*1 issuе, If the amount of loss is a real then no doubt the judgment off, should ability not be taken for the carrier’s possibly to resist a excessive claim would have been prejudiced; lawyer delayed, while the church’s If, however, church was razed. only cancellation is the issue, real I why see no reason the carrier should not be put proof. to its
I would therefore hearing. remand for a further Price, J., joins opinion. in this Markle, Appellant. *2 September Watkins, Bеfore P. Submitted Jacobs, Hoffman, Cercone, Price, Voort, J., Van der Spaeth, JJ. *3 Ochs, Jr., Defender, for Public F. Assistant
William appellant. Wesner, Attorney, and Deputy District E.
Grant VanHoove, Attorney, for Com- Robert L. District monwealth, appellee.
Opinion 29, J., 1976: Hoffman, March burglaries at two of two was convicted Appellant 228 of trials, pursuant to Indictment No. separate one 229. All No. pursuant to Indictment and the other No. appeal Indictment from the issues raised 228. No. appeal from Indictment in the are also raised Thus, the cases were appeal. consolidated for This Opinion will parts: be divided into two the first will discuss the contentions appeal advanced in the from 229; Indictment No. the second will discuss the ad- arguments applicable only ditional appeal to the from Indictment No. 228.
I. INDICTMENT NO. 229 Appellant charges was arising on arrested out of the burglary of a residence in Township, Hereford Berks County, place 19, August took on 1970. A preliminary hearing 14, February 1972, was held on and May 8, 1972, was indicted on burglary, larceny, receiving goods, conspiracy. May stolen and On 31, 1972, appellant filed quash a motion to the indict- ment, alleged in which he that he had not been afforded the benefit of counsel at preliminary hearing. quashed lower court September 15, the indictment on 1972, and directed that a preliminary new hearing be held. Appellant represented by was counsel at the seсond preliminary hearing 26, on October 1972. The indictment reissued, under the same term and number as the indictment quashed, had February 26, been Appellant filed a second quash motion to on March 1973. The docket entries reveal that on March the case was continued until June at request. 3, 1973, On December the lower court dismissed larceny, receiving goods, stolen conspiracy charges, applicable because the period limitations had *4 expired. regard In burglary to charge, however, the the quash motion to was denied. See 19 Appellant P.S. §211. proceeded April 16, to trial 1974, on and was found guilty.
Appellant’s first contention is that the Com- monwealth precluded was taking any from action on Indictment No. 229 of 1972 quashed by after it was the
509 argument is lower court.1 This without It merit. initially quashed obvious that the below the court infirm, procedurally it was not indictment because substantively it was the because insufficient. Had cоurt indictment, quashed the and had been convicted, remedy subsequently appellate the would have See, e.g., been to order a new trial. Commonwealth v. Redshaw, 534, Superior (1974). 226 Pa. Ct. subsequent The reissuance of an trial indictment and jeopardy: “Jeopardy does not constitute double attaches in a a case without when the accused has been subjected charge begun to _” a and the court has hear Culpepper, evidence Commonwealth v. 472, Thus, nolle
Superior (1972). Ct. A.2d 122 prosse prevent an of indictment does not issuance of agree “We second indictment for the same offense: with the Court below that no conceivable harm resulted to being defendant thus tried and convicted on the indictment, ultimately being first nolle second jeopardy. Com prossed. constitute double This did not Hart, 620, Pa. A.2d 391 monwealth argument appears it was error Appellant’s to be that indictment at the issue a second the Commonwealth to had been as indictment that same term and number quashed. that the Commonwealth The lower court held simply of ad a matter same number as used the alleg Certainly, appellant has convenience. ministrative conviction. prejudice, than the fact his ed other no a new Thus, properly to award the lower court refused trial on basis. he was denied
Appellant’s
is that
second contention
Appellant’s
argument
point
entire
“It is
on this
is as follows:
position
September
Appellant
when
Court
indictment,
proceedings
quashed
on such indictment
all
follows,
therefore,
any subsequent
an
trial
were vacated.
It
nullity,
indictment
No. 229
1972 must be
quashing
having
appeal
the indictment.
failed
the Court’s order
is to the effect that
Court
indictment
to No. 229
order
quashed.”
*5
right
his
speedy
a
constitutional
Because
trial.
Rule
case,
applicable2
1100 is
not
instant
balancing
claim must be decided under the
test set forth
Wingo,
in
(1972),
Barker v.
adopted
and
in
U.S.
Pennsylvania
Hamilton,
297,
in
Supreme
The United States
Court
listed four factors which
in
be balanced
must
order
determine whether a criminal defendant was
his
denied
right
length
delay;
speedy
to a
trial: the
the reason
delay;
right;
the defendant’s
his
assertion of
and
prejudice
to the defendant.
It
obvious that
is
appellant
any prejudice.3
has failed to assert
Further-
more, appellant effectively аgreed
delay:
to the
“Penn-
sylvania
long
‘180-day’
has
had a ‘two term’ or
rule
providing
discharge
any
imprisonment
for the
from
of
accused
has
who
not been tried the second term after his
delay
...
happens
commitment
unless
applica-
on the
”
tion
the assent
the accused. Commonwealth v.
of
of
Hamilton,
303-304,
supra at
(Emphasis
Appellant’s quite final contention is brief: “It is noted charge Larceny quashed. It is therefore contended allowing testimony the Court in as to a larceny was reversible error.” Under the [committed?] applies only complaint 2. cases in written Rule 1100 which the 30, is filed after June 1973. argument Appellant’s pоint entire is 3. on this as follows: “The 15, 1972, September quashed record will reflect on the Court against Appellant allegedly indictment concerned with crime occurring September Appellant was not re-indicted 1970. February April until It is 1973. He was tried until refusing Appellant’s submitted that the Court therefore erred pretrial applications upon speedy trial.” dismiss based lack of Code, burglary 1939 Penal following was defined in the “Whoever, time, any wilfully maliciously, manner: at any building, еnters any felony with intent to commit therein, guilty burglary 18 P.S. §4901.4 (Emphasis added). Thus, upon it was incumbent *6 prove Commonwealth to appellant requisite had the prove guilty intent in appellant burglary. Any order of larceny would, relating therefore, facts highly be specific required relevant: “The intent out to make a burglary charge may be appellant’s found in words or conduct from the together attendant circumstances with all reasonable inferences therefrom. Commonwealth Carroll, 525, v. 412 (1963); Pa. 194 A.2d Com- 911 Bova, 359, Superior monwealth v. 180 Pa. Ct. 119 A.2d However, (1956). 866 upon, they if actions are relied must relationship bear a reasonable to the commission of Ellis, felony. a Commonwealth v. 349 Pa. A.2d 37 (1944); Reynolds, Commonwealth v. Superior 208 Pa. (1966).” Ct. Garrett, A.2d 474 Superior 459, 463-464, Ct. amounting Conduct larceny of commission a properly admitted appellant’s as evidence of intent at the entry. time
Because all appeal the issues in raised frоm the judgment of imposed pursuant sentence to Indictment merit, No. are judgment without of sentence is affirmed.
II. INDICTMENT NO. 228 were raised in The three issues discussed above also rejected In for the identical reasons. appeal, this and are however, assignments of error appeal, five additional raised, requires a and new are one of which reversal trial.5 24, 1939, 872, §901; of June P.L. 18 P.S. §4901. Act (1) alleged errors are: Certain
5. The other remarks made argument, apрellant’s In order to discuss which necessary under set forth circumstances P. Morris appellant tried. One was arrested and sixty guilty approximately pleaded Hendricks burglaries in After Hendricks committed five counties. confessed, police informant. as a he acted confidential McDonald, he, police one Thomas Hendricks told the only man, from “Joe and a known to him as third burglary September Philadelphia,” had committed 11, 1970, County. supplied pоlice Berks Hendricks involved, he person description of the third with police subsequently from identified photographs. trial, during the redirect examination
At Brunozzi, following Pennsylvania Trooper State colloquy occurred:
“Q. Hendricks, initial Mr. since his And has cooperated arrest back November police? the state *7 has, very Yes,
“A. he much so. “Q. you say approximately 60 And there were crimes involved? just rough guess. It could be
“A. That would be knowledge participаte 60 or 70 he had of did in, five-county in a area. jury prejudicial during closing as prosecutor to the were so his address misconduct; (2) “photographs” prosecutorial amount to A reference crimes; (3) of witness introduced evidence other Commonwealth (4) charge accomplices; in its The court reversible error committed of amounted an enforcement Rebuttal of alibi witnesses Pa.R.Crim.P., required now-suspended which a defendant
the Rule notify he witnesses trial of the alibi in advance of discovery. affording reciprocal It intended to call without the defendant meritorious, any were should be that if of these contentions noted disposition of granted Because of our a new trial. would be case, unnecessary of these merits it is the substantive discuss claims.
“Q. He with others? others, yes,
“A. He and sir. “Q. And in each of these counties these place, crimes took cooperate did Mr. Hendricks with police? did, yеs, “A. He sir.
“Q. you Hendricks, Do know whether or not Mr. as cooperation a result police, his has ever had of any upon threats made his life?
“A. He (Emphasis added). has.” point, At that objected defense counsel and moved for a objection mistrial. The court sustained the but denied following motion for The side-bar discussion is a.mistrial. highly pertinent: May please
“[DEFENSE COUNSEL]: Court, Attorney the District has this asked witness cooperation whether or not the of Morris Hendricks any upon has resulted in threats the life of Morris only question Hendricks. The inference this defendant made such threats and is therefore guilty. proof is no question There that.... only they asked prejudice jury. to inflame and If proof threats, thing; have of this defendant’s one it’s they question only but do not. The been can have asked to inflame the .... I I can don’t think
“[DISTRICT ATTORNEY]: say anything. prove I can what was stated. I at Then would ask
“[DEFENSE COUNSEL]: proof. this time for an offer such required “THE COURT: He’s not to make an offer (Emphasis added). at this time.” gave following The court then curative instructions: *8 jury, objection “Members of the we have sustained the question by the last asked ... Assistant District [the] Attorney. you just disregard question, pay So will no nothing It attention to it. has to do You with this case. any way against will not consider that in this defendant. against It’s him.” not evidence 514 however, generally nature, this of
Evidence
guilt.”
of
“consciousness
the defendant’s
to show
admitted
of an
intimidation
categorizеs
McCormick
Professor
might
by
“As
conduct”:
“admission
witness as an
adverse
by
connection
wrongdoing
party in
expected,
be
justice is also
case, amounting
obstruction of
to an
his
By
by conduct.
commonly regarded as an admission
give ground
wrongful
he is said to
resorting
devices
to be
and not
his case is weak
believing that he thinks
Accordingly,
party’s false state
by fair means.
won
suit
litigation, whether before
matter in
ment
about
documents, his
stand,
false
his fabrication of
оn the
or
or other
by bribery or intimidation
pressure,
undue
testify
or to
means,
for him
a witness to
to influence
of
testifying,
or concealment
avoid
his destruction
attempt
corrupt the
objects,
or
his
relevant documents
anticipation
transferring
hiding
property
jury, his
—
type
of
of
judgment
all these are instances
of
Evidence,
at
by
McCormick
§273
conduct.”
admission
Pennsylvania
added).
1972). (Emphasis
(2d
660
Ed.
are
conduct
that admissions
decisions have also held
guilt:
propеrly
to show consciousness
introduced
crime,
he is
person
knows
“When a
commits
himself,
therefor,
such
or conceals
wanted
and flees
may
guilt, and
conduct
is evidence of consciousness
proof from which
with other
form the
connection
basis
Osborne,
guilt may
v.
be inferred.” Commonwealth
297, 302-303,
(1969), quoting Com
(1972), by may admissions conduct still be introduced. usually The courts have held “the that inference from adversary obstructive conduct supply will not proof particular want of of a fact to the .essential proponent’s McCormick, supra Thus, case.” at 662. an only admission of can conduct be used addition to proof may other guilt “form the basis ... from which Osborne, be inferred.” supra Commonwealth v. at example, A.2d at 333. Coyle, For in Commonwealth v. supra, Supreme our relating Court held that evidence flight defendants’ in order to properly avoid arrest was despite admitted the fact that the Commonwealth also introduced strongly urged evidence of other crimes: “It is proof Coyles’ that at trial other crimes ... so beclouded unfairly the main issue that it resulted in influencing jury’s guilt, citing, determination of U.S. Banmiller, ex rel. Scoleri v. 310 F.2d If directly crimes involved were not related to the crime trial, and issue on might there be merit to this However, contention. all closely of these crimes were so connected killing, with the establishing Kane either the motive guilt therefore or the consciousness of employed arrest, means escape jury that the had the right to hear and consider this evidence.” 415 Pa. at case, 203 A.2d at therefore, 790. In the instant evidence appellant had threatened to kill the Com monwealth’s chief witness could be admitted to show appellant’s guilt. consciousness of present case is difficult because it arises in a peculiar procedural somewhat Assuming context. Attorney District proof did in fact have appellant Hendricks,6 threatened may the court below 6. Because we do not know whether the Commonwealth had the contention, proof support highly its it would be unfair to treat case, appellant’s attempted do, as involving trial counsel as prosecutorial misconduct. sustaining
have erred in objection. From the viewpoint, Commonwealth’s beсause was con- victed, any regarded conceivable error must be as however, harmless. viewpoint, From the court continue, the trial to despite allowed highly the fact that prejudicial testimony placed had been before the may may which not have been true. *10 by
There can be no doubt that admissions conduct extremely can prejudicial: question may be “A well be relatively raised whether probative the modest value spеcies this outweighed by of evidence is not often its prejudicial aspects. litigant The who would not like to stronger rarity. may have a case must indeed be a It well underpinning be that the real admissibility of the rule of impose is a punishment, desire to swift with a certain poetic justice, rather than proof. concern over niceties of event, any In generally evidence admitted.” McCormick, supra case, at 661. In the instant testimony Commonwealth introduced which could result only single appellant inference: that or someone control, under his had principal threatened the life of his accuser. If result, some other inference could totally evidence would be irrelevant. In the interests of fairness, presumed it must be the effect of testimony predispose was “to jurors the minds of the guilty, believe the accused effectually strip and thus him presumption of innocence.” Commonwealth v. Trowery, Superior Pa. Ct.
(1967). We cannot jury, having assume that once appellant inferred Hendricks, had threatened to kill testimony could strike this from their minds and render impartial an verdict. court, evidentiary
The lower faced with a difficult problem, attempted to avoid its resolution: refused proof, objection, Commonwealth’s offer of sustained the but allowed the trial to continue. It would have been fairer to both accepted sides for the cоurt to have proof, offer probative and then decide whether outweighed prejudicial impact. value Had the court support decided that the Commonwealth its could claim, mistrial; it should have declared a evidence is by simply prejudicial too to be cured instruction. In the context, present extremely testimony prejudicial was left jury’s any proof for the consideration without whatsoever as to its truth.7 This was reversible error. judgment imрosed pursuant
The of sentence reversed, Indictment No. 228 is and the case is remanded judgment imposed for a new trial. sentence pursuant to Indictment No. 229 is affirmed. as to and Van dissent
Jacobs, Price, Voort, JJ., der Indictment No. 228.
Concurring Opinion by Cercone, J.: agree IWhile is entitled to a new trial respect burglary to his conviction on Indictment agree proffered No. I cannot with the rationale Judge opinion support of that result. Hoffman’s
The determination of whether a mistrial should be
granted
court,
squarely
rests
in the discretion of the trial
*11
question
vary
particular
and that
will
with the
of a
facts
C.J.S.,
Hence,
case. 88
Trial
the refusal of the trial
§36.
grant
may only
in a
court
to
a mistrial
be reversed
Fisher,
flagrant
Gregg
(1954);
case.
v.
Cook v.
I do permitting find in the court’s an investigating police testify officer to to his as informаnt’s appellant’s photograph array selection of from an shown trial, police to the informant at the state At barracks. attorney, under examination the assistant district following testimony transpired: “BY MR. BARO:
Q. Well, your words, then, Brunozzi, Trooper own you
what did do as a result of the information you received from Morris Hendricks? investigation. June, A. We continued our On the 11th of ’71, Downingtown Barracks, at Morris Markle, Joseph Hendricks identified gentleman sitting (indicating), over there as the he, person along McDonald, with Thomas burglarized County. the home of Miller in Berks Again, object *12 MR. I BERNHART: no this. There’s foundation, hearsay it’s and it’s a I conclusion. ask that that be stricken. — Honor, develop says
MR. BARO: Your I’ll he Joseph Markle, Morris Hendricks identified barracks, at the I assume? Yes, THE WITNESS: sir.
BY MR. BARO:
Q. Joseph Was Markle there? No,
A. sir.
Q. identify How did he him at that time? object,
MR. BERNHART: I Your Honor. THE question. COURT: Answer the By THE using photographs. WITNESS: MR. Honor, BERNHART: Your I ask for a mistrial. THE COURT: Motion refused.
BY MR. BARO:
Q. many you How photographs present have did at that
time? Nine,
A. sir. Q. Joseph And then he photograph identified the
Markle; right? is that correct, yes, A. That’s sir.
Q. person And is this previously the same who had he you
identified that was said ‘Joe from Philly?’ object
MR. question. BERNHART: I to that grounds? THE COURT: On what leading. MR. BERNHART: As THE leading. Objection COURT: It is sustained. BY MR. BARO:
Q. youWill Joseph state whether or not the Markle M.
that he photograph identified use of the Philly?’ was ‘Joe from Yes, A. sir.” day, following apparently after counsel had opportunity argue admissibility
full photographic identification, the court instructed they previous day’s could consider the identifica- testimony Trooper against tion Brunozzi as evidence appellant. Undoubtedly dilemma, the court did not question jury’s likely refer to the inference that *13 the record because prior criminal appellant had a instruction, him. The photographs of police existence I now which am therefore, problem did not cure concerned. 177, Allen, (1972), v.
In Commonwealth
decision:
in a unanimous
Supreme Court stated
our
reasonably
jury could
that a
is determined
“Once
prior criminal
reference
photographic
from the
conclude
has
prejudicial error
activity
part
of the defendant
on
of the
the circumstances
Under
been committed.”
case, which
in the instant
photographic
reference
likely
go
passing
certainly
reference
was not a
naturally
witness
unnoticed,
infer that
would
mugshots,
thus
police photographs, or
had been shown
inexorably
leading
to the conclusion
them
engaged in criminal
conduct.
previously
had
nothing
the record which
points
Commonwealth
against
inference. See
to militate
could serve
Hence,
Turner,
(1973).
v.
I would therefore reverse trial, a new and remand for on Indictment No. solely improper reference to basis photographic identification. J., concurring opinion. joins in this
Spaeth, Ruckinger, Appellant.