*1 suppress and enforce law. crime, out crime, ferret they They your representatives, if are what are they you believe, for defense would have counsel your representatives, not are be and there is not fit to but one of who not be dismissed, them should things prosecuted doing under the law that he pаges right to 523-524: has no do.” commented, We judicial equanimity. remarks did not indicate “These They phrasing in and their controversial tone and were argu- import to ridicule evidence and defendant’s alleged police brutality. ments as to On whatever proof of the latter it could offer, defense relied exclude and the issue of duress with the confession, conflicting evidence thereon the court should have sub- jury dispassionately. mitted to the who The officеrs ” ‘representatives.’ (Em- were witnesses testified phasis supplied.)
The same elements of ridicule, sarcasm and virtual deification Commonwealth witnessеs we criti- which in Brown far cized characterize too much the in- charge stant to allow the conviction to stand. judgment of sentence must reversed and the case appellant may remanded so that have a new trial “judicial atmosphere equanimity” which is his due.
Judgment reversed and case remаnded for new part Mr. took Justice Cohen the decision of this case. Wegrzyniak, Appellant. *2 1970. March Before 16,
Submitted J., C. Bell, Eagen, O’Brien, Roberts Cohen, Pomeroy, Jones, JJ. for аppellant. Ooffroth, B.
Taylor Attorney, Alexander District Common- Ogle, wealth, appellee.
Opinion 1971: January Mb. Justice Eagen, convicted On Louis July 3, Wegrzyniak murdеr in the a Somerset second jury County No a prison motions were degree. post-trial filed, No entered. sentence was imposed. appeаl a seek- On filed April 5, Wegrzyniak petition trial dis- relief which the court ing post-conviction An conducting evidentiary hearing. missed without from us. that order is before nоw appeal The trial the following pertinent record discloses facts.
In of January 9, Wegrzy- morning early in their his wife fatally quarrel niak shot during *3 being The minutes after arrived within police home. the ar- who heard a next-door by neighbor summoned brandish- and the shots. Wegrzyniak, firing gument floor of the retreated to the secоnd a shotgun, minor children and refused repeated his two house with to the to or to give up permit police himself requests forty-five floor. minutes the About to sеcond ascend of tear had shot a quantity gas after the police later, from a second- jumped building, Wegrzyniak into the custody. taken into police and was window story masks and seized certain gas wearing the house entered an then locked and order issued The house was guns. the enter no one tо premises. was that the the returned to police ensuing During occasions on several evi- looking involved house showing doors holes caused bullets, Exрended dence. blood there- marks flooring and some bullets, from the At premises. removed seized on were warrant. The armed with a search the pоlice were time as bullets, doors flooring seized, discharged guns, into introduced evidence related, were before Commonwealth, at trial. It is that the use urged now of this evidence due violated constitutional process.
An examination of the record
that
the ap
discloses
did not ask that
pellant
now
evidence
challenged
objection
nor was there
to
use at
suppressed,
its
any
Under these
circumstances,
admissibility
the evidence
not be
at
late date.
may
challenged
this
Commonwealth v. Gordon, 431 Pa.
After taken into being al- made legedly statements different peoplе, including which police officers, indicated not strongly that he shot his wife and he knew what but doing, also that he did so maliciously. use Evidentiary these statements was at permitted trial, at although, least one objection use of instance, this evi- dence entered of record. An in *4 was camera hearing of the dеtermine evidence not con- admissibility was ducted.
In the seeking post-conviction it petition is relief, that at the time these alleged statements incriminаting were made lacked to make a capacity know- and statement due to voluntary ing emotional, mental state. We indicate no conclusion physical
253 allegation, that merits of this bnt do conclude as to the require evidentiary hearing and it is sufficient to present proceedings. The in the determination factual dismissing summarily in court erred below, therefore, petition. the proceedings remanded for
Order vacated and record oрinion. consonant with this no the decision Mr. Justice Cohen took part case. this by
Dissenting Opinion Roberts : Mr. Justice grant I a new dissent and would majority that taken The relates after and an order issued the house was locked into majority premises. no one enter the The was to police “During ensuing re- continues: look- involved on several occasions turned to house showing Expended ing doors bullets, for evidence. flooring blood and some with bullets, holes caused prem- from the removed thereon were seized and marks police armed search At time were with ises. discharged guns, floor- bullets, doors warrant. into еvi- were introduced related, as before seized, trial.” the Commonwealth at dence majority reach the there does not issue, While physical thеse items no doubt that can be appellant’s Fourth Amend- were taken violation rights. are, conducted without warrants Searches ment exceptions, unconstitutional, certain Schmerber (1966); Com- 86 S. Ct. 384 U.S. 421 Pa. 218 A. Ellsworth, 2d monwealth may (1966), in- thereof and the fruits admitted Mapp against accused. v. Ohio, 367 U.S. to evidence (1961). Commonwealth See also 81 S. Ct. 233 A. 2d 552 Pearson, suggests that the search appellant’s per- arrest, and hence incident conducted *5 254 argument
missible.
Commonwealth’s
is
Howеver,
illegal
for the
merit,
without
record indicates that
during
occurred
search
after
custody.
can
an
“[A]
taken into
be
to
search
incident
substantially contemporaneous
if
arrest
it is
with
vicinity of
the arrest and
confined
the immediate
is
to
v. California,
486,
arrest.” Stoner
admission object any during time to its use at did point, If had the Commonwealth raised this the trial. complete agreement majority. I would appel has not asserted Commonwealth, however, thereby put failing apparent to waiver, him on lant’s statutory right by prov to avoid of his waiver notice extraordinary еxistence “the circumstances justify [search failure to raise the and seizure] is Hearing January Act of Act, Post Conviction sue.” (1965) §1180-4(b)(2). L. 19 P.S. §4, P. 25, 1966, right rely upon has its thus lost The Commonwealth objections. timely appellant’s make failure to See Com (1969); 252 A. 2d Frazier, monwealth Ritchey, Pa. 245 A. 2d 446 remand the case for a I would new trial, therefore accordingly dissent. must