*1 535' their assessments property protest owners rights respected. therefrom are appeal Moreover, . . . intended to afford escape Act was an from taxation property just owner because the over or of inadvertence or dilatoriness of an assessor sight, ” the Board of Revision.’ 252 A. 2d Pa. at 516, I at 649. believe that Krick theory applies here. no indication There is equally taxpayer prejudiced hаs been any appeal way rights the late Krick assessment. Under and Pennsyl vama this should be and a Railroad, taxa controlling, tion permitted. windfall should not be Appellant.
Commonwealth v. Stukes, *3 Argued 1969. Before C. J., Jones, Bell, Pomeroy, JJ. Roberts and O’Bkien, Eagen, Cohen, D. Kip him Denega, E. with Beasley, James for appellant. Hewson é Casey, Beasley, Albert, Attorney, District E. Assistant Benjamin Levintow, D. As- Crawford, him F. Cow James Roger Richard A. First District Sprague, sistant Attorneys, Arlen Dis- Specter, Distriсt Attorney, Assistant appellee. trict for Commonwealth, Attorney, by Opinion 1969: October 9, Me. Justice Eagen, James A. was convicted Stukes, appellant, of murder in the Philadelphia first County imprison- fixed at life degree, punishment a new ment. in arrest of judgment Motions and/or imposed the jury trial were denied and sentence was appeal judgment directed. From the this sentence, filed. We affirm. In of Judgment Motion Arrest the trial evi challenges sufficiеncy cor dence to conviction. evaluating sustain his all the evidence must position, rectness this in a favorable read most Commonwealth light to all inferences and it is entitled reasonable v. Commonwealth 417 Pa. therefrom. arising Tabb, *4 and A. 884 Commonwealth v. De 207 2d (1965), 13, 165 A. 14 (1960). 401 Pa. 2d Read in this Moss, 395, amply supports the record verdict. guilty light, could evidence find jury From the the follow- ing: morning hours
During early April 3, 1966, Ronald J. Dessus Burgess, unlawfully John in Philadelphia Southwest occupied a home entered 78 her years age; Alexandroff, Nat- Lena daughter,
539 44 alie and Mrs. Tuchar’s years age; daugh- Tuchar, females all three Paula, years age; ter, beaten and robbed of personal belongings by brutally All From the intruders. three were also raped. injuries nineteen Mrs. Alexandroff died days received, later.
While the evidence not establish that Stukes does in or directly sexual participated robbing, beating assault оf Mrs. sufficient to prove Alexandroff,1 raped Tuchar Mrs. sufficient also justify the conclusion parcel that he was the entire part unlawful entire occurrence occurrence, i.e., was a concerted act. The prop therefore, could, erly resolve that Stukes was at least of aiding guilty abetting killing of Mrs. Alexandroff rape and was equally guilty with those in who actually flicted injuries her which caused death. See Com monwеalth v. 415 Pa. 203 A. 2d Coyle, 379, (1964), and Commonwealth v. 374 Pa. 98 A. Lowry, 2d 733 (1953). For A
Motion New Trial Several alleged errors during the proceedings the court below are asserted in support of the argu- ment new trial should be ordered. We have examined each carefully assignment of error con- nection with the record and find no error which would warrant a retrial.
For instance, argues that he was denied the representation of counsel at a critical stage the pro- in violation ceedings his rights under the Sixth Amendment the United States Constitution. pertinent record are as facts follows:
Stukes was arrested April 1966. Able counsel him on appointed represent 28th. His testimony, According Burgess it was and Dessus who injuries upon raped fatal inflicted the Mrs. Alexandroff. *5 the voir dire examination the selection i.e., of on June 1967. jurors, began
Pursuant to an order entered on May by 5, 1967, Judge the Honorable Vinсent A. President Carroll, of the Stukes was examined Philadelphia Courts, 19th and a to by psychologist two May psychiatrists if he to competent determine was trial. Such stand A. an examination Edward requested by Guy, was of of the the Psychiatry Director Division M.D., the nor Philadelphia Neither district prisons. attorney or of counsel were notified the petition defense during order and neither were present the court’s no During questions examination.2 examination, to alleged asked offense and Stukes pertaining were not to cautioned volunteer such information. any was of the a result examination, examining physi As to cooperate cians concluded that Stukes was “able proceed to understand the nature counsel and him.” against ings competency Stukes’ stand trial question an in Dr. mind examination Guy’s following arose
first him on during which 24, 1967, made and fearful.” “acutely agitated Doctor found Stukes be a given major thorazine, He prescribed affects the central system. which nervous tranquilizer discontinued on of this drug April 28th, The use one given dose of cogentin date upon which of Stukes’ first learned examination Defense examining physicians report on June 1967. Immediate of the (a) pending continue the trial examination filed: were motions psychiatrist; (b) independent to dismiss an of Stukes indictment; (c) release on bail. The trial court for his denied hearing the absence of the conducted but these motions given present opportunity all counsel where examining physicians the details and question results drugs type quantity ad- examination during his confinement. to Stukes ministered combat one of thora- drowsiness, side effects From April zine. 28th until June Stukes was 13th, *6 three of librium each given 10-milligram day doses dosage thereafter was reduced to a simple of librium 10-milligram given prior еach quantity day, to bedtime.
It cannot be questioned that Stukes
entitled
to the
of
assistance
counsel during the
ex
psychiatric
amination
conducted
if
con
May 19,
such
1967,
stituted a “critical
stage”
the criminal proceedings
pending against him. White v.
373 U.S.
Maryland,
59,
A “critical stage” criminal proceedings exists in situations where legal rights preserved may or or where some factual lost, or legal disadvantage may be suffered the accused. See Commonwealth ex rel. O’Lock v. Bundle, supra; Commonwealth ex rel. Butler v. 416 Pa 206 A. 2d Rundle, 321., (1965) ; and Commonwealth v. suprа.. The Phillips, examina tion here involved not such a situation. examination
Stakes’
was conducted as a precaution
ary
process.
measure
insure due
The findings eman
from the examination
not
ating
were
brought
of
nor
attention
the trial
were
ever
they
intended
prosecution
for trial use. The
had no part
in the
or in
conduct of the examination
its initiation;
indeed,
nor
prosecutor
neither
defense were apprizеd
1967.
most sig
of
until June
Moreover,
had
to lose
result
nificantly,
nothing
mainly
the examination but
It was
everything
gain.
fair trial.
his
insure a
United
protection
States v.
U.S.
543 made the who our application. Rules view, Criminal Procedure cited no by Stukes have bearing under these circumstances.
Stukes also complains that his constitutional rights were violated at before the hearing court on June 14th regard tests treatment him given his during court confinement, precluded his from detailed pursuing cross- examination into the qualifications the examining and restricted his psychiatrists, counsel’s examination of the medical file to those of it which related portions to the question of Stukes’ to stand competency trial. The expert witnesses were their basic permitted give however. Inasmuch as has not qualifications, Stukes how court’s shown restrictions have prejudiced we find no arguments. merit these him, further that he argues was not mentally present at trial because he forced to stand If drugs. trial while under the influence that were there is no but that a new trial question would case, Alexander v. United required. 290 F. 2d States, United 272 Pledger v. F. 2d (1961); States, State v. Wash. 2d Murphy, P. (1959); 761, 355 there is no 2d 323 evidence (1960). However, at all influenced at his by drugs record that Stukes was given Major tranquilizers trial. from April 26 to 1967. days, three span no tranquilizer a minor which has librium,
Thereafter *8 effect on but re- mind, merely depressing general to Stukes in 10-milligram given was anxiety, lieves June 13th. until At that daily time, times three doses of librium given to quantity Stukes noted before, as 10-milligram per one dose day to beforе reduced was until not sworn 20th. Dr. was June The bedtime. of librium the effects for continue testified Guy apparent is thus hours. through- five or four for period indeed the entire of his (and trial his out of for days incarceration the three except, course, eon- April late and given when Stukes was thorazine was unaffected gentin), entirely by drugs, Stukes concerned. far as his confer with ability respect trial should also be noted that this, ability counsel of extеnsive experience recognized “in constant communication” admittedly com- during and never once confinement, of plained of his lack trial or in- competency stand to confer after ability with them until June 14, 1967, learned of the tests ordered they by Judge Carroll. Next, argues he was denied his to a speedy contravention Article I, §9 Constitution Commonwealth Pennsylvania and of the Amendment of Sixth the Constitution April on United arrested 1966, Statеs. Stukes was after a on preliminary was held and, hearing 4th, on and related charges rape, robbery, burglary, On Lena offenses. May 10th, Alexandroff, victim, of murder added to charge was died, The returned the murder previous charges. grand jury Stukes and two others who against indictments on Burgess participated crimes, Dessus, on Stukes’ coun- May Also May 10th, 10th. same day, lower court for an immediate petitioned sel investigator to retain an a pathоl- for leave granted. was request last ogist. on to trial brought August 22, 1966, was
Burgess an extensive After hearing, guilty. and pleaded first degree murder was, guilty found On to death. August 31, sentenced August 27th, the court petitioned leave Stukes’ whose services were investigator special retain for the preparation Stukes’ necessary alleged granted. request This defense.
545 attempted bring The Commonwealth to to Dessus September quashed on trial but the trial court 26, 1966, legal the indictment for this reasons and we affirmed on order November 1966. See Commonwealth v. 15, (1966). 423 Pa. 224 2d Dessus, A. 188 These 177, legal same existed infirmities Stakes’ in- dictment. The Commonwealth reindicted both Dessus January brought on Stakes 1967. Dessus 9, trial to before a in March on 7, 1967, guilty degree he was found of first murder and sen- began imprisonment. tenced to life on Stakes’ trial June 1967. 6, ended June 1967, 30, considering speedy
In
whether Stakes was
a
afforded
in-
trial,
must be remembered thаt “the essential
gredient
right
speedy
[of the
to
constitutional
trial]
expedition
speed.”
orderly
is
and not mere
Smith v.
(1959).
United
360 U.S.
79 Ct. 991
States,
S.
1,
guarantee
speedy
important safeguard
of a
trial “is an
prevent
prior
oppressive
undue and
incarceration
anxiety
accompany-
concern
minimize
ing public
possibilities
accusation
to limit
long delay
impair
ability
will
of an
the.
accused
large
to defend himself.
measure
However,
because
procedural safeguards provided
many
an ac-
ordinary procedures
prosecu-
cxdminal
cused,
designed
pace.
tion are
move at a deliberate
A
requirement
speed
of unreasonable
would have a dele-
upon
rights
terious effect both
of the accused and
protect
upon
ability
society
itself.” United
86 S. Ct.
120;
States v.
U.S.
776
Ewell,
773,
383
speedy
(1966).
necessarily
of a
“The
delays
depends uрon
It is consistent
relative.
rights to a
It secures
defendant.
circumstances.
public justice.”
rights
preclude
Beavers
does
(1905).
25 S.
Ct. 573,
U.S. 77, 87,
v. Haubert,
5'46
Commonwealth ex rel. DeMoss v.
Cavell,
the Peti
Pa. we (1967), *10 despite lapse trial a tioner was afforded a speedy trial. his arrest and his months between thirty-three thirty- We at “Because page approximately said 601: arrest elapsed petitioner’s three months between right that he denied his his he now claims federal and state to a trial under both the speedy In the first agree. place, constitutions. We cannot not the result of improper prosecutorial the delay co-conspirators because but rather tactics, petitioner’s the of issues complexity were tried first and because of the circum prosecution’s in the case. Under involved as unreason cannot be delay categorized stances impending knew about his petitioner able. Secondly, period entire of his incarceration trial during prejudiced if at his alleged has not how, all, delay preparation.” trial own
A the procedural chronology quick perusal reveals Common- this outlined above, case, cir- all of the considering wealth acted expeditiously, to trial. Fourteen bringing cumstances, his arrest and trial. We elapsed months between his as we did thаt “the DeMoss, supra, can say here, result of improper prosecutorial delay was rather because co-conspirators tactics but [Stukes’] because of the tried first and complexity in the case.” We prosecution’s agree issues involved the fourteen-month delay court with the lower to investigate the facts of Stukes’ permitted it them the gave opportunity thoroughly; quite the case Burgess and to Dessus, the trials to observe knowledge with what defense prepare in those trials. presented Commonwealth true that the delay course, bringing is, great anxiety him caused necessitating to trial is also treatment; quite true that psychiatric his for an immediate trial petitioned Stukes’ August May and of 1986. But in a case such as this, charged there are three each with where, defendants, possessing ind each to be tried murder, ependently,5 someone must be triеd last. The district attorney prosecutions has the discretion to schedule appropriate, no when deems abuse of that delay discretion here. that the is evident Stukes asserts prejudiced case because of the interim his unfavorable publicity referring to him “third man” of a as the argument trio of court answered this bandits; lower by saying delay caused the heat “the this publicity pass”; agree court. we lower argues prejudice
Additionally, Stukes that severe damaging testimony resulted to him at of Paula Tuchar effect and her mother, Natalie, *11 accomplice Burgess that Stukes was an Dessus, actually raped that he Natalie. molested Paula, completely testimony This not consistent with the police given to the statements of Paula and Natalie testimony shortly after nor their with occurrence, committing magistrate, nor the testi- before the with Burgess mony the trials of and Dessus. Natalie at argues an immediate if his motions for dispatch, granted trial had would have been acquitted, at that neither because time, been tided and implicated him in the Paula nor Natalie had crimes against them. committed testimony
Merely of Paula Natalie because the prejudicial to case does Stukes’ not, Tuchar was an suffered unconstitutional that Stukes mean course, any change rights. must deрrivation We assume really ready go questionable to to was. whether Stukes trial, petitioned for an immediate counsel times his trial at petitioned occasions, for also court his counsel both for on aUeged investigator assistance was whose retain an leave preparation necessary a defense. be 427, §40, P. 19 P.S. §785. of March L. Act See the testimony voluntary in the since Tuchars was change Stukes has not demonstrated that such resulted prosecutorial improper from tactics. Stukes’ very effectively cross-examined Tuchars their about evidently inconsistency, be- testimonial Certainly, not lieved accused does the witnesses. an very right have a constitutional tried at be moment when seems to be most favorable evidence he can that some demonstrate him, unless, course, impaired by the of his would be constitutional delay. arguments presses in his one or two other they
quest new and ac- for a but are meritless, cordingly them without discussion. we dismiss
Judgment affirmed. by Opinion
Concurring Mr. Justice Roberts: majority, by I in the result reached but concur accept reasoning, not of its I I much do cannot opinion. join in its accept majority’s particularly, I cannot
Most give appellant’s the failure to conclusion required by psychiatric examination as notice ex- of Criminal Procedure 304-307 was the Pa. Rules in- the examination not the fact that cused attorney. stigated by I do find that the district nothing I see in the least bit relevant, fact *12 support the the to distinction which the Rules in requested by majority the an examination between sees requested by prison psy- attorney one district majority reality, in done, the has What chiatrist. provide for mechanism the Com- a convenient to is consistently completely circumvent monwealth long requirеments Criminal Rules. As notice the attorney nothing,” makes sure he “knows the district as given majority’s under the to counsel notice need no theory. appellant’s my view, counsel could have success-
fully suppress moved the psychiatric report obtained in violation of the Criminal had chosen to Rules do so. not This, however, was utilized. strategy requested Instead, hearing received a at the psychiatrists which who testi- prepared rеport fied and cross-examined. At the conclusion of dispute counsel did not the findings testimony, but instead made their testimony of the doctors, for his that point basis Counsel at argument. argued “if court that there existed doubt any concerning mind mental the de- ability your his counsel or cooperate past fendant with his such doubt presently cooperate counsel, resolved after his tes- hearing been firmly has [this?] I that it would do think little timony. purpоse Under say.” what the doctors have me to repeat prejudiced I not see how appellant do these facts, to receive notice of the of his attorney failure I dis- although strongly examination, psychiatric I our do Criminal Rules, of the violation approve warranted in this case. reversal is that a not think F. 2d ex rel. Wax v. Pate, States Cf. United 1969). Cir. (7th v. United States Wade, that under
I believe also Ct. 1932-33 (1967), 87 S. 227-28, 388 U.S. at required psy constitutionally this is еvent type because examination chiatric there is “min at which analyzing” “scientific involving counsel’s absence . . . [appellant’s] risk imal fair trial.” to a As his right from derogate might or psycho taking psychiatric is an accused long life ex about interviewed being is or tests, logical little a lawyer there is psychiatrist, aby periences scientific. solely is point at inquiry do; can can examination also course, possible, incriminаtory statements, eliciting result *13 it' is a stage which critical neces case, counsel is Cf. v. sary. White Ct. Maryland, 373 U.S. 83 S. 1050 (1963) (preliminary stage is critical hearing where statements later used at incriminating are elieited That made therein).. not however, is claim, in this case. n I cannot accept majority’s facile statement counsel not at was examina- necessary psychiatric tion an into because in inquiry competency, appellant had to lose.” Were “nothing compe- we with a dealing at both tency hearing, which sides entitled produce their support positions, evidence psychiatric I have no- doubt that counsel should be even required, too have though “nothing the-accused would there if lose.” a result reached Obviously contrary one he has “lost” Here something. the-accused favors, The hear- hearing. there was no however, cоmpetency appellant’s accepted at which was ing held, a actuality was hearing psychiatric report, continuance. Counsel request bail appellant’s case. at that Since present hearing any under at the examination necessary psychiatric appellant I has grounds do net believe any Wade, claim either. for relief on this opinion. this joins Mr. O’Brien Justice Appellant. Williams, v. Commonwealth