*1 The lower court ing-Pittsburgh. therefore properly granted judgment favor of unions. summary The order of the lower court is reversed as appellee Corporation, Vimasco otherwise is affirmed.
WATKINS, Judge, President dissents.
Superior Pennsylvania. Court of
Submitted Oct. 1976.
Decided Dec. *3 Jr., Calvin Assistant Drayer, Defender, S. Public Norris- town, appellant. for Nicholas, T.
William District Attorney, Norristown, for Commonwealth, appellee. WATKINS,
Before Judge, President JACOBS, HOFFMAN, CERCONE, PRICE, VAN der YOORT and SPAETH, JJ.
HOFFMAN, Judge: Appellant contends that the Commonwealth failed to pro- duce sufficient evidence to convict him of attempted mur- restraint,2 der,1 felonious kidnapping,3 aggravated assault,4 Code, 6, 1972, 334; 1. The Crimes Act of Dec. P.L. No. Pa.C.S. 2501. §§ Code, supra; 2. The Crimеs § Pa.C.S. 2902. Code, supra;
3. The Crimes 18 Pa.C.S. § 2901. Code, supra; 4. The Crimes 18 Pa.C.S. § person,6 another theft of endangering recklessly robbery,5 crime,8 of an instrument property,7 movable weapon,9 and criminal conspir- a offensive prohibited use of in that the lower court erred also contends Appellant acy.10 evidence and unfairly prejudicial physical certain admitting testify witness to that appel- a allowing Commonwealth after his arrest. We believe to remain silent lant elected sufficient evidence to produced the Commonwealth However, charges. grant on the above we appellant convict the lower court permitted a new trial because appellant testify witness to elected his arrest.11 remain silent after 28-31, was tried before From October Court of Pleas on County Common Montgomery in the jury The Commonwealth adduced charges. the aforementioned man, Mr. a 78 old Rigney, year facts at trial. following 15, 1975, he drove his 1974 May Plymouth that on testified lot at 69th and Walnut Streets into a parking Duster car, his Mr. County. parking Delaware After Darby, Upper Suddenly, newspaper. gun read began Rigney left, on his and another gun the window through protruded front window on his through passenger right. appeared sides, into the car from both thus sand- Two men jumped in between. The two men instructed the the victim wiching and to straight motionless look ahead. One victim to remain MF, die, man.” you’re going “You white of the men said: minutes, about 30-45 arrived an driving they After for Mansion section of Fair- Strawberry in the spot isolated *4 Code, supra; 18 3701. § Pa.C.S. 5. The Crimes Code, supra; § 18 Pa.C.S. 2705. 6. The Crimes Code, supra; 18 Pa.C.S. 3921. § 7. The Crimes Code, supra; 907. 18 Pa.C.S. § 8. The Crimes Code, supra; 18 Pa.C.S. 908. 9. The Crimes § Code, supra; § 18 Pa.C.S. 10. The Crimes appellant’s challenge disposition, we do not decide of this 11. Because admissibility prejudicial allegedly physical evidence. of the to the mount Park in Philadelphia where they stopped car, out, ordered the victim to and get then locked him into the The trunk the car. resumed kidnappers their journey. driving minutes, After for an additional 30-45 they arrived remote, very at a wooded area Merion Upper Township in At County. Montgomery point, abductors freed Mr. man, A from the trunk. third who Rigney joined had during two sometime their kidnappers trip, told Mr. Rigney his hands behind his back. put As the victim attempted away, to back one of the attackers knocked him to the ground and tied his hands behind his back with white adhesive The then tape. assailants Mr. pulled Rigney to his feet, noose, slipped made out of necktie, around head, his tight. and then pulled They led Mr. Rigney to nearby ravine and him pushed over the As edge. fell, he the victim lost consciousness. regained senses,
Whеn he his the victim discovered that he only had fallen 5 or feet and had come to rest in a plateau area free, of the ravine. His hands were now and the white his tape hung from wrists. He removed the noose and However, to move. attempted him, nausea overcame he again. lost consciousness later, Several hours he regained consciousness and crawled out of a ravine onto an adjacent A road. found Mr. passerby Rigney called the police and an ambulance. passerby and attending police officers testified beaten;
that Mr. had been Rigney severely his face was swollen, deformed and blаck and blue. His forehead had a deep gash, and blood covered his face and neck. His hands similarly cut, were bloody, and discolored. Ticks infested exposed areas of his skin. The victim gasped and had extreme difficulty breathing. According to Mr. he Rigney, permanent suffered loss of hearing Moreover, in one ear. testified that the assailants his removed old year Timex car, wristwatch, keys, his and his wallet with his vehicle card. registration
A officer May 17, 1975, testified that two days attack, after the sordid he spotted the victim’s car in an area *5 entered the car Appellant scene of the abduction. near the stopped appеllant The officer and police drove off. and officer that he police told the did Appellant him. questioned and that he had borrowed the car a driver's license not have produce could not a appellant registra- a friend. When from At the card, officer arrested him. police the police tion appellant officer about his questioned police station another Appellant changed victim’s car. his of the 16, 1975,he May that on found car and asserted account keys with the and decided to the street along parked then elected to remain silent. Appellant a ride. take it for of appellant’s testified to a search person officers also Police wrist, wore appellant car. On his the victim’s and old Timex watch. When as to questioned victim’s 16 year watch, of this re- appellant into possession how he came watch, new, he had brand six purchased sponded also the victim’s found automo- months earlier. wallet. The search appellant’s card registration bile following disclosed the items: several rolls victim’s car of the same nature used in the tape white adhesive letter addressed to several books attack, appellant, a gun, name, many appel- and appellant’s pieces with marked clothing. personal lant’s guilty returned verdicts on jury
On October
behest, his counsel made
At
charges.
appellant’s
all
motions on the record at the conclu-
argued
post-verdict
oral
1123(b);
Appendix.
Pa.R.Crim.P.
P.S.
of trial. See
sion
motions, the lower court
denying
post-verdict
After
10-20 year
to two consecutive
terms of
sentenced
attempted
on the
murder
imprisonment
kidnapping
10-20
term of
year
imprison-
and one concurrent
charges
appeal
This
followed.
robbery charge.
ment on the
first contends that
Appellant
prove beyond
evidence to
reason
not adduce sufficient
did
In
charged.
the crimes
partic
committed
able doubt
linking
that the
evidence
him to
ular,
only
asserts
stolen
15,1975
possession property
events was
May
whether the
victim. “In
evidence is
determining
from
in law to
defendant
is
prove
guilty beyond
sufficient
doubt,
must,
the crime or
we
charged,
a reasonable
crimes
*6
evidence,
all
a verdict of
as true
of the
guilty, accept
after
circumstantial,
or
and all reasonable inferences
direct
aris-
evidence,
which
ing
upon
from the
the trier of facts could
Malone,
v.
have based
verdict. Commonwealth
properly
397,
(1971);
Petrisko,
Pa.
281
866
Commonwealth v.
444
A.2d
575,
(1971).”
Pa.
In the instant the Commonwealth presented sufficient circumstantial evidence to support jury’s verdicts. guilty police The found appellant driving the victim’s car near scene of the abduction within 48 hours questioned, crimes. When appellant proffered two contradictory false and accounts of his of the possession car. police The found the victim’s 16 old year Timex watch on wrist; when as to his appellant’s questioned possession item, responded this with a falsehood. The patent also found the victim’s police registration appellant’s card in Mr. wallet. A search of car Rigney’s disclosed several rolls tape of white adhesive of the same used bind Mr. type Rigney’s gun. hands and a The also found several in the appellant’s personal possessions car. We believe that evidence, when considered in its totality, sufficiently links to the commission of reprehensible crimes May next that
Appellant
alleges
the Commonwealth did
sufficient evidence of
produce
not
of an instru-
County.12
lower cоurt
Montgomery
ment of crime
on this issue and refuted
pertinent
evidence
summarized
was
testimony
“There
direct
appellant’s contention:
[a
abduction,
later,
of the
was there
the scene
gun]
pocket
it was observed in the
of one of the
outline
was found in the victim’s car when
gun
abductors. A
It
be
up.
folly
imagine
would
picked
defendant
with the men to
gone
Montgomery
not
along
had
gun
venture,
entire nefarious
and that
did so
on this
County
inference for the
have
jury
was not an unreasonable
is entitled to all reasonable
drawn. The Commonwealth
v.
from the evidence.” Commonwealth
arising
inferences
(1974);
Thomas, 459 Pa.
Appellant in a witness to allowing reversible error elected to remain silent after his appellant that testify and, therefore, new grant appellant We a agree arrest. trial. trial, O’Brien, called William P. an
At the Commonwealth officer who Township police interrogated Merion Upper on the of his arrest incarceration. Offi- appellant night that he advised of his testified consti- cer O’Brien Arizona, 436, to Miranda 384 rights pursuant tutional U.S. 1602, (1966). 16 694 prosecutor L.Ed.2d 86 S.Ct. following interchange. then engaged Officer O’Brien having did do met Mr. Williams? you What “Q. identification, name, personal him for his “A. I asked birth, as to how he came into address, inquired date operating, he was that of Mr. of a vehicle that possession Rigney’s. “prohibited gun Appellant that is a offen- does not contend a not
12. argue weapon” under 18 Pa.C.S. 908. Nor does § sive a 18 gun an of crime” under Pa.C.S. 907. § is not “instrument possess gun Montgomery only Appellant did not asserts he 15, only County May Accordingly, we decide this narrow issue.
443 “Q. you Did he tell how he came in of it? that, prior “A. He said that on the date the 16th, he parked had found the car a street with along in it keys and took for a ride.
“Q. Then happened? what “A. After that he elected to remain silent.” The trial court denied defense counsel’s motion for a mistrial and also stated that: “I don’t think that would be anything served even instruction the cautionary way it was elicited.” 400,
In Greco, Commonwealth v. Pa. 350 A.2d (1976), following dialogue occurred trial: Did ever
“[Q.]
say anything
you?
Greco
We had several conversations.
I advised him to—
“[A.]
silent,
right
had the
to remain
and he didn’t actually
make
statements other
than
any
general conversation.”
The lower court denied defendant’s
for a
request
mistrial
give
and did not
cautionary instruction. The Supreme
found
testimony
impermissible
Court
an
encroachment
upon
defendant’s
not to incriminate
right
himself and
a new trial.
granted
The Court stated:
“The law is clear.
It is reversible error to admit evidence
aоf defendant’s silence at the
time
his arrest. Common-
Stafford,
wealth v.
450 Pa.
(1973);
A.2d 590
Com-
Haideman,
monwealth v.
449 Pa.
evidence and cannot
A.2d
828.13
404,
350
at
v.
Pa.
Maloney,
469
445
and,
say
passed
car,
did,
this:
I
a
when I
will
the car
windshield. I didn’t see
I
splashed my
anything.
see
didn’t
”
I
stop
I didn’t know that hit her. I did
girl.
and look.’
190,
at
Finally,
Mitchell,
in Commonwealth v.
246
Pa.Super.
(1977),
“I then confrontеd him with
lug
wrench
at the
[found
scene of the
burglary]
told him that this is how I broke
and he immediately made recognition of the lug
said, oh,
off,
wrench. He
that was ripped
stolen from my
apartment sometime in
or
April May, along with a stereo
said,
He
I have
lot
Toyota
set.
tools in my apartment.
“I then
I
advised him that
had contradictory information
wrench,
of the
regarding
lug
and then he said
had more to
and would
say
commit suicide.”
right
We stated that
not to have one’s silence used
“[t]he
against one does not depend upon whether the right
is
at the beginning
asserted
or
interrogation
later on.” 246
137,
14. Hinds reaffirms our statement in Commonwealth v. 227 Pa.Super. (n. 4), (n. 4), (1974), 323 A.2d affirmed Greco, supra, “[any] prose- Commonwealth v. reference resumption cution trial to a making defendants silence [after voluntary prejudicial.” would also be statement] *10 Hinds, Greco, Maloney, and Mitchell to Reading any courts have found appellate we believe that our gether, be reversible silence after arrest to to an accused’s reference a and prompt adequate the court gives unless trial error Opinion contends Dissenting instruction. cautionary are because distinguishable deсisions these prior that “ remaining to the defendant’s si- . . the references . doubt, in by one number and more than lent [left] [were] inference, during questioning or that the accused deduction (at To 450). the crime.” the contrary, would not discuss Greco, only Mitchell each involve one testimonial Hinds and of exercise his to remain right the accused’s reference and involve arrest, and Hinds Mitchell attempts silent after by offering exculpato- the crime to discuss defendant Opinion also asserts Dissenting statements. The ry of only charge referred to questioning Commonwealth’s however, appellant’s possession movable property; theft of damaging сar was the most evidence adduced the victim’s to the commis- linked appellant because against charged. Testimony of all offenses sion that he found the car stating silent” after to remain “elected it for a ride impermissibly street and took on the parked exculpato- that if initial appellant’s to infer jury allowed truth, a he would have grain contained statements ry Because the Common- further details. explanatory offered adequately prior distinguish Pennsylvania fails to wealth holding any reference to court decisions appellate reversible error silence after arrest constitutes defendant’s instruction, we adequate cautionary an in the absence of a new trial.15 grant appellant assuming to an accused’s silence after that a reference Even give despite trial harmless error court’s failure arrest could be instruction, Dissenting Opinion palpa- cautionary that the we believe wrong assessing bly in harmlessness in the applies standard Dissenting very Opinion it is case. The' states: “Because instant difficult printed appellate for court from the record to have an judge, did I feeling for events trial as the lower court same judge only it is clear that the trial abused find error when should (at 451) (Emphasis denying the in motion for a mistrial.” discretion California, 18, 24, However, Chapman supplied). 386 U.S. Supreme (1967), L.Ed.2d 705 United States Court S.Ct. of sentence vacated case Judgment and remanded for a new trial. J., VOORT, files a dissenting
VAN der opinion which WATKINS, PRICE, J., President Judge, join. VOORT, Judge,
VAN der dissenting: is taken to our Court from Appeal judgments sentence findings guilt rendered on as jury charges of criminal murder, attempt to commit instrument of of prohibited crime and use offensive weapon, felonious restraint and false imprisonment, robbery, simple aggra- assault, recklessly endangering vated another person, theft, *11 and criminal kidnapping, conspiracy.1 trial Jury had been 28-31,1975, held on October and was sentenced on 7, 1976, to January two concurrеnt terms of 10-20 years’ on the imprisonment and kidnapping convictions, robbery to imprisonment and 10-20 for years’ criminal attempt to run to the above. consecutively Sentence was on suspended the criminal convictions, and conspiracy the other warranting convictions sentence because they merged charges with the on which sentences were imposed. Post- were orally argued trial motions after immediately trial. harmless, held that before a federal constitutional can error be held beneficiary error, Commonwealth, of constitutional here the prove beyond a complained must reasonable doubt that the error Field, not to did contribute the verdict obtained. See also M. Assess- ing the Harmlessness of Federal Constitutional Error—A Process in Rationale, supra. Opinion Need of Dissenting We believe that apply demanding to fails test. We note that the Commonwealth produce eyewitness not did either identification of or a confession; indeed, Dissenting Opinion concedes that the evi- against appellant mainly dence (at 453). circumstantial Even if apply we harmless despite error test the instant cautionary instructions, say beyond absence of we cannot a reasona- ble doubt the federal constitutional error did not contribute to appellant’s conviction. Code”, 1972, In violation of the “Crimes Act Dec. P.L. 901, 907-908, 2902-2903, 3701, 2701-2702, No. 18 Pa.C.S. §§ 2705, 3921, 2901, respectively. and 903 STEFAN has Judge concisely lower court opinion, his In trial, facts adduced pertinent described completely and therefrom: we quote and 15,1975, seventy- morning May
At eleven o’clock his 1974 Plymouth Frank drove Rigney eight-year-old Streets, at 69th and Walnut lot parking into Duster Store, in Phila- Department Gimbels across from directly and began He car to parked Pennsylvania. delphia, Suddenly, gun of his newspaper. the headlines look at left, on his and another gun head at his was pointed his right. window at passenger the front through appeared sides, both Mr. forсing into the car from jumped Two men in the front seat. between them Rigney drive, to Mr. was told not move Rigney to began As they ahead. One of the men said to him: look straight and die, MF, man.’ Mr. you’re going Rigney ‘You white old; that years they he was seventy-eight told them car; them to let him out. They he asked had up straight him to shut look ahead. and told refused in the Mansion spot Strawberry to an isolated They drove whereupon they stopped, ordered Philadelphia, section car, put him and picked up out of get Rigney Mr. car, and closed and locked the trunk of into the him that half to three-quarters testified Rigney Mr. trunk.. up to this time. elapsed had an hour *12 in the trunk Rigney with Mr. for drive They proceeded an hour. Their final three-quarters half to another remote, wooded, secluded area of very was a destination Township, Montgomery County, Pennsylva- Merion Upper The trunk of the car was nia, site of a ravine. at the A man was out. third had pulled and Mr. Rigney opened and he along way, two somewhere the other joined his hands behind his back. As Mr. Rigney put told Mr. stomach and he was struck away, backed Rigney his ground, he on the hands lay While ground. to the fell He tape. back with white adhesive his were tied behind and a necktie that had been to his feet then pulled was made into a noose was over his head slipped and pulled tight. He was then led to the edge the ravine and fell, heAs Mr. lost pushed. Rigney consciousness. When consciousness, regained he Mr. Rigney discovered that he had fallen about five or six only feet down and in a plateau had come to rest area of the ravine. His were tape hands free and the was from hanging his wrists. He removed the noose from his neck and tried to move, at he which time became sick and then lost violently con- later, again. sciousness Several hours he regained con- sciousness and was able to climb out of slowly the ravine. farther, he could down on go lay When the road. later, minutes Approximately twenty found jogger him and an and cаlled the ambulance.
Mr. had been beaten Rigney severely. According description by of his condition given who jogger found him and who policemen scene, arrived on the swollen, deformed, face was and black and blue from bruises. There was a very forehead, severe on his gash left eye and his was swollen closed. Dried blood covered neck, his face and and there were severe abrasions on his blue, neck. His hands were cut and black and and his ears were discolored black. His clothing was covered with dirt and debris and ticks exposed had infested the areas of his skin. He gasping and had difficulty Ulti- speaking. he suffered mately, permanent loss of hearing in one ear. His Timex sixteen-year-old wristwatch, his keys, and his wallet with his vehicle registration card in it had all been taken. days later,
Two defendant, May Gregory Williams, was spotted driving Mr. car Rigney’s in an area far not from where Mr. Rigney had been abducted. The defendant was stopped and when he could not produce car, registration card for the he was arrested and taken into Mr. custody. Rigney’s watch and vehicle registration card were found on the defendant’s person. A search the car revealed several gun, rolls of white adhesive *13 450 defendant, and several books a letter addressed
tape, on them. defendant’s name with of trial error. now asserts four claims Appеllant trial wit- examination at of Commonwealth direct During O’Brien, Township P. Merion Upper ness William on the night his arrest interrogated who officer incarceration, the occurred: following and What did hav- Q. Attorney]: you Commonwealth do [by appellant, place Mr. Williams ing met [the Philadelphia lock-up]? in the incarceration I asked him for his personal witness [by A. O’Brien]: name, address, birth, identification, date inquired into of a vehicle that he to how he came possession as Rigney’s. that Mr. operating, was it? how he came in Q. you he tell Did that, 16th, he the date prior A. said that on He a street with along keys the car parked had found took it for ride. and Q. hapрened? Then what he remain silent. that elected to
A. After a mis- objected requested defense counsel Thereupon trial, witness’ statement about appel- that the arguing The unduly prejudicial. silent was motion remaining lant’s now that such argues denial Appellant was refused. error to admit evidence of “it is reversible error because at the time of his arrest”. Common- silence defendant’s (1976). 828 Greco, 465 Pa. 350 A.2d wealth v. ac- upon such an commenting Amendment forbids Fifth will as being jurors accept such silence, the fear cused’s Haldeman, Pa. of guilt. an indication cases, these cited (1972). A.2d 765 In others therein, to the the references defendant’s remаin- mentioned doubt, number and leave are more than one in silent ing inference, question- the accused during deduction or the crime. Therein arises the fear not discuss ing would something that the man “knew jurors suspect will after, However, in the instant identi- telling.” wasn’t *14 of questions, the theft movable fying only property charge to, was referred which precipitated the defendant’s silence. no There was detailed into other questioning any of aspect activities, nor alleged subject’s the criminal was the act of mentioned. I consider the again duty silence of the trial court to assess the of possibility prejudicial inference arising from such and here the testimony, court did so. Because it for is difficult an court very appellate from the printed have record to the same for the at as feeling events trial did I judge, the lower court should find only error when it is judge clear that trial abused his discretion in denying the motion for I not a mistrial. do so find. theOn contrary, I believe lower court’s determination that no prejudice justified. arose was is not public unaware of the right accused’s to remain silent and the of the Com- duty to monwealth prove guilt beyond reasonable doubt. With awareness, this recently increased I find it more and more unlikely suspect to that prejudice arises when the exercise оf mentioned, the constitutional is right in an particularly off-hand manner. I believe that the awareness this right has been most generally disseminated through media until juncture we have now reached the where slight, unre- mention of the peated accused’s remaining silent without contextual direct or potential inferential for is prejudice, more harmful to the accused in eyes jurors than prosecution statements as to allegations of guilt.
As a part its Commonwealth introduced into sticks, evidence four identified anby F.B.I. investigator who analyzed items as of a pieces broomstick. As to only one yarns “concluded that those piece could [fоund thereon] originated have from this shirt the victim was wear- [which ing].” testimony, Notes of p. Appellant objects, argu- ing that the was permitted thus to infer jury that at least one of these items was used to beat the body the victim. There is no for inference, basis such these items not being immediately such as to inflame the or mind cause one as instantly recoil from a readily-identifiable instrument is of their admission in case one of point of crime. The hold were relevant to they And we show relevancy. ravine, stopping of the victim into the the fall found, together sticks were with some of his where the spot This is a fact material the case. See items. personаl 756 (1970). Pa. 266 A.2d Myers, was for of an instru- possession One of the indictments in handgun possession crime. This found ment of stopped Philadelphia. when he was However of appellant as any testimony gun there was no direct victim when released County—the from Montgomery *15 trunk, tied, Montgomery County, in did not and abandoned which he had when to this observed testify seeing handgun, that was argues error for first abducted. Appellant have his demurrer or request lower not to sustained court that Montgomery County verdict on the basis for directed over this Circumstantial evi- jurisdiction charge. had and conviction. The cir- is sufficient for indictment dence here that this ac- presented weapon evidence cumstantial event, the entire from Philadel- during companied to and back County, Philadelphia, to Montgomery phia, that, the law “in order to obviate allowing with together during journeys to offenses committed of as difficulty proof or in indictment for misde- place, any felony place from . . . carriage whatever any committed meanor allege it shall be sufficient to any journey, in employed within any or misdemeanor committed such felony . whereof such through any part or county place in of journey the course passed shall have carriage shall have been felony which such or misdemeanor during . that Montgomery Cоunty . .make clear committed 427, 49, 31, of March P.L. 19 Act § had jurisdiction. Hainds, v. 448 Pa. 292 P.S. 525. See (1972).2 A.2d indictment, argues possession appeal, appellant while
2. On court, jurisdiction prejudiced of the trial moreover not within argument part by being This was not its trial. motions, during post-trial purposes. is waived for our advanced Appellant’s final is argument the weight of the evidence is insufficient to sustain the conviction. The evi- against dence viewed appellant, more favorably to the ver- winner, is dict circumstantial mainly because the victim was ordered not to look to either side his captors immediately having taken, upon been and he was unable to see thеm trunk, tied, when released from the and pushed into the ravine because of the rapidity events. The circumstantial evidence in this case was sufficient to convict. Common- Roscioli, wealth 454 Pa. (1973). A.2d 396 As stated so excellently Judge STEFAN in his opinion:
The evidence in the presented instant including the circumstances surrounding defendant’s of sto- len are property, sufficient to support the verdicts of the jury. Defendant was found driving the victim’s car with- approximately forty-eight crime, hours in an area not far from abduction; scene he gave two false conflicting stories how he happened have car; possession of the he was wearing the victim’s sixtеen watch; year-old Timex he was carrying victim’s vehi- cle registration card in his own wallet his own pocket; car; a gun and, was found inside the several other items were belonging defendant found inside the vehicle. Defendant’s assertion that there was nothing to indicate *16 existed in gun Montgomery County is without merit. There was direct testimony that it was there at abduction, the scene of later, that the outline of it pocket observed of one of the abductors. A gun was found in the victim’s car when defendant was picked It would be up. folly imagine that gun had not gone with the men to along Montgomery County venture, entire nefarious and that it did so was not an unreasonable inference for the jury to have drawn. I would affirm.
WATKINS, President Judge, PRICE, J., join in this Opinion. Dissenting