Commonwealth v. Sampson, Appellant.
Supreme Court of Pennsylvania
November 26, 1973
215-222
The facts presented, even as construed in a light most favorable to the appellees, permit me only one conсlusion: the proposed structure will do violence to the “natural, scenic, historic and aesthetic values” of Gettysburg. This Court‘s decision today imposes unhappy consequences on the people of this Commonwealth. In one swift stroke the Court has disemboweled a constitutional provision which seems, by unequivocal language, to establish environmental control by public trust and, in so doing, consequently sanctions the desecration of a unique national monument. I would enjoin the construction of this tower by the authority of
Mr. Justice EAGEN joins in this dissenting opinion.
Charles Lowenthal, for appellant.
J. Bruce McKissock, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY MR. CHIEF JUSTICE JONES, November 26, 1973:
At about 4:15 p.m. on September 14, 1969, Henry Stevenson (decedent), sixty-nine years of age, was found lying on the floor behind the counter in his grocery store, at 2801 Nоrth Ringgold Street in Philadelphia, suffering from numerous knife wounds; he died at the store at about 5:30 p.m. Appellant was subsequently arrested, on September 23, 1969, and indicted
In a signed statement, which was admitted into evidence at trial, appellant described the incident that resulted in decedent‘s death, alleging that a friend namеd “Mingo” also participated. According to appellant, he was walking with “Mingo” at approximately 3:00 p.m., approaching the street where decedent‘s store was located, when “Mingo” said that he wаnted some money and suggested that they go into decedent‘s store. Decedent unlocked the door and appellant and “Mingo” entered. “Mingo” pushed decedent as decedent was going behind the countеr. Decedent then turned around, picked up a knife and started swinging. “Mingo” ran around to the other side of the counter. Appellant backed away and was cut on the left forearm by decedent. As appellаnt backed away he saw “Mingo” with a knife in his hand “charging” decedent. Appellant looked at his arm and then decedent hit the floor. Appellant did not see “Mingo” stab decedent. Appellant and “Mingo” left after sеarching the store for money. When they got outside “Mingo” gave appellant a paper bag full of change—“Mingo” kept an envelope. Appellant bandaged the cut himself at his grandmother‘s house immediаtely after the incident.
The record further discloses that the left front pocket of decedent‘s pants was turned inside out and
Appellant‘s initial argument stems from the testimony of Detective Francis McGurk of the Hоmicide Division of the Philadelphia Police Department, who was assigned to investigate decedent‘s death and to question appellant. On direct examination, testifying for the Commonwealth, Detective McGurk read appellant‘s signed statement to the jury. Although the statement contained numerous references to “Mingo“, at no time during direct examination was Detective McGurk questioned concerning “Mingo‘s” identity or his alleged participation in the killing. Nor did any of the other Commonwealth witnesses mention that a person named “Mingo” was also involved in the killing. On cross-examination Detective McGurk was questioned about “Mingo.” Appellant‘s attorney established that a person known as “Mingo” had been apprehended on September 24, 1969, and had given a statement but was later released and not charged with the crime. On redirect examination, over the objections of appellant‘s attorney, Detective McGurk testified that “Mingo” denied participating in this incident in his statement and when confronted with appellant on two occasions. In addition, Detective McGurk stated that “Mingo” was not arrested since appellant‘s statement was the only evidence connecting “Mingo” with the crime.
Appellant‘s claim that he was denied his right of confrontation is also without merit. The
Appellant‘s claim that he was denied his confrontation rights is based on Commonwealth v. Ransom, 446 Pa. 457, 288 A. 2d 762 (1972). Ransom, however, is distinguishable since there the out-of-court statements were made by co-consрirators, implicated the accused and were inadmissible hearsay.
Appellant next claims that a portion of the district attorney‘s closing argument was prejudicial and improper. However, appеllant‘s counsel neither objected during or at the end of the district attorney‘s closing argument, nor filed a motion to strike or a motion for mistrial. Appellant, therefore, is precluded from raising the issue now, since he failed to object at a time when any error could have been cured by the court. Commonwealth v. White, 442 Pa. 461, 275 A. 2d 75 (1971).
Judgment of sentence affirmed.
Mr. Justice ROBERTS concurs in the result.
DISSENTING OPINION BY MR. JUSTICE EAGEN:
The summation of the assistant district attorney in this case violated the rules of propriety and was an immature attempt to convict the accused by appealing to the passions and prejudices of the jury. Moreover, it constituted the giving of testimony by an unsworn witness. See Commonwealth v. Clark, 322 Pa. 321, 185 A. 2d 764 (1936). In my view, a new trial is, therefore, required.
It is true that defense counsel failed to interpose a timely objection,1 but as this Court said in Commonwealth v. Stowers, 363 Pa. 435, 437, 70 A. 2d 226-227 (1950): “[I]n a homicide cаse, where a defendant‘s life or liberty is at stake, and where defendant may have been deprived of a fair and impartial trial, or suffered manifest injustice, and appellate court will review the case notwithstanding the failure of defendant‘s counsel to take proper exceptions.” [Emphasis original.] See also Commonwealth v. Silvis, 445 Pa. 235, 284 A. 2d 740 (1971), and Commonwealth v. Lynott, 133 Pa. Superior Ct. 565, 3 A. 2d 207 (1938).
I respectfully dissent.
DISSENTING OPINION BY MR. JUSTICE NIX:
The majority opinion seeks to minimize appellant‘s objection to that portion of Detective McGurk‘s testimony in which he stated that “Mingo” denied participation in the incident in a statement given to the police and also when confronted with appellant on two occasions. The opinion states that the Sixth Amendment right of confrontation was not offended on the theory that the statements were not hearsay but offered merely to prove that “Mingo” had made these denials. I cannot agree and therеfore respectfully dissent.
Appellant in his statement to police officials admitted being a participant in the incident but placed the onus upon “Mingo” who he alleged was also a participant аnd implied that “Mingo” had delivered the fatal wound. Accepting the defendant‘s version, “Mingo” was at least equally culpable. To argue that with-
Informing the jury that the appellant had implicated “Mingo” and that “Mingo” was released after he had denied his participation in the presence of the appellant necessarily left the inference that the police had rejected thе appellant‘s statement of what occurred and accepted “Mingo‘s” assertions to the contrary. Even more objectionable is that no reason was offered to suggest the basis of the police determination as to why the decision was made and left to the jury‘s imagination the myriad of possibilities why the authorities had seen fit to accept “Mingo‘s” explanation and rejected that of the appellant‘s.
If the Sixth Amendment offers any protection I cannot conceive of a situation where its protection is needed more than in the instant appeal. The appellant had a right to have “Mingo” face this jury, undergo cross-examination and then the jury would have been in a position to determine which of the two were worthy of belief.