Commonwealth v. TurnerCommonwealth v. Turner
- Reporters:
- , , ,
- Before:
- Chidsey
Opinion by
Mr. Justice Chidsey,The defendant, Aaron Turner, appeals from his conviction of murder in the first degree committed during the perpetration of a robbery, with sentence of death fixed by the jury. Motion for new trial was denied by the court en bane. This was defendant’s third trial for the offense. Each of two earlier trials had the same outcome, but the similar sentences imposed were successively set aside for trial errors. As to the first trial see Turner v. Pennsylvania, 338 U. S. 62, 69 S. Ct. 1352, reversing the decision of this Court reported at 358 Pa. 350, 58 A. 2d 61. For the reversal of sentence in the second trial see Commonwealth v. Turner, 367 Pa. 403, 80 A. 2d 708.
In reversing the first conviction, the Supreme Court of the United States held that an alleged confession reduced to writing and signed by Turner while in the
At the present trial, in accordance with these rulings of the United States Supreme Court and of this Court, evidence of the confession and admission above mentioned was not adduced and the Commonwealth’s case rested solely upon the testimony of a- self-confessed accomplice and the testimony of two detectives, members of the Philadelphia police force, as to an alleged statement made by the defendant while in custody but claimed by the Commonwealth to be free from any compulsion.
The Commonwealth produced evidence from which the jury could have found the following facts. In the afternoon of December-15, 1945, Frank Endres, about 63 years of- age, and Charles Simmons, about 53 years of age, were in-the Ace Broom Factory owned by Simmons and located at 353-55 North Second Street, Philadelphia. At or about five o’clock in the afternoon a police officer by the name of Monaghan who was patrolling the neighborhood to try doors and see whether they were locked, found the factory door unlocked, entered and found the bodies of Endres and Simmons lying on the floor in pools of blood. Both were unconscious and never regained consciousness. There was -blood on brooms that were, stacked- against the wall nearby. The two men were taken to the hospital-by the police.; Endres died two days later and Simmons: on December-21st.v: Dr. Wadsworth, the coroner’s physician,- who performed an-autopsy, •-testified- that. Endres - died as: a result of; a-..crushed“skullyand - Simmpns of multiple in
On May 24, 1946, the police arrested one Clarence Lofton and on June 3rd arrested the defendant Turner and one Jasper Johnson. The three were charged with the crime and jointly indicted for the murder of Endres. The three trials of Turner were on this indictment. Johnson was separately tried thereunder and convicted of murder in the first degree with sentence of death, but his conviction, upheld by this. Court, (see 365 Pa. 303, 74 A. 2d 144), was set aside by the United States Supreme Court on November 13, 1950 without opinion in an order citing its decision in the Turner case, 338 U. S. 62, supra. Lofton pleaded guilty and the lower court sentenced him to life imprisonment. Thereafter he testified as a witness for the Commonwealth in the second and third trials of Turner.
At the third trial of Turner now here for review, in order to connect him with the commission of the crime, the Commonwealth relied upon the testimony of Lofton and that of two police detectives,. Thompson‘and O’Mahoney, who testified that on June 6, 1946 they had secreted themselves in a cell adjoining that occupied by Turner, Johnson and Lofton and overheard the three men talking. Thompson .testified,.-“Turner said he had a hell of a time with the second man. He hit him pretty hard twice and blood .‘came out of his ears.”’ O’Mar honey’s testimony is as follows :..“A. The voice ! heard sounded like Jasper Johnson’s - voices Tie said :‘Hey, Tree, [Turner’s nickname was. “Treetop”] why are‘the
Defendant’s counsel objected to the admission of this testimony by the two detectives on the ground that the alleged, utterance by Turner was made during an inherently coercive period of detention, and was just as inadmissible as his written confession and the oral admission made by him at the preliminary hearing, the introduction of which at the earlier trials was condemned on appeal in the cases above cited as a denial of due process under the 14th Amendment of the Federal Constitution. The trial judge overruled the objection. The admission of this evidence is here assigned as error. We cannot agree that the inculpatory utterance by Turner, made in conversation with a friend and fellow prisoner when unaware that the conversation was being overheard, falls into the same category as the written confession and oral admission, both of which were made as the direct result of or in response to police interrogation.
The written confession, condemned by the Supreme Court of the United States, was the direct result of interrogation by relays of police officers. In our opinion declaring the oral admission made at the preliminary hearing inadmissible, we stated that “The only persons present at this hearing were the same police officers who had engaged in . . . [the] questioning, the magistrate and an assistant district attorney.”, and these officers who brought him to the hearing, took him back for the completion of his “confession”. We held under these circumstances that since the United
While Turner was questioned by the police from the time of his arrest and on June 6th when the challenged utterance was made, he repeatedly denied his guilt until late on the night of June 7th when he admitted the hilling. In other words, for a very considerable length of time after the conversation in question between Turner and Johnson, the defendant repeatedly asserted his innocence. The inculpatory utterance therefore clearly was not the result of police pressure but unquestionably a voluntary statement made in supposed secrecy to his fellow prisoner. Necessarily appellant’s argument reduces itself to the generality that all -statements made by an accused during a period of illegal detention must be excluded regardless of to whom or under what circumstances they are made. For this proposition appellant’s argument is based upon Turner v. Pennsylvania, 338 U. S. 62 and Watts v. Indiana, 338 U. S. 49. But neither of these cases in their language or implications go so far.
The gist of the United States Supreme Court decisions in the
Turner
and
Watts
cases is that a confession obtained by the police by means of mental torture cannot be used to convict the imprisoned confessor. In the
Watts
case the United States Supreme Court said: “A confession by which life becomes forfeit must be the expression of free choice. A statement to be voluntary of course need not be volunteered. But
if it is the product of sustained, pressure by the police it does not issue from, a free choice.
When a suspect speaks because he is overborne, it is immaterial whether he has been subjected to a physical or a mental ordeal. Eventual yielding to questioning under such circumstances is
Ashcraft et al. v. Tennessee,
327 U. S. 274, relied upon by appellant, is clearly distinguishable from the present case. In a previous appeal by the same defendant (322 U. S. 143) the Supreme Court outlawed the use of a confession made by the defendant in response to police interrogation, declaring it had been coercively obtained. At the second trial the condemned confession was not used but oral admissions made by the defendant while the confession was being obtained were permitted to be introduced into evidence. It ivas this error which was corrected by the United States Supreme Court in
Ashcraft v. Tennessee,
(327 U. S. 274). Mr. Justice Black stated at p. 277: “Construing our mandate as prohibiting only the admission of the written - unsigned confession, the trial judge allowed the jury to listen to testimony narrating everything else that took place during the entire 36 hours Ashcraft was questioned
with no one present hut his inquisitors
Thus in the Ashcraft as well as in the Turner and Watts cases, the Supreme Court forbade the use of confessions and admissions made in response to relentless interrogation by the police under circumstances held to be inherently coercive. These cases do not hold that no utterance is admissible if made during a period of illegal detention. Indeed our conclusion is in accord with a very recent pronouncement of the United States Supreme Court. In Gallegos v. Nebraska, 342 U. S. 55, 72 S. Ct. 141 (1951), the petitioner was held in custody without counsel or any preliminary hearing for a period of twenty-four days. During this time he gave two confessions, the first on the fifth day of detention and the second on about the thirteenth day of detention. The Supreme Court held that both confessions were admissible because it was not satisfactorily shown that they were the products of coercion. It is noteworthy that Turner did not claim in his own testimony that the alleged statement was made by him under fear or compulsion, but he denied that he ever made the utterance. We are of the opinion that its admission into evidence did not violate his constitutional rights.
The second contention of appellant is also referable to this testimony. It concerns the trial judge’s charge. The court charged: “You will consider with caution all the evidence surrounding this alleged occurrence. If you find they [the detectives] could not hear any remarks made by the defendant, or that they did not correctly testify as to what they heard him say, or that you do not believe them, or that they were activated by malice, you may completely ignore their testimony.” Counsel for the defendant submitted the following point for charge which was refused: “What you have heard here from the detectives about the supposed statement
We are confronted with a serious question again arising out of the testimony given by the two detectives with respect to the alleged utterance by the defendant. Without this alleged damaging statement by the defendant, the Commonwealth’s case rested solely on the uncorroborated testimony of Lofton, a self-confessed accomplice. If Turner made the .statement, it had crucial bearing not only on his guilt or innocence, but if found guilty, on the punishment to be fixed by the jury — life imprisonment or death. Thus the credibility of the two detectives was a matter of very great, if not paramount importance. The defendant denied that he made the statement, and he was entitled to employ every legal means for testing the credibility of
The practice of excluding a, witness from the court rootu in order to prevent, .the. shaping of his testimony to correspond with that, given earlier in the trial and to detect false testimony.has.long existed. -.In discussing the subject of sequestration: of witnesses, Wig-more,
We can conceive of no case more appropriate or compelling for the sequestration of witnesses than that under the facts and circumstances here presented. Nothing could have been more telling against the defendant than the alleged statement by him that he had to hit one of the men who were killed a second time and so hard that the blood came out of his ears. That he made such a statement depended entirely upon the testimony of the two detectives. No legal test of their credibility should have been denied. An examination of the record reveals that the testimony of O’Mahoney, who succeeded Thompson to the stand, was a repetition of the latter’s testimony in all essential details. It may be said that the harmony in their testimony supported their veracity. If their testimony had been the same if given by each in the absence of the other, this conclusion would be fortified. On the other hand, if, as suggested, they had combined to manufacture testimony to take the place of the excluded confession, the refusal of their sequestration deprived the defendant of, as Wigmore terms it, “. . . one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.” We are not passing upon the truthfulness or accuracy of the testimony of the two
In holding, as we do, that a proper exercise of discretion by the trial judge required the sequestration specifically requested in this case and that the refusal of the request was reversible error, our ruling is not to be construed as making a generic change in the established practice in this Commonwealth of permitting the presence in the court room of prospective witnesses. In this connection the court below properly refused the blanket request of counsel to exclude all witnesses made before the trial without assigning any reason for such general exclusion. A request for sequestration of a witness or witnesses should be specific and be supported by some reason.
The next error alleged is the trial judge’s refusal to permit counsel for Turner to show by the court stenographer at Lofton’s trial on a guilty plea that the district attorney there said that Lofton had assisted the police in solving other murders and that it was the recommendation of the district attorney that life imprisonment be the penalty rather than death. On cross-examination of Lofton the following questions were asked him: “Q. Do you remember Mr. McClain,
Again the importance of the credibility of another vital witness makes this ruling error and we conclude that the error was not harmless as the Commonwealth contends. Lofton’s testimony was necessary for a conviction. Counsel for Turner was entitled to impeach his veracity by this means. The evidence also was admissible to show that Lofton was biased. The fact that the district attorney recommended in Lofton’s presence that he be given a life sentence was certainly relevant evidence from which the jury could infer that Lofton was biased and testified against Turner because of this recommendation or because of hope of future favors, albeit the district attorney never promised or intimated such favors.
However, since this ease must be retried, we are compelled to point out that it was erroneous for the trial judge to charge that the jury could consider the evidence relating to the death of Simmons
in its determination of tohether the penalty should he life inprisonment or death.
The refusal of the point for charge magnified this error. This question is ruled in principle by the case of
Commonwealth v. John Jones,
355 Pa. 594, 50 A. 2d 342, where this Court, in accordance with previous decisions, held that evidence of arrests for prior crimes without convictions was not admissible. It was there said by Chief Justice Drew, p. 597, “It is well settled that evidence in proper form of prior convictions of crime is admissible in homicide cases, for the sole purpose of aiding the jury in determining the penalty to be inflicted if it finds the accused guilty of murder in the first degree, where the accused is an habitual criminal of the type who kills for mercenary
The Act of May 14, 1925, P. L. 759, as interpreted by this Court allows evidence of prior convictions so that
. .
the jury may have before it the past deeds of the accused that it may be fully advised of his nature and deserts when it fixes the penalty. . .”:
Commonwealth v.
Kurutz, 312 Pa. 343, 168 A. 28;
Commonwealth v.
Dague, 302 Pa. 13, 152 A. 839. But prior convictions and admissions or confessions are only admitted on the question of penalty because they are relevant as proof of acts
committed by the accused.
Thus in order for the testimony regarding Simmons to be relevant on the question of penalty, the jury would
The Commonwealth relies upon Commonwealth v. Petrillo, 338 Pa. 65, 12 A. 2d 317, and Commonwealth v. Ferrigan, 44 Pa. 386. In neither of these cases was the question of the right of the jury to consider evidence of another crime for the purpose of fixing the penally considered. The question involved in those cases was whether evidence of other crimes was admissible to prove motive for murder.
Matter dehors the record may indicate the defendant’s guilt of this shocking crime, but our review is
The judgment is reversed and a venire facias de novo is awarded.
Mr. Justice Allen M. Steabne and Mr. Justice Bell dissent.
Notes
The concurring opinion of Mr. Justice Douglas in Watts v. Indiana, supra, p. 57, is the only indication of support for’ appellant’s viewpoint, for Mr. Justice Douglas there says, “We should unequivocally condemn the procedure and stand ready to outlaw, as we did in Malinski v. People of State of New York, 324 U. S. 401, 65 S. Ct. 781, 89 L. Ed. 1029, and Haley v. State of Ohio, 332 U. S. 596, 68 S. Ct. 302, 92 L. Ed. 224, any confession obtained during the period of the unlawful detention.” The dissenting opinion of Mr. Justice Jackson in the same case shows that Mr. Justice Douglas stands alone in this conclusion, for Mr. Justice Jackson there says, p. 58, “[The] concurring opinion, however, goes to the very limit and seems to declare for outlawing any confession, however freely given, if obtained during a period of custody between arrest and arraignment- — which, in practice, means all of them.” We are thus strengthened in our opinion that the majority decision of the Supreme Court of the United States in Watts v. Indiana not only fails to support- the position taken by the appellant here, but in its implications militates against such position.
In attacking their authenticity counsel for the defendant points to the circumstance that in the first trial of Turner when the Commonwealth pressed for a verdict of first degree murder with the death penalty, neither of these men, both of whom testified at that trial, mentioned this damning statement and that neither of them made reports of this alleged incident, which would have constituted an important “break” in the case, to their superiors in charge of the investigation of the crime.- While they testified that when they overheard the- statement alleged to have .been made by Turner, Lofton and Johnson were in the same cell with Turner, Lofton who.di.d not hear Thompson and O’Mahoney oil the stand, denied that‘He was ever in á cell with anyone during the period of his custody. ’ - ‘‘’ ’
The question of whether prior convictions should he admitted, as a matter of policy, during the trial of a first degree murder case has been the subject of great discussion: Commonwealth v. DePofi, 362 Pa. 229, 66 A. 2d 649; Wigmore on Evidence, 3rd Edition, Vol. I, § 194(b).
In the Johnson case (365 Pa. 303, supra), Johnson’s confession which was admitted into evidence, contained an account of what happened inside the factory while the robbery was being committed. In the present case, to the record of which our consideration is limited, there is no such evidence. The testimony of the accomplice Lofton who claimed to have remained outside as a lookout, revealed nothing as to what occurred inside the factory. Johnson could have struck and incapacitated one of the assaulted men and Turner disposed of the other. Turner’s statement, alleged to have been overheard by the two detectives, does not definitely identify “the second man” that he had to hit twice. Whether Johnson or Turner inflicted the fatal injuries upon the two victims or either of them would be immaterial in sustaining a conviction of both Johnson and Turner of murder in the perpetration of robbery, but it cannot be said with certainty that the permitted assumption by the jury that Turner not only killed Endres but Simmons as well, played no part in their fixing the death penalty.