*1 court allowed record fees costs, witnesses and expert costs but service, disallowed the cost copies notes testimony, or of multilithing briefs photo stats, saying these latter expenses incurred for the convenience of the plaintiff and con were not by the templated Code.15 Corporation Judgment vacated, and the record is remanded for further any proceeding necessary for the entry of judgment conforming opinion.
Mr. Justice Roberts and Mr. Justice Nix concur the result. Lowry opinion alsoWe recommend the be fol- form pleas ap- lowed the several courts of common in future stock
praisal proceedings. By opinion this we mean that forth set appraiser’s stating percentage weight assigned tables simplify each value factor. One of the more obvious benefits is to the task of review. Appellant.
Commonwealth v. Jones, *2 1972. Before C. Argued April J., Eagen, Jones, Pomeroy JJ. Roberts, Manderino, O’Brien, Harold L. for with him Nix & Randolph, Randolph, appellant. B. Assistant
Ralph Attorney, District with jylorio, *3 Anna Attor- him Iwaohim Assistant District Yadino, District Attorney, and J. ney, Stephen MoEwen, Jr., for Commonwealth, appellee. by
Opinion Mr. Justice Eagen, May 4, 1973: men About 8:30 on three p.m. April 7, 1969, young Joseph to rob John O’Brien attempted Courtney Dela- as walked they along public Media, street ware shot County, Pennsylvania. Courtney by was death felons suffered wounds which caused his 18th. O’Brien was stabbed and shot survived. May but As a police, result of information uncovered Ronald Alan Pierce and Jones, appellant herein, three black were arrested Wesley Groce, young males, for the crimes. After a trial Jones was jury convicted in the as degree, aggravated murder first robbery, kill sault and assault with intent and cons battery, On the murder conviction he was sentenced piracy.1 separate trials Pierce and were Groce convicted charges. subsequently criminal Pierce and Groce the same verdict directed.2 jury’s life imprisonment filed. appeal instant was this judgment
From in the prose occurred errors is asserted certain It claims trial. These a new require process cution seriatim.3 be discussed of error will testi- expert revolver, a .38 calibre At trial, Court- a bullet recovered fired established mony in evi- introduced occurrence, after the body ney’s refusing court erred the trial It is claimed dence. was the because it evidence, a motion to suppress war- an issued illegally based on of a search product are these. in the record rant. The facts pertinent Chief of investigation crimes, During three questioned boys, Thomas Media, Bruton, Police of Day, Carter and David Willard James Carter, Roger crime site in an au- him they passed informed who occurrence involved or about the time of the tomobile at subsequently “Hey Roger”; yelled, someone Groce and Jones Pierce said he, talked with who they (Pierce) that he robbery; attempted committed the and O’Brien Courtney injured fired the shots which “Hey Roger” Roger yelled and he was the one who then obtained for A warrant was Carter. search he resided) an of Jones whom (with residence of uncle seized in the uncovered and the revolver was search. Pierce, Commonwealth v. 451 Pa. awarded new trials. See Groce, (1973), A.
A. 2d and Commonwealth 452 Pa. 2d 917 *4 2 prison for substantial terms on Jones was also sentenced appeals indictments, not from entered these but were two other judgments. going trial, Testifying in his defense at Jones admitted own night the involved Pierce Groce to Media on with from Chester gun supplying admitted the used in the He also to rob someone. being very a crimes and short distance from of the commission However, committed. crimes he said he the when the scene conspiracy before the crimes occurred. the from withdrew warrant, of the search support of the issuance Thomas submitted Bruton, Chief Police of Media, a which stated magistrate written affidavit to the Jones a in and assault participant holdup detailed de and O’Brien. It also included a Courtney fol plus of the to be scription premises searched, “He has to believe and which lowing: reason [Bruton] relied that Bonald he had upon making affidavit, J ones lives at the said address and he was a participant ac which a was used foregoing holdup gun testimony to the witnesses as well as other cording Chief givren by Bruton Boceo P. Urella.” The fore affidavit did not meet constitutional standards going v. 378 U.S. S. Ct. (1964)), (Aguilar Texas, at the it was established however, suppression hearing that before the Chief of Police issued, Bruton, warrant magistrate also with supplied while under oath, him of in of the crimes and also told background Boger formation he received from James Car Carter, all of he for ter and David Willard whom knew Day, “honest.” officer and considered also years gave of the description three felons as magistrate sup fleeing witnesses who saw them the scene. plied by oral of the combined and written sufficiency magistrate information to the to sustain supplied challenged.4 cause is not Jones’ finding probable for The standard a determination of whether a warrant Matthews, our recent ease of Commonwealth v. can be fonnd in valid (1971), appro- A. 2d wherein we stated: Pa. “The priate for a determination whether a search and benchmark Aguilar explicated Texas, supra, valid is seizure warrant States, supra. Spinelli In these v. United two cases the United Supreme developed following two-pronged test for States Court validity application ascertaining ‘First, of a warrant: failed any “underlying necessary of the circumstances” forth to set independently judge validity magistrate enable Second, . . . the affiant-officers conclusions did not informant’s *5 304 contention, in consid erred magistrate that the
sole
is
if probable
in
testimony
determining
the oral
ering
issue
Com
We hare reviewed
canse existed.
A. 2d
450 Pa.
Milliken,
310,
monwealth v.
controls here. This
we said therein
and what
(1973),
overruled.
error
assignment
therefore,
is,
Jones’
maintains
constitu-
claim of error
next
the
at trial by
violated
to due
was
process
tional right
state-
incriminating
of a written
admission
evidence
arrest. This con-
his
following
ment he
gave
police
that at
basically premised
tention
fact
and without
age
eighteen years
time Jones was
counsel.
legal
assistance of
has
minor
decided a
who
previously
This court has
knowing-
fifteen
may
at least
years
attained the
age
to
his right
and
waive
voluntarily
ly,
intelligently,
counsel
the assistance of
having
counsel without
confession
subsequent
given
if a
occurs a
valid waiver
constitutionally
pro-
not
the absence of counsel
Commonwealth
generally
scribed as trial evidence. See
police questioning. uncontradicted each of the officers shows Jones understood police to co- manifested a warnings readily willingness There police. and answer operate questions were no promises employed by tricks *6 threats, and the of interrogation two authorities, periods short in well relatively duration. Jones was Moreover, fed the time his custody of and he was during not a state of uncle fatigue. (his legal his Furthermore, William guardian) was the time Jones, present during Jones was the “Miranda” and given through- warnings out the interrogation Another member of his period. a Mrs. family, present an was also dur- Bennett, aunt, ing the interrogation. police es- testimony tablishes that not only was the uncle present during ex- reading but also warnings, police plained Jones’ his On rights to uncle. this it is record, clear this error assignment of is devoid of merit.
As a the contention corollary to the statement was inadmissible as evidence at Jones trial, po- asserts lice never informed him he “was of suspected murder.” Under the did circumstances, not render the state- ment inadmissible. For an of basis understanding of a brief ruling our factual summary necessary. the victim shooting Courtney occurred on April 7, but the man did not die until one month eleven later on 1969. days May 18, Jones was taken into custody April on and his 13, 1969, confession was in the completed early morning April hours of 1969. at the time of the confession Thus, the victim of the was alive, murder from his apparently recovering wounds. When Jones was arrested and before he con- he was informed he was fessed, suspected assault aggravated with intent to assault and kill, rob- battery, when he bery conspiracy. Hence, questioned was the crimes he was he was told of suspected of commit- since or then Under these ting charged facts, with. recovering victims of the crimes were alive from their it is wounds, say police unreasonable also told Jones he possibly should have could reason he was simple with murder—for charged not of murder at the time he confessed. suspected
Jones of the evidence challenges sufficiency next his conviction of in the first degree. sustain murder challenge The foundation of this rests on the fact one no identification positive appellant there was Jones relies the felons. As for his support position recent decision in Commonwealth v. our Crews, evi- only Pa 260 A. 2d Crews the his the defendant the crime dence to connect with association to the location of the his proximity crime, with another and his sweater defendant, possession similar the one worn one of the perpe- which was *7 In Com- trators of the murder. the case at the bar, monwealth much more substantive evidence produced Jones the crimes and after a thorough to connect with the have no the evidence record, review of we doubt the conviction. the Com- ample Herein, was to support forth one of the victims of brought O’Brien, monwealth he not able to iden- positively the crimes while was and, de- he Jones did the tify general said match Jones, more he felons; importantly of one of the but scription fatal in to the leading up the events depth recounted con- introduced the The Commonwealth also shooting. con- The appellant. valid confession stitutionally recitation the crimes contained a of how fession, Jones’ was detailed participation, also occurred, in detail as the trial testimony the same exactly supplied Jones told how he O’Brien. the confession and how he concealed it after the weapon, the murder intro- Moreover, evidence was committed. crimes were to the crime taken site where show Jones was duced to in he re-enacted the crimes detail. On the witness conceal- stand Jones admitted supplying gun near being it after the crimes and the scene of ing in he main- crimes of the known but company killer, con- tained and did withdraw from the attempted he robbery-murder seconds before the spiracy few took evidence place. ample supplied by there was However, Jones’ Commonwealth which rendered testimony unbelievable. nonparticipation withdrawal witness testified there three black only O’Brien men on the all three took in part street and the crimes, in he his confession Jones stated that although ultimately wanted to withdraw he conspiracy in he felt it robbery-murder took because part too late for him to out. get
On the evidence the Com- produced by the basis of returning was warranted a ver- monwealth, dict of of murder the first guilty degree. next the trial court’s denial of
Appellant challenges his motion for a of venue. The foundation of change for a of venue rested appellant’s application change on a series of articles in a local newspaper published carried accounts of the newspaper crimes, and certain police investigation, proceedings. pretrial was so Appellant alleges publicity “inherently prej- for him fair it to receive a impossible udicial” that was County. trial Commonwealth coun- Delaware publicity was not of nature terargued pretrial process of due deprive appellant which would law. reviewed articles in question We have personally *8 discretion an abuse of for the trial and rule it was not the motion based the evidence before court to deny it. relies on the case of Sheppard
Appellant apparently
Ct. 1507
v.
384 U.S.
86 S.
where
333,
(1966),
Maxwell,
Supreme Court ruled the media
in the United States
the
trial
Sheppard
Sheppard
barred
attending
publicity
There
impartial
jury.5
a fair trial
an
by
from receiving
in the
publications
in the
of the
quality
is no analogy
Sheppard
case
that involved in the
case.
instant
to
to
relate
In
the
present case,
articles,
they
the
the
factual and routine and
majority
Jones,
mention
name.
was never
did not
Jones
It
accounts
the
inflicted
in the articles
that
Jones
once stated
crimes
complicity
on the
and his
in the
victims,
wounds
publications.
unclear from
truly
reading
is
parallel
in quali-
instant case does not
publicity
Pierce,
v.
Commonwealth
ty
appeared
that which
no
A. 2d
451 Pa.
and there was
190,
(1973),
forth.
of the standards therein set
meaningful violation
the pretrial publicity
we rule
circumstances,
Under
ap-
denied
presumptively
not of
nature which
was
Jones
no
presented
fair
since
other
pellant
trial,
we
claim,
assign-
to substantiate his
rule
evidence
error
merit.
ment of
to be without
the fact
appellant
are mindful of
that
we
Moreover,
examination
on voir dire
given ample opportunity
if he
to
prospective juror
each
ascertain
question
in-
impartial
could render an
verdict.6 We have
or she
Texas,
(1965) ;
532,
also Estes v.
U.S.
85 S.
See
Ct. 1628
Louisiana,
(1963).
S.
Com
Rideau v.
373 U.S.
Ct. 1417
Cf.
Stewart,
449 Pa.
309 entire dire examination reviewed the voir dependently fair im- was tried before a and are convinced Jones There is no jury. absolutely indication partial innocence had as or jurors guilt to opinions of We rule partiality. would raise the presumption in trial was conducted accordance with fun- Jones’ damental of due of law. principles process the trial court appellant argues improperly
Finally, jury. denied his to the of the Prior challenge array to to filed a petition a black trial, appellant, man, of the challenge array jury panel apparently proceed- was white. a predominantly During pretrial presumption prospective impartiality juror’s of es a would be to impossible juror tablish an standard. It is sufficient if the can lay impression opinion aside his or and render a verdict based on presented Spies People Illinois, court. of evidence of State 131, 22, 80; States, L. 123 U.S. 8 S. Ct. Ed. Holt v. United 218 31 Reynolds 2, 1021; States, 245, Ed. U.S. 31 S. Ct. L. v. United 54 supra. adoption rule, however, in- “The of such a ‘cannot foreclose given application quiry whether, case, of that rule as a deprivation liberty prisoner’s works a of the life or without due People process California, of State U.S. of law.’ Lisenba v. of 314 236, 280, 290, Reynolds, 219, L. Ed. As stated in S. Ct. 166. strength opinion the nature and the test ‘whether formed presumption necessarily par- . such as in . . raise the of are law tiality. question presented thus is one of mixed and fact law U.S., upon page .’ of ‘The affirmative of the . . . At issue is challenger. he shows the existence an Unless actual of such juror presumption opinion the mind of the as will raise the necessarily juror partiality, need not set If be aside .... a opinion formed, positive had been he would been and decided have though expressed.’ page incompetent it had not been At even Allen, 507, 443, Brown v. As stated in 344 U.S. U.S. was of 98 question L. Ed. the ‘so called mixed S. Ct principles application constitutional facts found duty adjudication judge.’ was, with the federal It leave duty Appeals independently therefore, of the Court evalu- impaneled testimony jurors.” 722-23, dire Id. at the voir ate Ct. at 1642-43. 81 S. would he hearing held so requested counsel
ing,
re-
his
and his
to establish
claim,
an opportunity
have
denied
the court.
summarily
quest for
to a
because
challenge
basis
legal
in the Equal
finds its foundation
racial discrimination
of the Fourteenth Amendment,
Protection Clause
*10
Supreme
from the United States
the
line of cases
long
contained
the protections
which have enumerated
Court
ago
Constitution.
As
as
long
within the
v. West
It defendant has no to demand right that members of his be race on the jury which tries him, he have however, does a right a state require not to deliberately and systematically mem exclude bers of his race from the jury panels and from the juries ultimately from drawn those panels,7 consequent lie ly, must prove systematic exclusion, demon thereby strating a violation of the Equal Protection Clause.8 7 generally Louisiana, supra; See v. Alexander v. Ala Swain bama, 202, (1965) ; Texas, supra; U.S. S. 380 85 Ct. 824 Cassell v. Texas, 398, (1945) ; Akins 325 U.S. S. 65 Ct. 1276 Gibson v. Mis sissippi, parte (1896) ; Virginia, Ex 162 U.S. S. Ct. U.S. aptly Texas, As stated in Smith v. U.S. 61 S. Ct. (1910) “For racial discrimination to result : the exclusion demand proportionate not may a defendant
Moreover,
him,
which tries
jury
Ms race on tbe
numbers of
but he does
selected,9
is
jury
from which
panel
repre
a
panel
from
a
to a
drawn
right
jury
have
defend
The
community.10
a cross-section
sents
a prima
demonstrating
has
burden of
ant
the initial
sMfts
the burden
discrimination,
of
then
facie case
Com
if the
evidence,11
to rebut
Commonwealth
meet
does not
system
selection
monwealth
fails,
is
the defendant
standards
constitutional
requisite
under a system
another
selected
jury,
entitled to
the constitutional mandate.
with
complies
it
is that
the record before us
difficulty with
with
not
us
degree
clarity provide
does
with any
with
information to consider
connection
factual
ap-
demed
Since the
constitutional
principles.
court
any type
with
pellant
provided
we are not
hearing,
make-up
wMch
the population
statistics
show
fac-
nor
with
provided
any
Delaware
are we
County,
exclu-
systematic
tual
which would show
background
make-up
are
even
the exact
sion. We
aware of
not
ab-
case.
record
in the
is
jury
instant
panel
necessary for
solutely silent as to the factual data
issue.
determination
such a fundamental
proper
issue to
resolved
specific
Consequently,
appel-
whether
the trial
denied
simply
properly
court
lant’s
for a
appellant
request
hearing. Apparently,
only
qualified groups
not
violates
service of otherwise
our
at
with
Constitution and the laws enacted under
it but
war
concepts
society
representative
our basic
of a democratic
and a
government”
Id. at
The Commonwealth vigorously be hearing this case for a not remand that we should stan the procedural did not meet appellant cause the Pennsylvania in forth Rule dards as set record Procedure.12 A review of Criminal Rules not comply did that counsel clearly appellant’s reveals circumstances, appel with and under normal this Rule a precluded from thereby requesting would lant hearing. of a about the denial hearing or complaining 2d 291 A. 448 Pa. Butler, See Commonwealth 444 Pa. v. Werner, (1972) ;13 Commonwealth 12Rule 1104 states: Array. ChaUenge to the “Lists of Trial Jurors and by persons jury designated “(a) for to select officials law prepare, publish post lists of the names service shall and such persons jurors provided by to serve law. as as challenge opportunity prior thereto, “(b) not exist Unless did array days the first before to the shall be made not later than five day for case listed for trial of criminal eases of the week the jurors thereafter,
which the
summoned
not
and shall
have been
ground
specifying
constituting
writing,
the
for
be in
the
the facts
challenge.
only
ground
array may
“(c)
challenge
A
on the
to the
be made
substantially
jurors
selected,
the
not
or summoned
that
drawn
in
with law.”
accordance
following
Butter,
Mr.
the
with
Justice O’Bexen stated
necessary
petition:
respect
“How-
information is
the
what
type
particular panel
ever,
the
the
one
are not
characteristics of
challenge. Rather,
grounds for
since
of facts
constitute
challenge
procedures themselves,
must be to the selection
the
composition
particular panel,
pro-
the
must
not to the
of a
facts
designed
indicating
procedures as
either that
vide evidence
likely
unrepresentative
juries
implemented
result
of a
are
community,
procedures have,
cross section
or that
continuously
represent
population
fact,
certain
failed to
identifiable
period
groups
as
trial
of time. Such facts are
available before
over a
jury
concerning
are
has been selected. These
facts
after
county’s
by
population represented
speci-
proportion
various
people
groups,
negroes
thirty-five,
population
under
here
fied
groups appear
persons
frequency
these
with which
lists,
A
jury
these
are
the methods
lists
selected.
Neither defense counsel nor the free trial court from blame for the state of this record or the disposi- tion of this claim. Defense counsel ill was apparently prepared to this present claim, and if he were prepared, him action summary by the court stopped it. properly Under pursuing we circumstances, will remand the case to the trial court for further pro- in ceedings appellant to be an given oppor- to tunity properly present establish his claim. We jurisdiction will retain of the appeal until trial court files a of its report findings and conclusions.
It is so ordered. Mr. Nix Justice took no part the consideration or decision of this case. by
Dissenting Opinion Pomekoy: Mu. Justice I continue to adhere to my objection to deplora- ble practice reconstructing by oral a testimony at a search suppression hearing warrant which on face its is invalid. attempts Such ex supply, post facto, essential Fourth Amendment ingredient of probable Bearing presented to determine whether the facts constitute suffi- grounds challenge cient for a successful pro- to the selection necessity complex by event. cedure is If a defendant wishes holding delay hearing, for the such a 1104(b) requires trial Buie alleging request, grounds his him to make sufficient therefor, be- prospective jurors so that fore trial witnesses are not unneces- sarily Id. at A. inconvenienced.” 2d at 91-92. stated orally as to what was testimony police
cause by date remote prior are, at some issuing authority constitution. of the federal violative judgment, my in Commonwealth Mill dissenting opinion See my fact Pa. A. 2d iken, prospectively put now rule1 procedural that have by we the constitution is no answer to practice an to this end 1969 search made this to this appellant al challenge by warrant. case was mur- of the search
The product evidence of Notwithstanding the strong der weapon. the confession (including this record guilt shown I am to conclude unable testimony), and identification an impor- introduction into evidence of such harm- constitutionally tant exhibit the revolver trial I believe should less error. therefore new amI to dissent. obliged For this reason ordered. dissenting in this joins Justice Manderino Mr. opinion. *15 Pennsylvania Procedure, Rule 2003 Rules of Criminal
adopted , March 1973. this Court on Appellant. v. Robinson,
Commonwealth