*1
153
appeals.
for such
law
in the provisions
be found
70 Pa.
Supply Company,
Fuel
Franke v. Johnstown
Al
Transfer
Zeffiro
452;
Ct. 446, 451,
Superior
Com-
Utility
Public
Pennsylvania
v.
Storage Company
800.
171 A. 2d
Ct.
Superior
214, 217,
mission,
pursued.
be strictly
must
The prescribed procedure
Colter-
A. 41;
Pa.
105
124, 127,
Scholl,
Smith v.
su-
Commission,
Milk Control
yahn Sanitary Dairy
Appeal,
775;
Pa.
A. 2d
Oteri
24,
pra,
15, 23,
true
This
particularly
Accordingly is affirmed. Eagen in the result. concurs
Mr. Justice consid- Manderino took no part Mr. Justice of this case. or decision eration Appellant. v. Porter, *3 Argued November 1971. Before Eagen, Jones, Roberts O’Brien, and Pomeroy, JJ. *4 him David N.
Bruce Miller, Savitt, H7. with & Silver, appellant. Miller for Silver, Assistant District with Carolyn Temin, Attorney, E. James Attorney, Milton M. Assistant District Stein, her Attorney, Richard A. D. District Crawford, Deputy and Arlen First District Attorney, Assistant Sprague, Commonwealth, appel- Attorney, District Specter, lee.
Opinion 1972: «y October Mr. Justice Pomeroy, 79-year-old On the of November evening store grocery to a Specht, walking while Harry beaten kicked and attacked, Philadelphia, South on the sidewalk. and left to die gang youths, of of then 16 Porter, years age, Richard Appellant, rob- aggravated four indicted for subsequently one of In incident. with the and murder connection bery Porter of murder guilty found May, jury aggra- him of the acquitted charge degree second but ap- denied and Post-trial motions were robbery. vated This imprisonment. 6-20 years was sentenced to pellant Because we de- issues, four followed. raising appeal, judgment cide adversely appellant, them all will sentence below be affirmed. Confession
1. Voluntariness of trial an informal introduced at on the by appellant day confession (unsigned) of that two morning day murder. On the following of the Philadel Juvenile Aid Division members ob information on Department, acting Police phia police interrogation as a result tained Porter home and had suspects, proceeded other appellant’s mother, Mrs. Lillian Porter, stated *5 Richard for connection was wanted with questioning had the before. killing Appellant a occurred night for also was told the reason the and ac investigation, his was taken to the sta companied mother,1 police Mrs. Porter left the while waiting tion. was room2 a homicide detective. appellant interrogated Miranda, Full s3were warning read, whereupon appel of a lant declined services and to lawyer proceeded confess his complicity Specht. murder of 9:5Q period questioning was A.M. to 10:29 A.M. At the conclusion of the officer interrogation, who had taken Porter the statement encountered Mrs. and her in see her son. Rich waiting room, took to ard repeated the substance of his story mother, his confessed expressed who son displeasure her had and attorney. an unsuccessfully, endeavored to contact She forbade Richard make state formal, signed ment. testimony conflicting got Porter as to Mrs. how police police station. The their officers stated that she declined accompany police car; invitation to her son Porter tes- Mrs. contrary. tified to the suppression hearing, (officer At the one of detectives Verbrugghe) Q. (by attorney) testified follows: Defendant’s Why concerning interrogation “. . . mother wasn’t the consulted my policy policy of her son?” A. “It’s not and not the Police Department parents juveniles age to have over the of sixteen they years, yes, age
. . . if are tender but not over the of six- parents interrogation”. teen to be in on the initial appellant’s Porter, mother, Q. Lillian testified as follows: you got police police . . “When station . did what do with “They your upstairs they A. took son?” us started in this room. through gate go You and I started behind them him and with they go me have told a seat on the side ... I them asked would they go said, wrong?’ let me there him. back with I ‘what’s but they say nothing.” “They Q. your wouldn’t took son into the room you waiting room, out in remained is that correct?” A. right.” “That’s Arizona, Miranda 384 U.S. L. Ed. 2d elicit- admits that had his confession been Appellant ed from an would not be sub- adult, admissibility its because ject attack. His sole contention he mother ac- juvenile and because his was denied cess to the his interrogation purported waiver room, Miranda ineffectual and the con- rights was resultant *6 fession The involuntary. argument recently same was considered and in Commonwealth rejected by 446 Pa. 287 A. Moses, 2d where we (1971), said in ‘juvenile that a pertinent part: argued “[I]t lacks the to and assert con- ability’ fully understand his stitutional and hence cannot rights waive effectively rights per- such without of a more mature advice son. We a emphatically reject prophylactic rule, such or particularly where a sixteen-year seventeen-year-old is concerned . . . declare as matter of a law that [T]o and sixteen-year-old, regardless maturity intelligence, is unable to understand when he is fully informed his himself rights by constitutional and not waive may his to counsel before right being questioned by po- be ignore sophistication lice would to and the reality of the in these average sixteen-year-old and times.” days 354.
The true issue voluntariness and approach in as consid intelligent waiver, reiterated is a Moses, of “all the attending eration circumstances . . . includ and of the ing age, maturity intelligence individual . . And the accused is of involved. . where tender years, be attending circumstances must scrutinized with in this case scrutiny care.” Such shows the fol special a then was a sixteen- lowing: appellant, suspect, in the eleventh grade and char year-old boy school, mother intelligent. his Mrs. Porter acterized to request accompany a her son dur only single Her desire be to was interrogation. present ap ing for he not made no boy, shared request parently him nor objected being ques that his mother be with and Miranda were warnings given, tioned alone. Full as to waiver margin,4 responses, reproduced clear to counsel and to remain silent were rights lasting interrogation unequivocal. brief, and the police Porter appeared but minutes. thirty-nine in and not under every officers normal respect, ap alcohol or As he drugs. readily admits, fluence of nor mental neither subjected physical pellant the suppression coercion. These circumstances were for as the trier of fact on the voluntariness hearing judge he us that issue. this record indicates to Nothing intelli finding knowing abused his discretion that as and we decline to rule gent waiver, again interrogating officer, pretrial suppression bearing, At the following gave following colloquy Verbrugghe, account of the warnings reading of Miranda to the defendant. following questions: him the “Then I asked “ you you right keep quiet ‘Do have a understand say anything Q. not at all?’ Did he A. He did. *7 do have answer? answered, ‘Yes, sir.’ He “ you you say anything ‘Do understand that can and will be against you? answered, “Yes, sir, to he I used which but know ’ sorry.” I did I’m and what “ you Do to remain ‘Number S: want silent?’ “ No, sir, I’ll tell.’ ‘Answer: “ you you right 4: Do understand talk with ‘Number have a to lawyer you any questions?’ answered, before we ask to he which ‘Yes, sir.’ “ you you Do understand if ‘Number 5: cannot afford to hire a you you lawyer one, any questions want we will not ask and until lawyer you charge?’ appointed answered, free of he to which ‘Yes,sir.’ “ you lawyer Do want to talk time ‘Number 6: with a at this you lawyer you questions?’ we ask or to have a with while to which answered, ‘No, sir.’ he “ you willing questions your Are to 7: answer ‘Number own any promises force or fear and without free without or will threats ” you?’ being answered, ‘Yes, he which made sir.’
161 in confession was rendered resulting matter law the mother denied voluntary solely because appellant’s room, gee interrogation in to be permission Pa. 269 Commonwealth v. 195, compare, Harmon, 2d 744 (1970).5 A. gtatements Co-defendants
II. Extrajudicial error next contends that it reversible Appellant as to testify, objection, to allow two over witnesses mur- extrajudicial statements of others involved had the youths The first witness all der. stated that man”, to him how beat some white “they up related taken he had and the second testified that one said boy a dime from the victim’s pocket.
The rule reference declarations co-con with as rec long exceptions hearsay rule, spirators re has most Pennsylvania ognized elsewhere, been reiterated us as follows: “The declara cently acts co-conspirator tions or of one third parties co-conspirator of his are admissible the absence against both such declarations provided evidence fur were made and in during conspiracy acts] [or design: common therance [citations omitted].” v. 187 A. Ellsworth, Commonwealth Pa. Wilson, (1963), quoting 2d Cf. (1959). Pa. A. 2d Rule Am. Admissions, Model Code of Evidence, Vicarious 1942; Inst. McCormick, Evidence, p. §244, Law gee L. Criminal 72 Harv. Conspiracy, Note, statements 984-990 The out-of-court Rev. rea admitted into evidence for the here involved were excep- they qualified under son, presumably, *8 5 appellant’s testimony passing trial note in that at of what We identical to the statements made in con his was almost occurred error, may been fession, its admission well have that had beyond doubt. a reasonable harmless been 162 are trial in respect and tbe court’s this
tion,6 rulings 446 not v. disputed. now Cf. Commonwealth Ransom, in Pa. 288 (1972). A. 2d 762 To allow 457, 463, may however, troduction criminal trials, Amendment the Constitution run afoul of the Sixth of the inter alia, United which States, guarantees, be confronted the accused “shall ... enjoy right him . . a fundamental against with witnesses .”, Fourteenth made on the right obligatory states 13 v. U.S. Amendment. Pointer 380 Texas, rule L. Ed. 2d 926 The exceptions (1965). being do virtue against hearsay necessarily, not the con obtain from attack under exceptions, immunity 399 frontation clause. v. U.S. Green, California appellant The (1970).6 L. Ed. 2d 495-96 155-156, described contends that statements extrajudicial declarants, above his to confront right violated 20 L. Ed. 2d relies Bruton 391 U.S. U.S., on participants in the affair were The of all the declarations they victim, before re- on the but made after initial assault conspiracy coup grace. thus de The turned to administer continuing how one at the time of the statements. It is not clear conspiracy, in furtherance of the the statements could have been ap- objection nor on on that made at trial but no score was youth taking peal. of the who told of a coin statement person was, shows, the record before the victim’s so far as us terminated, criminal acts had and so would not after the collective co-conspirator hearsay exception applied qualify under the Pennsylvania. Evidence, 508(b), see Model Rule Com- But Code 1942). p. (Am. (b), Inst. of this ment Law admission objected to, but for the reasons indicated in declaration was aUowing discussing clause, error the confrontation text harmless. it to stand was of the recent decisions of the States Eor a discussion United interpreting Supreme clause, the confrontation see E. Gris- wold, Confrontation”, Revolution and “The Due Process U. Pa. Law Rev. 711
163
consid
A
evidence was
hearsay
similar
to
challenge
v.
Pa.
Thomas,
in
rejected
ered and
we
in
so here
In the case bar, the testimony that all youths the admitted the beating deceased was merely cumulative, as that in Thomas and in also Dutton v. su- Evans, pra. Appellant’s the firm- complicity homicide was established ly by appellant’s out-of-court his confession, in-court testimony, and testimony of eyewit- two appellant nesses who saw strike the victim on the head awith wine bottle. To this bemay added Porter’s own confession to the gave witness who under testimony that “all” the review, youths had admitted participat- ing beating. challenged testimony cannot, be categorized as context, or “sus- “damaging” Evans, supra, in Dutton In as addition, peet”. of re- indicia possessed in question here statements being spontaneous derived liability which interest of the declarants. penal against recognition therefore, We conclude, Sixth here contravene the did not hearsay exception to hold even were we Moreover, Amendment. review of the violated, our to confrontation was
right Commonwealth’s case would record indicates that less appeared persuasive not have significantly of the other participants had the admissions jury admis excluded. Thus the been beating Specht at most harm evidence of the statements was sion into Schneble v. U.S. Florida, less error.
L. Ed. 2d
albeit
money,
a non-witness
statement
victim
person
from the
dime,
taken
only
It
in different
could be characterized
light.
stands
only
if
was the
evi-
because,
believed,
“damaging”
mur-
an
and thus
robbery
establishing
aggravated
dence
rule.
felony-murder
under
degree
the first
der
*11
of the state-
the introduction
however,
As it turned out,
returned
effect;
not
the
damaging
jury
ment
have
did
robbery charge
acquittal
aggravated
a verdict of
on
thus
only.
murder
We
degree
and of
of second
guilty
a reason-
beyond
that
the error
harmless
conclude
L.
386 U.S.
California,
Chapman
able doubt.
427 Pa.
Commonwealth v.
(1967);
Pearson,
Ed. 2d 705
(1967).
“Therefore, your to reconcile duty if its evidence, ever balanced the Common- equally has its wealth, succinctly stated, proved upon not case point, and the benefit of be given Defendant.” (Emphasis added.)
Were the above the only clarification the reason- able doubt standard, appellant unquestionably would be entitled to a new trial. Commonwealth v. Meas, 415 Pa. 202 A. 2d A must however, charge, be its judged entirety, not reference to isolated portions. Commonwealth v. 444 Pa. Crosby, 17, 23-24, 279 A. 2d Commonwealth v. (1971); Butler, 272 A. In 2d trial case, already had judge instructed the at considerable jury length on the Com- presumption innocence and monwealth’s burden proof:
“. . . From the beginning until the conclusion of deliberations, the Defendant your is presumed to be innocent.
“It burden of of Pennsyl- him prove guilty vania of each and essential every *12 of the charges brought against element him a beyond reasonable doubt. The burden of the Commonwealth a prove person a reasonable guilty beyond doubt a burden that remains the Commonwealth upon until the end of the case. beginning the bur- And, den upon the Commonwealth proof never shfits from them. . ..
“A reasonable doubt is not some doubt. imaginary It is not some fanciful doubt. It is not a doubt invent- by jurors ed wishing to avoid an unpleasant duty. But, be must an honest doubt out arising of the evidence the kind of a itself, doubt an would cause ordi- nary person—a person reasonable to be restrained from in a acting matter of importance their own [sic] life____” Similar shorter though versions of this standard were repeated at other places the charge. Appellant does not contend that this instruction was incorrect. He would have us that when hold, however, read conjunction with the challenged portion, jury was left with conflicting irreconcilable standards of one guilt, permissible other and the impermissible. Taken as a whole, charge requires jury, order to convict the each defendant, find and every essential the crime element of charged beyond reason- able but allows doubt, facts which are not of the es- sence the crime be proved preponderance the evidence. We cannot find that acceptability this particular mode of in a expression has been charge considered previously by Pennsylvania courts. Dean Wigmore, reviewed the authorities however, and case law and concluded: “It said generally properly this measure reasonable doubt need not be ap- plied specific detailed but facts, only to whole and herein is for issue; given much opportunity argument vain of a cable or the whether strands links of a chain furnish better simile testing persuasion.” measure of IX, vol. Wigmore, Evidence, §2497, p. (3d 1940). ed. *13 the Wigmore i.e., view, that the are persuaded
We of the links a opposed chain, a cable strands of a doubt standard require reasonable one. To the better would non-essentials, permit as to all even evidence, the by attacking evade conviction the defendant case, in the Commonwealth’s circumstance slightest challenged of the evidence would absence even where of a showing guilt beyond from an overall detract not doubt. reasonable Charge Inaccuracy
IY. Factual in- the trial finally, judge that asserts, Appellant new trial the and a testimony reviewed accurately of assignment ordered. main therefore be should admitting statement in this is that respect error was attributed from the deceased of dime taking in fact it a co-con- by whereas appellant rendered innocu- This spirator. mistake, however, acquittal aggravated rob- both the verdict by ous repeated several instruction, and by judge’s bery their should trust own best recol- jurors times, have not his. We also reviewed facts, lection its and conclude charge entirety remainder of summarized. accurately and fairly the evidence was affirmed. of sentence Judgment former Mr. Chief Justice The former Bell no took consideration part Mr. Justice Barbieri Cu____ or decision this Eagen Mr. Justice con-
Mr. Chief Justice Jones in the result. cur Opinion
Dissenting Mr. Justice Roberts: I am unable to conclude that I must dissent because into voluntary. evidence was the confession admitted note disagreement with the impelled my I am also wheth- to determine employed by majority standard evidence violated admitted into er statements Amendment. the Confrontation Clause the Sixth I. given by voluntary holds majority confession alone interrogated sixteen-year-old defendant, accom mother’s boy’s request police despite than Less two interrogation. her sou
pany during *14 ago Harmon, years in Court an unanimous 269 A. 2d (1970), Eagen eighteen-year-old an by granted Justice opinion setting. in same factual relief the precisely defendant overrul I cannot sub silentio majority’s accede of Harmon. ing
A
the
case
of the facts of
instant
comparison
ma
demonstrate the error of the
Harmon convincingly
In Harmon
de
eighteen-year-old
result-.
the
jority’s
after
unaware
fendant
confessed
interrogation,
had come to the police
his mother and two other adults
him. This
unani
to see
requested
station
confes
the
of defendant’s
suppression
sustained
mously
We there
noted that the
involuntary.
pointedly
sion as
the chal
securing
tactics in the
had
police
“use[d]
If
no
cannot condone.
statement which we
lenged
the
order
fairness and policy,
suppression
than
more
Id.
allow Mm to in se- tactics police again once mon, “use[d] which we cannot challenged statement curing in also Harmon, defendant Here as condone.” relief. entitled to in our result no way supported
The majority’s Pa. v. in Commonwealth Moses, decision in The facts Moses differed A. 2d 131 (1971).2 in sig case one in Harmon and the instant those request fashion—in Moses no nificant guardians pres adult to be defendant’s sixteen-year-old differ That material factual interrogation. ent during No of Moses here. holding inapposite ence makes slightest Moses indication give where in did we way modified. being any Harmon was holding our Harmon, light In when considered view, my decided. Noth- standards, correctly constitutional vi- question has into its brought since its decision ing other respected decisions from contrary on tality, e.g., reaffirm its soundness. See, jurisdictions only 3d 491 P. 2d People 6 C. Burton, sentence and judgment grant I reverse the would Harmon. authority new trial on the *15 II. ap of statements
Hearsay testimony, consisting beat accomplices “they and his some up pellant objec man” was admitted into evidence without white an assertedly during tion. The statements were It is unclear in the assault on the deceased. interval 2 Moses, supra, a of the relevant In Commonwealth review guidance persuaded juvenile, me that absent authorities a incapable waiving friend, his counsel adult constitutional or necessary. rights free remain silent and counsel when Common- (1971) Moses, (dissenting Pa. at A. 2d at wealth v. 287 134 446 J., joined). opinion J., O’Brien, in which Roberts,
171 exception justified hearsay the record what have may statements testimony. admission of this spontaneous either under admitted been properly the hear exception co-conspirator’s4 or the utterance3 rule. say erroneously view my however
The majority concurring of Mr. Justice adopts portion Stewart’s 88 391 U.S. States, 6in v. United Bruton opinion5 determining standard as the Ct. 1620 (1968), S. exceptions under admitted testimony hearsay whether Clause the Confrontation satisfies rule hearsay to the fac question In Bruton, Amendment. of the Sixth in limiting Court was whether ing Supreme to insure that sufficient were jury structions to de solely the confession of a co-defendant use jury in or guilt not also his or guilt innocence, termine observa Mr. Justice Stewart’s Bruton. nocence of joint of a case with dealing made in the context tions, not are instructions, and the effects of limiting trial here issue.6 for the authority question constitutional McCormick, Pennsylvania (1953) ; Evi- Henry, Evidence §466 dence §272 Pennsylvania (1953) ; Henry, see also §§442-44 Evidence Co-Conspirator Davenport, Ex- and the The Confrontation Clause Analysis, ception Harv. A Functional in Criminal Prosecutions: L. Rev. 1378 concurring opinion in his Mr. observed which Justice Stewart premise by any joined “A Justices: basic not Clause, me, it is that certain kinds hear seems Confrontation yet say damaging, suspect, so so . . once so difficult . are at give jurors discount, cannot be trusted to such evidence logically weight deserves, the trial whatever instructions minimal States, might give.” judge v. United Bruton 391 U.S. (emphasis original) (citations omitted). (1968) Ct. S. specifically Supreme noted in Bruton: “There is any recognized exception . . . us rule in- not before petitioner concerned and intimate we no whatever view sofar necessarily questions exceptions raise under the Con- such *16 172 Supreme Bruton, since
In
decisions
several
in de
applied
standards
to be
developed
has
Court
a well-
admitted under
testimony
whether
termining
satisfies
rule
hearsay
recognized exception
Green,
v.
First,
Confrontation Clause.
California
Supreme
(1970),
399
90 Ct. 1930
149,
U.S.
S.
not a codification
held
Confrontation Clause is
that the
1933-34;
90
at
rule.
Id. at
S. Ct.
155-56,
of the hearsay
v.
Ct.
81-82,
210,
Dutton
U.S.
S.
Evans,
74,
admission
In Dutton
Evans, supra,
im
a cellmate which
co-conspirator
a statement
by
the Sixth
accused
held not to violate
plicated the
Georgia’s
admitted under
Amendment.
statement,
against
for declarations
exception
hearsay
rule
spontaneous
because it “was
penal
proper
interest,
These
his
to make it.
penal
and was against
interest
indieia
been
viewed
reliability
widely
are
which have
placed
may
as determinative
a statement
be
of whether
there is no confrontation of
though
the jury
before
220 (emphasis added).
declarant.” Id. at
S. Ct. at
89,
in Common-
these
we concluded
Following
cases,
:
(1972)
wealth v.
The statements were rule” “well-recognized exceptions under “indicia of reliability,” are supported which on considerations rests exception co-conspirator one of conspira- because: “What trustworthiness or about plot plan admits is afoot tors while one has in its said who execution, the happenings the declar- against knowledge generally special States, n.3, v. United Bruton 391 U.S. Clause.” frontation n.3 Ct. 1623-24 S. *17 Evidence McCormick, §244 ant’s interest.” likewise exception utterance spontaneous “The factor reliability: is founded on considerations the excitement . by is . . furnished special reliability and fabrica- reflection which suspends powers element. . factor is the time tion. .. The most important occurs If as the declaration frequently case, easy it is progress, still startling while the event Id. the utterance.” prompted to find that excitement 272 at 579-80. the require- satisfied question
The statements the reasons ments the Confrontation not for Clause, but because were admissi- they stated majority, rule fortified ble under exceptions Dutton v. reliability.” Evans, “indicia of sufficient Ct. Common- 89, (1970) ; U.S. 91 S. wealth v. 288 A. 2d Ransom,
Mr. O’Brien in this joins Justice dissent. Wolenski, Appellant. 1972. April Submitted Before Jones, C. J., and Man- O’Brien, Roberts, Nix Pomeroy, Eagen, JJ. DERINO,