*1 Komatowski, In 32 A. 445, Commonwealth v. (1943) 2d this Court noted: jury
“When a
tenders a
which is defective
verdict
substance, uncertain,
repugnant,
responsive
or not
issue,
proper
reject
it,
it is
for the court to
as not
by law,
jury
warranted
to the
call
attention
defect, instruct
them as to the form of verdict in case
they
acquit
send
mean to
or convict the defendant and
they can,
them
their
back to
room where
untrammeled
presence
others,
find such ver-
influence of
they
added.)
proper.”
(Emphasis
dict
think
as
“spontaneous expression
approval” by
Since the
one
spectators
jury
or more
this case occurred when
deliberations,
was in the middle of
I cannot conclude
its
they
presence
were “untrammeled
and influ-
reaching
ence of others” in
their ultimate verdict. At
very least,
trial court should have cautioned
jury
respect
prejudicial
with
to the
outburst.
Com-
See
Faison,
monwealth v.
Argued June 1975.
Decided Feb. 1977. *3 Myers Atkinson, Jr., Phila- Atkinson, Nolan N. & Zack, delphia, appellant. for Fitzpatrick, Atty.,
F. Steven H. Emmett Gold- Dist. Div., Atty., Chief, Appeals J. blatt, James Asst. Dist. Wilson, Philadelphia, appellee. for O’BRIEN, J., EAGEN, ROB- JONES,
Before C. ERTS, MANDERINO, POMEROY, JJ. NIX
PER CURIAM. agrees judgment of majority
A of the Court granted. sentence should be and a new trial reversed Opinion Announcing Mr. Justice Roberts files an grounds Judgment Court, stating for two reversal of grant joins Part of a new Mr. Justice O’Brien trial. Announcing Judgment Opinion II of the Opinion An- joins Nix Part I of Court. Justice Mr. Judgment Man- nouncing the of the Court. Mr. Justice Announcing Opinion joins derino I Parts and II Judgment of the Court. Dissenting Opinion in files a Justice EAGEN Mr. POM- which Mr. and Mr. Justice Chief Justice JONES join; joins in Part V of this Dis- EROY Mr. Justice NIX senting Opinion. THE
OPINION ANNOUNCING THE JUDGMENT OF COURT ROBERTS, Justice.
Appellant to a new trial for at least two entitled appellant, First, statement taken from reasons. product interrogation ac- to which counsel was denied appellant’s request cess, Second, was admitted at trial. voluntary manslaughter was denied. an instruction on I interrogation appellant, in custo- while dy Philadelphia, Building at the Police Administration began Appellant’s p. at 1:30 m. December wife 1972. counsel for contacted the Defender’s Association to obtain *4 the Police Ad- him. An Assistant Defender arrived at Building, appellant, at requested to see ministration p. appellant being 2:15 m. He was told not held. again p. p. m., He Both asked at 3:00 and at 3:20 m. appellant times counsel was told was not there. When appellant p. m., finally told that returned at he was 3:40 attorney. in- there, did not want to see an but p. terrogation until 4:00 m. was af- continued Counsel opportunity appellant p. m. forded no to see until 8:00 322 appellant during
The statement taken interrogation not have been admitted at trial. should during interrogation, A statement taken custodial with counsel, against out a valid waiver of cannot be admitted 436, Arizona, a defendant at Miranda 384 U.S. trial. v. 1602, 16 (1966). 86 S.Ct. L.Ed.2d 694 expressed present
If counsel has a desire be during in interrogation, counsel obtained a waiver of counsel’s matter of absence held invalid as a should be 220, Hawkins, 206, law. Commonwealth 292 v. J., 302, Nix, (1972) (Dissenting Opinion A.2d 309 joined by JJ.). Appellant’s fail Roberts Manderino, request ure counsel, attorney when his has been denied appellant access and informed of his attor has been ney’s availability, support that he cannot a determination right has waived to counsel. Commonwealth Yates, 362, (Dis 366, 134, (1976) senting Opinion Roberts, joined Man J., Nix and derino, JJ.). adopted
This view is in accord with the rule
Appeals:
the New York
Court
once counsel has under
represent
defendant,
taken to
a
the defendant
cannot
right
custody
waive his
to counsel
counsel
unless
present. People Hobson,
39 N.Y.2d
N.Y.S.2d
Judge
323 principle requires of The denial counsel regardless applies suppression of a defendant’s statement “honest mistake” resulted from an whether denial police. rights must on the of the ac focus cused, police. culpability or Cf. not the innocence 2392, Agurs, 97, 109, v. 427 S.Ct. United States U.S. 96 (“Nor 2400, 342, (1976) we L.Ed.2d 353 do believe 49 obligation by the the constitutional moral is measured Brady prosecutor.”); culpability or willfulness of the Maryland, 83, 87, 10 1194, 1196-97, 373 U.S. 83 S.Ct. (Denial 215, (1963) appellant’s 218 of constitu L.Ed.2d right “irrespective tional him to of entitles a new trial good prosecution.”). or faith bad faith of the denying Moreover, police while the conduct of initially appellant may resulted counsel access have mistake, subsequent honest their reflect an actions rights a lack of concern for the of accused. Coun- put repeated appellant to see sel’s efforts should have might appellant been at on notice that have Building. Advising counsel that Police Administration him, appellant had appellant to see when did not want available, attorney not been that his informed justify a denial cannot Such mistakes inexcusable. appellant’s rights. constitutional II reversed Appellant’s should also be conviction jury on to instruct the trial refused because court grant re appellant’s voluntary manslaughter. Failure process. United quested him due instruction denied (3d Johnson, F.2d 339 ex rel. Matthews v. 503 States 1336, 43 denied, 1974), cert. S.Ct. U.S. Cir. Cain, (1975); L.Ed.2d (Opinion Support (1977) joined by Reversal) (Opinion Roberts, J., O’Brien process right re JJ.). to a This Manderino, due ap- manslaughter voluntary quested instruction should be plied on direct to all defendants whose convictions were appeal Common- the time Matthews was decided. *6 Cain, 140, 1234, 1250 wealth v. A.2d Reversal) (1977) (Opinion Support (Opinion of of JJ.). Roberts, J., joined by Manderino, O’Brien and Judgment grant- trial of and a new Sentence reversed ed. Opinion. joins
O’BRIEN, J., Part of this II NIX, joins Opinion. J., of Part I joins Opinion. MANDERINO, I J., and II of this Parts EAGEN, dissenting. Justice, by jury of Appellant, Hilliard, a Thomas was convicted conspir- aggravated degree, robbery, murder of the first acy, battery, aggravated and bat- assault assault tery. Following post-verdict a the motions sen- denial of imposed murder imprisonment of life on the tence was imposed on the conviction. also Prison sentences were robbery (10-20 conspiracy convic- years), conviction the (1-2 the convictions years), tion assault and battery years).1 appeal to this 2Hilliard direct (11/2-3 filed a con- judgment from on the murder Court the of sentence judgments con- of sentence on the other viction. The the appealed Superior Court, cer- to the which victions were appeal tified that to this Court. urges re-
Hilliard
errors which he
asserts seven trial
judgments
grant
a
and the
of
quire a
of
reversal
judgments
affirm
of sentence.
new trial.* I would
impose
right
conviction
The
a sentence
each
1.
of the court
challenged.
is not
post-verdict
required by
file
2.
did not
written
motions as
Hilliard
Blair,
1123(a),
Pa.R.Crim.P.
and Commonwealth
of his
I
consider the merits
would nevertheless
place
claims
relevant
of the instant case took
because the
events
requirement
compliance
of
with
before Blair
of
served notice
sufficiency
jury’s
to warrant
evidence
nonetheless,
findings
guilt
challenged;
is not
I have
carefully
it establishes
studied
record and determined
following:
approximately
December
at
On
Cassidy’s
m., two men
Bar
Ninth and
a.
entered
at
Ven
Philadelphia.
ango
the men
Streets in
One
shotgun.
man,
with
The other
who
masked and armed
masked and who was later identified
three
eyewitnesses
Hilliard,
revolver, jumped
as
behind
drew a
gunpoint
bartender,
bar and
ordered the
John Cas
sidy,
open
register
get
bag.
the cash
and to
As Cas
sidy
picked up pistol
bag,
secured a
which Cas
sidy kept
Cassidy
put
behind
bar and then directed
money
register
bag.
At the
cash
into the
shotgun attempted
time the
take
same
man with the
*7
money
pocket
Hicks,
pa
out of the trouser
of one Lee
bar,
having already
tron of the
after
taken Hicks’ wallet.
Hicks, however,
violently.
grabbed
He
resisted
shot
gun
struggle
and a
ensued
Hicks and
between
gunman.
patron,
fought,
masked
As these two
another
began throwing
Coates,
Hilliard be
William
bar stools at
hind the bar. After
three or four
Coates had thrown
stools, Hilliard
him
fired two shots at
and moved from
behind the
be
bar
his
direction. Coates and
gan grappling
they
point during
and at one
their combat
facing
attempting
were
each other with
to subdue
Coates
opponent by squeezing
bearhug
Hil
him in
fashion.
liard,
placed his re
however, had his arms free and he
pulled
trigger.
volver at Coates’ back and
Coates
gunshot
from the resultant
died
wound. Hilliard then
away
stepped
from the
immedi
almost
fallen Coates and
ately
by
Cassidy’s Bar,
was confronted
the cook at
Rich
Ray.
get
ard
When Hilliard ordered him to
out of
Ray
weapon
way,
grabbed
Hilliard’s
Hilliard shot
1123(a)
apparently
Rule
non-compliance
and because
trial court
condoned the
1123(a) by passing upon
with Rule
merits of
orally.
Bailey,
raised
issues
Hilliard’s defense evening was as follows: On the company incident he was Larry in the Bennett, Rowe, Robert Lee Sonny and a man samed and the four “get decided to some beer.” entering Hilliard admitted Cassidy’s Bar but maintained that he was unaware that robbery going place. Upon entering to take approached saloon Hilliard glass the bar and ordered a Sonny beer. entered the bar behind Hilliard with shotgun holdup. Although and announced the taken surprise, Cassidy moving gun Hilliard noticed for a be- hind the bar, Hilliard reached over the bar. seized Cas- sidy’s pistol, put pocket, it in his and ran for the door. *8 fleeing While Hilliard was Although shot. Hilliard had pocket his own revolver in his Cassidy’s when he entered he maintained that weapon did not withdraw this pocket from his any and did not at time fire either his Cassidy’s pistol. own or
2A. Since the felony relevant events occurred aat time when mur 24, 1939, der degree, constituted murder of the first Act of June 872, 701, 1959, 1, 1621, 1, 4701, § § P.L. December P.L. § 18 P.S. there can be no doubt the evidence was sufficient to sustain the jury’s findings.
327 I investigation During at criminal incident police apartment Cassidy’s the Hilliard’s at searched Philadelphia cer- Avenue and seized 1402 West Erie items were at trial. tain which into evidence admitted suppress pretrial these Hilliard’s motion to items was de- hearing nied after and Hilliard now as- suppression a ruling suppression serts that court’s was erroneous. “ prosecution’s ‘only Considering the evidence as, defense so much the evidence and witnesses whole, fairly as re- in the context the record a read ” Johnson, 467 mains Commonwealth v. uncontradicted.’ 146, (1976), quoting 886, Common- Pa. 892, Goodwin, 460 333 A.2d wealth v. sup- (1975), following at the were established facts hearing: pression Cassidy’s Bar on
Detective Francis went to McGurk shooting-robbery 23, 1972, investigate December in- m. began incident. He 1:50 a. and at arrived about three men terviewing witnesses. least He learned that they in the a or were involved crime and used escape. white Pontiac to aid their man who big possibly “being shot Coates was as described shoulders, mustache, shouldered, with a wearing broad corduroy brown coat a hat.” The man second build, five described as “around thin around coat, eight, wearing long and he has foot black leather pulled men black. a ski over face.” were mask Both at the shot McGurk also learned that bartender rob- shot fled, specifically at the man Coates they as who bers shotgun patrons Ray, had taken that some of the wearing had away ski mask and beaten man this information him with McGurk had broadcast it. police relayed head- over the and also back radio man quarters. also learned Detective McGurk *9 wearing corduroy coat had taken a .25 caliber brown the specific pistol a serial from the bartender. with number approximately m. At Robert Morton 1:40 Officer a. Hospital Philadelphia police was at Frankford to the He instant observed business unrelated case. suppression (whom man he at the identified wounded Hilliard) hospital hearing at as arrive fe- white black male two Pontiac with one other and approached males. Morton and related that Hilliard shot, prosecute accidentally had but want to been did not person him that all who shot him. Morton informed police gunshot reported then had to be to the wounds and hospital request employees instructed one of report police to to make on Hilliard’s send someone ap- Hospital gunshot left Morton Frankford at wound. leaving, proximately 2:10 a. and after m. Morton and message reporting partner the radio incident heard description Cassidy’s Realizing that at Bar. suspects getaway matched he observed car those hospital, in his observations and at the Morton called not, hospital. how- then Hilliard could returned slip admission ever, be found.3 Morton obtained which identi- which been out had filled Bouvier Street. fied him John Williams North as as gave her name slip signed by a woman who This of the same address. information Doris Williams headquar- at relayed Bethel D’Alverez Detective A out. checked Bouvier Street address ters who had the in- this man up picked address at that man was ad- lived at that Williams that a formed Doris midnight shortly before dress, gone out but that she had she and that men light-colored car three black in a with Detec- Erie Avenue. .going West had mentioned approximately McGurk at tive Bethel Detective contacted information. m. 5 a. with Lady Hos- of Lourdes subsequently at our located Hilliard was 3. cooper- police in Camden, Philadelphia Jersey by the pital in New Police. ation with the Camden Erie Avenue *10 West went Detective McGurk warrant. The ad- a approximately 5:30 a. m. without building apartment with a first of an dress was entered leading McGurk into a vestibule. floor entrance large awith second door encountered a the vestibule and building proper. ob- leading McGurk into the window lying corduroy coat through this window a brown served apart- doorway floor of the first the the floor beside on vestibule, floor the first Lights in the were on ment. apartment apartment and the hallway, itself, the and opened door open. the vestibule McGurk door was wide the door and hallway. He knocked on the and entered police, re- presence but received no announced the stopping apartment, sponse. the then entered McGurk lying corduroy the was brown coat which examine the a hole a of the coat revealed with floor. Examination armpit proceeded the left area. McGurk reddish stain in suspects. In the bed- apartment of the into the search top with the a chest of drawers room observed McGurk through butt open the three inches which drawer about opened the drawer McGurk of a revolver was visible. only he first ob- completely found not revolver pistol, the serial number but also a .25 caliber served weapon taken of the which the number matched living found Cassidy’s room McGurk Bar. In the lying T-shirt long-sleeved sweater black turtleneck garments hole in had a on a table. Each of these armpit left area. suppression attempted to show defense
The apartment door and vestibule hearing that both place. The time search took door were locked at entry forc- was that the to be drawn inference testified. place Detective McGurk not take as ible and did in the testi- suppression the conflict The court resolved mony in favor Commonwealth. guns, the corduroy coat, the two sweater
The into evi- and admitted McGurk T-shirt were all seized at Hilliard’s trial. dence plain recognized part view doctrine has been as Pennsylvania seizure, law of search and Common- Davenport, (1973),
wealth v.
453 Pa.
A.2d 85
“objects falling
and the rule of
that doctrine is that
plain
right
view of an officer who has
in the
position
subject
may
to have that view are
to seizure and
States,
be introduced in
Harris
evidence.”
v. United
234, 236,
992, 993,
(1968)
U.S.
88 S.Ct.
337 A.2d nothing there is in the record to such conclu- sustain according challenged were, of sion. The items evidence hearing record, clearly plain suppression in the to the persuaded I am that officers and view suppression ruling in error. court’s was II eyewitnesses, Hilliard identified three At trial was him as the who shot of whom identified man Coates. two addition, In the Commonwealth introduced statement during in chief made Detective its case Hospital Lady our Thomas Brown at Lourdes Cam Jersey,5 den, a statement on rebuttal New and introduced justifi- (1967), argument be made can its L.Ed.2d 782 sound committed; Considering had been that a violent crime cation. that the wounded, reasonably suspect armed believed to probable clearly dangerous; that existed believe cause crime; be- suspect probable existed to that cause committed entered; entry premises suspect lieve was on the sug- non-forcible; suspect mobility inherent McKinney, F. escape. United gested a States likelihood *12 early entry made in (6th 1967); the and that the was 2d 259 Cir. ** impracticable, obtaining morning a was warrant hours when justified entry under instant can be the in the case warrantless States, “exigent v. United of Dorman the rubric circumstances.” (1970). also United U.S.App.D.C. 385 See 435 F.2d 140 v. 1974); Shye, (6th Cir. United States States Davis, 492 F.2d v. 886 Carolina, (3d 1972); 432 F.2d 1026 Cir. Vance v. North 461 F.Supp. 1970); Cognato, (4th F.2d Cir. States v. United Minn., (D.Conn.1976); Lasley, 236 N.W.2d State v. Johnson, Iowa, (1975); N.W.2d 477 State ** m.) night (early a. entry the was made The fact that indicated, may, un- ways. Although as the late hour cuts both warrant, obtaining a impracticability delay of derscore the and the of particular over reasonableness it also concern the raises States, supra. entry. Dorman United by Hil- taken Brown that The substance of statement 5. night De- Sonny’s of liard Lee to on and Robert drove house by made to Detective the Philadel Hilliard McGurk at phia Building.6 Police Administration suppress to
Prior trial motion these Hilliard’s to state- challenges presently ments the cor- was denied. Hilliard ruling respect rectness this to the tak- with statement particular en He Detective maintains McGurk. involuntary statement should have been declared as evidentiary proscribed.7 matter of law and use thereof Considering “only prosecution’s the evidence as, and so much of the evidence for the defense witnesses fairly whole, re- read in the context of the record as a uncontradicted,” Johnson, mains su- Commonwealth v. 22, 1972; going Sonny said rob a bar and Lee and cember solicited that he was Hilliard, Bennett, Larry help; their that Robert Eighth Sonny Sonny Venango [Cassidy’s]; drove to a bar at and that shotgun; Larry was armed with a that a .38 had caliber weapon; weapon; Larry, that Son- Hilliard had a .22 caliber that drawn; ny weapons and Hilliard that entered bar with their weapon; ran behind the Hilliard bar and secured the bartender’s throwing that someone chairs and then a started at Hilliard white grabbed attempt gun away; man him in an his take that Hil- gun”; liard “reached over his and that Hilliard shoulder shot the bar, started to run out of the but his another man tried block way; not; again gun that Hilliard did if not know he shot the or bar; that more shots fired were as he ran out that Hilliard during flight; was hit the left shoulder with shot his that car, Pontiac, they all ran to Robert Lee’s a 1964 white drove and away. 6. The substance of the statement taken McGurk was on that 22, 1972, night the Sonny’s of December Lee and Robert drove house; Sonny Larry they planning that and stated were “getting them; this bar” going and asked if Hilliard was with was; that Hilliard Ninth and they indicated he that drove to the bar at Venango; Sonny gave pistol that Hilliard a .22 caliber Larry and weapon .38 caliber and armed with a himself shot- gun; they that Sonny when shotgun entered bar had “to- gether” Larry out; and had his .38 caliber that Hilliard be- for went bar, hind the took the gun running bartender’s shooting” and started door; out; that “a lot of broke that someone threw Hilliard, a stool at but he running it kept brushed and aside door; shot; when he reached the door he car, ran to the by Larry Sonny, they followed and drove away in a white 1964 Pontiac. 7. Hilliard does challenge not admissibility of the statement on ground that he did knowingly intelligently his waive right to remain right silent to counsel. *13 following suppres- pra, the were at the facts established hearing: sion 23, 1972, approximately on a. m. Hil-
At December Flanagan Joseph at questioned by Detective liard was Jersey. Camden, Hospital Lady in New our of Lourdes pa- Initially, a room with three other Hilliard in Flanagan tients. identified himself and informed Hil- been investigating murder had liard that he was a which Venango in Streets committed a at Ninth and bar rights Flanagan his as Philadelphia. of advised Hilliard Arizona, 384 U.S. S.Ct. mandated Miranda (1966), him and asked accom- L.Ed.2d interrogation questions on panying a standard questions an to indicated Hilliard’s answers those card. willingness them. rights to a waive of his awareness half, during a questioning lasted hour and about an hospital personnel which time Hilliard ate breakfast and trans- was then and exited room. Hilliard entered private questioning continued room where the ferred Flanagan shortly made off and on until before noon. stenographic tablet aft- record of the interview on signed completed his name er the interview was Hilliard suppression Flanagan this record.8 testified at hearing responsive at all he found Hilliard alert and during gave indication no the interview. times Hilliard point during period one pain grogginess and at this or facilities. got toilet out bed own and used the object to any personnel no time did medical At Flanagan questioning Hilliard. again afternoon questioned later that ap- hospital at
Detective Brown. Brown arrived proximately p. head nurse and informed the 4:05 m. put Brown question The nurse wished Hilliard. treating Brown ex- Hilliard. with the doctor touch presented and Hil- at trial as evidence 8. This statement was surrounding respect it. The facts with raises no claim liard completeness presented in eval- sake of are statement uating totality circumstances. *14 purpose per- plained the doctor his his and obtained question hospital was in mission to Hilliard. Hilliard gown sitting up during period ques- and in bed this of gave warnings tioning. Brown Hilliard his Miranda and accompanying questions the inter- asked the rogation again willingness card. Hilliard indicated his presence attorney. questions to answer without of an period questioning p. This of lasted from 4:30 to 6:30 m. p. during time m. which Hilliard ate his dinner. Brown any he questions testified that did not ask while Hilliard ate, questioning but left the room. The of result this ten-page by was a which statement handwritten Brown signed Hilliard read aloud and of at bottom each page. acknowledged signatures Hilliard these at suppression hearing. Brown testified that Hilliard responsive throughout alert and fur- interview and ther, promises during that no threats or were made As Brown left room wife interview. Hilliard’s Hilliard’s came in to visit him. spent days hospital two in the
Hilliard was trans- County day ferred to Camden before his ex- Jail hearing which was held in on Decem- tradition Camden 1972, approximately hearing ber at noon. After the custody approxi- Detective McGurk took Hilliard into at mately p. him 12:45 m. and transferred to the Philadel- phia Building Eighth Police Administration at and Race Philadelphia. placed Hilliard was in inter- Streets an rogation Division, room within the Room Homicide approximately p. approximately p. at 1 m. and at 1:30 m. McGurk, presence detective, of another informed again questioned him that he was to be about the murder again of William Coates. Hilliard was advised of his rights constitutional his answers to the detectives’ questions willingness indicated his to make a statement. Hilliard then made a statement which on a was recorded spoke. typewriter by The statement McGurk as p. p. was concluded 3:20 4:00 m. Hilliard m. copies page signed every the three of of
read and promises to Hil- were made No threats or statement. physical complain discomfort he liard and did cooperative throughout this any He was alert and time. During questioning Hilliard period questioning. Finally, Hil- wounds. fresh bandaids received period during request attorney no for an liard made phone call until interrogation nor to make did ask approximately p. m. 4:25 wife Hilliard’s contacted
On December
m. to seek assistance
p.2
Defender’s Association about
*15
p.
approximately 2:15 m. Assistant
for her husband. At
Division,
Koplove went to the Homicide
Defender Steven
Building
re-
and
at
Administration
Room
the Police
by two detec-
quested
He was informed
to see Hilliard.
being held.
was
tives there that no Thomas Hilliard
Homicide Division
a
of confusion in the
There was
lot
Ko-
day
killed.
a
had
that
officer
been
because
again
p.
re-
plove
approximately
m. and
3
returned at
desk
quested
was informed
see Hilliard. He
to
custody
at
was
sergeant
no Thomas Hilliard
at
Koplove
request
see
time.
made a third
Hilliard
again represented that
sergeant
p. m.
3:20
and
desk
p.
request
3:40
fourth
After
was not there.
Hilliard
there
Koplove
finally
Hilliard
informed that
was
m.
was
attorney. Koplove
see
did not
to see an
but did not want
p.
approximately
m.
until
reviewing
court’s conclu-
suppression
The test for
was
to Detective McGurk
sion that Hilliard’s statement
mental
voluntary is
had sufficient
“whether
[Hilliard]
capacity
giving
know
time of
his statement
at the
voluntarily
intended
saying
he
to have
what
and
457, 460, Smith, 447 Pa.
say it,”
v.
Commonwealth
cir-
“attending
and
(1972),
all
factors
103, 104
A.2d
Com-
evaluated.”
considered and
cumstances
be
must
516, 522, 333
Goodwin,
v.
460 Pa.
monwealth
Johnson, supra;
(1975).
also Commonwealth
See
Purvis,
Commonwealth v.
458 Pa.
cussion; prove burden is only by preponderance voluntariness of the evidence suppression in view findings court’s which ample support record, have I am satisfied this bur den Hilliard, man, was met. twenty-year-old, married rights warned of his constitutional three at least times; questioned he periods; was not excessive interrogations separated by adequate periods; were rest deprived food; was not he was not or threatened promised leniency; finally, sup record pression hearing establishing is absent of evidence invol untariness Although as a matter of the fact law. that an attorney was unable to contact Hilliard while he was making incriminating an statement is a condition from may which inferred, involuntariness it does estab lish as a matter involuntariness of law. See Common Yates, wealth In A.2d 133 deed, case, in the instant there evidence in the record Koplove which that the misinformation received indicates *16 was the result of an mistake honest due to the excitement in the day. Significantly, Homicide Division that there showing is also a in the that record Hilliard did not re quest attorney. he be see allowed to an Under the that circumstances, prepared say I am to the Common by wealth to establish the failed that statement secured voluntary. McGurk was Detective
Ill by present- The statement taken Detective Brown was during ed in Commonwealth’s case without chief objection. rested, After the Commonwealth Hilliard took the stand his and denied criminal involvement in the During testimony his Hilliard claimed he that incident. had never seen Brown and that he recollection of had no giving a cross-examination, statement to him. On when questioned given as to whether he had statement to De- tective McGurk, giving signing Hilliard denied or an in- criminating statement McGurk and he told said participant officer he robbery killing was not a in the or presence Cassidy’s his pure in Bar at the time was short, In coincidence. Hilliard testified he told the same version the incident to McGurk as he at trial. related The Commonwealth called in rebut- Detective McGurk tal. McGurk testified he had taken a recorded that statement from 26, 1972, on Hilliard December and that signed pres- page each of the statement ence. The statement was then read into with- evidence objection. out earlier, As noted substance robbery statement was that and was Hilliard knew the participant, although an he active ran out when shooting started. statement also a denial contained anyone. Hilliard that he killed requested
Hilliard’s counsel opportunity then present Specifically, surrebuttal evidence. counsel made following proof: offer of
“MR. ATKINSON: If the re- pleases, Court I would spectfully request opportunity morning in the present hours evidence in surrebuttal offered Attorney the District on rebuttal. testimony by “That evidence would consist of Mr. Koplow Steven Assistant Defenders— one of the Assistant Defenders at Roundhouse question, date which would December I believe, Building. at the Police Administration attempts
“That he made numerous between the one-thirty, three-thirty, hours of at such time as having statement defendant a formal taken him, reach defendant at the instructions *17 superiors office, in his the Public Defender.
“I testimony would ask that be that offered for the purpose permitting chooses, if it jury, so to draw an inference that such statement involun- was tarily taken.
“My purpose merely or, is to the inference to show— withholding be drawn is that officials were agents family, defendant from contacts with his or family; namely, attorneys; fact, that this they to, testify which will an inference can drawn involuntarily (Em- that the statement was taken.” phasis added.) objection
The trial court sustained an to offer of proof ground proper on the it was not surrebuttal The court evidence. reasoned that had since Hilliard tes- robbery having willingly tified with discussed McGurk, issue; only voluntariness not was an con- question. tent of what was said was drawn in This rea- soning contrary principle is to the a “defendant by single trial; may not bound defense at he offer as many chooses, they alternative defenses as so Joyner, need be consistent.” 365 A.2d it by is true that While the statement taken McGurk primarily to rebut introduced Hilliard’s trial testi- mony story that he told he related McGurk same jury trial, e., said, i. to establish it is what Hilliard also true that there was an issue as to the truth of what Although jury may was said. have believed gave the statement as testified to it was still McGurk, satisfy jury Commonwealth’s burden the state- given freely testimony voluntarily, ment was Koplowe relevant to this issue. regard question to the With of whether the offer sufficient, e., proposed defense counsel was i. whether it tending involuntariness, evidence show it is well-estab- tending “any facts, circumstances, lished that or events
339 to the overbear will of the accused” are the relevant to voluntariness, issue of Purvis, Commonwealth v. 458 Pa. 359, 364, 369, (1974), 326 including “the dura- tion, interrogation, and the methods of of conditions detention, the manifest attitude of the toward defendant, physical psychological the defendant’s present may state and all other conditions to which serve powers suggestion drain one’s resistance to and under- Alston, mine his self-determination.” Commonwealth v. 128, 134, 317 A.2d the in- In attorney pre- stant case the offer an asserted that was contacting vented from at the time he was mak- ing incriminating police. an statement to This evi- dence, if proven, would have established a condition un- der which the statement was obtained from which jury may have inferred that Hilliard was overreached.9 Notwithstanding strength ev- Commonwealth’s showing voluntariness, idence evidence that Hilliard was wraps” appropriate jury’s held “under for the con- thus, counsel al- sideration and defense should have been present lowed to such evidence.
Although
agree
permitting
I
the court erred in not
proposed
testimony,
per-
Hilliard’s
surrebuttal
I am not
under the circumstances that
warrants a new
suaded
incriminating
before,
trial. As noted
Hilliard’s
state-
jury’s
ment
Brown was
for the
Detective
admitted
objection.9A In
Hil-
consideration without
this statement
participation
robbery
in
liard admitted
and also to
shooting
He did not
the latter to Detec-
Coates.
admit
hence,
very
evidentiary
McGurk;
tive
real sense
use
overreaching
9.
I do not
indicate
there was
in the instant
only
case.
I would rule
that Hilliard should
been allowed
have
present
on the issue of the
state-
evidence
voluntariness of the
by
ment taken
Detective McGurk.
suppression
presently challenge
9A. Hilliard
does
court’s
ruling
respect
admissibility
with
statement
taken
Brown.
of the statement
damaging.10
Brown
much
more
jury
Since the
had the benefit of
statement
to Brown
I
excluding
proposed
cannot see how the error of
sur
testimony
consequence.
rebuttal
was much
Further
more,
testimony
trial
not an active
that he was
Hilliard’s
participant
eye
the crime was contradicted
three
beyond
witnesses.
In view of all this I am convinced
reasonable doubt that the error was harmless. Schneble
Florida,
405 U.S.
92 S.Ct.
L.Ed.2d
(1972); Harrington
California,
89 S.Ct.
U.S.
*19
1726,
(1969);
Davis,
L.Ed.2d
Commonwealth v.
(1973).
452 Pa.
IV that the trial next asserts court’s instruction on the issue of the voluntariness of his statements to the police inadequate and, hence, deprived him fair of a trial. Pennsylvania
It is the law in
that a
defendant
criminal
is entitled to have the issue of voluntariness considered
by
jury
question
though
as a factual
even
there has
legal finding
by
suppression
been a
of voluntariness
Joyner,
Commonwealth v.
441 Pa.
272 A.2d
court.
(1971);
Heckathorn,
Commonwealth v.
(1968);
In the instant case the trial court instructed the duty it their to determine the voluntariness pertinent It is to note the 10. taken in- McGurk was statement primary pur- troduced the Commonwealth rebuttal and its pose testimony was to rebut Hilliard’s that he told McGurk the story jury same related at trial. Pennsylvania 11. follows the Un- or humane rule. Massachusetts rule, der the solely by orthodox voluntariness is determined judge; jury only considers voluntariness as it affects the weight credibility or of the statement. by Hilliard to the and enu- made the statements voluntary relevant to the charac- merated various factors however, failed, to in- The court the statements. ter of they disregard if deter- jury the statements struct involuntary. It this omission that is them to be mined of error. claim Hilliard’s basis however, claim, the merits of this I not reach would properly preserved. issue not been has because charge jury, Following before but the court’s deliberate, in camera discussion jury an retired objections hearing to the purpose of for the was had During made charge. counsel that consultation defense points specific objections unrelated to a number following addition, colloquy took issue, instant place: point 14, point request point I
"MR. ATKINSON: 17.
“THE Fourteen— COURT: fourteen, fifteen, Thirteen, seven-
“MR. ATKINSON: eighteen. teen, and I give you fourteen. number
“THE COURT: will I *20 touch it. you might that, if I didn’t entitled to think be right? All lastly, ex- Yes, I would Now
"MR. sir. ATKINSON: reviewing the cept part charge, in of the to Court’s evidence, from the Common- which I felt was done request an point I would therefore of view. wealth’s charge of evidence. exception to and review the Court’s respectfully, 1 most sir.” do that coun point of defense Specifically, number seventeen charge points follows:12 requested for read as sel’s defendant, HIL- you THOMAS that the If believe “17. intelligently knowingly un- LIARD, did rights read when constitutional derstand his points charge germane to requested are for other 12. None appeals. these 342 you Brown,
Detective
then
must find that
involuntarily given
statement was
and must dis-
regard its contents.”
argues
apparently
requested point
if
number seventeen
granted,
had been
the omission in the
charge
court’s
would
been
have
avoided and this
suf-
preserve
agree.
ficient
the issue.
I do not
1119(b) provides
pertinent
Pa.R.Crim.P.
part:
“No
portions
charge
of the
may
nor omissions therefrom
assigned
error,
specific objections
as
unless
are made
jury
thereto
before
retires to deliberate.”
One
underlying
specific
main reasons
this rule is that a
ex-
ception
opportunity
will
allow
trial court
an
cor-
rect
error,
the asserted
thereby promoting judicial econo-
my
operation
judicial system.
and efficient
of our
Com-
Sisak,
monwealth
262,
(1969);
v.
Pa.
259
436
A.2d 428
Cf.
Mitchell,
Commonwealth v.
464
117,
(1975); Sisak, I supra, am of opinion request point that Hilliard’s number seven- teen in the inadequate instant case was alert trial court omission in its voluntariness instruction.
In Sisak, supra, Commonwealth v. stat this Court party ed requested point, “. . . whose al though judge important erroneous, alerts trial to an just case, complaint issue in the does cause for if have point pertains the law to which that is not otherwise cor rectly charge.” stated in the A. at 270 n. *21 (Emphasis added.) language 2d at 432 n. 5. This clear ly contemplates requested instruction which sufficient ly alerts the trial court to the defect in the court’s
343 charge. instantly Thus, inquiry the threshold is question the requested narrow whether instruction omission its should alerted the court to the have trial instruction.13 voluntariness reading requested point
A close of number seventeen pertains only it to the reveals that statement taken notwithstanding that, the use of Detective Brown and requested point for “involuntarily”, calls the word jury knowingly intel- whether to decide Hilliard rights ligently his made waived constitutional before requested respect In this statement.14 Hilliard’s significant- point charge principle concerned a of law ly different from that voluntari- addressed the court’s Kichline, Pa. instruction, ness see Commonwealth 468 v. Williams, (1976); 361 v. A.2d 282 Commonwealth principle (1971), 277 A.2d it is this outstanding point requested that is the characteristic of number seventeen. The trial court have reasona- could bly requested point assumed that number seven- purpose having jury teen for the of instructed on the question rights of the waiver rather than of his Miranda purpose calling for the in the of to the omission attention point short, court’s In number voluntariness instruction. charge to the in the seventeen is not addressed omission complained thus, now of and cannot said to have ade- requested All of cases wherein we ruled that a defendant’s 13. its to alert to an error in instruction was sufficient court Palmer, supra; Wil- charge, liams, Commonwealth v. Commonwealth (1975); v. Mitch- Pa. Commonwealth A.2d 877 ell, Sisak, (1975); su- pra, analysis. fit it was clear within this In each those cases charge requested aspect the court’s what instruction dispute. inwas argue point significant not that It out that Hilliard does 14. question intelligently knowingly and defendant whether a rights jury and waived Miranda be submitted to should hence, argue is not before Hilliard does that issue us. requested point been submitted number seventeen should have requested point gave jury, seventeen number but rather voluntariness instruction. notice of the omission the court’s *22 court the defect in its volun- the trial quately alerted it incumbent these facts instruction. On tariness request for his because upon the reason Hilliard to detail it was context in which from the it not obvious exception special presented. The rationale behind taking silently by, party sit rule cannot that complain of then verdict, and a favorable chances on had trial corrected been matters which could have applies with they brought to the court’s attention been instant situation. full force to the
V
judge
complains
committed
that the trial
Hilliard also
jury
to instruct
he refused
error when
reversible
that Hilliard
voluntary manslaughter.
I note
Initially,
not
indicate
argue
the record does
not
and
does
voluntary
support
any
a verdict
there was
evidence
be-
Additionally,
was convicted
manslaughter.
Jones,
fore
v.
Commonwealth
Johnson,
v.
(1974),
ex rel. Matthews
States
United
with
1974). Thus,
faced
(3d
we are
“(2)
If federal
such cas-
application
of Matthews
mandate
supervisory pow-
we, pursuant
our
es, should
'
pre-
more
Matthews,
in this context
ers, apply
eisely Jones, to such cases?”
Cain,
It is
cavil that
criminal accused
inno
produce
of his
duty to
or
evidence
take the stand
pre
cence,
protection
behind
may
but
stand
sumption
Common
of innocence and demand that
beyond
guilt
proving
a
its
sustain
burden
wealth
general
of a de
failure
As a
rule
doubt.
reasonable
may
to rebut
not be used
to call witnesses
fendant
Miller,
v.
presumption
innocence.
Pa.Super.
(1365); see Commonwealth
297,
“ ‘Every unwise or irrelevant remark made by judge, witness, course of a trial or counsel a does compel granting of a A trial new trial. new is required prejudicial; when the is, remark when it is of such nature or in such or delivered substance may reasonably it de- said have manner that ” prived impartial the defendant of a trial.’ fair *24 609, 611, Goosby, Commonwealth 301 A.2d v. Phillips, (1973) quoting Pa.Super. 382, 132 attorney request not
In did the instant case the district any from no jury inference draw comment four-day during trial that other was made statement these failure call arguably referred to even Hilliard’s jury instructed the that The trial court witnesses. heard that in the case was only to be considered evidence pertinent note stand. It is also the witness jury panel at instructed the prior the court to trial it to a presumption as relates length of innocence Finally, I present right evidence. not to defendant’s request a caution- counsel did defense point out Accordingly, Hilliard’s regard. this ary instruction rejected. point this should of error on claim sum, carefully In I every have considered each and complaint Hilliard now asserts and find no reason to judgments interfere with the in the trial entered court. judgments should therefore be dis- affirmed. I sent.
Mr. Chief Justice Mr. JONES and Justice POMEROY join opinion; joins in this Mr. in Part V of Justice NIX Dissenting Opinion.
PENNSYLVANIA PUBLIC UTILITY
COMMISSION, Appellant. Supreme Pennsylvania. Court
Argued May 5, 1975.
Decided Feb. 1977. *25 photographs Hilliard’s contention that 15. final certain were admit- proper totally ted into evidence without without authentication merit.