*1 496
“Thus, it would appear that even if the Pennsylvania statute did not protect Mrs. B’s case, records in this those records protected would be from disclosure by consti- tutional right to privacy. generally See Note, ‘Psycho- and Griswold: therapy Is Confidence a Privilege or Right?’, 3 Conn.L.Rev. (1971); Note, ‘Medical Juris- prudence Privileged Communications Between Physician — Regulation Patient —State and Right to Privacy,’ 39
Tenn.L.Rev. (1972).” Such a by-the-way reference to an issue can hardly be considered a tendering of that issue to this Court. See Pa.R.A.P., If, however, Rule 2115.* the Court were of the view that the issue should be decided, reached and it should at the least order reargument so that this difficult important matter may be adequately presented to us by all parties.
For myself, I decline to address the issue on the basis of footnote 9 of appellant’s brief, supra.
NIX, J., joins in this dissenting opinion.
Supreme Court of Pennsylvania.
Argued Jan. 1978.
Decided Oct. 1978.
Reargument
Denied Nov.
1978.
*
any event,
In
question having
presented
no constitutional
been
to the
court,
See,
trial
g.,
it should be held
waived
this Court.
e.
Clair,
(1974).
Before C. LARSEN, NIX, EROY, JJ. MANDERINO OPINION O’BRIEN, Justice. Simmons, by judge sitting was tried
Appellant, Rodney of McCrae. Appellant the homicide jury with Samuel degree posses- murder of the third guilty was found of original post-verdict He filed sion of instruments of crime. motions, which all of supplemental post-verdict motions 1976, he to a was sentenced were denied. On March on his convic- twenty of imprisonment years term of ten sen- third and a concurrent degree, tion of murder possession on the years tence of two and one-half to five judgment He appealed instruments of crime conviction. conviction to this of sentence on the murder imposed on the conviction judgment imposed and the of sentence was to the appealed of an instrument of crime possession this court for Court, appeal which certified that Superior disposition. 14, 1975, as On April
The facts this are follows. appeal Simmons, known as “Hot was Rodney Lips,” also appellant, driven of an automobile sitting passenger in the front seat In the rear seat known as “Lemon”. by Kenny Biggs, also individual, “Nut,” who was intoxicat- was known as another driven by the automobile p. ed. At 9:30 m. approximately Streets, of 29th and Clementine vicinity “Lemon” was in the to the side pulled Philadelphia. automobile and Mi- Williams, Gregory LaMarr street where Clarence inquired standing. Appellant chael Jackson were question explained This where were from. group they to a street belong did meaning language, they as in street *6 gang. responded Williams “Go ahead. We don’t do that stuff around here.” This response caused a verbal exchange between appellant and Williams. Jackson then told the occupants the car to turn off engine get and out of the car. Appellant responded right that would be back. they Williams, As the car pulled away stick, followed carrying the car up light to a red at 29th and Allegheny Avenue. When the car stopped light, at the Williams took cover behind a tree. Samuel McCrae then walked around the corner from Avenue onto Allegheny 29th Street. As McCrae crossed the street and approached the driver’s side automobile, of Lemon’s leaned from the across passenger shot, seat and fired a McCrae in the striking chest. McCrae was later pronounced dead. The cause of death was determined to be the gunshot wound.
Appellant argues first that the court below erred in fail- ing suppress his argument confession. His is four- pronged:
)a. The statement was taken in violation of Common
Futch,
wealth v.
(1972).
)c. The statement was not voluntarily given.
)d. Appellant received Miranda inadequate warnings that the did not police inform him of his to an right attorney or that any statement he gave police could be used against him in a court of law. raise, attempts to of a by way supplemental
brief, a fifth issue concerning the of his confes- admissibility sion. argues He the court below erred in failing suppress his confession because the police failed to rewarn him of his constitutional rights prior to each period interrogation preceding his confession. We do not reach the merits of appellant’s fifth contention. His motion sought of his suppression confession on the following grounds:
a.) The statement was obtained in violation of Common- Futch, wealth v. supra. illegal of an arrest product was the
)b. The statement tree. was, therefore, poisonous tainted as fruit free appellant’s not a product The statement was ) c. was, therefore, involuntary. will his attorney access to an ) Appellant d. denied family. warnings Miranda inadequate received ) Appellant
e. right attorney to an never told him his police that the in a used him against he could be gave statement any of law. rights. Miranda did not waive his ) Appellant voluntarily f. *7 sup- to application court denied suppression appellant’s The press. motions, at- post-verdict
In his supplemental grounds: on three the court’s order suppression tacked his for the arrest and ) probable There was no cause a. product illegality. of that confession was of Common- )b. The was taken in violation statement Futch, supra. wealth v. ) involuntary. The
c. statement was (1975) stated: 323(d) Pa.R.Crim.P. then-applicable the evidence
“(d) specifically shall state application constitutional specific to sought suppressed, be inadmissible, and shall rendering the evidence grounds support in and events particularity with facts state thereof.” challenge not application suppress to did
Appellant’s
grounds
confession on the
admissibility
his
at
rights
his
were
to rewarn him of Miranda
police
required
v.
interrogation.
See Commonwealth
during
intervals
519,
(1973)
451
Moreover, appellant’s supplemental post-verdict motions did present not any argument violation concerning a Miranda. Rather, the motions concentrate three limited areas:
)a. Futch violation.
)b.
Involuntary nature
confession.
)c. Confession as the fruit of an illegal arrest.
Appellant’s supplemental post-verdict
were
motions
filed
14, 1976,
January
one
approximately
after
this
year
court’s
Blair,
Commonwealth v.
decision in
Appellant argues that the suppression court erred in failing suppress his confession because an alleged Futch, violation of supra. We do not agree.
The chronology surrounding his is as statement follows. arrested at approximately p. 11:48 m. on April 14, 1975, at his home Philadelphia, transported to the Police Administration Building. He arrived at police headquarters at m., 12:25 a. on April and was placed interrogation room. m., From 12:25 a. m. 2:50 until a. *8 appellant was left alone. The police officer in charge investigation, Doyle, Detective was at the scene of the shooting supervising the crime laboratory’s collection of evidence and potential interviewing witnesses. Detective Doyle m., arrived at the police station at 2:50 when a. he immediately proceeded to the interrogation room where appellant was being held. Appellant permitted was then use the bathroom facilities. The record continues show- by ing that between 2:54 a. m. until 3:01 Doyle a. m. elicited general biographical data from appellant. The chronology shows that from 3:01 m., a. m. until appellant 3:35 a. was warned of his rights constitutional and he gave that a statement. substance of the statement was that appel-
505 “Lemon,” were in the car he, “Nut” and lant admitted that then He stated Streets. 29th and Clementine passing to shout and began standing the corner group boys their from automobile lengths away was car the victim two was in that “Nut” stated he was shot. also when statement did drunk. The back seat and was 3:85 McCrae. From who shot that killed indicate fired the 3:50 m. until At a. 3:50 a. m. was left alone. appellant until mens’ room. From and taken to the appellant 4:08 was fed a. From 5:10 again until 5:10 was left alone. appellant 4:08 m., per- Doyle m. until 5:30 a. Detective approximately if appellant formed neutron activation test to determine at 5:30 a. m. and gun. had fired a recently Beginning m., an gave inculpatory a. continuing appellant until 6:10 He subse- at a. m. signed statement that was 6:30 arraigned. quently Pa. 503 Williams,
In v. 383 A.2d Commonwealth II), stated: (1978), (hereafter this court Williams 319 A.2d “In Commonwealth Williams [455 three- Williams we established a (1974) /], hereafter during if obtained test a statement pronged to determine (1) delay must delay suppressed: be pre-arraignment must (2) prejudi- the evidence be unnecessary; must be cial; reasonably related (3) the evidence must be ” omitted.) (Footnote . delay. . . I is to calculate Our initial determination under Williams properly designate time with which we are concerned necessary unnecessary delay. that time as either m. on 14 to a. The time m. on 12:25 p. April from 11:48 home from his spent appellant 15 was April transporting is, therefore, Building to the Police Administration 2:50 a. m. delay. From 12:25 a. m. until necessary interrogation was left alone room. reason in the charge detective waiting period this supervising the investigation scene the crime was at the II, adminis investigation. delay in Williams such a As as unneces such cannot be classified delay, trative and as Rowe, A.2d 358 sary. See Commonwealth *9 (1974).
506
Our thus with a consideration of the time inquiry begins m., appellant from 2:50 a. m. until 5:30 a. the time when began his statement. A of two hours inculpatory “delay” and minutes. forty time,
During pertinent appellant was interviewed three hour and fourteen times. The interviews totaled one alone, minutes. remaining eating time II, supra, In Williams using the restroom facilities. we were confronted with a similar fact situation. In discussing circumstance, factual we stated: .In Commonwealth v. Young, 598, “. 460 Pa. 334 (1975), A.2d 252 we of a five-hour considered the effect between delay During period, arrest and confession. however, the defendant was one hour and questioned only minutes in interviews. twenty-five separate During three periods when the defendant was not being questioned, * circumstances, he was allowed to rest or eat. those Under we held that there existed no the confession proof that related to the We believe the reasonably delay. Young reasoning because of the persuasive similarity Young and case, between the facts in the instant we hold that the confession is not related to reasonably the delay.” II Young, supra, Williams
As in appel- we believe that lant’s reasonably delay. confession was not related argues suppression next erred in to find that his confession was tainted and failing Wong Sun inadmissible as a result of an arrest. illegal See States, v. United 471, 407, 441 371 83 9 L.Ed.2d U.S. S.Ct. Whitaker, and Commonwealth v. (1963) 407, 461 Pa. 336 (1975). A.2d 603 Jackson,
In 669,
“Any
probable
based
Const, amend, iv;
Illinois,
McCray
87
386 U.S.
S.Ct.
California,
Ker v.
(1966);
374
L.Ed.2d
U.S.
Commonwealth
(1963);
S.Ct.
We believe sufficient evidence police possessed arrest for this homicide probable establish cause to and, therefore, we not whether the confes- need determine sion was “tainted”. argues that his confession was inadmissi-
Appellant next was, ble of his free will and product because it was a therefore, agree. We do not involuntary. constitutionally Kichline,
In 361 A.2d (1976), 289-90 we stated: single
“. . . test Although litmus-paper there no confession, it must determining the voluntariness of product be was a speak established that the decision to maker. . free and unconstrained choice of its surrounding All confession attending circumstances must be considered in this determination. These include: the duration and methods of the interrogation; the length of delay between arrest arraignment; the conditions detainment; the attitudes of the police toward defend- ant; state; defendant’s physical and psychological and all other conditions present which may serve to drain one’s power of resistance to suggestion or to undermine one’s (Citations self-determination.” omitted.) The suppression court made the determination, supported by record, that appellant’s confession voluntary.
In reviewing the suppression court’s our finding, is inquiry limited to determining whether the finding suppression court supported by the record and whether the inferences and legal conclusions based thereon are cor Moreover, rect. we need consider only the Commonwealth’s evidence and the evidence of appellant that is uncontradict ed. Kichline, supra.
The suppression court made the following findings and conclusions:
“Defendant never the requested assistance of counsel prior to giving statement, the of any although advised of his right to counsel.
“Defendant did not any indicate desire to to speak or have any relative notified.
“Defendant never requested that the interviews be stopped, nor did he request demonstrate a desire to remain silent.
“The interrogating officer made no threats or promises to induce defendant to make any statement.
“The interrogating officer used no physical violence to procure defendant’s statement.
“Defendant was responsive alert and questions to when giving his statement.”
Reviewing the record of case, the suppression in this hearing under the standard, Kichline the finding sup- of facts are ported by the record and there exists no reason to disturb the suppression court’s findings. below erred in next the court
Appellant argues that gun aof admitting police testimony concerning acquisition weapon. which was determined be the murder later to and, there hearsay was Appellant testimony claims that the fore, agree. do was inadmissible. We not
At Lawrence trial called Detective the Commonwealth who testified Philadelphia Department, Grace of the Police 14, 1975, Charles he met with April sometime after Owens, Uptown “28th Oxford Street a member Defense handgun. Gang.” gave Owens Grace .25 caliber objected testimony counsel on the violated basis that objection. rule. The overruled the court below hearsay Detective appellant’s We find no merit contention. how It related testimony hearsay. merely Grace’s he, Grace, at present had obtained the Grace weapon. trial and oath cross-examination. susceptible under We no below. ruling find error improp below argues next the court erly limited of Detective Wilfred the cross-examination Doyle, interrogation who conducted the police officer is that appellant. complaint appellant’s The basis of *12 discrepancy trial his inquiry concerning limited (Commonwealth C-5) police chronology between the Exhibit appellant’s suppression and Detective at Doyle’s testimony hearing. chro- alleged concerns the failure discrepancy a. a. m. to between 5:00 m. and 5:30
nology indicate that analysis was test to appellant given neutron activation The chronolo- weapon. determine if he had fired a recently appellant during indicated was left alone and fed gy this time. in fact
Detective confirmed that Doyle interrogation tested, and no explained that because the neutron police conducted and considered because to to fingerprinting, activation be similar in nature analysis which is no mention of test chronology, noted was made.
A review of Detective Doyle’s testimony reveals that defense counsel was permitted to question the witness about the above discrepancy. The trial court sustained two Com- monwealth objections because the proffered questions were repetitive. We find no abuse of discretion in the action of the trial judge. See Commonwealth v. Bailey, 450 Pa. (1973). A.2d 298
Appellant argues that the court below erred in re fusing defense point for charge relating the indictment of possessing an instrument of crime. We do not agree. Section 907 of the Crimes Code provides: “(a) Criminal instruments generally. person com- —A
mits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
“(b) Possession of weapon. person commits a misde- —A meanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent it employ criminally.
“(c) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection: “ ‘Instrument of crime.’
“(1) Anything made or specially specially adapted use; criminal
“(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have. “ ‘Weapon.’ Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and compo- nents which can readily be assembled into a weapon.” Act December 334, 1, P.L. No. eff. June § *13 6, 1973, 18 Pa.C.S.A. 907. §
After the court’s 907, initial on charge defense § counsel requested supplemental instructions concerning the “intent
511 Defense portion of statute. criminally” to it the employ to the Commonwealth charge counsel asked the court that appel- prove to a reasonable doubt that required beyond of lant did gun for self-defense defense possess the so, do the failed to and that if Commonwealth another posses- of the guilty charge should be found not instrument of crime. sion but did request, supplemental
The below refused the to charge required the Commonwealth jury the that to gun the with the intent appellant possessed that prove it use criminally. MeComb, 341 A.2d Commonwealth
In (1975), we stated: the “. . accept is not to required . trial court [T]he is but rather language point by of the submitted counsel issue expression. only free select own form of its accurately clearly is is adequately, whether area . . .” presented to the for their consideration. jury supplemental in the court’s We find no reversible error charge. below erred in argues next that the court jury’s
failing to remove the murder indictment from around a argument consideration. is centered Appellant’s gun use of the dispute appellant’s the evidence of concerning agree McCrae. We do not with shooting the reasons for appellant’s argument.
His should have believed jury basic contention his was committed self-defense shooting evidence or in the Commonwealth’s defense others disbelieved from the use evidence an inference of malice concerning do not body. a vital We deadly weapon part murder failing to remove the believe the court erred indictment from consideration. jury’s Rose, A.2d 824
In Commonwealth (1975), this court stated: Moreover, it of fact province
“. . is the trier . weight to pass of witnesses and the upon credibility . be . . fact- produced. accorded the evidence *14 all, finder is free part, to believe or none of evidence.” .the (Citations omitted.) disputes
Factual are for jury resolve, to and the court below not did commit error in allowing jury to consider the murder indictment. The facts as previously summarized clearly provide sufficient evidence when viewed in the light most favorable to the Commonwealth to sustain appellant’s conviction murder of the third degree.
Appellant next argues that below court erred in its charge jury by giving biased summation of the evidence favor of the Commonwealth. Appellant points to the following language:
“Now, I have case, heard the testimony in this my recol- is lection I did not hear of any and I testimony, may be wrong, but I provocation, heard of no provocation serious on the of part against actor as I Rodney Simmons. did not hear anything Rodney acting about Simmons in a fit frenzy, of you terror. Maybe right, did. You have a course, you if feel you have heard that provoked testimony this shooting, defendant into and provocation that was of nature, a serious and it was reasonable that he was in a fit of temper, frenzy, then, course, you may find him guilty voluntary manslaughter. your That peroga- tive. IBut I it. say However, did not hear it is your duty facts, determine the from and your recollection facts are to you determine whether or not voluntary manslaughter is involved this case.” While the court it did state that did not any hear testimony of provocation, it and clearly instructed the unequivocally jury they that were the fact-finders and it was their recol- lections of the governed. which testimony Yount,
In
“The trial expressed the view if the jury that found that appellant decedent, did in fact kill maliciously the court recalled no evidence circumstanc- extenuating es which would act reduce the to voluntary manslaughter. court, however, full, gave also the jurors complete, manslaughter, voluntary charge correct adequate, anwas manslaughter voluntary and instructed them specifi- also judge The trial verdict. entirely permissible recollection that their jurors instructed cally nowas controlled, opinion that his his, testimony, observation, jury gratuitous than a more justified. it felt verdict any return should could and *15 guilt toas opinion not an Moreover, express did the court any particu- return jury the that suggest innocence or or removed entirety, read in its charge, The verdict. lar nor did it contain of the jury nothing province from the therefore charge The guilt. of judicial expression any ” omitted.) (Citations . . . proper. verdict, did not a Yount, suggest below did in the court As innocence, and did or guilt of opinion the its give jury not We find the consideration. jury’s not remove from anything no error. trial of the portion to another alludes
Appellant con portion complained-of This charge jury. to the court’s a would allow whether the evidence cerned self-defense and portion We have reviewed this of self-defense. finding above, did not judge the trial and, stated charge the as or guilt verdict, opinion his give a did suggest the delibera issue from innocence, any did not remove no error. Commonwealth We find jury. tion of the Yount, supra. in below erred that the court argues next volun relationship of concerning the
its to the charge jury or of self-defense claim imperfect and an tary manslaughter agree. do not of another. We defense 141, A.2d 1088 Lesher, Pa. 373 473 In Commonwealth (1977), this court stated: well-established, however, charging that in . is
“. . It form to use its own is free the trial court jury the adequate- whether the area issue is only the expression; Common- jury. to the presented accurately clearly ly, Also, 504, (1975). 496 McComb, 341 A.2d wealth v. 462 of instructions to the correctness challenge a evaluating in 514 must be and considered in its jury, charge read that charge and it is the effect of
entirety
general
459 Pa.
327
Rodgers,
controls. Commonwealth v.
McNeal,
(1974);
A.2d 118
(1974).”
the use of force set § force Code, the use of for supra, Crimes and § charged other also protection persons. properly court correct voluntary manslaughter that a verdict be- appellant unreasonably that jury verdict if the found justified lieved the use of force under circumstances § 506 of the Crimes Code. § whole, trial charge we believe Reading the as under either explained jury to the properly § homicide, belief one’s justification order § reasonable, had to belief of be while unreasonable set forth in 505 and Crimes circumstances § § of voluntary Code verdict would be sufficient to sustain a *16 2503(b) of the provisions under the manslaughter § Crimes Code. below in that the court erred argues next
Appellant burden, under had the charging jury appellant Code, he was not the Crimes to show that of the § record, A of the in the confrontation. review aggressor however, that, portions objecting specific reveals while self-defense charge voluntary manslaughter, the court’s others, charge did to the object and defense of not appellant a bur unconstitutionally placed on the that the court basis in self-defense. upon regard den proof 1119(b) provides: Pa.R.Crim.P.
“(b) charge nor omissions therefrom portions No are may error, objections be unless assigned specific as All to deliberate. jury made thereto before the retires ' beyond hearing such shall be made objections jury.” made, the is not objections having been issue
No specific before this court. properly in court below erred argues next that the and use of concerning deadly to the retreat charge jury
its
Code,
We do
supra.
under
505 of the Crimes
force
§
agree.
476,
In Commonwealth court, the above stated: (1976), considering provision, this in of self is force in deadly protection “. . . use of met, Act of are justifiable requirements where certain 6, 1972, 1482, No. C.P.S.A. December P.L. § June . 505(a) (b)(2) date § 1973] [effective disallowed, though even it is but such use of force is met, are requirements otherwise allowable because such where necessity knows he can avoid
‘The [defendant] by retreating such force using complete safety with in Commonwealth (Emphasis supplied Palmer.) force, 505(b)(2)(h). Thus, deadly
“18 use of C.P.S.A. § allowable, the defend- otherwise is disallowed where only (Emphasis ant knows an avenue of retreat is available. original.) if believed he was applied
“. . .As Palmer instantly, retreat, necessarily it ‘cornered’ or without an avenue of he did not know avenue of retreat follows that thus, excused from available and he would have been force if the other justified using deadly retreating However, according to the requirements present. were of retreat in fact trial court’s instructions if an avenue existed, to retreat even duty Palmer would have had the retreat was he did not know such an avenue of though have be- testimony may under jury available. believed was in fact available and still have lieved retreat *17 it was not know it was because he believed Palmer did such, justifiable not. As have disallowed jury may applying improper force Palmer an deadly by by use of standard.” under the charge reviewed the trial court’s
Having case, find no reversible factual circumstances of this we Lesher, supra. error. See Commonwealth with conformity not in was court’s instruction The trial however, that believe, We of Palmer. the mandate inappo- Palmer this cause renders circumstance factual in an case, passenger instant site. In the The a pedestrian. automobile, while the decedent to retreat duty of the jury informed instruction court’s and efficient the obvious Given means.” by “possible all trial believe automobile—we method of retreat —the error. is not reversible with Palmer comply failure to court’s affirmed. of sentence Judgments JJ., in the result. LARSEN, concur NIX in which MANDERINO, J., dissenting opinion files ROBERTS, J., joins.
MANDERINO, Justice, dissenting. Procedure, of Criminal our Rules Rule 130 of
I dissent. 389, 290 Futch, 447 Pa. in Commonwealth our decision Rule (now Rule 118 former (1972), implementing A.2d 417 “. must arrested, an accused once 130) require that issu- proper delay before unnecessary be taken without subsequently We have arraignment.” ing authority [for] give attempted we in which cases struggled many with that “ad- concluded We have that command. meaning to required time e., period delay,” ministrative —i. booking process of the the mechanics accomplish —is delay, rule. Administrative under the delay” “unnecessary so waiting period to include a however, been held has never hap- who investigation, charge that the detective in arrest, may of an the time crime scene at to be at the pens detective’s investigating station. police to the return only booking purposes. for necessary is not presence interro- return is to detective’s investigating for the purpose investigating awaiting Time spent the arrestee. gate as to so necessary be considered arrival cannot detective’s arraignment. prompt requirements remove the dissenting opinion. ROBERTS, J., in this joins