COMMONWEALTH of Pennsylvania v. Edward J. HOLZER, Jr., Appellant (two cases).
Supreme Court of Pennsylvania.
July 27, 1978
389 A.2d 101 | 480 Pa. 93
Argued April 14, 1978.
Kenneth G. Biehn, Dist. Atty., Peter F. Schenck, Asst. Dist. Atty., for appellee.
Before EAGEN, C. J., and O‘BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.
LARSEN, Justice.
Appellant, Edward Holzer, was convicted in a jury trial of first degree murder, robbery and conspiracy and sentenced to life imprisonment. He is now appealing the judgments of sentence.
While appellant does not raise the issue of sufficiency of the evidence to convict, the Supreme Court has an independent obligation to determine if the evidence is sufficient to support a verdict of murder in the first degree. Act of February 15, 1870, P.L. 15 § 2,
Murder of the first degree is a criminal homicide committed by an intentional killing. Act of March 26, 1974, P.L. 213, No. 46, § 4(a),
A review of the evidence adduced at trial, read in the light most favorable to the Commonwealth, reveals the following. The body of Earl D‘Aras was found, on the evening of March 26, 1975 at approximately 5 p. m., in a sporting goods
The store had been ransacked. The cash register drawer had been opened and a sum of approximately $200.00 was missing; the gun case had been broken open and eight handguns removed; the knife case had been smashed and one knife of the type which pierced D‘Aras’ back was missing; and the ammunition case had been found in a condition of disarray (although it could not be determined with certainty if any ammunition had been taken).
A witness, Jean Hendy, observed appellant and a younger boy in the parking lot of the shopping center in which the store is located, at approximately 4:50 p. m. the day of the murder, standing near a blue Volkswagen. She noted the license number on a slip of paper. Appellant and the other boy walked around the corner of the building to the front of the shopping center in the direction of the sporting goods store. The younger boy returned by himself, followed shortly by appellant. They then drove the car away.
The license number of the Volkswagen was traced through the Bureau of Motor Vehicles which indicated that the registered owner was one Agnes Kearney, the stepmother of the appellant. A search of the vehicle, pursuant to a search warrant, turned up a .22 caliber bullet of the same type and manufacture as that sold at the sporting goods store. The console and armrest of the vehicle were stained with blood, but it was not possible to determine the blood type. Search of appellant‘s residence produced two brown gloves stained with blood; again no blood typing was possible. The search of the residence also revealed a white glove
Certain human hairs were also found on the gloves which were analyzed and compared to the victim‘s hairs by Agent Deadman of the Federal Bureau of Investigation. Agent Deadman testified that, in his opinion, the hairs found on the gloves were that of the victim. The agent also testified that, upon analysis and comparison, certain textile fibers found on the gloves exhibited the same microscopic characteristics as fibers of the sweater worn by D‘Aras on the day of his death and that the fibers on the gloves could have come from that sweater.
Furthermore, there was evidence that the defendant was in need of money on the day of the murder to produce bail to have his father released from jail, that he had no money earlier in the day and that, later on that evening, he appeared with $203.00 for the purpose of effecting his father‘s release.
On the basis of the foregoing, we find sufficient evidence to support the conviction of first degree murder.
Appellant raises several issues in this appeal that were included in his written post-verdict motions containing 107 assertions of error. However, at argument on the motions before a court en banc, he briefed and argued only five. In its opinion dismissing the post-verdict motions, the court noted that counsel “stated that he was not waiving the other 102 assignments of error but we will not purport or attempt to address ourselves to them in the absence of the aid of counsel in the form of brief or oral argument.” The court en banc‘s refusal to consider the issues neither briefed nor orally argued was proper.
While appellant complied with the mandate of Commonwealth v. Blair, 463 Pa. 383, 344 A.2d 884 (1975) (issues not included in written post-verdict motions are deemed waived), his failure to either brief or orally argue 102 issues
“The logical corollary of the [waiver] rules . . . is the requirement that counsel either brief or [orally] argue the points of error raised in the written post-trial motions.” Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503, 509 n.11 (1978). Therefore, those assignments of error not briefed or argued have been waived and will not be reviewed on appeal. We now turn our attention to those issues which are properly before us.2
Appellant contends that the trial judge erred in failing to suppress the armrest, console and bullet as the fruits of an illegal search of the Volkswagen. Appellant was arrested at 12:01 a. m., March 28, 1975, in front of his girlfriend‘s residence in Philadelphia. Sometime that morning, appellant‘s car was found in the street near his parents’ residence where he was staying at the time and impounded by the Philadelphia police department. Bucks County detectives transported the car from Philadelphia to Lower Southampton Township at approximately 9:30 a. m. At 3 p. m., the afternoon of the same day, a search warrant was issued, upon probable cause, by Bucks County District Justice Dorothy Pollock.3 The car was then searched and the items now
Appellant‘s argument is, essentially, that the impoundment of the Volkswagen by Philadelphia police and transportation of it to Bucks County prior to issuance of a warrant was a warrantless seizure in violation of his constitutional guarantees of security against unreasonable searches and seizures.4 We do not agree.
As a general rule, a search or seizure without a warrant is deemed unreasonable for constitutional purposes. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The warrant requirement, however, is excused where exigent circumstances exist. Id. Exceptions arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.5 Exceptions also arise where the warrantless search or seizure by a police officer does not amount to a significant invasion of a defendant‘s reasonable expectations of privacy.6 These exceptions reflect practical compromises between the interests of the state in effective law enforcement and the privacy interests of its citizens.
Second, one‘s expectation of privacy with respect to an automobile is significantly less than that relating to one‘s home or office. Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978), quoting South Dakota v. Opperman, 428 U.S. 364, 367 (1976). And, where a warrantless seizure of the automobile follows arrest of its owner or driver, the intrusion into that person‘s privacy interest is even less offensive; since the person is to be taken into custody, he or she will suffer minimal further inconvenience from the temporary immobilization of the vehicle. Chambers v. Maroney, supra, 399 U.S. at 63 (Harlan, J., concurring and dissenting opinion). Further, where the alleged illegal activity does not invade the interior of the car, the chances are even greater that no expectation of privacy has been infringed. Commonwealth v. Mangini, supra 478 Pa. at 156-57, 386 A.2d at 486-87.
It is reasonable, therefore, for constitutional purposes, for police to seize and hold a car until a search warrant can be obtained, where the seizure occurs after the user or owner has been placed into custody, where the vehicle is located on public property,7 and where there exists probable cause to believe that evidence of the commission of
Appellant next submits that the lower court erred in denying his request for a continuance of the pre-trial suppression hearing in order to allow him an opportunity to acquire private counsel. On April 7, 1975, Stephen La Hoda, Esquire, an Assistant Public Defender, was appointed to represent appellant. Mr. La Hoda presented an application to suppress all of the evidence seized pursuant to the search warrants issued in the case, including the evidence located in the Volkswagen. At the suppression hearing, appellant expressed dissatisfaction with the public defender and indicated that he desired a continuance to give him an opportunity to retain private counsel. Mr. La Hoda also advised the court he knew that “Mr. Holzer has mistrusted me from the beginning and that he has had a preference of having other counsel“. Appellant‘s father appeared at this hearing and testified that he had saved approximately $2,000.00, was
There is no doubt that the right to counsel applies to all “critical stages” of a criminal proceeding. Commonwealth v. Ritchey, 431 Pa. 269, 272, 245 A.2d 446, 448 (1968); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A critical stage is a point in the proceeding at which substantive rights may be preserved or lost. Commonwealth v. Ritchey, supra. There is no doubt that a suppression hearing is a critical stage since, if the suppression court determines that evidence is admissible, that determination is final, conclusive and binding at trial (except that a defendant may challenge the admission of the evidence at trial upon grounds other than its suppressibility).
As the Commonwealth would not have been prejudiced in the instant case by the granting of the continuance, appellant was erroneously denied his right to counsel of his own choosing.8
The denial does not, however, require reversal. Reversal and new trial is warranted only where the denial of the right to counsel of choice at a pre-trial proceeding so
At the suppression hearing, the Assistant Public Defender succeeded in suppressing a severely damaging item—a full confession of appellant. The only other evidence for which a non-frivolous argument for suppression could have been made was the “fruits” of the search of the Volkswagen. As we have seen, the evidence gathered from the car was not illegally obtained and, hence, was not suppressible. Moreover, the other evidence against appellant was sufficient in and of itself to support a verdict of guilty beyond a reasonable doubt. The trial judge‘s error was, therefore, harmless.
Judgments of sentence affirmed.
MANDERINO, J., did not participate in the consideration or decision of this case.
ROBERTS, J., filed a concurring opinion.
NIX, J., filed a dissenting opinion.
ROBERTS, Justice, concurring.
Although I concur in the result, I must point out that the majority has misstated the definition of murder of the first degree. The majority states that specific intent is the element which distinguishes murder of the first degree from lesser degrees of murder. Rather, to amount to murder of the first degree, a killing must also be “willful, deliberate and premeditated.”
The majority has determined that in spite of the lower court error in denying appellant‘s request for a continuance in order to allow him an opportunity to retain private counsel of his own choice, appellant is not entitled to relief. The majority found that appellant‘s attempt to exercise his constitutional right to counsel of his choice was timely and was not a dilatory tactic. Thus it was concluded that appellant‘s right to select counsel of his choice had indeed been violated. In view of this holding, I cannot accept the majority‘s subsequent conclusion that the denial of appellant‘s right to counsel was harmless error. Implicitly the majority reasons that because the counsel who actually represented appellant performed competently, the denial of appellant‘s right to counsel of his choice could not have contributed to the verdict and, therefore, was harmless error. See Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978). In my view, such reasoning rests upon a purely speculative comparison between actual counsel‘s performance and the majority‘s conjecture as to how an attorney chosen by appellant might have proceeded in handling appellant‘s case. More importantly, such an application of the harmless error doctrine would render nugatory the right to counsel of one‘s choice. I therefore dissent.