*1 among ju- information came improper extraneous and To of two activity. criminal wit rumors prior rors as Ray- as to jurisdiction in another charges murder pending miscon- general allegations of criminal mond Williams Williams, Id., Raymond Williams. as to Ronald duct for that a life to the trial court those reasons we remanded present here at imposed, sentence be counsel was not available. We hearings because his those altered our that his would have presence do not believe or sentencing hearing, whether both belief that under those either, changed our view that would have a death was not sustainable. penalty circumstances Justice, in the STOUT, participate former did not case. of this decision PAPADAKOS, J.,
NIX, C.J., and concur result. A.2d 719 Pennsylvania, Appellee,
COMMONWEALTH
v. WALLACE, Jr., Appellant. William Pennsylvania. Supreme Court Argued March 5, 1989. July Decided *5 302 O. (court-appointed), Washington,
Thomas Vreeland appellant. Pettit,
John Makel, C. Dist. Dennis M. Asst. Atty., Dist. Washington, for Atty., appellee. NIX, C.J., LARSEN, FLAHERTY,
Before McDERMOTT, ZAPPALA, STOUT, PAPADAKOS JJ.
OPINION McDERMOTT, Justice *.
A Wallace, Jr., found the appellant, William guilty degree,1 murder in first murder in degree,2 the second robbery,3 conspiracy and criminal to commit robbery and criminal homicide.4 After deliberation, further that same jury rendered a verdict of for the death first murder degree Post conviction.5 trial motions were the judg- denied and 14,1987. ment of on April sentence was entered A consecu- * reassigned This case was to this writer. Pa.C.S., 2501; 2502(a).
1. §§ Pa.C.S., 2501; 2502(b).
2. 18 §§ Pa.C.S., §
3. 18 3701. Pa.C.S.,
4. § 903. Pa.C.S.,
5. 42 § for the imposed on the of life was tive sentence *6 A concurrent sentence murder conviction. degree second the conviction. conspiracy entered on years to ten five merged the the second robbery conviction was The on imposed and no sentence was murder conviction degree judgment the directly appeals Appellant that conviction. sentence.6 17, on began August rise to this action giving
The events P.M., holding men 5:20 two approximately when at in running from Carl’s Cleaners handguns, were observed Mo- Washington County, Pennsylvania. Cannonsburg, Cleaners, Luisi, later, Sr., owner of Carl’s the ments Carl (15) of Mr. year employee a fifteen old Spalla, and Tina had Luisi, on the floor of the store. Both lying were found twice, Luisi, Sr., once in the shot been shot. Carl been once, Tina was shot Spalla, stomach and in the once back. died, for stolen through $227.05 the heart. Both a sum day. phone by call was received the Cannons- anonymous An plate a licence burg Department provided which Police leaving of a seen the crime. description and vehicle number confirming gave other witnesses statements Several upon in the Based presence of the same vehicle area. information, Cannonsburg Department Police issued a look for the vehicle. police departments to other bulletin Wheeling, Virgi- August 20, 1979, of the West On members and nia, question Police located the Department, vehicle out, A appellant. arrested the second following stake Brown, the Henry later identified as owner individual vehicle, police. Brown was but eluded observed subsequently eventually plead guilty and arrested charges stemming robbery-murder. from the trial represents appellant’s jury
This
third
appeal
murder,
and
charges
degree
robbery,
of first and second
mur-
stemming
robbery
from the
conspiracy
criminal
in a
due to the jury’s
ders. The
trial resulted
mistrial
first
in the
The second trial resulted
inability to reach verdict.
702(b).
Pa.C.S.,
722(4); 9711(h)(1).
§
Pa.R.A.P.
6. See
§§
jury convicting
of murder
degree
first
for the death
Spalla,
degree
of Tina
murder in the second
Sr.,
Luisi,
for the death of Carl
robbery
criminal con-
spiracy.
jury
sentenced the
death
degree
first
murder conviction. Subsequently we reversed
jury’s
verdict and ordered a new trial. Common-
Wallace,
(1983).
v.
wealth
Pa.
Anita appellant handgun and a .38 caliber Brown owned she she testified that handgun. Further owned a .32 caliber morning appellant Brown and the was with both time, guns had their 1979, they at and that August wearing his trench- them and together day left testified that the two coat. She also not see either until car and that she did Brown’s evening of August returned on it was significant because Ms. Johnson’s died that both victims through earlier established gun a .32 caliber and the being a result of shot with day of on the of dress description who Abernathy, pathologist L. murders. Dr. Ernst victims, that on autopsies of the testified performed from the 18, 1979, slugs he removed two bullet August of Ms. body Spalla Luisi and one from the body of Mr. Bivens, Pennsyl- Trooper them over to that he turned present he was Bivens testified Trooper vania State Police. autopsies were when performed when the removed, over to him were turned slugs they bullet were *8 Police Greensburg them to the State and that he took of the (Crime) Daryl Mayfield Laboratory.9 Trooper (Crime) was ad- Greensburg Laboratory, Police who State he ballistics, received expert as testified that mitted an examining from Bivens and after slugs Trooper three bullet slugs and each, to .32 bullet determined all three be caliber gun. Fur- fired from the same that all three were further into evi- handgun was introduced thermore a .38 caliber as Brown’s. dence, by and identified Ms. Johnson N.T., Trial, appellant’s trial. Third 8. trenchcoat was introduced at p. 575-79. finger Trooper that he removed Brown’s 9. Bivens had also testified register Carl’s Cleaners. prints from the cash doubts the have Any jury may guilt had of the were, believed, if appellant removed witnesses, last two Commonwealth and Clay Brown Olen Gorby. testified that 1:00 P.M. August around on 17, 1979, he appellant and the left Wheeling, Virginia, West in his car and Pittsburgh. headed towards He testified that way they spotted an exit for Cannonsburg and took it they so could “make a couple extra dollars.” He testified he had a .38 handgun caliber and the appellant had a .32 handgun appellant caliber and that the wearing a beige trenchcoat. He then testified that once inside Cannons- burg, they spotted a cleaners and after it circling seeing only girl working, they one to park go decided in. He upon testified that entering they asked for a price list and when the bent girl pulled down out they guns. their He stated further that the appellant went into the back to make one sure no else was there. He testified that he while emptying register gun cash he heard a shot and back, he when looked he saw an old holding man stomach and then the appellant back, saw shoot him in the N.T., “before he hit ground.” Trial, could Third p. 613. He back, said that then appellant came asked him to girl testified, shot the he and that refused. He then refer- ring appellant, hesitate, “at that he point didn’t he N.T., Trial, just shot — ” Third p. 614. He testified they cleaners, then left the Brown first and the appellant follow- ing, they and that guns still their out about way half down the put street before them they away. Clay Gorby
Olen testified that he was incarcerated with appellant Washington during County Jail time, summer 1980 and that at that he had known the appellant for approximately seven He years. stated that he during conversation had with the appellant while both incarcerated, were the appellant admitted that he robbed Carl’s Cleaners and that Further, he shot Mr. Luisi.10 Gorby during appellant also trying stated the trial that the gun had been get Gorby smuggle prison into the so that the escape could and kill Brown and that the said he wanted to Brown, kill Brown because he "when killed he said all the evidence *9 he told Brown to said appellant Gorby testified refused, he did. and when Spalla shoot Ms. believed, sufficiently if estab- presented The evidence fact, room for left no guilt and appellant’s lished the evi- accepted by jury, doubt, the credibilities in mind we address overwhelming. With this dence claims error. specific appellant’s in denying is the trial court erred The first claim error a upon commonwealth his motion for a mistrial based appel- inference of the raised an witness’ which asked prosecution record. At trial the past lant’s criminal Wallace” did meet the defendant you Olen Gorby, “where Virginia him in Peniten- replied, “I met the West Gorby and Trial, N.T., The defense p. Third 722-23. tiary, 1973.” motion mistrial.11 The appellant’s and moved for a objected offer the trial by judge refused an appellant was denied an instruction claiming instruction that give cautionary a N.T., Third him. prejudice serve to further only would Trial, p. 738-749.12 highly preju-
Appellant claims past of unrelated it created an inference dicial because highlighted an over- it was criminal acts and because prosecution night recess after introduction. directly it to demonstrate argues merely attempting that was appel- and the relationship the witness there was between lant, confide appellant to establish that would argues that the state- prosecution Further the witness. criminal act specific past ment did not relate to statement, approximately the time of the 90% at been The trial presented. evidence had commonwealth’s of the inference was uninten- ruled that the creation judge NX, dead, charges.” worry about the be he wouldn’t have would Trial, p. 759. Third testified. 11. The never position he no in his brief that took asserts
12. While given, cautionary it is from should be clear whether a instruction NX, they fact refuse the trial court’s offer. the record that did in Trial, p. Third 738-39. *10 308 part
tional
the
the prosecution and that it did not
N.T.,
Trial,
the
exploit
statement.
Third
p. Morris,
In Commonwealth v.
513 Pa.
As general a evidence crimes unrelated to the charge tried, for which the being defendant is is inadmis- is per sible.....There no se rule requires that a new trial for every a defendant time there is a reference to prior activity.....“We criminal have never ascribed to the that view all improper prior reference to criminal necessarily activities require the award of a new trial as ____Further only the remedy.” effective the reference to the criminal prior activity must prejudicial be to the defendant, prejudice resulting “where the testimony conveys to the jury, either or expressly by reasonable implication, prior fact of a criminal offense.” it However is possible possible to eradicate any preju- resulting dice from reference to prior criminal activity by defendant____ An immediate curative instruction to jury may any alleviate harm to the defendant that results from prior reference to criminal conduct. Id., 175-76, 513 (Citations Pa. at at A.2d 376-77. omitted).
This is not a involving situation an exception to the general rule nor is there any doubt the testimony an created inference to appellant been involved in prior criminal do activity. However we not believe that a new trial is warranted under the circumstanc present es here. in Morris, As we said per there is no se rule that requires a new trial for every a defendant time there a to prior case, reference criminal activity. this did not relate to any specific past criminal act while the might inferentially exposed have a conviction, prior the jury had no direct knowledge basis light conviction. In of the overwhelming and presented uncontroverted evidence establishing appellant’s incar- appellant’s prior to the improper reference guilt, at harmless most.13 ceration was alternative, asserts
The instruction. cautionary a giving erred not judge trial give a caution court offered to that the trial record reveals failed and that counsel for instruction ary given. one should be on whether or not take stand made when objection that no the record reveals Further forthcoming. argu This instruction was cautionary Pierce, v. Commonwealth been waived. See ment has *11 (1987); ex rel. Wash 153, A.2d 973 Commonwealth Pa. 527 349, 599, 644, 235 A.2d 352 427 Maroney, Pa. v. ington (1969).14 trial court of error
The second claim trial
six
statement made
page signed
excluded a
improperly
asserts that the
police.15
Anita Johnson
against
evidence
impeachment
was admissible as
statement
thus,
or
evidence
Ms. Johnson
substantive
In
Ms.
al
innocence.
the statement
Johnson
appellant’s
to her
on
that Brown returned
leged
Sunday night
her
Ms.
Ms. John
Spalla.
Brown told
he shot
apartment,
23, 1979, six
August
police
statement was made to
son’s
398,
381, 405,
Terry,
410
521 A.2d
See
v.
513 Pa.
13.
Commonwealth
(1987).
(Improper
is cumulative of
admission of evidence which
is not reversible
properly
evidence and is uncontroverted
admitted
391, 411,
error.);
Story, 476
A.2d
quoting, Commonwealth v.
Pa.
383
155,
(1978).
166-67
punish-
capital
the rules of waiver are somewhat relaxed
14. While
cases,
analysis
apply
to a
we still
an ineffective assistance
ment
16,
Zettlemoyer, 500
this.
v.
Pa.
such as
See Commonwealth
situation
607,
(1982);
Logan,
Pa.
549 A.2d
Commonwealth v.
In addition to the summarized testimony referred to above, Ms. Johnson testified that she first heard about the robbery and murders on Monday morning, however when her, cross-examined about what Brown had told she changed testimony her by stating night that on the 20, 1979, August when Brown returned to her apartment, he handling gun in front of her and that he “something N.T., mentioned something.” about Third Tri al, p. 573-74. The claims that Ms. Johnson’s trial testimony is inconsistent with the statement she made to police and the statement impeachment was admissible as evidence. need not We address the underlying issue of whether Ms. Johnson’s statement was admissible we find that its exclusion was at harmless error best.
Johnson’s was a recitation what she knew of her own knowledge and observation. What she offered was circumstantial evidence. Her a direct *12 In inculpation appellant. of the reviewing the evidence it in necessary keep mind that at this trial the defen- only dant was this appellant. Brown What told Johnson was therefore hearsay against evidence this and therefore not admissible by whoever would offer it. Cer- what tainly Brown told her could not be to inculpate used and nothing that told her Brown was told to the jury. Were the statement allowed it not only would inculpated have Wallace and Brown this murder and robbery fraught but was with other crimes that would not be against admissible the appellant. Hence her testimony was carefully evidence, restricted circumstantial and not the inculpation direct contained in alleged Brown’s statement to turn, her. The however, statement takes a different where to impeach uses are Brown. Brown He at trial. said himself and Wallace directly inculpate did if asked He could be victims. of course shot both Wallace In was. answer and he something different before he said ever said to no, that he finally denying yes said he both girl. he that shot Johnson he told John- examination whether asked on direct When I said, may “I have but don’t girl he shot the Brown son Trial, cross N.T., p. Third On it.” saying remember he John- that told he and denied examination both admitted Brown, attorney asked appellant’s he girl. son shot the replied: girl?” little and he you shot the “You told [her] something her to No, minute, I say did Yes. wait wheth- effect, exactly I don’t remember but didn’t—I Ier did or not. addition, ques-
N.T., Trial, was p. 703. Third running Ms. attorney about Johnson’s by appellant’s tioned he and Wallace Spalla shot Ms. bragging around about how Luisi, it maintained that was shot Mr. but Brown still Trial, N.T., Third committed the murders. See who Wallace his credibili- the issue was p. 705-06. Thus before later denial both admission and view of his earlier ty, did, it. denying he told Johnson he affirming that slugs error is that the bullet The third claim of admitted be improperly from the victims were removed and there authenticity question was a their cause there custody. alleges He as to the chain of no as to question there was prejudicial this because victims, died as the result Spalla, of the Tina one whether record However the caliber bullet wound. a .38 or .32 established, foundation had been proper after a reveals that (Crime) Police Greensburg State Trooper Mayfield slugs removed that all three bullet Laboratory testified .32 from the same caliber were fired from the victims of the bullets was the admission handgun. Therefore *13 in of the court custody slugs The had been error. bullet foundation had proper in 1981 when first trial since the authenticated. custody their was been laid. Thus 312
The fourth
of
claim error is that the trial court
erred in
allowing
testimony of
The appellant
Brown.
asserts
Brown’s prosecu
that
was coerced
tion,
right
process,
thus his
to
due
under
fifth and
Constitution,
fourteenth amendments to the United States
were violated.
he claims
Brown’s
Specifically
testimo
ny
321,
and,
was obtained
violation of Rules
1410
1501
1507,
thru
Procedure,
Rules of
Pennsylvania
Criminal
govern guilty
post-conviction
which
pleas, sentencing and
(P.C.H.A.).16
relief under the Post
Hearing
Conviction
Act
allege
The
does
appellant
lied.
witness
The
record
aspect
bargain
reveals
every
between
the prosecution
presented
Brown and
to the jury in
painstaking detail and
nothing
was hidden from their
Thus the
scrutiny.
admission
Brown’s
harmless. Further the
standing
lacks
chal
See Commonwealth
lenge
guilty plea
bargain.
or plea
Howard,
v.
259,
(1986).
358 Pa.Super.
The fifth claim error
is that
trial judge
erred in refusing appellant’s request for a non-jury trial.
The appellant asserts that he had an
right
absolute
to a
regardless
trial
non-jury
disagree.
of motivation. We
right
has
constitutional
by jury
trial
and he
right
has a
legal
waive a
trial and have the case
Wharton,
decided by judge.
Commonwealth v.
495 Pa.
581,
Sorrell,
v.
(1981);
158
Commonwealth
435 A.2d
500
355,
(1982);
Pa.
A.2d
Adams v. United States ex
456
1326
McCann,
rel.
278-280,
269,
236, 241-242,
317 U.S.
63 S.Ct.
(1942).
addition,
313 Sorrell, (Having at A.2d 1329 500 Pa. at ping”); to the accused’s criminal record exposure determined that finder, court’s as a fact potentially impartiality would taint trial); Mu- request for properly non-jury the court denied Publications, Inc. v. Common Pleas nicipal Court of of 194, 202, 489 507 Pa. A.2d Philadelphia County, (1985) condemned and (Judge shopping universally has been tolerated). appellant’s The trial the not denied judge will be to finding appellant merely attempting motion the was himself not truly have the recuse and that he was judge right by findings trial These are waiving jury. his to the trial denied supported by judge properly record the motion.17 appellant’s sixth of error is that the erred judge
The claim trial denying appellant’s request to call witnesses to two behalf, the testify specifically on his Jon Stevens and trial to Stevens’ appellant sought himself. The introduce judge testimony. trial The to bolster another witness’ testimony testimony ruled the irrelevant the judge trial was because The was trial credibility challenged.18 other never witness’ by is record. Therefore we ruling supported the judge’s no find abuse discretion. testimony trial also held that his was judge
The judge’s testimony The that the irrelevant. asserts waiving right judge not to The found that the was trial 17. indirectly judge jury merely attempting but force trial judge presided over two This trial the defendant’s recuse himself. previous appellant complained that he did Furthermore trials. judge impartial trial the trial would conduct an because not feel that of the trial Non-Jury Request prior Transcript judge’s involvement. See for Trial, 1, 1985, p. judge properly Thus the October 28. trial request. denied the ruling Appellant was contra- also contends that the trial court’s dictory ruling prosecution an which allowed a witness earlier Trooper testify. Specifically court from the trial allowed finding finger register. print Brown’s on the cash While Bivens about testimony, agree Brown’s it also we that this corroborated importantly charge conspiracy but more served to establish credibility ruling contradictory judge’s was since the by Trooper Bivens’ challenged appellant. testi- was Furthermore Mayfield’s necessary lay Trooper mony foundation was testimony. of Brown prior guilty plea relevant to show of Brown. credibility attack thereby valid and arrangement motion denied the because judge trial fully had already and Brown been prosecution between ruling supported by This jury. to the explained of discretion.19 find no abuse record we the trial judge of error is that The seventh claim highlighting the closing remarks misled the the *15 to failing records and by criminal past defense witnesses’ witnesses, prej thus prosecution attention to give the same con Appellant him a fair trial. denying him and udicing criminal of the witnesses’ jury that the was aware cedes in his remarks judge’s that the bias argues records but judge emphasized The trial his case. prejudice served appellant as the of the defense witnesses the convictions the record N.T., Trial, 952. However p. Third complains. charged jury the properly the trial judge reflects that in fact testimony and went unreliability of Brown’s that the should view by stating jury necessary further than corrupt polluted from and coming as testimony Brown’s and it with care accept only should they source and that Trial, In addition N.T., pp. Third 952-953. caution. assert, that appellant reflect nor does the record does not regard to this issue. charge any special he requested insufficient is that evidence was claim of error eighth demurrer to the denying in trial court erred and thus the asserts appellant this claim the support In evidence. Pleas, which denied opinion of the Court of Common In the motions, that the post the court states appellant's trial testify days trial. However judge nine into the requested the record reflects the trial appellant originally the trial informed that the jury judge after the on the eve trial judge intent to call the of his sworn. picked was was but before to disclose the reason pretrial request refused In his judge necessary except it was since request to state that for his pled guilty. Brown had proceeding in which presided over the 1980 holding request that the appellant’s pretrial judge denied The trial judge attempt merely making to have the another was defendant recuse himself establish a relevant appellant needed to and that if the through the tran- proceeding, could be done relating it point to that light ruling proper of the scripts proceeding. This of that attempt "judge shop.” prior defendant’s
315 guilt was Brown’s direct evidence only that the other admitted and not have that it should been conviction. We to sustain his insufficient evidence was claim that appellant’s addressed previously have concluded admitted improperly Brown’s addressed we have Furthermore without merit. it be it found that and have was sufficient the evidence whether was. of the issues above, neither to the addition error, appeal- are of trial assertion appellant’s
raised
demurrer to
appellant’s
The trial court’s denial
able.
a case
presented
since he
not appealable
evidence
17, 422
Sourbeer, 492 Pa.
v.
defense. See Commonwealth
466 Pa.
(1980);
v. Ilgenfritz,
A.2d
Commonwealth
weight
(1976).
challenge
A
Lastly, all to review the statute obligated by are imposed, we been is not the death sentence: assure that the and to record arbitrary other any or prejudice passion, product 316 circum aggravating
factor;20
finding
a
supported by
(d);21 and is not excessive or
specified
stances
subsection
in similar
imposed
the penalty
disproportionate
cases____22
Frey,
v.
pursuant
Further
Commonwealth
700,
(1984),
denied
428, 443,
A.2d
707-08
cert.
Pa.
475
(1984),
360,
we are
Based the sentences. and affirm tions in which ZAPPALA, J., dissenting opinion files NIX, C.J., joins. in the Justice, participate did not
STOUT, Former case. of this decision
ZAPPALA, Justice, dissenting. argument Appellant’s I
I dissent because believe *17 Brown to Henry in permitting court erred that the trial error, allegation This has merit. as a witness testify Pa.C.S.A., 9711(h)(3)(i). § 20. 42 Pa.C.S.A., l(h)(3)(ii). §
21. 42 Pa.C.S.A., 9711(h)(3)(iii). §
22. 42 in securing is conduct upon prosecutor’s which based testimony, requires lengthy witness’ examination at precipitated appearance Brown’s trial. the events which he Henry day The was with Brown on was Appellant however, fled and suc- police, arrested. Brown from in another cessfully eluded them until he was arrested 23, 1980, gave On he a statement to law January state. as the one identifying Appellant enforcement officers shot who the victim. to counts of murder guilty plea
Brown entered a two of this and result incident degree robbery the second 24, time entered his plea, on October 1980. At the he counsel, retained Paul represented by privately Brown was Judge Bell, Gettleman, by The was Esquire. plea accepted life Brown to two concurrent sentences. who sentenced The entered Brown on October guilty plea by The offered plea guilty plea not the first offered. first made a time when he January, Brown was at by represented counsel other than Paul Gettleman. During cross-examination, questioned counsel Appellant’s read the extensively plea about the and follow- first ing portions transcript plea from the first excerpted Judge Bell: proceeding before I from
Q. transcript your am to read to going you Brown, you Mr. and I want to tell guilty plea, first Judge or is me not this is correct. whether examining Judge Judge is the same you and here, Bell, he you Judge is sitting says next bargain, he you, says, respect your plea he also, will says, required you, testify you “And if Wallace], is that against Tippy Wallace [William Question “yes.” correct?” —“And Answer — I plea bargain, is assume.” Answer— part of Question anything you there “Yes.” —“Now concerning tell offense or these would like to me this I understand is Answer—“What don’t offenses?” going this all to be verbal or is this to be all—is going Question myself?” prosecutor this between *18 was, understand, is this —“The he wants question something writing or do here. you all verbal want here, see, the you It is but as can Court verbal word, and Stenographer taking is this down word transcribed, me, I it that will all be believe have is, down here what it and it is transcribed written if I say, go along oath of And as I you. there under be; that it will if I plea bargain, this what with are along plea bargain, you then go don’t with you you started from. Do under- right back where Likewise, however, if you go along stand? don’t here, anything right we are back where we with from. understand?” you started Do Answer— Question any question you “Yes.” there other —“Is if I Question have?” ac- Answer —“No.” —“Now I further cept plea bargain, go will into detail and also your appellate rights you your about given opportunity counsel will be at the time of Do understand sentencing say anything. you Now, Brown, that?” Answer —“Yeah.” Mr. were time, confused at didn’t understand you you going what on?
A. At that time, no.
Q. you you At that time weren’t confused. Now with- you? didn’t plea bargain,
drew that Yes. A.
Q. plea bargain July And you withdrew correct? Yes, my lawyer, yes.
A. on advice of added). (N.T. 656-658) pp. (Emphasis 1980. Brown’s plea July The first was withdrawn at first that his reason for withdrawal testimony suggested that he felt he should not have to serve plea of that limited imprisonment of life because of his involve- sentence from poor ment in the murders and was due also advice of the tran- excerpted portions counsel. But the his first read into the guilty plea script withdrawal counsel on cross-examination reveal by Appellant’s record plea not proceed that the Commonwealth would attorney first advised the bargain because Brown’s testify against would Commonwealth (N.T. 668-664). Due to Brown’s refusal to Appellant. pp. the Commonwealth’s testify, attorney the district withdrew bargain. attorney then agreement plea district *19 with the criminal informa- proceed indicated that he would charge the of first penalty seek the death on tions and degree murder.
Five the date which Brown years elapsed between date on the third trial of plea his the which guilty entered trial, of Appellant’s the commenced. On the eve Appellant however, guilty plea to withdraw his permitted Brown was with the Common- plea bargain and entered into another yet against for the exchange Appel- wealth. his lant, his guilty plea Brown was allowed withdraw degree to third degree plea second murder and enter a murder. prosecutor’s
The the conduct Appellant asserts improper, at trial necessi- obtaining Brown’s was agree. I tating grant trial. the of new would plea permitted The of was guilty withdrawal Brown’s the presentation petition alleging of a ineffectiveness upon during representation Paul his of counsel Gettleman petition The was plea Brown at the time the was entered. himself, his alleging Gettleman own presented by Paul filed under the petition, ostensibly ineffectiveness. The (PCHA), 42 9541- Hearing Act Pa.C.S. Post-Conviction §§ attorney, by prosecuting who unopposed was permitted to conceded that Brown should be with- eagerly petition. cited in the guilty the reasons plea draw his transcript proceedings of the PCHA was Although trial, this discussions into record at incorporated proceeding revealed that the held in chambers with counsel one of an adversarial nature between ordinary was not Atypically, pro- the Commonwealth and defendant. Paul Gettle- representations by counsel ceeding consisted in advising during ineffective Brown man that he had been earlier, his years five guilty plea proceedings trial, if and that Brown merit a new ineffectiveness would plea, the new guilty to withdraw permitted would be the Commonwealth contemplated by plea arrangement Because the Common- recommended to Brown. would be request for withdrawal agreed that Brown’s wealth would petition the vehicle of the PCHA plea through guilty Wallace, no against if testify Brown would opposed not be In- itself. petition held on the merits of the hearing was entered into agreement stead, a stipulation written permitting of Brown and the Commonwealth on behalf plea to be withdrawn. guise no more than a filing petition of the PCHA by had fallen bargain which striking plea
for the earlier, co-op- failure to due to Brown’s years five wayside incar- Brown’s Apparently, erate with the Commonwealth. reflect on the him given ample opportunity ceration a bur- Appellant. Persuaded protecting wisdom that his testi- recognized injustice, sense of geoning *20 in the third trial would enable the mony against Appellant him earlier. The offered to salvage bargain him the to seized the moment well. prosecutor trial, counsel to objected defense From the outset of the un- testimony because introduction of Brown’s the Although it. defense to obtain employed usual procedure prosecuting and the that Paul Gettleman counsel was aware Court of Washington County had before attorney appeared present to Thomas Gladden Judge Pleas President Common middle of it not until the petition, the so-called PCHA given counsel was even trial that defense the Appellant’s On October copy petition.1 to a of access still upon, ruled but it was and presented had petition been record. public a matter of not Judge apparently presented Bell due petition to was not 1. The PCHA prior Appellant had indicated for the that defense counsel to the fact Judge Bell as a witness Appellant to call wished to trial that by would file a guilty plea entered Brown and regarding earlier Judge did not Judge reason. Bell request Bell for that for recusal of unnecessary. district The testify recusal was determined that and petition to present Judge his intention to attorney Bell of advised Judge President Gladden. counsel indicated testimony, to defense Prior Brown’s docketed, not PCHA had been again petition once peti- acceptance of Judge Gladden’s despite President agreement had copy plea No plea bargain. tion and counsel, repeated despite to provided defense yet been having attorney admitted prosecuting The requests. four at that original petition copies and possession no he had felt obli- time, stated that disingenuously but judge file not file the documents. trial gation to or defense attorney provide prosecuting to instruct documents. copy counsel with a forth in the record plea bargain The terms of the were set on cross-examination Brown: by defense counsel Brown, signed you Mr. this the document that Q. Agreement, is that correct? it is known as Plea Yes. A. of Pennsylvania This is in the case of Commonwealth
Q. Brown, is that correct? Henry Eugene versus Yes. A. one, it “In for his says, return
Q. Paragraph Wallace, charged his co-defendant against William homicide, robbery criminal counts of two to the agrees the Commonwealth conspiracy, criminal agrees the Commonwealth contest following: Hearing Henry Act filed Eu- the Post-Conviction Brown, he gene requests wherein withdraw guilty plea.” filed Mr. Brown? yet, you, You have
Q. haven’t it, yes. I This is A. Not that know of. filed, this it’s been
Q. agreement says So when *21 correct, filed, is It to the best is not it? hasn’t been knowledge. of your knowledge, no.
A. To best of my Eugene Henry “The concedes that Q. Commonwealth guilty to his permitted Brown should be withdraw degree murder for the reasons cited to first plea [sic] PCHA Petition.” C—“The Commonwealth would recommend to the Court of because Hen- ry cooperation Brown’s authorities in the investigation of this case and because his critical in prosecution Wallace, of William plea should accepted be offered and murder to of the third degree, with a total maximum sentence on charged all to ten twenty years.” exceed to Q. Is that correct? Yes,
A. that’s it reads. what Q. “The Commonwealth agrees that Henry Brown is
entitled to credit towards this any sentence for time that he already has served this crime and in addition, agrees promises Commonwealth and that Henry Brown will be incarcerated another penal system state outside Pennsylvania for the duration of term. his The Commonwealth will recom- mend to the State of Ohio that any and all detainers lodged against Henry Eugene Brown should be dis- missed, upon based his in this cooperation prosecu- upon tion based fact that the detainers were lodged years over six ago and have not been acted on as this date.”
Q. Correct?
A. Yes.
Q. two, “In Paragraph order to fulfill part
agreement, Henry Eugene to agrees Brown testify truthfully and facts completely surrounding all at testimony, however, case issue. Said to be sub- stantially consistent with the said statement of Hen- Eugene ry given Brown offi- law-enforcement 23, 1980, cers on January wherein he identifies Wil- liam Wallace as shooter Tina Spalla Carl Luisi, three, Paragraph Sr.” “If William Wallace is convicted at a later date and would receive new matter, trial in this Eugene agrees Henry Washington if return Pa. County, subpoenaed and offer the same behalf of the Common-
328 four, plea way is no “This Paragraph wealth.” of William Wal- finding guilty of upon conditioned Eugene Brown Henry condition that only lace. take plea bargain the of to fulfill for terms this must is and truthful give complete effect to surrounding the facts William Wallace and regarding Borough in the homicide at Carl’s Cleaners double Washington August on Canonsburg of agree- of part to fulfill his the Pa. order County, ment, agrees truth- Eugene testify Henry surrounding all facts fully completely however, to sub- testimony, at issue. Said be cases of said statement stantially consistent with the given law-enforcement Henry Eugene Brown 23, 1980, he wherein identifies January officers on Spalla of Tina the shooter Wallace as William “Five, Eugene Brown Luisi, Henry once Carl Sr.” he be will prosecution, on behalf of testified for an immediately presiding Judge to the taken back of of consistent terms imposition sentence no circumstances will agreement, this but under to twenty exceed ten total terms of confinement of penal in a institution outside years, to served be receipt applica- of a of an Upon copy Pennsylvania. Brown, an Henry Eugene of parole tion for behalf prison into behavior investigation shall be conducted In the said Eugene Brown. event Henry the said satis- having Brown to been a investigation reveals Washing- Attorney factory prisoner, the District granting Appli- will recommend the County ton cation Parole.” agree- of the whole
Q. is the sum and substance That ment, isn’t it?
A. Yes. 684-688).
(N.T. pp.
standing
challenge
lacks
Although
Appellant
Brown, that
does
plea
entered
validity
guilty
of Brown’s
challenging
admissibility
him from
foreclose
In that
misconduct.
prosecutorial
because
position
different
from
respect,
Appellant’s
critically
Commonwealth v.
in the case of
the factual circumstances
Howard,
(1986),
Pa.Super.
that the vacate entered a contract killer hired the plea by kill his and to exclude the killer’s at trial. testimony wife In exchange testimony against appel- for his truthful the lant, had to seek the agreed the Commonwealth not death the hired killer. The held penalty against Superior Court standing challenge the had no the guilty that or and that the could plea plea bargain, testimony witness’ that showing appellant’s excluded without a the be rights constitutional been violated. situation, however, in prosecutor
This is not a which the in simply plea bargain has used his discretion to entertain a for in exchange co-operation testifying against a witness’ The in in prosecutor engaged another. this case the deliber- manipulation judicial process testimony ate of the to secure in the exchange plea bargain long past from a witness for a plea negotiations properly time were within his discre- when proceeding subterfuge tion. The PCHA was a intended to regain advantage comply an lost Brown would not when in contemplated original the conditions the offer a bargain. regrets by prosecutor Shared the and wit- plea ness do not such action. It was admitted that the justify office had attorney’s approached district even State a way negotiate plea bargain Pardons Board to find a of the patent procedure by with Brown. The misuse PCHA misconduct prosecutor testimony to ensure Brown’s was require which renders the inadmissible would trial. new Appellant’s argu- dismisses majority cavalierly plea bargain presented was by concluding ment Yes, reasoning point. jury misses the jury. This it is the plea bargain told of the Commonwealth’s —but legal process obtaining patent abuse is the defen- right to be protected use. The that bars its say then to enough trial. It is not right to a fair dant’s to Brown promised knew what simply exchange testimony. aof prosecution undertakes the Commonwealth
When by manipu- prosecution a successful and secures defendant is de- right to a fair trial lating judicial system, showing what motive salvaged by It cannot stroyed. be it is the Commonwealth’s witness testify has to because right. That the defendant deprived conduct that has be, is for not, the jury and should not before conduct —it wrong. Court to redress this grant of sentence judgments I would reverse the trial. new
NIX, C.J., opinion. dissenting in this joins
ALIQUIPPA Beaver Michael Coun- Inc.; Kerr, R.P.T.; Medicine, Zer- ty Sports Michael Donald Kerr, R.P.T., Physiotherapy nich, and Donald M.D. t/d/b/a Altman, Clinic; Sports Rodney M.D. and Wil- Medicine M.D., Dumeyer, liam
v.
Frances E. MOSER. M.D., Kerr, R.P.T., ZERNICH, Appeal Donald of Michael Dumeyer, M.D. William Supreme Pennsylvania. Court
Argued 1989. March July Decided