Commonwealth v. Wegrzyniak, Appellant.
Supreme Court of Pennsylvania
January 7, 1971
441 Pa. 249 | 272 A.2d 167
Submitted March 16, 1970. Before BELL, C. J., JONES, COHEN, EAGEN, O‘BRIEN, ROBERTS and POMEROY, JJ.
The same elements of ridicule, sarcasm and virtual deification of Commonwealth witnesses which we criticized in Brown characterize far too much of the instant charge to allow the conviction to stand. The judgment of sentence must be reversed and the case remanded so that aрpellant may have a new trial in that atmosphere of “judicial equanimity” which is his due.
Judgment reversed and case remanded for new trial.
Mr. Justice COHEN took no part in the decision of this case.
Commonwealth v. Wegrzyniak, Appellant.
Taylor B. Coffroth, for appellant.
OPINION BY MR. JUSTICE EAGEN, January 7, 1971:
On July 3, 1965, Louis Wegrzyniak was convicted by a jury in Somerset County of murder in the seсond degree. No post-trial motions were filed, and a prison sentence was imposed. No appeal was entered.
On April 5, 1966, Wegrzyniak filed а petition seeking post-conviction relief which the trial court dismissed without conducting an evidentiary hearing. An appeal from that order is now bеfore us.
The trial record discloses the following pertinent facts.
In the early morning of January 9, 1965, Wegrzyniak fatally shot his wife during a quarrel in their home. The police arrived within minutes after being summoned by a next-door neighbor who heard the argument and the firing of shots. Wegrzyniak, brandishing a shotgun, retreated to the second floor of the house with his two minor children and refused repеated requests to give himself up or to permit the police to ascend to the second floor. About forty-five minutes later, after the poliсe had shot a quantity of tear gas into the building, Wegrzyniak jumped from a second-story window and was taken into custody. The police entered the house wearing gas masks and seized certain guns. The house was then locked and an order issued that no one was to enter the premises.
During the ensuing weeks thе police returned to the house involved on several occasions looking for evidence. Expended bullets, doors showing holes causеd by bullets, and some flooring with blood marks thereon were seized and removed from the premises. At no time were the police armed with a searсh warrant. The guns, discharged bullets, doors and flooring seized, as before related, were introduced into evidence by the
An examination of the record discloses that the appellant did not ask that the now challenged evidence be suppressed, nor was there any objection to its use at trial. Under these circumstances, the admissibility of the evidence may not be challenged at this late date. Commonwealth v. Gordon, 431 Pa. 512, 246 A. 2d 325 (1968), and Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A. 2d 859 (1966). Moreover, assuming the evidence was seized under impermissible constitutional stаndards, we are convinced beyond a reasonable doubt that its evidentiary use was harmless error. Cf. Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967), and Commonwealth v. Gordon, supra.
The appellant testified at trial and did not specifically deny shooting his wife. He said that he was intoxicated at the time and so emotionally upset that he didn‘t know what happened. In view of thе issues upon which the case turned, the now challenged evidence was of little significance.
After being taken into custody, the appellant аllegedly made statements to different people, including the police officers, which strongly indicated not only that he shot his wife and knew what he was doing, but also that he did so maliciously. Evidentiary use of these statements was permitted at trial, although, at least in one instance, an objection tо use of this evidence was entered of record. An in camera hearing to determine admissibility of the evidence was not conducted.
In the pеtition seeking post-conviction relief, it is alleged that at the time these incriminating statements were made appellant lacked capacity to make a knowing and voluntary statement due to his emotional, physical and mental state. We indicate no conclusion
Order vacated and record remanded for proceedings consonant with this opinion.
Mr. Justice COHEN took no part in the decision of this case.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
I dissent and would grant a new trial.
The majority relates that after appellant was taken into custody, the house was locked and an order issued that no one was to enter the premises. The majority continues: “During the ensuing weeks the police returned to the house involved on several occasions looking for evidence. Expended bullets, doors showing holes caused by bullets, and some flooring with blood marks thеreon were seized and removed from the premises. At no time were the police armed with a search warrant. The guns, discharged bullets, doors аnd flooring seized, as before related, were introduced into evidence by the Commonwealth at trial.”
While the majority does not reach the issue, there can be no doubt that these items of physical evidence were taken in violation of appellant‘s Fourth Amendment rights. Searches conducted without warrants are, with certain exceptions, unconstitutional, Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826 (1966); Commonwealth v. Ellsworth, 421 Pa. 169, 218 A. 2d 249 (1966), and the fruits thereof may not be admitted into evidence against the aсcused. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961). See also Commonwealth v. Pearson, 427 Pa. 45, 233 A. 2d 552 (1967).
The Commonwealth suggests that the search was conducted incident to appellant‘s arrest, and hence per-
The majority dismisses appellant‘s challenge to the admission of the seized physical evidence by noting that appellant did not object to its use at any time during the trial. If the Commonwealth had raised this point, I would be in complete agreement with the majority. The Commonwealth, however, has nоt asserted appellant‘s apparent waiver, thereby failing to put him on notice of his statutory right to avoid waiver by proving “the existence of extraordinary circumstances to justify his failure to raise the [search and seizure] issue.”
I therefore would remand the case for a new trial, and accordingly must dissent.