*1 which provoking continuing difficulty fault killing. resulted . .” Commonwealth v. Round . tree, supra, page 204, quoting at from Commonwealth Pa. at 2d 376 Johnston, page A. he in-
By appellant’s own his account, brought gun to the affray before the victim had knife. even shown a his Consequently, testimony does not make out a valid claim of self-defense nor does it, by itself, indicate his guilty plea voluntary. but anything
Considering other evidence at appellant’s offered Post Conviction Act Hearing the court did not hearing, err concluding appellant did not meet his bur- den of proving that he did not understand fully meaning his plea.
Order affirmed. Appellant.
Commonwealth v. Matthews, *2 January Argued Before 1971. Eagen, Jones, Pomeroy Babbibbi, JJ. O’Brien, Roberts, *3 Levy, appellant. J. Brem Abraham Attorney, District Perez, Jr., Louis A. Assistant Attorney, Stein, him Milton M. Assistant District with Attorney, Deputy Richard District D. Crawford, James Attorney, Ar- Sprague, and District First Assistant A. Attorney, ap- Specter, for Commonwealth, len District pellee. by Eagen, December 1971:
Opinion Mb. Justice imprisonment life sentenced to Matthews, William by following in murder the his conviction judgment appeals degree, from the sentence. first sufficiency trial evidence to sustain the The questioned, we nonetheless, not have studied verdict ample the are satisfied evidence was and record the guilt of murder in the first Matthews’ establish doubt. beyond reasonable in find- the was warranted evidence,
From the acting February ing that Matthews, nephew, a friend, James and Williams, concert with his Eandolph in Philadel- robbed Butts James Jackson, robbery phia during perpetration of Butts and causing was stabbed four times one of the felons, injury which resulted Butts’ death.
Appellant alleged during cites several errors prosecution proceedings require which he a new asserts assignments trial. We conclude these of error are with- out merit for the reasons that follow.
During investigation of the crimes involved, police apprehended questioned who ad- Williams, having participated mitted in the commission robbery, and accused Matthews and Jackson of also having participated police and informed the that Mat- stabbing thews had hidden the knife used in an apartment aat certain address. Based on this informa- investigating tion, officer caused a search warrant apartment. to issue for complaining affidavit, signed by police Verbrugghe, detective, stated the following: p.m. “On Fr. 2-23-68 Eandolph about 11:00 Butts 40-N., 4-38 Oreen high- St., taken from the way Presbyterian Haverford Ave. to the Hosp., pronounced dead from stab wounds of the back. Investigation disclosed that James Williams 18-N., res. part 3856 Haverford Avenue took robbery Eandolph Butts. James Williams stated that William Matthews 18-N., 3856 Haverford and James Jackson 4422 Brown 19-N., St., had Eandolph *4 stabbed Butts and hid the knife in apartment the 3rd floor [rear] of 3856 Haverford Ave.” The warrant described the property sought pocket as “one knife” bloody and cloth- ing Friday, worn William Matthews on Februarv 1968. 23, a,t 12:30 at Avenue 3856 Haverford
Upon arriving (the appellant’s a.m., February 24th, aj>artment custody, placed into took sister), police appellant him seized the warrant pursuant under arrest, aas knife described kitchen eight-inch (otherwise knife”). “butter the affidavit upon
Initially, appellant suggests lacks which the search and seizure based warrant was information for a requisite finding probable cause.
The foundation of the law of search and seizure is
the Fourth
which
on the states
Amendment,
binding
under
the Hue Process Clause of
the Fourteenth
Amendment.
Ohio,
v.
367 U.S.
Mapp
70
probable
principle,
cause will
long standing
magistrate”
by
“neutral and detached
be determined
competí-,
engaged
often
“the officer
and not
ferreting
v. Unit
enterprise
Johnson
crime”,
out
tive
(1948),
will
The benchmark Aguilar valid is a search and seizure warrant is whether Spinelli supra, explicated v. United Texas, supra. States In the United States, these two cases following two-pronged developed Supreme Court validity ascertaining “First, of warrant: test any application forth of the ‘under- failed to set magistrate necessary lying to enable the circumstances’ judge validity independently of the informant’s to . . . the affiant-officers did not Second, conclusions. attempt support to their claim that their informant Avas‘credible’ his information ‘reliable’.” 393 U.S. 89 Ct. at 587. S. argument appellant’s go The thrust of seems to the second facet of the aforementioned test that the requesting attempt support officer did not his claim that the informant was credible or his re- information counterargues liable. The Commonwealth that since participant the informant was the crime “and he personally party and was a witnessed, to, events Yerbrugghe” related Detective this should insure reliability. his person clear case law is that when a is an ad- participant police
mitted in a attempt and the crime, upon secure warrant the information received- from aspect Supreme the second him, Court’s test is the fact that the since individual met, participa- admits reliability. in the crime insures tion See generally, his: Viggiano, (2d States v. 433 F. 2d United 716 1970) Cir. ; (9th States, 426 F. v. United 2d Louie 1398 1970); Cir.
71 1966) ( ; 923 9th Cir. F. 2d States, United Gilbert v. 1967); (D. Supp. Mass. F. Scafati, 273 Owens v. 2d N.E. , Mass. Stewart, Commonwealth v. Superior (1971); 211 Pa. Rose, Commonwealth 235 A. Ct. 2d *6 slightly are dis-
All above cases, however, of the tinguished therein there instant in that from the case police or from other information, was corroboration the an “ad- the affidavit stated that informant was participant in- in in the mitted” the whereas crime, corroborating stant case there is to little information reliability, expressly insure the does not affidavit participant state that in Williams was admitted the merely investiga- crime. The herein affidavit states tion disclosed that “James Williams 18-N., res. 3856 part robbery Haverford in Avenue took the of Ran- dolph showing, Butts.” there is no Thus, direct on the face of the affidavit that the Williams, had informant, actually inculpatory confessed or made statements that reliability. tend would to show his Supreme the United However, States Court in Unit supra, ed States Ventresca, at 108-09, S. Ct. at stated that the affidavit “must be tested and inter preted by . . . [this Court] a common-sense and realistic fashion”, and that we “should not invalidate by interpreting the warrant the hyper- affidavit a rather than a technical, common-sense manner”, and that “the resolution marginal of doubtful or cases in largely area should this be prefer determined ence be accorded to warrants”. guide Based on it our view that a line, common-sense reading of affidavit involved sufficient to establish Williams is reliable he since was “known” participant in the magistrate and the properly crime, could presume Wil anything he liams knew said would or could be used implicate him the crime, he would not his give himself, about information false inclined appellant. uncle, in which manner recitation his
Moreover, po- by the corroborated committed was crime was had investigation, clear that a murder it since was lice stab result and it occurred committed been leading conclu- informer stated, as the wounds, information. he had first-hand sion appellant’s Mtchen next contention is that the weapon put in evidence as murder knife seized and “slipshod suppressed because have been should Verbrugghe approached his Detective manner which looking for knife he when he described duties actually pen he confiscated silver as a whereas knife; knife.” Mtchen to be
The affidavit stated that the item seized was merely description limited but the warrant knife, *7 testimony pocket According knife”. elicited “one hearing during suppression detec- when the below, apartment appellant stay- where entered the tives they (an occupant ing, of the asked Valerie Williams was; apartment) killing the “knife” used where pan pointed in a She it out water under the Mtchen previously the knife table was kitchen and, noted, “pocket knife rather than knife”. Thus is clear it exactly the knife seized does not match the de- scription given in the warrant.
The Fourth Amendment to United States Con- right provides: “The people stitution to be persons, papers, in their houses, secure and effects, against searches and unreasonable shall seizure, not no warrant upon shall prob- violated, issue, be but supported Oath or cause, able affirmation, and describing place particularly be searched, and ” things to be persons [Emphasis or seised added.] Supreme in the case Court The United States S. Ct. 74 States, Marron v. U.S. United requirement (1927), Amendment the Fourth discussed require following particularity “The in the terms: particularly ment that warrants describe shall things general them to be seized makes searches under impossible prevents thing one under the seizure of describing a warrant another. As what is to be taken, nothing executing to the discretion left officers [Emphasis the warrant.” Id. at added.] 196, 48 S. Ct. at 76. disputed general exploratory
It cannot be
through
merely hope
searches
which officers
to discover
any
any wrongdoing
evidence of Mnd of
are not consti
tutionally permissible. The search must be one direct
good
objects specified
ined
faith towards the
in the
warrant. Cf. United
States Rabinowitz,
We are convinced the search in this case was not “exploratory”, good but rather one directed in faith object specified towards the in the warrant. To rule merely specified “pock otherwise, because warrant et knife” whereas “a kitchen knife” was seized would a,nd hypertechnical contrary to the common-sense approach mandated in United States v. Ventresca, su pra Cf. State v. also, Pietraszewski, 285 Minn. 212, 172 N.W. 2d Moreover, this connection, we note that several courts have ruled that where the *8 precisely to be seized are items as identified as the activity permits of nature the and description exact virtually impossible, searching officer only required general to describe the class of the item he is example, seeking. For see James v. United States, 416 1969), (5th Cir. cert 467 2d denied F. 397 U.S. 907, 90 74 F. 309 (1970); Melville, v. States United 902
S. Ct. 1970); v. (S.D. United Supp. and, N.Y. States 822 1968). (N.D. Supp. Ind. F. Robinson, 287 245 process due Appellant next contends constitutional evidentiary a con- by of use at trial was violated police. he made to the fession coerced was the confession testified that Matthews his re physical and that through violence threats ques police period lawyer during quest for a testimony ignored. was tioning However, was by police whom specifically officer to contradicted given. denied the exist officer was This the confession questioning oc any and stated ence of coercion fully informed had been after Matthews curred until by rights indicated and “Miranda”, mandated as his willing rights to make was his he understood legal counsel. Un the assistance statement without credibility of Matthews’ testi circumstances, der the mony and we find noth for the fact-finders below, ing their us to interfere with record to cause rejection testimony. v. his Cf. Commonwealth (1971) 902 and Com ; Pa. A. 2d Abrams, 295, Joyner Brierley, rel. 429 Pa. monwealth ex v. (1968).
A. 2d 434 Appellant trial next asserts the court committed request refusing specific error in to instruct the manslaughter, voluntary failing and also in sub- finding possible such mit to verdict. pointed no evidence which Since there was manslaughter, slightest to the offense of not constitute error. did court’s action Commonwealth (1955); 112 A. Pa. 2d 362 LaRue, Flax, 331 Pa. 200 A. Commonwealth process Appellant contends due next was violated jurors excusing merely cause at trial because scruples against they conscientious the impo- indicated
75 of the death sition because this penalty, prevented from accused tried being which was cross of the section community. This contention was consid ered and in rejected Commonwealth v. Pa. 445 Speller, 282 A. 32, 2d 26 on deci (1971), and we stand our in sion that case. See Carolina, also v. North Bumper 391 U.S. 88 S. Ct. 543, 1788 (1968); and, Common wealth 444 Pa. Roach, A. 2d 368, In this another connection, appellant advances argu ment not considered in excus Speller, namely, for ing jurors cause because of conscientious scruples violates the Due Process Clause of the Fourteenth since a Amendment, has absolute discretion fixing the penalty and “could act conceivably differently different Giaccio cases.” v. Pennsylvania, 382 U.S. 399, S. Ct. 518 is cited (1966), support this position.
Giaccio is Therein inapposite. the court uncon- ruled stitutional a Pennsylvania statute permitting place costs on a defendant charged with mis- demeanor even though it found him not guilty crime. The thrust of the decision was that the statute too vague and lacked sufficient standards enable the accused to protect himself against arbitrary and discriminatory imposition of costs. Herein, proscribed act is the taking another human life, and there is about nothing vague that.
Furthermore, speaking majority Giac cio, late Mr. Justice Black disposed of the conten tion now under discussion when he said: “In so holding intend to cast no doubt we whatever on the constitu of the settled tionality practice of many States to leave finding defendants juries a crime the power fix within punishment legally prescribed limits.” Id. 8,n. 86 S. Ct. at n. at 8. Supreme United States note that we
Finally, California, of McGautha case recent in the Court while speaking 1454 (1971), 91 Ct. S. U.S. pro a due there was the claim rejected issue
very stated: Therein the Court pertinently cess violation. com and Crampton’s consider first McGiautha’s “We *10 the to guide mon that the absence of standards claim; constitu on the issue is punishment discretion jury’s a To their within intolerable. fit tionally arguments contend constitutional frame of reference petitioners or that to leave the at to jury completely large impose fundamen withhold death as it sees fit is penalty the lawless and therefore violates the basic command tally of de the Fourteenth Amendment that no State shall a of life his without due of law. prive person process the undeniable surface of Despite appeal proposi tion, we conclude that the courts below re correctly jected it.” Id. at 91 S. Ct. at 1461. The Court went on to state: “In of light and the history, experience, present limitations of human knowledge, we find it quite impossible say to untram committing to the melled of discretion jury power pronounce life or death in capital cases is offensive anything in the Constitution. The are States entitled to assume that jurors confronted with the truly awesome responsi of bility death for decreeing a fellow human will act with due for the regard consequences of their decision and will a consider of variety factors, of many which will have been suggested by the evidence or by the of arguments defense counsel. For a court to attempt catalog appropriate factors in this elusive area could inhibit rather than expand the scope of consid for no list of eration, circumstances would ever be really complete. infinite variety cases and facets each case would make general standards either or meaningless ‘boiler-plate’ a statement of the obvious at 91. Ct. 207-08, need.” Id. S. no at would 1467-68. equal protec- urges
Appellant also that there is an jury system. present inherent tion violation totally Generally contention is devoid merit. This speaking, equal protection requires govern- clause standing position all same ment to treat those equally, government against cannot discriminate i.e., group or In here class individuals. cases such as there no are involved, discrimination—all those who degree found of murder in the first can either punishment imprison- have their fixed at death life or ment, that determination rests with the based apparent, on the each case. There in- facts of against group, vidious discrimination individual, or a class since facts of each case are different and the makes its determination guilt solely based on the facts in the case before it.
Finally, urged it is the trial court favored the Com- *11 fairly monwealth and failed to act impartially and throughout proceedings. Our examination of the persuade any record fails to us that there is merit in this contention.
Judgment affirmed. part
Mr. Chief Justice took no Bell, in the consid- eration or decision of this case.
Dissenting Opinion by Mr. Justice Roberts: join dissenting I opinion of Mr. Justice Pom- eroy and also wish to add two additional brief obser- vations. many of our
First,
prior
cases decided
to Common
Flax,
wealth v.
remotest jury instructing no error commits the court manslaughter not be war would of verdict Yeager, 196 85, Pa. 81, 329 v. ranted.” Commonwealth v. Car (1938); Commonwealth accord 830 Atl. 827, (1937); Commonwealth Atl. 610 Pa. 191 roll, (1893) ; Com 27 Atl. 156 Pa. Crossmire, Atl. Pa. Buccieri, monwealth subsequent rule seems to of that restatement any apparent awareness made without have been Yeager, principle of difference between substantive supra, thereafter. Flax the cases decided and and has focused dissent,
Mr. Justice his Pomeroy, equal protection basic weakness and the the denial majority again I here reiterates. rule which the pass not let this case without correc- believe we should tion. unarguable
Secondly, voluntary it is course manslaughter included in an lesser offense indict- for murder. The should be so ment instructed. that a should advised Furthermore, verdict voluntary manslaughter one of the verdicts re- under a murder indictment. The failure turnable to do many potentials obviously incomplete, so creates unequal considerations in unfair, deliberations and the verdict treatment accorded the accused. Opinion Pomeroy:
Dissenting Mr. Justice Among appellant’s assignments several of error is specific request of a court’s refusal for an the trial in- *12 jury voluntary on the to the struction elements of being possible manslaughter as one of the verdicts the may opinion murder case. this in a return rejects assignment summarily ground on the Court pointed evidence was no . . there which in that There of manslaughter”. to the offense slightest degree this conclu- for support is, admittedly, precedential in our practice reflects the long standing and it sion, I believe however, courts. reflection, criminal Upon and result, that fairness different mandate logic I therefore respectfully dissent. treatment of the the majority’s
Because brevity of this it the cur- be to summarize issue, may helpful rent instruc- status law with respect (1) tions on the return voluntary manslaughter, (2) of a verdict voluntary manslaughter trials for murder wherein evidence there has been such a support verdict.
While it man voluntary considered felonious, slaughter the least form in culpable homicide cluded within a murder indictment. con Thus, when sidering degree of an culpability individual be ing tried under such return indictment, jury may a voluntary if manslaughter verdict it finds that killing, although intentional, committed without malice; is, may accused be shown have been acting under influence sudden which passion was caused by legally adequate provocation that placed him beyond the control of reason.1 See Commonwealth e.g., v . Walters, 431 Pa. A. 2d 757 (1968); Commonwealth v. Paese, 220 Pa. Atl. 891 culpability The difference degree between first or second voluntary murder manslaughter on the one hand and on the other punishments is reflected accompany which conviction of respective these Thus, degree offenses. a conviction for first mur- der imprisonment. carries with it a sentence of death life Sanc- may properly upon imposed tions one found of second imprisonment murder exceeding include for a term not twenty years up and a fine to ten thousand dollars. Act of June Ij. 24, 1939, 872, §701, P. voluntary §4701. P.S. Punishment manslaughter, contrast, may years imprison- not exceed twelve 24, 1939, ment supra, and six thousand dollars fine. Act of June §703, 18 §4703. P.S. *13 80 be present, not always need These elements
(1908).
verdict.
manslaughter
voluntary
a
to
however,
support
the common
long accepted
courts have
Pennsylvania
find a defend
the
to
jury
power
law rule that
has
in the ab
even
manslaughter
ant
guilty
voluntary
or
evidence
sence of
where the
passion
provocation,
or
murder
a first
second
support
sufficient
to
Pa.
266
Hoffman,
348,
Commonwealth
verdict.
278 Pa.
Kellyon,
A. 2d 726
Commonwealth v.
(1970);
Gable,
Imposed
conceptual
framework is a sec
ond rule which the majority here reaffirms. That rule
gives
trial
judge
discretion in
complete
deciding
whether or not
to submit voluntary
to
manslaughter
possible
verdict
a case where there is
no
evidence
or
passion
provocation. See e.g., Com
v. LaRue,
monwealth
Pa.
113,
Thus, offense volun dict of of the lesser included case tried tary pursuant manslaughter every ne may effectively murder this indictment, power gated by judge charge decision of a trial to refuse jury on In this point. making decision, no has him and there are judge standards guide *14 of safeguards against which would militate the exercise or whim In caprice. this anomolous situa discussing tion in his in. Commonwealth v. dissenting opinion Pavillard, supra, Mr. Justice Cohen Mr. (joined by Justice Jones) cogently stated: able “How is a to exercise its in man a power bring voluntary [to slaughter when it never that it has is advised verdict] such That rule power? has led to . . . arbitrary justice since trial judges have chosen to capriciously charge or doctrine not.”
In my due view, process and equal protection clauses of the Fourteenth Amendment the aban require donment of the procedure now again sanctioned by court. Due process is violated where a state procedure to denies those subject it fundamental fairness required in a system of ordered Rochin v. liberty. Cali 342 fornia, U.S. 96 L. 165, 169, Ed. (1952). procedure here, it grounded upon the exercise of absolute discretion the trial by judge, without the bene fit of any objective standards to guide him, is patently arbitrary and unfair.
Likewise,
the equal protection clause is offended
a
where
state cannot
a
show rational
for
basis
dis
crimination between
or
persons
of
groups
persons. Cf.
v.
Reed
404 U.S.
Reed,
30 L.
Ed. 225 (1971);
Dandridge Williams,
wealth’s a verdict to return less harsh lead might which and the unjustified verdict, or perhaps logically even method which the Commonwealth seeks vindicate that the interest interest. It would seem that fact protected by Commonwealth is adequately indeed advise the should, jury that, the trial judge may, been no has provocation passion evidence where would voluntary manslaughter verdict presented, Commonwealth v. supra.2 not be warranted. Yeager, acceptable jury charge example An in the circum- of an Pennsylvania Daub, case can be found stances instant Guide, law, you bring Trial are §618.5: “Under the entitled you voluntary question manslaughter. That is for a verdict judgment may your matter. In and we interfere with not provo- opinion any no evidence of sufficient cause of our there is which, killing, it if a malicious reduce cation this were would voluntary opinion merely manslaughter, but and it is our you say binding upon you. you It is alone to whether not voluntary manslaughter right was a we have case permissible One of cases of to decide that issue. verdicts *15 guilty voluntary manslaughter type is a of and this verdict deprive you privilege right of so declar- the court has no you ing if wish.” type distinguish I I this of admonition from what be- would judicial suggest improper to be comments which verdict lieve directly express opinion guilty guilty, or on the or not suggested guilt An innocence. instruction such as accused’s or merely suggests jury to the that the evidence is insufficient above my view, jury charge passion provocation. In such or to show Relating Bar American Association Standards with the conforms by permit Jury, to comment the evidence court on Trial which clearly unequivocally provided “. . . and instructed that the judge of . . . that it is the facts not it is the exclusive that Draft, (Approved §4.7 the court.” the comments of bound imply 1968). way proposed instruction that In does above improper, be nor could the infer verdict would a not first murder ver- second or from such comment by any impermissible; remains untainted be dict would guilt) judicial suggestion guilt (or degree of of the ultimate of the accused. innocence guar-
It has been onr “. . said that . constitutional process equal protection anties of due [call] both procedures in- criminal trials allow no which persons vidious discriminations betwen and different groups persons. equal protection pro- Both and due emphasize judicial cess the central aim of our entire system—all people charged with crime far so as must, equity the law is stand on an concerned, before the justice every bar of American court.” Griffin Illinois, 351 U.S. 100 L. 12, 17, Ed.
Seeking apply principle this to the situation before I long juries am of us, the view that as as we allow the latitude we do homicide cases, above set forth, criminal equally by defendants must treated in- forming juries they all power tbe verdicts have the to return. This means trial court should not have discretion whether or not to instruct the ele- voluntary manslaughter; ments obliged it should he every to do inso proper murder but trial, with caution- ary admonition such as that set forth in footnote 2. judgment
I would vacate the of sentence and re- mand for a new trial. joins
Mr. Justice dissenting opinion. Bobebts Appellant. Commonwealth v. Mosteller,