
cent decision
Commonwealth v. Terеnda,
Although appellant
in terms
frames his
Amend
the Fourteenth
of the Due Process Clause of
procedure
jurisdiction which
no
ment, we note that
been condemned
error
such as that set out above has
grounds.
on the
Indeed,
has done so on constitutional
Supreme
only
of the Unit
on
Court
occasion which
propriety
conduct,
States
of such
ed
has considered
emphasized
constitutional
issues
“[n]o
Court
any
presented,” and that
11. .
“[a]
kind are
.
*7
evidentiary
claim of
trial
case
is a
involves,
short,
v. United
373 U.S.
10
States,
185,
error.” Namet
179,
(1963).
v.
L.
2d 278
see Pointer
380
Texas,
Ed.
But
(1965); Douglas v.
L. Ed.
923
Ala-
U.S.
13
2d
400,
me,
(1966)
States,
; Sanders
L. Ed. 2d
v. United
373 F. 2d
17
303
1967) ;
States,
(9th
179,
Namet v. United
Ed.
Cir.
U.S.
10 L.
735
373
(3d
Tucker,
(1963) ;
v.
United States
it could be
that under certain circum
testify
grounds
stances a refusal
on
of scJf-inerimi
might
probative
nation
have
establishing
value in
an
in a matter
issue
to which the
party,
witness was not a
recently
permissible
we
held that it
is not
for ei
*8
prosecution
attempt
capitalize
ther defense or
to
to
on
rеfusal. Commonwealth v.
such
Greene,
The Commonwealth good supra, faith that it acted because in Terenda, privilege honestly claim of that the believed it legally not be sustain- forewarned would been it had assumption proba is in this noted case he It should prosecution bly did not fear for the The two witnesses incоrrect. prosecution they perjury. Springbett; hilling feared axiom law evidence that “none but first It is the probative Wig- are having value admissible.” I J. rational facts (1940). §9, at 289 more, Evidence Law of
215 to the Common- according the two women, able, on prior their privilege by testifying had waived wealth, contention: There are answers to that occasions.5 two of waiver theory First: Commonwealth’s contrary directly self-incrimination is privilege against subject. Sny of State on the existing law A. 2d 207 While (1960).6 der 398 Pa. 157 237, Appeal, not it has universally acclaimed,7 decision 5 good prosecutor jurisdictions All found thе faith of the have believing testify, e.g., v. State in either that the witness would (1964); Fournier, Mitchell, 513, State v. Minn. 2d 128 268 130 N.W. People, (1966) Super. 477, 364 221 A. 225 DeGesualdo v. 91 2d N.J. compelled testify, 1961), (Sup. or could be 2d 374 Ct. Colo. P. 1966) ; Edwards, (2d State F. 2d Cir. United States 366 853 189, (1964), Nelson, P. to be sufficient 2d 2d 540 65 396 Wash. calling error in thereafter success to find no witness who reason 1443, fully Anno., A.L.R. 2d the Fifth Amendment. See 86 invoked (1962). 1455 6 Appeal, supra, Snyder crimi- held that a at a we witness In defendant) (not her Fifth Amendment could invoke nal trial notwithstanding privilege she had testified as to the fact that proceedings. preliminary question there said that in matter privilege him [a to remain wit- continues with “the constitutional willingly admitted circumstances ness], that he has the fact compelling never be tbe basis interests can to his own adverse 243. admissions.” 398 at him to make further supporting by the Commonwealth as cited to ns All the cases Snyder Appeal pre-date in fact of that case. to that contra result original jurisdiction they of courts (In are decisions addition appeal.) intermediate or of 7 Snyder our decision in characterizes McCormick Professor McCormick, supra, Handbook on the Appeal, “mechanical.” See controlling (1970). §130, In the absence of at 274 Evidence оf Law Supreme Court, recent precedent United States decisions in the rights problem dealing of waiver Fifth Amendment with adopted contrary against views of self-incrimination Evidence, Code of Model Rule Institute’s 169 Law American Evidence, Rules Rule the Uniform 9A U.L.A. (.1942), States, e.g., (D.C. See, v. United F. Ellis 416 (1965). Saulnier, (Sup. N.E. 2d De 1960); re Ct. In Mass. Cir. 1971). ap- Commonwealth below or on been the theory In it. the moment has come to reconsider peal brief has not mentioned the Commonwealth its fact, the case. those disagree jurisdictions
Second'. We with that the prosecution may impunity it is held be associated likely call before the a witness *10 knowing in the jurors, the defendant the minds of with be self-incrimination will privilege against that a claim of privilege that the yet believing claimed matter the simple It is a legally be invalid. will a to inform the court that witness attorney prosecuting to his knowledge, attempt he intends to call to will, and obtain a rul- against testifying, a privilege invoke note a pro- thereon. We that such is procedure ing on Project the American Bar Association’s posed “A for Criminal Justice: should prosecutor Standards he knows not call a who* will claim a privilege witness the impressing upon to for the of testify, purpose not In in- privilege. the fact of the claim of some jury Responsi- Code of Professional as defined the stances, constitute conduct.” unprofessional so will doing bility, Function to the Prosecution Relating Standards ABA, 122-23.8 In a Defense Function at §5.7(c), and the Project to this the out that section, pointed comment is informed in advance that the wit- prosecutor “if the a and he wishes to contest privilege claim ness will be the the matter should treated without claim, the ruling and a obtained.” Id. jury presence significance section the tenta is not It without prosecutor unprоfessional “It conduct for a to read: draft tive privilege he claim a valid . . . .” knows will a who call witness During Delegates added). the debate in the House (Emphasis February prior 8, 1971, however, approval, to ABA on the deleted amendment. “valid” the word privilege the intent invoke 125. known to witness’ opinion coupled prosecutor’s testi- with presents mony sought compelled be can nevertheless actually bar, twice in the case at that, risk occurred only testify prove might reluctant to the witness If the fact invocation but contumacious as well. privilege irrelevant to the issues is, bеlieve, we prejudicial more it is that much defendant, to jury permit prejudicial the re- observe that (a person likely calcitrant associated witness jurors’ defendant) elects to remain minds with the notwithstanding he the order of the court that silent testify. simple
In mat- the case at bar it would have been jury already from the removed ter indeed, the witnesses D’Ulisse determine whether courtroom, privilege de- and McCabe would continue assert spite contrary ruling by Permitting court. then to return to the courtroom and to observe being McCabe and then D’Ulisse cited for con- first *11 custody tempt аnd in the of the sheriff was marched out prejudicial defendant.9 to the prosecution, the in- therefore hold that once privilege a claim a formed that witness intends to calling against error that self-incrimination, commits jury to the stand before where the witness witness person (co-defendant, accomplice, etc.) associate, is a thought jury by likely to be associated to be incident or in the transaction defendant out of charges arose. Whether or the criminal not the good prosecution faith belief a that the has assertion pointed for the witnesses this fact ont to the Counsel court: please, your I [citation don’t know if Honor for con ‘(cid:127)If by jury pres tempt/removal sheriff] should done with the agreed “[i]t that should not court be.” The ent.” invalid is privilege legally irrelevant; is that matter can be settled outside the hearing jury.10
No instruction was cautionary given jury to claim of two nor privilege by witnesses, any was Commonwealth the failure requested. argues The to make from as- request precludes appellant such the error held oc- serting previously we to have The Terenda called ineffective opinion, curred. supra, the trial to cure error of attempt by court’s this sort the fact co-de- instructing disregard had been called to the stand and had fendants invoked right the Fifth Amendment self-incrimination. against or error can prejudicial by ap- Whether be cured not instructions can be answered an propriate only through average evaluation of the objective capability to follow the instruction and thus refrain from juror or use of evidence admitted. improperly misuse See Effec- Instruction—Its generally, Note, Limiting Minn. L. Rev. 264 Effect, (1956). tiveness element of prosecutorial pres- Where an misconduct and as it prefer as it is here we Terenda, ent, defendant the benefit of the doubt as to give error could have been cured an whether not thus hold that error prejudicial instruction. We not waived failure of defense here involved was instruction. It an follows that request ap- counsel cannot and that a trial stand, conviction new pellant’s ordered. must be at bar that in the case it is clear As Commonwealth’s at two,
torneys of tbe intent of notice tbe bad actual McCabe and privilege, question D’Ul-isse, we do reach tbe tbe to invoke wheth prosecutor duty circumstances has a what make and under er willingness testify. inquiry tbe of a witness as to Cf. *12 advance App. (Tex. (error State, 1970) Crim. 469 S.W. Mathis knowing testify) calling whether he would without co-indictee (Sup. People, 1961) (same). P. 2d 374 Ct. Colo. De Gesualdo II. Admissibility of Statements Made to a Prison
Guard of killing occurred on December Springbett 1867. DuVal surrendered authorities police to December office of his on the late afternoon of lawyer 14th. officer establishes Testimony arresting was read the Mi- DuVal read the arrest was warrant, randa from a card he warnings subsequently and then from of- signed, attorney’s was removed fice. It officer by ap- was made clear to the arresting Du- pellant’s that no of lawyer, however, interrogation Val to take all. the defend- place was at Consequently, ant was taken the Bristol was Township Building, to there Bucks Coun- fingerprinted arraigned before a ty then magistrate, custody was delivered into the of the officials of the Bucks Prison. County days
On the afternoon the third of day of two trial, after the witnesses McCabe and D’Ulisse had invoked the Fifth in- Amendment the Commonwealth privilege, formed defense counsel it had located a witness, incriminating James W. Doorly, testify who would to statements made the defendant DuVal.11 Doorly was a on the prison guard midnight late afternoon It he prison shift. was who checked DuVal into the on the of December evening approximately 6:80 fill- Sergeant he p.m. According Doorly, while was required out a without ing form, DuVal, prompting no question asked response by Doorly, spon- “I declared: this taneously guy. beating shot He was and it home.” up girl, my This testimony, 11 Appellant alleges error in tlie refusal tlie lower court grant morning more defense counsel a continuance of than one Doorly. prepare cross-examination witness will not will, following contention because the defendant reach our de prepare. today, adequate time to cision *13 220 begun appear be to to had converted what
course,
the defend-
in which
into one
case
weak circumstantial
coun-
crime. Defense
to
in effect confessed
ant had
ground
suppress
on the
statement
sel moved
Arizona,
v.
of Miranda
violation
obtained
that it was
(1966).
Appellant
that
contends
in-
Doorly
Sergeant
a custodial
involved is
was
no
meaning
that
Miranda,
terrogation
within
Doorly,
by Sergeant
warnings
given DuYal
was
any
from DuYal
elicited
hence
thus
statement
rights. Mi-
his constitutional
obtained
violation
given
the arrest-
warnings
to DuYal
had beеn
randa
regard these
ing
before. We
officer
than two hours
less
lapse
warnings
of time.
of the short
as sufficient
view
A. 2d
283
Pa.
Hoss,
111-12,
445
98,
Commonwealth v.
necessarily
argument
(1971).
then,
becomes,
58
informed of his constitutional
was
DuYal,
who
lawyer,
through
rights
indicated
had
his
who,
right
silent,
remain
to exercise his absolute
desire
by Sergeant Doorly.
“interrogated”
was nonetheless
no interro
under the circumstances
It
clear that
supra,
permissible.
gation
384
Miranda,
of DuYal was
Pa.
285
Nathan,
v.
445
470,
Commonwealth
474;
U.S. at
Leaming,
(1971);
Pa.
v.
432
Commonwealth
A. 2d 175
(1968).
“interro
defined
A. 2d 590
We have
326, 247
“any
encompassing
question
gation”
Miranda as
under
likely
expected
or
to elicit a confession.” Common
252 A.
Simala, 434 Pa.
219, 227,
wealth v.
requir
(1969).
read Miranda
however, never
have,
subsequent
ing
made
statements
defendant
all
prodding
suppressed.
If the
without
or
defendant,
police
interroga
by the
which amounts to
inducement
spontaneously
out
confesses
blurts
incriminat
tion,
ing
are
those statements
admissible. Mi
statements,
(1966);
L.
at
16 Ed. 2d 694
478,
384 U.S.
Comm
randa,
supra,
Pa.
Simala,
v.
Common-
225;
onwealth
(1968)
wealth
Feldman,
432 Pa.
A. 2d 1
428, 248
Vanderpool
Commonwealth ex rel.
Pa.
Russell, 426
(1967);
Eperjesi,
We
need of the
and
prison
process
persons
authorities to
even those
who
rights
have claimed their
under Miranda and hence we
proscribe
cannot
police-prisoner
and do all
contact
recognized,
conversаtion. We have
however, may
disposed
Sergeant
court
lower
have been
to believe
Doorly’s account of the volunteered statements
because
arrest
ing police
township building
officers testified that en route to being fingerprinted,
and while
following
DuVal made the
state
pick up
gun
long
“I
ments:
will never
another
as I live. Don’t
down”;
bring you nothing
write that
“Guns
but trouble. I’ll never
gun again.” Appellant
making any
iouch another
denied
such state
question
ments,
admissibility.
does not
but
now
their
been “administra-
said
subtle pressures—later
incriminat-
or elicit
encourage
be applied
tive”—can
look
to determine
carefully
and
will
we
statements,
ing
have been violated. See Com-
Miranda rights
whether
ITT. of Color Slides Admissibility aby of the crime was wounded fatally The victim revolver, projectile bullet from a .45 caliber service having entered in the center the chest having the au- During the deceased’s back. midway up exited any nine before fifteen were taken, topsy, photographs after the made and six during incisions had been In nine there none of the first internal investigation. *15 or it is obvious of blood instead viscera; evidence any to clean the corpse prior photo- that care was used show it so that the would resulting pictures graphing a of the bullet wound, the external indications only at both and exit appears entry points wound which The offered circular Commonwealth puncture. small after objec- fifteen slides into evidence, but, timely all trial examined the counsel, judge tion defense by most inadmissible. Of and ruled that those series the Commonwealth intro- admissible, actually ruled one of the nude of three: torso only upper duced one of the back of including head; upper deceased, of and one torso from the upper side deceased, from the rods two indi- projecting wounds, metal
223 eating path from The of the bullet front to back. jury for of minutes to the a total six slides were shown twenty and were not sent out with seconds, jury. evidentiary general principles in
The
this branсh of
In
428
Powell,
are well settled.
Commnonwealthv.
law
(1968),
Pa.
241 A.
forth the
2d 119
we set
275, 278-79,
photographs
admissibility
test of
of
of the deceased as
being
photographs
es
or
are of such
“whether
not
evidentiary
clearly
sential
their need
out
value that
weighs
inflaming
pas
the likelihood of
the minds and
jurors.” Application
“pri
of
of
sions
that test is
marily
judge,”
of the trial
Powell,
within
discretion
supra, at
and we will not reverse unless the lower
278,
flagrantly
court
abused that discretion. Commonwealth
Biebighauser,
(1973);
Pa.
A.
300
2d 70
Com
336,
(1972)
v. Smalls,
monwealth
449 Pa.
295 A.
15,
Commonwealth Chasten,
443 Pa.
275 A. 2d
29,
(1971). This is so because
determination
the risk
prejudice
аdjec
conclusory
cannot be made
resort to
“gruesome”
“inflammatory,”
such
or
tives
but instead
objective
from an
must result
evaluation of how the evi
thinking
average
dence offered will affect the
juror.
wisely
photograph
There
rule
is
no
that a
of a
corpse
“gruesome”
without
or
is,
more,
“inflamma
tory,”
admissibility
and the
of color
slide
a murder
been
victim has
held
be affected
the manner in
photograph
made.
which the
Commonwealth v.
(1970) (excess
269 A. 2d
Collins,
face).
from
blood
decedent’s
removed
viewing
after
find
the three
ourselves,
slides ad
agreement
with the
mitted at
lowеr
trial,
court, particularly
bloody,
that “these slides were
held
except
repulsive,
gruesome
any
extent that
person
unpleasant.”
photograph of a deceased
that in
close to
bar is
situation
Commonwealth v.
*16
A.
(1968),
32,
Pa. 21,
Wilson,
cert. de-
where we
Mr. Justice Manderino dissents. Justice Jones Mr. Chief Opinion Concurring : Mr. Roberts Justice be- entitled to а new trial I agree appellant erroneously timely objection, trial over court, cause the to call witnesses who the prosecutor permitted self- the privilege against would assert knew prosecutor incrimination. of a new trial on the above grant
In view need wisdom presently I fail to see ground, majority—the admissibility does discussing—as or the color If in slides. statement either appellant’s to the Court are presented issues these future that will be the decision, appropriate necessary are of those issues. for resolution time in this concurring opinion. joins Nix Mr. Justice