COMMONWEALTH of Pennsylvania, Appellee, v. Phillip ROBINSON, Appellant (two cases).
Supreme Court of Pennsylvania.
Oct. 8, 1976.
364 A.2d 665 | 468 Pa. 575
Argued March 30, 1976.
Ralph B. D‘Iorio, Asst. Dist. Atty., Chief, Appeals Div., Vram Nedurian, Jr., Asst. Dist. Atty., Newtown Square, for appellee.
Before JONES, C. J., and EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
EAGEN, Justice.
Appellant Phillip Robinson was convicted by a jury in Delaware County of murder of the first degree in the death by shooting of Louis Ortiz and of two counts each of assault and battery, aggravated assault and battery, and assault and battery with intent to kill in the shootings of Robinson‘s estranged wife, Vicky Hernandez Robinson, and her employer, Frank Harris, the manager and bartender of the establishment where she worked as a part-time waitress. He was also convicted of carrying a firearm without a license and of carrying a concealed deadly weapon with the intent to use it to harm another person. These appeals followed the denial of posttrial motions and the imposition of sentences.1
Initially, Robinson asserts that the evidence adduced at his trial was insufficient as a matter of law to convict him of murder of the first degree. The well-established test for determining the sufficiency of the evidence for a criminal conviction is “whether, viewing all the evidence admitted at trial in the light most favorable to the Com-
At the time of the events in question, Robinson and his wife were separated, but he had repeatedly threatened to kill her if she did not return to him. On the evening of May 26, 1973, he arrived at the bar where she worked and indicated his desire to see her. When informed that she was late for work, he engaged her employer, Harris, in a conversation during the course of which he accused Harris of having an affair with his wife, which Harris denied. When Mrs. Robinson subsequently arrived, Robinson attempted to speak with her, but she ignored him and went into the office to hang up her coat. When she returned to the bar, her husband again attempted to talk to her, but she told him that she had to work. At this point Harris came out of the storage room and asked Robinson to leave his wife alone because she had a job to do. Robinson replied that he was “not going to start any trouble in your place of business” and walked out the door.
A patron of the bar who was seated near the window, however, observed Robinson removing an object from the glove compartment of his parked car, and, within three or four minutes, Robinson returned with a gun in his hand, walked up to the bar, and asked Harris what he was going to do now. He then turned to his right and shot Ortiz, a customer who was seated on a nearby barstool. As Ortiz attempted to rise, Robinson shot him again. He next shot his wife in the shoulder as she attempted to flee and shot Harris in the back as he attempted to come to the aid of Mrs. Robinson. Robinson pulled his wife, bleeding profusely, toward the door. She begged him not to shoot again, but he repeated three
Robinson was subsequently apprehended in his car by the police after an extensive chase. On the seat beside him was a .25 caliber automatic revolver which was then unloaded but cocked. He was taken to the Crozier-Chester Medical Center to be identified by the victims. When his wife identified him, he looked at her and said, “Die.” Mrs. Robinson and Harris eventually recovered from their wounds. One of the bullets which struck Ortiz, however, caused severe damage to the spinal area and left his legs paralyzed. After an operation during which one bullet was removed from his thoracic spine and another from his leg, his vital signs were good, and he was subsequently transferred to the Veterans Administration Hospital in Wilmington, Delaware, for further treatment. He died there on June 11, 1973.
An autopsy revealed that over an inch of Ortiz‘s spinal cord had degenerated and his lungs had filled with fluid. The doctor who conducted the autopsy opined that the swelling caused by the gunshot wound had interfered with the blood supply to the spinal cord, and that this in turn had caused a gradual paralysis of the respiratory muscles so that the “actual mode of death was probably a respiratory one.” He stated he was certain the gunshot wound was the cause of death.
In order for Robinson to be convicted of murder of the first degree for the death of Ortiz, the evidence must be sufficient to prove beyond a reasonable doubt that the death resulted from a “wilful, deliberate and premeditated killing”2 perpetrated by Robinson. It is contended
It is argued that the evidence with regard to Ortiz “showed at best that defendant fired at random.” Certainly the evidence of malice aforethought and specific intent to kill was stronger with regard to the shootings of Mrs. Robinson and Harris, who did not die, than it was with regard to that of Ortiz, who did. Aside from the evidence of the shooting itself, there was no direct evidence that Robinson was antagonistic toward Ortiz or indeed that he was even aware of his existence.3 The evidence, however, clearly does not indicate that Robinson fired at random when he shot Ortiz. Rather, Harris testified that Robinson turned to his right, pointed the gun at Ortiz and fired, and that, after both Ortiz and the stool on which he was sitting toppled to the floor, Robinson shot him again as he tried to get up. The evidence is uncontroverted that Ortiz was indeed shot twice. From these facts the jury could properly find beyond a reasonable doubt the specific intent to kill necessary to convict appellant of first-degree murder. As this Court has previously stated: “The use of a deadly weapon directed at a vital organ of another human being justifies a factual
Next, because the physician who operated on Ortiz and treated him subsequently at the Crozier-Chester Medical Center testified that the patient‘s vital signs were good after the operation and that his condition was subsequently good enough for him to survive a transfer to the hospital in Delaware, and because “the Commonwealth failed to produce one scintilla of evidence concerning any event from the transfer of Louis Ortiz from Crozier-Chester Medical Center to the Veterans Hospital in Wilmington, Delaware to the actual autopsy,” Robinson argues that the evidence was insufficient to prove
This Court has upon occasion found medical testimony too uncertain to establish criminal causation beyond a reasonable doubt. See Commonwealth v. Embry, 441 Pa. 183, 272 A.2d 178 (1971); Commonwealth v. Radford, 428 Pa. 279, 236 A.2d 802 (1968). It is clear, however, that where there is medical testimony that establishes the chain of causation with the degree of certainty found in the instant case, the evidence is sufficient for the jury to find the requisite causation beyond a reasonable doubt, and that the Commonwealth is not required to prove that a merely hypothetical supervening event did not take place. See Commonwealth v. Williams, 450 Pa. 158, 299 A.2d 643 (1973). Further, even where there is evidence tending to show an independent supervening cause of death, the jury is not required to accept it if there is also sufficient evidence that the accused caused the death. See Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972). Moreover, even if the wound inflicted by the accused is not in itself mortal and a subsequent event is found to be the immediate cause of death, the accused does not escape legal liability if his act started an unbroken chain of causation leading to the death. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Carn, 449 Pa. 228, 296 A.2d 753 (1972).
In the instant case there was no evidence whatsoever tending to show the sort of supervening cause that would absolve appellant of liability for Ortiz‘s death and substantial evidence indicating that he had caused it. At trial the defense offered the testimony of Dr. Fillinger, the assistant medical examiner of Philadelphia, who, after examining the medical records alone, stated that he was unable to give an opinion as to the cause of death “from the information supplied to me.” In addition, defense counsel was permitted to argue extensively to the jury that the gaps in testimony between Ortiz‘s departure from the hospital in Chester and the autopsy in Wilmington created a reasonable doubt about the cause of death. Clearly the jury rejected this argument, which it was certainly justified in doing, given the weight of the medical testimony as to causation presented by the Commonwealth. Cf. Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). For the same reason, we reject the related argument that because of the insufficient evidence of causation, Pennsylvania courts lack jurisdiction with regard to Ortiz‘s death in Delaware.
Robinson‘s next contention is that he was convicted in part on the basis of the incompetent testimony of his wife, and that the admission of this testimony by the trial court was error not harmless beyond a reasonable doubt.
This Court has not previously had occasion to determine whether the pertinent exception in the statute extends a wife‘s competency to testify against her husband to testimony relevant to alleged criminal conduct by the husband directed against third persons which is part of the same episode or transaction which includes the alleged bodily injury or violence directed by him against her. In Commonwealth v. Clanton, 395 Pa. 521, 528, 151 A.2d 88, 92 (1959), where the evidence was that as part of a continuous episode a man had shot both the woman he thought to be his wife and her paramour and where he was subsequently tried only for the murder of the paramour, we expressed reservations as to whether the language of the act could be construed to permit a wife to testify against her husband, even though “the shooting of the victim and of defendant‘s wife alleged is . . . so interwoven as to be actually one event.” We held, however, that we did not need to determine the alleged wife‘s competency under the statute because the uncontradicted record indicated that the putative husband and wife were not lawfully married.
In the instant case, there is no question of the marital status of the Robinsons, but here, unlike Clanton, the husband was tried in a single proceeding for his acts against his wife as well as for other criminal conduct arising out of the same episode. The language of the statute clearly makes a wife competent to testify against her husband “in any criminal proceeding” against him for bodily harm or violence directed against her; it does not restrict that competency to testimony relevant to his alleged criminal conduct toward her and thereby make
Moreover, there can be no question that all the testimony objected to instantly was indeed relevant to the alleged violence directed against the wife; a fortiori it was competent in a trial in which appellant was tried for this conduct. Mrs. Robinson testified that her husband had words with her when she entered the bar, and that he subsequently returned, waved the gun at Harris, shot Ortiz twice, shot her, shot Harris, and shot her twice more. Clearly her husband‘s actions with regard to Ortiz and Harris were inextricably part of the res gestae of the violence directed against her, about which she was plainly competent to testify.6 Cf. Miller v. State, 78 Neb. 645, 111 N.W. 637 (1907). As for the allegedly “privileged intra-marital communications and conversations” testified to by Mrs. Robinson, even were we to regard these threats and expressions of ill will as
As we stated in Commonwealth v. Wilkes, 414 Pa. 246, 251, 199 A.2d 411, 413 (1964), cert. denied, 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d 349 (1964), “[t]he prohibition against the giving of testimony by one married party against the other is based upon consideration for preserving domestic peace, harmony and the sanctity of the marriage. Obviously, no such consideration precludes the exposure of the evidence involved.” Similarly, we find no error in the admission of the objected-to testimony in the present case.
Robinson‘s final complaint is more troublesome. He asserts that when the trial court refused to grant him a continuance because of the unavailability of his privately-retained counsel, it thereby deprived him of his constitutionally-protected right to counsel. For a proper understanding of this issue, the facts underlying the contention need to be set forth in detail.
After his arrest, Robinson retained Cecil B. Moore, Esquire, of Philadelphia, as his counsel, and Attorney Moore represented him at a preliminary hearing before a magistrate in Delaware County on September 6, 1973. The record, however, indicates that thenceforth through the eventual conclusion of the trial itself Robinson had no further personal contact with Attorney Moore whatsoever.8 On December 10, 1973, because of the pending presentation of the charges against Robinson to the grand jury and because Attorney Moore had not en-
On December 14, 1973, upon being advised that Robinson had refused to cooperate with the public defender, the court on its own motion appointed James P. McHugh, Esquire, an experienced trial lawyer, to represent Robinson and prepare his case for trial and explained to Robinson that “we have an obligation to you as a human being and as an individual citizen of this country to make certain that you have adequate counsel provided you so that your case can be tried forthwith.” The court, however, emphasized that “if Mr. Moore comes out and prepares himself for this trial and is prepared to try it at the time of trial, then of course we will permit him to do so.” Robinson indicated that this was clear to him, but he stated that he already had a paid lawyer. The court granted him an exception to its action. On January 15, 1974, Attorney Moore entered his appearance for Robinson. The case was listed for trial on March 24, 1974.
That morning the trial judge announced to Robinson and his appointed counsel that he had received a letter from Attorney Moore stating he was presently involved in a trial in Montgomery County and requesting a continuance or postponement of Robinson‘s trial. Both Attorney McHugh and the District Attorney objected, indicating that they were ready to go to trial. Attorney
“You do, within reason. You have to choose a lawyer, Mr. Robinson, who is able to represent you. If you choose a lawyer who is so busy that he can‘t even come out and talk to you, then you better get another lawyer, or accept the lawyer appointed by the Court.”
He then advised Robinson that “you better contact Mr. Moore and tell him that if he wants to earn his fee he ought to get in touch with you because the case is going ahead.” He further directed the court administrator to get in touch with Attorney Moore well in advance of the next trial date to ascertain his availability at that time.
When the case was again called for trial on June 3, 1974, Attorney Moore was again absent. The court administrator stated that the previous week his office had telephoned Attorney Moore‘s office and been informed by a secretary that the case was listed in the attorney‘s appointment book, but that today he had called repeatedly and received no answer at the Moore office. The District Attorney stated that he had written Attorney Moore to inform him of the new trial date and indicated to him that, if he did not appear, the trial would go on with Attorney McHugh. Since Attorney McHugh, assuming
On June 11, 1974, Attorney McHugh filed posttrial motions raising the issues previously discussed in this opinion. On June 12, Attorney Moore filed posttrial motions of the boilerplate variety, but he was not present to support his motions on the date set for argument. After Attorney McHugh argued the post-trial motions and brought this appeal, Attorney Moore separately
Whatever the suggestions in the record of Attorney Moore‘s irresponsibility toward both his client and the trial court in the instant case,12 our analysis must focus not on the conduct of Attorney Moore but on the question of whether, in these circumstances, the trial court, in requiring Robinson to be tried with court-appointed counsel rather than the counsel of his choice, did indeed deprive him of his constitutionally-guaranteed right to counsel. That Robinson has such a right is, of course, unquestionable. It is clear, however, that a person‘s right to be represented by the counsel of his choice is not absolute. See, e. g., Pirillo v. Takiff, 462 Pa. 511, 341 A.2d 896 (1975). In Moore v. Jamieson, 451 Pa. 299, 308, 306 A.2d 283, 288 (1973), this Court specifically held that the right of the accused to choose his own counsel, as well as a lawyer‘s right to choose his clients, must be weighed against and may be reasonably restricted by “the state‘s interest in the swift and efficient administration of criminal justice.”13 Although the accused may personally elect to waive his right to a speedy trial, he clearly cannot be permitted to utilize his right to choose his own counsel so as unreasonably to clog the
“Due process demands that the defendant be afforded a fair opportunity to obtain the assistance of counsel of his own choice to prepare and conduct his defense. The constitutional mandate is satisfied so long as the accused is afforded a fair or reasonable opportunity to obtain particular counsel, and so long as there is no arbitrary action prohibiting the effective use of such counsel. The conclusion becomes inescapable, therefore, that although the right to counsel is absolute, there is no absolute right to a particular counsel.” [Footnote omitted.]
United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970).
In holding that a state trial judge did not violate due process when he denied the defendant in a criminal contempt hearing a continuance which would have enabled him to have the services of his chosen counsel, the Supreme Court of the United States has indicated that careful attention must be given to the circumstances of each particular case:
“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. . . . Contrariwise, a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend with counsel an empty formality. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” [Citations omitted.]
Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849-50, 11 L.Ed.2d 921 (1964). In the circumstances of this case, we conclude that the trial judge neither abused his discretion nor violated due process in requiring the trial to take place without Attorney Moore.
Robinson asserts that “the lower court removed present counsel without even a hearing on the matter to determine if such a drastic step was necessary.” Contrary to this assertion, however, the trial court never removed Attorney Moore, who remained on record as counsel throughout. Rather, the record clearly suggests that Attorney Moore, by continually and continuously absenting himself from and making himself unavailable to both his client and the court, in effect removed himself. After the preliminary hearing, Attorney Moore was Robinson‘s counsel in name only. Yet despite the fact that Attorney Moore had apparently made no request for a continuance and presented no reasons for one,14 the court only permitted the trial to take place with Attorney McHugh as defense counsel after a thorough, albeit fruitless, attempt to reach Attorney Moore and ascertain his whereabouts. As in Commonwealth v. Merritt, 227 Pa.Super. 257, 323 A.2d 875 (1974), another case involving Attorney Moore in which a prior continuance had already been granted, no indication had been given as to when privately-retained counsel would be available, and the court had taken the precaution of appointing alternate counsel, the trial court in the instant case properly found the alternative of continued delay unacceptable.
Judgments of sentence affirmed.
NIX, J., filed a dissenting opinion.
MANDERINO, J., filed a dissenting opinion.
NIX, Justice (dissenting).
In my judgment the trial court abused its discretion in refusing to grant the requested continuance because of
Although I fully recognize that the right to counsel of one‘s choice is not an absolute right, see, Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973),1 I do not believe the record here provided a sufficient basis for concluding that appellant‘s right to counsel of his choice was required to give way to compelling state‘s interests.
In attempting to reach an accommodation between these considerations, we have set forth certain factors that should be considered:
In balancing these conflicting rights, four factors must be considered: (1) Whether the state interest sought to be achieved can be effectively accomplished in some manner which will not infringe upon interests protected by constitutional rights; (2) Whether the state interest is sufficiently compelling when compared with the interests affected, justifies any infringement of those interests; (3) Whether the state interest is sufficiently compelling to justify the degree of in-
fringement that is necessary to effectuate that interest; (4) Whether the provision under challenge represents the narrowest possible infringement consistent with effectuating the state interest involved. Moore v. Jamieson, supra at 310-11, 306 A.2d at 289.
It is apparent under these facts that the trial judge could understandably have been piqued because of the difficulty experienced in attempting to have counsel present and available for trial. This fact, however, alone does not justify the abrogation of a right as fundamental as the right of an accused to counsel of his choice. There is no evidence that a further delay that might have been occasioned by the requested continuance would have in any way prejudiced the Commonwealth‘s case. Further, the record fails to offer any grounds from which it could be determined that this delay would have had a significant impact upon the scheduling and the operation of the court‘s calendar.
It cannot be said that the state‘s interest was sufficiently compelling when compared with the right of the accused to justify the infringement of such a basic right. The situation was further exacerbated by the fact that the denial of privately retained counsel effectively deprived this defendant of meaningful representation at trial. By so concluding, I do not in any way intend to disparage the efforts expended on appellant‘s behalf by his court-appointed counsel. I only recognize, as does the majority, that appellant clearly did not avail himself of the advice and counsel supplied by the court-appointed attorney and thus faced serious charges without the benefit of legal-guidance.
Under all of these circumstances, I must conclude the effect of the refusal to grant the request for continuance denied Mr. Robinson his constitutional right to trial with counsel of his choice. A new trial should be awarded.
I dissent because appellant was forced to trial without the representation of the attorney of his choice. The majority reasons that a person‘s constitutional right to be represented by counsel of his or her choice “must be weighed against and may be reasonably restricted by ‘the state‘s interest in the swift and efficient administration of justice.‘” The majority opinion fails to consider just what “the state‘s interest” in such a case really is.
The majority asserts that appellant does not have the absolute right to counsel of his choice when that choice unreasonably clogs “the machinery of justice.” I fail to see how granting appellant‘s request for a continuance until his counsel of choice could be available for trial would have such an effect. Admittedly, the grant of a continuance, for whatever reason, makes more difficult the administration of the court calendar. If a person wishes to waive his or her right to a speedy trial until counsel of his choice is available to defend, the trial court should not refuse to grant a continuance unless the prosecution can establish that its case will be substantially prejudiced by the additional delay. The majority opinion assumes that the requested delay will prejudice the Commonwealth‘s case. Such an assumption should not form the basis for cutting off appellant‘s constitutional right to counsel of his choice. Only when the prosecution shows that its case will be prejudiced by the requested delay can the court “weigh” the state‘s interest against the defendant‘s right. Here the prosecution has not alleged or proved that its case would in any way be damaged by granting appellant‘s request for a continuance. I therefore dissent.
Notes
“Desirable as it is that a defendant obtain private counsel of his own choice, that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of criminal justice. The calendar control of modern criminal court dockets, especially in metropolitan communities is a sophisticated operation constantly buffeted by conflicting forces. The accused‘s rights—such as those relating to a speedy trial, to an adequate opportunity to prepare the defense, and to confront witnesses are constantly in potential or real conflict with the prosecution‘s legitimate demands for some stability in the scheduling of cases. The availability of prosecution witnesses is often critically dependent on the predictability of the trial list. That delays and postponements only increase the reluctance of witnesses to appear in court, especially in criminal matters, is a phenomenon which scarcely needs elucidation.” Id. at 309, 306 A.2d at 289.