*1 in the fact that he written signed this lies argument and the test objections statement any taking waiving invalid. not was yet he does such waiver allege we valid, an that his Absent waiver allegation test hop- elected to take the must assume having his innocence ing police convince Under cannot be heard to complain. failed to do so now are the confession all we satisfied evidence, made and thus voluntarily prop- intelligently him at trial. admitted erly against affirmed. sentence Judgment took no the consid- Mr. Chief Justice Jones part eration or decision of this case.
Dissenting
Opinion
Mr.
Justice
Roberts
:
I
I can
dissent.
neither that
there
agree
was proba
ble cause
arrest
see Commonwealth v.
appellant,
Pa.
Ct.
323 A.2d
Favors,
Superior
120, 125,
joined by
(1974)
J., dissenting,
(Spaeth,
Hoffman,
nor that under the totality
circumstances
test,
J.),
confession was
see
voluntarily
Com
appellant’s
given,
Pa.
Simms,
monwealth v.
Argued 14, 1973. Eagen, Jones, J., Nix Pomeroy, Manderino, JJ. O’Brien, Roberts, *3 Deem, J. Assistant with him Defender, John John R. and U. Cook, Defender, Ross, Assistant Defend- George er, appellants.
R. L. Assistant District Campbell, Attorney, bfm L. Assistant Eberhardt, Robert District Attorney, Robert W. and District Duggan, for Com- Attorney, appellee. monwealth, by
Opinion
Mr. Justice Manderino,
July 1, 1974:
Angelo
Major
Weeden and
appellants,
Reed,
in
of murder
the first
convicted
a
degree
joint
were
denied and
Post-verdict motions were
trial by jury.
sentenced to life imprisonment.
were
appellants
raised by
Four issues which are
This
followed.
appeal
in the first part
both
will be discussed
appellants
consideration
three other
this
followed
a
opinion
raised
only by
issues
Weeden.
established that
the two
prosecution’s
Williams,
and a third
Ronald
shot
appellants
man,
killed
one James Montgomery, during
victim’s
apartment
City
Pittsburgh
August
1971. The third
Ronald
was tried
Williams,
man,
Williams,
See Commonwealth v.
454 Pa.
separately.
261,
The victim’s who resided at the wife, apartment the victim and their two testified that children, afternoon August 21, 1971, men, two appel- came lants, to see her but apartment husband, when told that he departed was not at home. Later that the victim’s while in the evening, wife, resting bedroom, heard voices apartment. She went the bed- room into kitchen and saw the in the appellants of a third Ronald company man, Williams, standing of her front husband who was bent over kitchen table hands with his stretched out. Ronald Williams She heard one of holding shotgun. the appellants “If he blow his brains out.” say moves, She testified that “all a sudden the blast went off” and she imme- ran to the to call the diately phone police. She did not after the happened see what shooting did not see the apartment. the men leave The police arrived short- *4 The thereafter. victim’s ly body was found with his out and loose right pants pocket pulled change, mingled near was found the blood, pocket. Marijuana was dresser found the victim’s the apartment. The wife knew the appellant victim’s Weeden, since school high had to she gone Weeden’s sister and him in the seen area. had She previously identified the MO although
appellant photographs, did she Reed day, appellant name. The next Weeden know his by police learned that he and voluntari- was wanted ly day appellant himself One Reed turned in. later, fiancee. to a was arrested at the home Pursuant a search the fiancee’s home was searched and warrant, marijuana bag containing mari- brown was found. This juana during belonging trial was later identified as apartment. to lot in the the same as that found victim’s appellants gave separate police The statements to the they in which said that both their afternoon and eve- ning trips apartment pur- to victim’s were for the marijuana. pose purchasing They any rob- denied bery plan. They shooting claimed that the of the vic- by during evening tim Ronald Williams visit was unexpected. During appellant Reed testified trial, appellant again but Weeden did not. Reed said that no planned shooting by and the the third man, suprise Ronald was a to him. Prior Williams, trial, to applications by appellants suppress both to suppress were denied. trial court refused to given police by appellants. Ap- statements pellant permitted challenge Reed was to the use of the marijuana found his fiancee’s home as but evidence, Appellant relief denied. Weeden, was de- however, right challenge marijuana nied the the use of the as The trial evidence. court held that challenge had that evidence. appellants they first claim that “did not know- ingly intelligently rights they their waive when gave police, they a statement because didn’t un- consequences appellants derstand their act.” warnings admit that Miranda were read to them They understood them. contend, however, that rights of their waiver constitutional was ineffective they police did not because and the realize, did not ex- participant plain, robbery, which a
441 though killing may guilty of even occurs, murder, be personally participant kill that did not the victim. appellants U.S. Arizona, contend v. 348 that Miranda (1966), entitled 16 L. Ed. 2d 86 436, S. Ct. 1602 694, appellants explanation felony murder the to an agree. rule. We do not appellants any inculpatory
Before
state-
made
they
they
being
police,
to
ments
were told that
were
charged
with the murder and
James
Montgomery.
McIntyre,
Pa.
Commonwealth v.
(1973),
that
at the trial
might
developed
the death
or
that their attitude towards
them,
(2)
pen-
de-
an impartial
would
them
alty
prevent
making
20
at
n.21,
as to
defendant’s
Id.
guilt.”
cision
L.
at
Ct. at
n.21. Even ac-
Ed. 2d
88 S.
n.21,
Witherspoon
appellants’ argument
cepting
who
conscien-
jurors
rationale should apply
express
or
or religious scruples
general objections
tious
ex-
juror
of life
we
find that
penalty
imprisonment,
for
case
excluded properly.
cluded
cause
this
or re-
did not
only general objections
voice
juror
or
the imposition
conscientious
ligious
scruples against
could
re-
juror
of life
said
not
she
imprisonment.
turn
in life
that would result
finding
imprisonment.
it clear
vote
automatically
She made
that she would
such
Under
against
circumstances,
these
any
finding.
court did not err
the prosecution’s
trial
granting
for
juror.
cause of this
challenge
fourth
raised
argument
appellants
the trial court erred
into evidence the
admitting
of the
since the necessary proof
statements
appellants
not
delicti was
established. Common
corpus
wealth v.
448 Pa.
erly police restricted his cross-examination of a offi- police prosecution cer. Before the officer testified, had called a witness who ''[w]e testified noted that the pockets lying victim’s were turned inside out; body and around a blood substance we noted change.” prosecution some photo- showed several graphs photo- to this earlier witness who said that the graphs right-hand pants pocket showed that the victim’s pulled prosecution out. The then moved the ad- photographs. Appellant mission these Reed’s coun- objected saying they sel their admission were ''unduly prejudicial” gory.” prosecu- and “rather argued photographs tion should be admitted to help robbery. important establish a “[I]t to show every attempted robbery element of or includ- ing pockets.” Appellant [the excursion into victim’s] already counsel answered back Reed’s “this has been *9 money that this witness Honor, by Your to, testified then counsel blood.” Reed’s Appellant was lying introduced, if “that pictures agreed stipulate victim, of the pocket the right-hand would show that in- taken turned were was at the time the photographs on the floor; victim lying side that out; in what lying appears that a of coins was quantity counsel Weeden’s be blood near his body.” Appellant he said that to the facts since refused to above stipulate to the admission had objection ruled the photo- The trial court that the photographs. were inadmissible. victim’s graphs Subsequently, not her husband did wallet carry wife testified that On him rather his his kept money pockets. but money that he had of the she knew evening murder, because had shopping they stopped his while pockets money and he had for the gas paid gas also that after called the his She testified she pockets. her she noticed that husband’s right-hand pocket police out. The called had been turned inside then prosecution also he officer who testified that observed police the victim’s right-hand pocket pants out that coins in near blood were located pulled the victim’s of this body. During cross-examination po- lice Weeden’s counsel wanted to show officer, appellant one of officer earlier which police photographs had been ruled inadmissible. The objected, prosecution “either is ruled saying photograph into evidence or it is ruled out of evidence.” The appellant Weeden’s said he did counsel not want to show the photo- but if jury that, he intro- graph necessary, would in it case in duce chief. Appellant Reed’s counsel objected to the admission into of the again even photograph appellant Weeden’s counsel were to it in offer his case chief. The trial court ruled that he had ruled that since it photograph inadmissible could be shown to the officer police by appellant not Weeden’s cross- counsel. continued to Appellant Weeden’s counsel examine the officer about the police appearance without pants pocket using photograph. the trial court’s Weeden does
Appellant challenge He ar- was inadmissible. ruling photograph could that even gues, however, though photograph not be shown to the he should have been jury permitted to use the officer’s *10 photograph impeach police about the testimony condition the victim’s pocket the If location the coins. cannot a agree. photo- We im- be for graph cannot shown to the it is useless jury, de- peachment Any offered to purposes. photograph the of the officer to be ad- stroy credibility had police missible as evidence. The could not have jury possibly determined whether the officer’s had police testimony been a the never saw impeached by jury photograph The use of a or other photograph. photograph, a which is inadmissible be shown to wit- document, may ness for the limited purpose witness’s reviving present See Commonwealth v. memory. Canales, 454 Pa. 311 A.2d at- (1973). Appellant Weeden’s tempts to use the were not for that photograph, however, limited His was to purpose. purpose impeach po- lice An officer’s testimony. inadmissible photograph, cannot be used for however, that purpose. issue second raised by appellant Weeden is
whether the trial court committed error reversible when it refused to allow Weeden’s defense counsel to present statement to the opening jury after the immediately prosecution’s statement. opening Under rule 1116(a) Pennsylvania Rules Criminal Procedure, defendant choose may present an statement opening after the immediately prosecution’s opening statement or wait until close of the prosecution’s case. Rule that “After the 1116(a) provides has been jury sworn, for the Commonwealth shall attorney make an open- jury. statement defendant or ing his attor- or it make an reserve then statement may opening ney has its case.” after the Commonwealth presented until because the trial court was arose this case, problem ap- faced different requests by appellants. Immediately wanted to open counsel Weeden’s pellant but appellant the prosecution’s opening statement, after to reserve his statement opening Reed’s counsel wanted had its case. Since until after the prosecution presented the trial court refused did appellants agree, after the counsel to open Weeden’s appellant permit court statement. The trial said opening prosecution’s would based this thought its decision “was in the more and balanced orderly afford a approach and avoid the effect a defense sandwiching open- case Com- at the at end again ing beginning find case.” Under we circumstances, monwealth’s con- that the trial court’s concluding ruling no basis error. stituted reversible
The last raised argument by appellant Weeden court erred it decided trial when lacked the suppression hearing *11 to of search requisite standing challenge appellant home and the Reed’s fiancee’s fruits admissibility Reed marijuana. of that search —the was Appellant to the search and challenge although seizure permitted relief denied. We find that the trial court improp- found that Weeden did not have erly standing. “The restrictions searches and seizures were upon for official designed against inva- obviously protection of Jones v. security property.” sion privacy States, 362 U.S. 4 L. 257, United Ed. 2d 261, 697, 702, 731 In (1960). 80 Ct. Simmons United States, S. 19 L. Ed. 2d Ct. 377, 390, S. 1256-57, the United States Court re- (1968), Supreme as standing requirements viewed the follows: “At one to assert a a defendant who wished Fourth time, Amend- to show that he required ment was the objection owner or or that possessor the seized he had property interest in the . . . possessory premises. searched [W]e relaxed those two alternative standing requirements ways Jones v. United First held States, we supra. that when, Jones, as the seised evidence possession of is an essential element with which itself offense is the Government charged, precluded defendant that has the requisite denying pos- defendant to sessory interest the admission evi- challenge dence. we held that the de- Second, alternatively fendant have no in the need interest searched possessory in order to premises have it is sufficient standing; he be on those legitimately premises when search occurs.” (Emphasis added.) Jones, the Court described the dilemma a de-
fendant who is a crime which charged involves but is denied to possession assert his fourth if amendment he not claim he rights does possessed the property defendant to seeking comply “[A]— what has been the conventional standing requirement has been to forced facts of which allege proof would tend, indeed not be him sufficient, convict .... He has been faced . . . with the he encouragement if he himself seeks to establish perjure while ‘standing’ a defense to maintaining charge possession.” U.S. at L. Ed. 2d at Ct. at 261-62, 703, 80 S. 731. The Court such precluded instances the prosecution— which establish at trial sought the defendant had interest —from possessory at the denying suppres- sion that the defendant hearing lacked the requisite pos- sessory interest hold to standing. the con- “[T]o . be . . trary would permit Government to have of contradictory the advantage positions as a basis for conviction .... The prosecution subject] [would *12 meted penalties defendant out to one in lawless while him the refusing possession remedies designed for one that situation. It is not consonant with the of of the administration mildly, it amenities, put contradictory such justice squarely criminal to sanction at 362 U.S. assertions Government.” power by see at Ct. at 732; L. Ed. 2d 80 S. 263-64, 703-04, Cir. (7th United v. F.2d 1209 Allsenberrie, States 1970). not contend that this case did prosecution victim. the man who shot the actually was appellant theory
Rather,
prosecution proceeded
of murder because the death
appellant was guilty
from
Ronald
resulted
the act
an
Wil
accomplice,
of a
To
liams,
robbery.
convict,
the commission
it was
to establish that a
therefore,
necessary
robbery
occurred. The
in the
marijuana which was obtained
from
search
seizure was
the same lot as that found
in the victim’s
introduced
apartment
as
fruit of
An
robbery.
essential element
from another.
order to have
taking
goods
robber
have taken
taking,
must
possession
of another.
goods
Commonwealth v.
Simpson,
Cf.
Pa.
The prosecution by challenging appellant Weed- en’s at the suppression hearing was asserting
451 to its at trial. contrary Appellant a position position in an the could have claimed interest expressly Weeden been marijuana during hearing pro- suppression tected use of his admission at trial. See Simmons v. 390 19 L. Ed. 2d 88 S. States, 1247, United U.S. 377, But if no he con- Ct. 967 took as (1968). robbery place, in and he had no the mari- tended, interest possessory he to himself obtain juana, would have had perjure Under these standing. circumstances, prosecution cannot claim- challenge appellant standing Weeden’s by he had no interest in ing See v. marijuana. Jones United 362 U.S. 4 L. S. States, 257, Ed. 2d Ct. 697, 80 725 note in (1960). We that there no this was case that had inter- appellant Weeden surrendered his est in the stolen sale or other- allegedly by marijuana, to the search. Brown v. wise, prior States, See United 411 U.S. L. Ed. Ct. 2d 93 S. (1973); United States Cowan, v. 396 F.2d 1968). Cir. (2d
Because Weeden was denied appellant improperly challenge the search and the mat seizure, ter be must remanded. Weeden is entitled to Appellant a new a suppression limited to determination hearing of whether the search Eeed’s home appellant fiancee’s and the of the seizure marijuana were legal. As ap there pellant Beed, has been final already a determina tion that search and seizure were valid and issue has been raised Beed in appellant this con appeal cerning determination. We cannot, as however, sume that Weeden appellant would not other develop or facts, by presenting witnesses prose cross-examining cution which invalidate the witnesses, might search and seizure and, therefore, the use marijuana during the trial Weeden. appellant error, denying appellant opportunity to challenge use marijuana of the trial cannot during be considered harmless beyond reasonable doubt. See Chapman L. California, 18, 17 Ed. 2d S. Ct. 824 of the case was thrust (1967). prosecution’s marijuana was to obtain the purpose home of found marijuana robbery. fiancee the fruit Without Eeed’s case would marijuana prosecution’s evidence, Weed- weaker and the appellant have been significantly first of murder en not have been convicted might Eonald note that Wil- trial, We degree. separate robbery, who fired the fatal shot liams, *14 of only voluntary manslaughter. convicted for a to suppression hearing permit We remand new to the and seizure. challenge search appellant Weeden im- If the search and seizure were it is concluded that the however, trial shall be awarded. If, new proper, of is to the the sentence contrary, judgment finding shall be affirmed. A further be filed to this may appeal from of the Court the order the trial court following suppression hearing. of of Eeed Major sentence judgment
at No. 6649 is affirmed. matter involving appellant at No. 6647 is remanded for further Angelo Weeden consistent with this proceedings opinion. Dissenting Opinion by
Concurring Mr. Jus- Eagen tice :
I
Mr. Justice
disagree with
conclusion
Manderino’s
in
In
the
the trial court
appeal.
my view,
correct
Weeden lacked
ruling
standing
challenge
of the
search
his co-defendant’s fian-
apartment
cee. In
Weeden had
concluding
Mr. Justice
standing,
relies
Jones v. United States, 362 U.S.
Manderino
I
am in full
80 S. Ct.
257,
(1960).
agreement with
of Jones as
by
United States
holding
interpreted
in Simmons v. United States,
Court
390 U.S.
Supreme
Ct. 967
(1968). Therein,
Supreme
88 S.
Court
377,
in Jones,
as
“[W]hen,
possession
stated:
seized
an
evidence is
itself
essential element
offense
charged,
is
with which the defendant
Government
precluded
denying
from
defendant has the
that the
requisite possessory
challenge the admis-
interest
hearing].
suppression
Id.
[at
sion of
evidence
Supreme
in Jones
at
However,
instant case differs
Jones
charged
pos-
Weeden was
with an offense which
goods
session
seized
was an element.
Jones
“
charged
(1)
having
‘purchased,
the defendant was
dispensed and distributed’
and with
sold,
narcotics,”
(2)
having
“‘facilitated the concealment and sale of’
. .”
same narcotics . .
Id.
at
at
80 S. Ct.
729.
“Possession
the basis
the Government’s case
against petitioner.”
I
I
disagree with this
for
am
reasoning
convinced
is not a
robbery
offense in the
possessory
same sense as
the narcotics indictments before the United
Su-
States
preme Court in
I
tTones.
believe that Jones
Therefore,
cannot be used as a
vehicle
result Mr. Justice
reaches.
in the
decision
Sim-
fact,
Manderino
mons v. United States,
the United
supra,
Supreme
States
Court
labelled
clearly
as a
crime.
robbery
non-possessory
In the Simmons
one Garrett and
case,
one Simmons
were indicted and tried for
of a
robbery
savings
loan institution.
home
a Mrs. Mahon was
searched and a suitcase was found
incrim-
containing
inating
used in
paraphernalia
Garrett
robbery.
moved
suppress
admission
the suitcase assert-
ing that
he could
“although
not
identify
suitcase
it
similar
certainty, was
to one he had owned .. ..”
Simmons,
supra,
at
88 Ct.
S.
at 969. The
Government used the testimony given by Garrett at the
suppression
him
hearing against
tri-
al. The United States
Court
Supreme
for
deciding
Garrett
grounds
to this
apposite
made it
issue,
clear that
emphatically
robbery was a non-possessory
offense. The Court stated: “The dilemma faced
de-
like
fendants
Garrett
is most extreme in prosecutions
for
for then
possessory crimes,
the testimony required
itself
an
proves
element of the offense. We
eliminated that Hobson’s choice in Jones v. United
States, supra, by
relaxing
standing requirements.
This Court has never considered squarely the question
whether defendants charged with non-possessory crimes,
like
are entitled
Garrett,
to be relieved entirely.”
Id.
at
455 Court has deemed be a Supreme rohhery non-posses- crime. sory
This statement
the United
by
States Supreme Court,
should be conclusive in
alone,
defeating
position
in
taken Mr. Justice Manderino’s
However,
opinion.
Mr. Justice Manderino
cites United States v.
447
Price,
F.2d 23 (2d
cert.
92
Cir.),
denied,
S. Ct.
in
232
(1971)
support
a review
position. Upon
I
Price,
find that
it rejects Mr. Justice Manderino's
rather than
position,
it.
Thom
supports
Therein, John
as Price was
charged
to steal
conspiracy
magnetic
wire while
copper
said wire was
in interstate
moving
commerce. Price
further
was
with the substan
charged
crime of
tive
18
theft,
U.S.C.
deciding
§659.
Price lacked
standing
suppress wire seized from the
premises
Court of
co-defendant,
Appeals
the Second Circuit held: “He was not
charged
pos
and the
session
search was not directed
him.
against
Nor has he shown any
proprietary interest
the prem
and there is no indication
ises,
that he
the New
Milford
at the time of
property
the search. As held in
Alderman v. United States,
I dissent.
Mr. Chief Justice Jones Pomeroy and Mr. Justice join this opinion. Pennsylvania Appellants,
Sweet et al., Labor Relations Board. 1974.
Argued May 23, Before C. J., Eagen, Jones, JJ. Nix O’Brien, Roberts, Pomeroy, Manderino,