COMMONWEALTH of Pennsylvania v. Bernard SPARROW, a/k/a Bernard Johnson, Appellant (two cases).
Supreme Court of Pennsylvania.
Feb. 28, 1977.
Reargued Oct. 15, 1976.
Argued Nov. 26, 1974.
370 A.2d 712
We hold that Act 109 is constitutional and enforceable as applied to nonsectarian nonpublic schools and affirm the order of the Commonwealth Court.
Order affirmed.
EAGEN, J., dissents.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Philadelphia, for appellee.
Before JONES, C. J., and EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
POMEROY, Justice.
Following a trial before a jury, appellant was convicted of murder in the first degree and aggravated robbery. He filed timely motions for a new trial and in arrest of judgment which were denied by the court en banc. He was subsequently sentenced to life imprisonment for murder and to a consecutive term of from ten to twenty years imprisonment for robbery. This appeal followed.1 Appellant presents a number of assignments of error, none of which, we have concluded, merits reversal. Accordingly, we will affirm.
The evidence presented at trial, viewed in a light most favorable to the Commonwealth as verdict winner, established the following facts. In the late afternoon of October 15, 1971 one Keith Moore obtained a silver-barrelled .32 caliber pistol from a friend. Shortly thereafter Moore learned from his brother and two others that Bernard Sparrow, the defendant, was looking for him. The four men then left Moore‘s house and began walking,
Soon the group was augmented by two other persons, Kenneth Wallace and Jerome Bryant. Bryant informed the others: “We‘re rumbling white boys at 16th and Morris.” He asked if any of the others had a weapon, whereupon the pistol was given to Bryant by Boyd, and loaded. Later Wallace asked for the weapon and Bryant complied. As the group reached the corner of Dickinson and Mole Streets in Philadelphia they were joined by the defendant, who demanded the pistol from Wallace and was given it. Sparrow was then heard to boast: “I‘m going to get me a homicide.” He made it clear that the object of his remark would be a white person.
Sparrow, Bryant and Wallace, separated from the other members of the group, then proceeded along Mole Street. Sparrow carried the gun underneath his coat and expressed his intention to rob someone. As they were walking, an automobile being driven along Mole Street stopped and a white male alighted. This person, later identified as Joseph Jaworski, opened the car‘s trunk and began removing some pies. Wallace walked past Mr. Jaworski, but Bryant and Sparrow approached him from opposite directions, the appellant from the sidewalk side and Bryant from the street side. Sparrow waved the gun in Jaworski‘s face, saying, “You don‘t think this gun is real, do you?” When Jaworski rejoined that he did believe the gun was real, the defendant ordered, “Give me your money.” Jaworski told the defendant he didn‘t have any money and began calling for help. As he was shouting, the defendant fired the pistol once, killing Mr. Jaworski instantly. Sparrow was subsequently arrested, tried and convicted as detailed above.
At trial, the appellant testified in his own behalf, giving an account of his actions at the time of the shooting which differed from that which he had given to the police during interrogation following his arrest. On cross-examination the prosecuting attorney confronted Sparrow with his testimony at a pre-trial suppression hearing that his statements to the police were true. It is now contended that this use of the suppression record violated
The statements made to the police were themselves also used by the prosecution to impeach Sparrow on cross-examination at trial. Error is assigned to such use on the ground that, although the suppression court had held the statements to be voluntary, they were obtained in violation of appellant‘s constitutional rights, and therefore could not be used for any purpose.3 See Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975).
“3. The evidence shows that the defendant was alert, responsive, normal and not under the influence of drugs or intoxicants at the time of the statement.
“4. The statement was obtained by police without fear, threats, brutality or other forms of duress, or in response to any direct or implied promises.”
Furthermore, the court in its memorandum opinion accompanying these findings stated that “[t]he interrogation was not prolonged.” Under these circumstances, applying the first portion of the Culombe test, supra, “those findings conclude us and form the basis of our review,” provided they are supported by the record. Our review of the record satisfies us that the suppression court‘s findings were fully supportable; no more need be said.
In addition to Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974), supra, we have applied this portion of the Culombe test in several other cases. See, e. g., Commonwealth v. Smith, 447 Pa. 457, 291 A.2d 103, 104 (1972):
“An appellate court does not weigh evidence or pass upon the credibility of witnesses, and there is no basis for us to hold as a matter of law that the court‘s finding of voluntariness was not adequately supported and well within the court‘s discretion.”
Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651, 653 (1973):
“When the suppression court has determined that no beatings or physical coercion occurred ‘the appellate court will accept the determination of the [trier] of facts if there was any substantial evidence to support [its] conclusion’ Commonwealth v. Johnson, 365 Pa. 303, 314, 74 A.2d 144, 149, reversed on other grounds, 340 U.S. 881, 71 S.Ct. 191, 95 L.Ed. 640 (1950).”
See also Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Commonwealth v. Long, 460 Pa. 461, 333 A.2d 865 (1975).
We consider next appellant‘s argument that the trial court unduly restricted the scope of the voir dire examination and improperly denied several challenges for cause. For the most part, the questions defense counsel was not permitted to ask fell into two categories: first, questions through which counsel sought to ascertain the attitude of veniremen toward the defendant, including why they felt they were not prejudiced against him; second, questions seeking to explore prospective jurors’ reactions to the possible failure of the defendant to take the stand or present any evidence on his behalf. Both types of inquiry are foreclosed by our decision in Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). As to the first category of questions, we there said, “The only legitimate inquiry in this area was
As to the challenges for cause which are now claimed to have been improperly denied, we must bear in mind “that the scope of the voir dire examination rests in the sound discretion of the trial judge and his decisions, even in a challenge for cause, will not be reversed in the absence of palpable error.” Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A.2d 467, 471 (1953); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). Applying this rule, we find that no abuse of discretion occurred. In each case the record shows that none of the prospective jurors so challenged was possessed of any animus towards the appellant, or entertained a fixed opinion as to his guilt or was for any other reason subject to disqualification for cause.
Finally, in addition to the alleged trial errors we have discussed, Sparrow urges reversal of his robbery conviction (or at least vacation of the sentence for robbery) on the ground that his Fifth Amendment guarantee against double jeopardy was violated when he was sentenced on both the murder and the robbery convictions.7 His theory is that the offense of robbery
There was ample evidence in the case (such, for example, as Sparrow‘s announced purpose, “I‘m going to get me a homicide“) from which the jury could find that the slaying of Joseph Jaworski was wilful, deliberate and premediated. Were that the basis of the verdict of murder in the first degree, there would be no room for the double jeopardy argument. But the jurors were charged that they could also return that verdict if they determined that the killing occurred during the commission of a robbery. Since there is no way of knowing on which theory the jury proceeded, we must consider appellant‘s contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable. We conclude that the argument is without merit.
called merger doctrine discussed in the text, infra. For a further discussion of the Pennsylvania double jeopardy clause, see the opinion of Mr. Justice ROBERTS speaking for a plurality of the Court in Commonwealth v. Campana, 452 Pa. 233, 243-245, 304 A.2d 432, 436-437 (1973), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).
The issue of the propriety of the sentencing of appellant Sparrow on both his conviction for murder and his conviction for robbery was not raised at the time of sentencing or in posttrial motions. In Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), this Court held that a challenge to the sentencing of the appellant for both forcible and statutory rape based upon a single incident of intercourse was not waived by Walker‘s failure to raise the issue for consideration by the trial court; the issue was “exclusively . . . the lawfulness of the sentence imposed upon these convictions.” 362 A.2d at 230. This writer dissented in Walker, supra, 362 A.2d at 233, on the ground that consideration of the double jeopardy issue had been foreclosed by the holding in Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974). In Piper the Court decided (also over this writer‘s dissent) that failure to object at the time of sentencing to the constitutionality of the sentence imposed constituted a waiver of that issue. Cf. Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976) (dissenting opinion of Pomeroy, J.). Because we are bound by Walker, supra, we shall proceed to consider the merits of the double jeopardy issue raised in this case.
The test for merger was restated in Commonwealth ex rel. Moszcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) as follows:
“The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are ‘successive steps in
the same transaction’ but it is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. . . . When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both.” 343 Pa. at 104, 21 A.2d at 921 (emphasis in original).
See also Commonwealth v. Hill, 453 Pa. 349, 310 A.2d 88 (1973); Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953). It is true, of course, that the offense of murder in the first degree, when based on the concomitant commission of a different felony, “necessarily involves” that other felony in the sense that the felony supplies the essential ingredient of malice. The language above quoted from Moszcynski, however, is not to be given so literal an interpretation. In that case, the defendant had been convicted and sentenced for bank robbery, breaking and entering with intent to commit a felony and a felonious attempt to kill. The Court held that although these several crimes arose from the same continuous episode, no one of them was a necessary ingredient of the others, and no merger occurred. The Court was there concerned to disapprove a line of cases which had held that all that was necessary to invoke the merger doctrine was the fact that “‘two or more of the things forbidden are but successive steps in the same transaction,‘” Commonwealth ex rel. Ciampoli v. Heston, 292 Pa. 501, 503, 141 A. 287, 288 (1928); it was in no way considering a felony-murder situation, which bears but a superficial similarity to those circumstances in which merger has been found.
“As applied in Pennsylvania, common law felony-murder ‘is a means of imputing malice where it may not exist expressly . . .‘” Commonwealth v. Yuknavich, 448 Pa. 502, 506, 295 A.2d 290, 292 (1972), quoting from Commonwealth ex rel. Smith v. Myers, 438 Pa. 218,
Judgments of sentence affirmed.
162 N.E. 7 (1928); Duvall v. State, 111 Ohio St. 657, 146 N.E. 90 (1924); People v. Johnson, 67 Cal.App.2d 195, 153 P.2d 784 (1944); Johnson v. People, 152 Colo. 586, 384 P.2d 454 (1963), cert. den. 376 U.S. 922, 84 S.Ct. 682, 11 L.Ed.2d 617 (1964). The holding in each of the foregoing cases is that robbery is neither the same nor an included lesser offense within the crime of murder in the first degree and that convictions for both offenses may properly be allowed to stand when murder is committed during the perpetration of a robbery.
* * * * * * * * * *“We find neither reason nor authority for holding that one who commits murder during the perpetration of a felony named in the T.C.A. § 39-2402(4) cannot or should not be convicted and punished for both the offense of murder in the first degree and for the named felony. Nothing in the statutory definitions of murder in the first degree and of the felonies listed in T.C.A. § 39-2402(4) indicates a legislative intent that conviction and punishment for both offenses should not be permitted. Moreover, we agree with the holding in each of the cases from our sister states, supra, that the felony during the perpetration of which a murder is committed is neither the same offense as murder in the first degree nor a lesser offense included within that charge; hence, to permit convictions and punishments for both murder in the first degree and the other felony to stand in no way offends the constitutional protection from double jeopardy.”
Accord, Price v. State, 261 Md. 573, 277 A.2d 256 (1971) (no merger in an arson-murder killing). Contra, People v. Anderson, 62 Mich.App. 475, 233 N.W.2d 630 (1975); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974); Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Ronzani v. State, 24 Wis.2d 512, 129 N.W.2d 143 (1963). See also Reeves v. Henderson, 380 F.Supp. 1103 (W.D.La.1974).
NIX, J., filed a dissenting opinion, in which ROBERTS, J., joined.
ROBERTS, Justice, dissenting.
The majority does not apply the proper standard for review of the voluntariness of appellant‘s admission. It treats the trial court‘s determination of voluntariness purely as a question of fact and, as a result, fails to make the necessary inquiry into appellant‘s claim. I dissent.1
It is clear from our previous cases that we must independently determine whether a confession is voluntary. Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). This procedure is constitutionally required. “It is our duty in . . . cases dealing with the question whether a confession was voluntarily given, to examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); see Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). Moreover, when psychological coercion is alleged, a particularly close analysis of the surrounding circumstances is necessary. Commonwealth v. Alston, 456 Pa. 128, 133-34, 317 A.2d 241, 244 (1974); Commonwealth v. Eiland, supra at 574, 301 A.2d at 654; Commonwealth ex rel. Butler v. Rundle, supra at 149, 239 A.2d at 430.
“. . . consider only ‘the evidence of the prosecution‘s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Culombe v. Connecticut, 367 U.S. [568, 604], 81 S.Ct. [1860, 1878, 6 L.Ed.2d 1037 (1961)].”
Commonwealth ex rel. Butler v. Rundle, supra at 149-50, 239 A.2d at 430.
The majority uses a much more restricted standard of review. It contends that the suppression “court found that the statements were voluntary” and that this finding “supported by the record, may not be disturbed.” This is a clearly mistaken standard which unnecessarily abdicates our obligation on review.
The suppression court‘s “finding” of voluntariness, like its “finding” that appellant “received the benefit of procedural and substantive safeguards set forth by the United States Supreme Court,” is not simply a finding of fact. Rather, these “findings” involve inferences made from the facts, and the application of legal principles to those inferences. See Culombe v. Connecticut, 367 U.S. 568, 603, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037, 1058 (1961) (Opinion of Frankfurter, J.). Such findings must not be insulated from review. If such findings are treated as pure questions of fact, this Court abdicates its responsibility to review alleged violations of constitutional rights. “[W]here necessary to the determination of constitutional rights, [this Court must] make an independent examination of the facts, the findings, and the record so that it can determine for itself whether in the decision as to reasonableness the fundamental-i. е.,-constitutional criteria established by this Court have been respected.” Ker v. California, 374 U.S. 23, 33-34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963); accord Fiske v. Kansas, 274 U.S. 380, 385-86, 47 S.Ct. 655, 656-57, 71 L.Ed. 1108 (1927) (“this Court will review the findings
Thus, Justice Frankfurter in his opinion in Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), recognized that a “finding” of voluntariness was not simply a finding of fact, precluding further review by appellate courts if supported by the record:
“The notion of ‘voluntariness’ is itself an amphibian. It purports at once to describe an internal psychic state and to characterize that state for legal purposes. Since the characterization is the very issue ‘to review which this Court sits,’ Watts v. State of Indiana, 338 U.S. 49, 51, 69 S.Ct. 1347, 1348, 93 L.Ed. 1801 (opinion of Frankfurter, J.), the matter of description, too, is necessarily open here. See Lisenba v. People of State of California, 314 U.S. 219, 237-238, 62 S.Ct. 280, 290, 86 L.Ed. 166; Ward v. State of Texas, 316 U.S. 547, 550, 62 S.Ct. 1139, 1141, 86 L.Ed. 1663; Haley v. State of Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 303, 92 L.Ed. 224; Malinski v. People of State of New York, 324 U.S. 401, 404, 417, 65 S.Ct. 781, 783, 789, 89 L.Ed. 1029.
No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially—that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply by declining to draw inferences which the historical facts compel.”
Id. at 604-05, 81 S.Ct. at 1880. Clearly, the suppression court‘s “finding” of voluntariness does not relieve this
Justice Frankfurter recognized three phases of inquiry, although he also recognized that in practical application these phases become interwoven. First, the raw “historical facts” must be determined. Next, the defendant‘s psychological state is inferred from these facts. Finally, legal principles are applied to these inferences to determine voluntariness. The passage quoted and relied upon by the majority, to support its assertion that a “finding” of voluntariness must be upheld if it is supported by the record, applies only to the “crude historical facts.”
“The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external, ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative reerecation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.
In a case coming here from the highest court of a State in which review may be had, the first of these phases is definitely determined, normally, by that court. Determination of what happened requires assessments of the relative credibility of witnesses whose stories, in cases involving claims of coercion, are frequently, if indeed not almost invariably, contradictory. That ascertainment belongs to the trier of facts before whom
those witnesses actually appear, subject to whatever corrective powers a State‘s appellate processes afford. This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review—with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence.”
Id. at 603, 81 S.Ct. at 1879. Clearly, the inferences the suppression court draws about the accused‘s psychological state, and its determination on voluntariness, are not the kinds of factual determinations beyond appellate review.2 The majority completely fails to comprehend Justice Frankfurter‘s analysis.
Because it applies the wrong standard, the majority fails to analyze the voluntariness of appellant‘s statements in the totality of the circumstances. Every cir
We listed the following factors as crucial to this inquiry:
“. . . the duration, and the methods of interrogation; the conditions of detention, the manifest attitude of the police toward the defendant, the defendant‘s physical and psychological state and all other conditions present which may serve to drain ones powers of resistance to suggestion and undermine his self-determination.”
Commonwealth v. Alston, supra at 134, 317 A.2d at 244; see Commonwealth v. Purvis, 458 Pa. 359, 364, 326 A.2d 369, 371 (1974); Commonwealth ex rel. Butler v. Rundle, supra at 149, 239 A.2d at 430.
In this case, the following facts are uncontradicted. Appellant was arrested at approximately 4:30 p. m., October 17, 1972, and arrived at the Police Administration Building at 5:00 p. m. From 5:00 p. m. until 9:25 a. m., October 18, 1972, appellant was interrogated by several teams of detectives. He was left alone for various intervals, during which he was manacled in the interrogation room and thus was denied any effective rest. During the first eight hours, appellant consistently denied any involvement in the crime.3 At 12:40 a. m., he made the first statement later used by the Commonwealth. The interrogation based on this first statement lasted until 2:30 a. m. From 2:30 a. m. until 5:00 a. m., appellant was again manacled and left alone. Between 5:00 a. m.
Only after eight hours in custody, and seven and one-half hours of interrogation, did appellant make an incriminating statement. Appellant‘s further admission came more than twelve hours after arrest, and he was not arraigned until more than twenty-four hours after his arrest.5 Given the coercive nature of such an extend
Appellant‘s claim that he was denied access to counsel highlights the involuntariness of his admissions. Appellant retained counsel shortly before he was arrested, and counsel instructed him to make no statement unless counsel was present. After appellant‘s later admission, he read the statement, but declined to sign it, stating that he would sign nothing until he had talked to his attorney. I can only conclude that when appellant made admissions to the police, in disregard of the advice of retained counsel, it was because his will was overborne, especially since appellant still wanted to see his attorney after he made these statements.6
basic standards of conduct in their public dealings, their secret treatment of a 15-year-old boy behind closed doors in the dead of night becomes darkly suspicious.’ Here, too, the post-confession activity of the police colors the proceedings leading up to that confession.”
Accord, Commonwealth v. Coach, 471 Pa. 389, 370 A.2d 358 (1977).
The record shows no administrative procedure which would justify the pre-arraignment delay in this case. The only possible conclusion is that the delay was for the purpose of extracting a confession from appellant.
The Commonwealth argues that there was no prejudice in admitting these statements into evidence because they were substantially the same as those testified to by appellant at trial. However, appellant‘s testimony may have been induced by his earlier admissions while being interrogated and therefore should be suppressed as a fruit of the former illegality. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Commonwealth v. Saunders, 459 Pa. 677, 683, 331 A.2d 193, 195 (1975) (Dissenting Opinion of Nix, J., joined by Roberts, J.).
Nor can I agree with the Commonwealth‘s contention that the statement was admissible for the purpose of impeaching appellant‘s testimony. In Commonwealth v. Triplett, 462 Pa. 244, 248-49, 341 A.2d 62, 64 (1975), this Court stated:
“We are of the opinion that any statement of a defendant declared inadmissible for any reason by a suppression court cannot be used for the purpose of impeaching the credibility of a defendant who elects to testify on his own behalf.”
Thus, it is clear that an involuntary confession must be excluded for the purposes of impeachment of defendant at trial.
I cannot agree that appellant‘s admissions were voluntary. I dissent, and would grant appellant a new trial.
MANDERINO, J., joins in this dissenting opinion.
NIX, Justice, dissenting.
I share Mr. Justice ROBERTS’ view that the majority did not employ the proper standards for appellate review of the voluntariness claim. While it is true, as pointed
Furthermore, I cannot agree with that part of the majority opinion which upholds the imposition of sentence on appellant‘s conviction for robbery as if it were a separate crime. Appellant was convicted of murder of the first degree as well as robbery. The statute applicable to this case defines murder of the first degree as follows:
“All murder which shall be perpetrated by means of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of any arson, rape, robbery, burglary, or kidnapping shall be murder in the first degree.”
Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701 (Appx.1973) (emphasis added), now repealed and replaced by,18 Pa.C.S. § 2502 (Supp.1976-77) .
It is impossible to ascertain whether the jury‘s verdict of murder in the first degree was premised on a finding that the slaying was willful, deliberate and premeditated, or a finding that the killing occurred during the commission of a robbery, one of the felonies enumerated in the statute. Both theories were submitted to the jury. If the jury‘s verdict of murder in the first degree was
It should first be noted that the majority has chosen not to analyze the problem arising in this case in accordance with double jeopardy principles,3 but instead relies on a cursory application of this jurisdiction‘s merger doctrine to determine that robbery and murder are separate crimes, which do not merge, so that separate sentences are proper. In so holding, the majority not only misapplies the merger doctrine,4 but reveals that it misperceives the issue raised on this appeal. The issue is not, as the majority has framed it, whether the separate
The Double Jeopardy Clause of the
“‘[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.‘” Id. at 343, 95 S.Ct. at 1021, quoting from, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (emphasis added).
The prohibition of the Double Jeopardy Clause against “multiple punishments” has been recognized by this Court as well. See Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).5 It is clear under this principle that if a particular offense serves as the basis,
The 1939 Penal Code, in failing to define the crime of murder, incorporated the common law definition of that crime. In setting forth the elements of common law murder in this jurisdiction, this Court stated in the landmark case of Commonwealth v. Drum, 58 Pa. 9 (1868), that “[t]he distinguishing criterion of murder is malice aforethought.” Id. at 15.
“With this ‘criterion’ as the basis, the doctrine of felony-murder became firmly imbedded in the common law. As applied in Pennsylvania, common law felony-murder ‘is a means of imputing malice where it may not exist expressly. Under this rule, the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.’ Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 224-25, 261 A.2d 550, 553 (1970).” Commonwealth v. Yuknavich, 448 Pa. 502, 506, 295 A.2d 290, 292 (1972).
The 1939 Penal Code did, however, divide murder into “degrees.” Under the statute, all murder was deemed murder of the second degree, unless the killing was “willful, deliberate and premeditated,” or it occurred in the perpetration of any “arson, rape, robbery, burglary, or kidnapping,” in which case it was murder of the first degree.6 Because the legislature determined that certain types of murder were more heinous than others, it imposed a more severe sanction on the actor if the killing was accompanied by one of the “aggravating circumstances” enumerated in the statute. This being so, the
Finally, it should be emphasized that the failure of the majority to distinguish between the role of all felonies under the common law felony-murder doctrine and the function of one of the enumerated felonies under the statutory felony-murder provision precipitated its erroneous application of the merger doctrine in this case.7
In my judgment, the proper application of our merger test yields the conclusion that robbery is a necessary ingredient for the crime of murder of the first degree in the felony-murder context. Thus, the separate sentence imposed under the robbery indictment was violative not only of the constitutional double jeopardy prohibitions, but also our rules as to merger.
ROBERTS, J., joins in this dissent.
Notes
“1. The Commonwealth, through the testimony of police officers, established by a preponderance of credible testimony that the statement of defendant was voluntary.” (Emphasis added).
Although classification is difficult, it appears that the trial court‘s finding that “[t]he defendant was warned of his rights on three occasions” is usually such an “historical fact.” It obviously entails a legal conclusion about what rights the accused must be warned of and the form warning must take, however, and thus is not always insulated from review. The finding that appellant was “alert, responsive, normal and not under the influence of drugs or intoxicants” involves a determination of historical facts, but it also involves inferences about his psychological state. Finally, the conclusion that appellant‘s statements were obtained “without fear, threats, brutality or other forms of duress, or in response to any direct or implied promises” involves not only historical facts and inferences as to the accused‘s psychological state, but also legal conclusions, in particular, legal conclusions as to what kinds of police interrogation practices tend to overbear the will of the accused.
In Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 155-56, 239 A.2d 426, 433 (1968), this Court, in an opinion by Mr. Justice O‘Brien, recognized that pre-arraignment delay is relevant to the voluntariness of any statements taken, even if the delay takes place after the confession:
“Thus, the double jeopardy prohibition has two functions: (1) It denies the government an opportunity to convict a defendant of an offense after he has once been acquitted of that offense; and (2) It prohibits the government from exacting multiple punishments for the same offense.” Commonwealth v. Campana, supra, 442 Pa. at 261, 204 A.2d at 450 (Concurring opinion of this writer).“We cannot accept the contention that since the confession was made on the day of arrest, the succeeding six days are irrelevant to a consideration of the question of voluntariness of the confession. Haley v. Ohio [332 U.S. 596, 600, 68 S.Ct. 302, 304, 92 L.Ed. 224 (1948)], dealt with the question of post-confession improper police tactics: ‘It is said that these events are not germane to the present problem because they happened after the confession was made. But they show such a callous attitude of the police towards the safeguards which respect for ordinary standards of human relationships compels that we take with a grain of salt their present apologia that the five-hour grilling of this boy was conducted in a fair and dispassionate manner. When the police are so unmindful of these
The true test for merger is: Whether all of the elements of the lesser offense are necessarily included in the greater. Stated another way, the offenses merge if the greater crime cannot be proven without establishing each of the elements of the lesser. See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).