Commonwealth v. Williams

SPAETH, Judge,

dissenting:

According to the record, when the police saw the fugitive Carl Brown, the gun in the shoulder holster, the brown paper bag, and the other defendants changing their clothes in preparation for the robbery, the lights in the apartment were on. (N.T. 266, 279) In other words, none of the evidence was seen by means of the startron, but instead by binoculars and the naked eye. I therefore cannot say that the evidence was improperly admitted. Nevertheless, I disagree with the majority’s conclusion that the people in the darkened apartment had no reasonable expectation of privacy-

The majority states:

Considering all the factors advanced by appellant — the location of the apartment, the duration of the surveillance, the use of binoculars and of the startron — it remains irrefutably clear that just as in Hernley, the occupants of the apartment could have precluded all observation by the simple expedient of curtaining or otherwise covering the windows.

Majority opinion at 1291.

By this statement the majority seriously erodes the concept of Fourth Amendment privacy; it informs the citizens of this Commonwealth that when they retire to their bedrooms and turn out the lights, they must not open their curtains, unless they are willing to have their most intimate moments the subject of scrutiny by the police.

I am not predicting the erosion of privacy; it has occurred; and the majority has sanctioned it. One of the police officers testified as follows:

Q Officer, I refer you now to the night of October 17, 1974. At what time did you arrive at 922 Washington Street to conduct your surveillance then?

*530 A I arrived at my location point for the surveillance about eight o’clock.

Q Yes. Excuse me. What did you do at eight o’clock there?

A What — started taking up the surveillance.

Q What did you do?

A Went to the third floor and started watching the apartment.

Q What did you see?

A I saw Henry Curtis James and at that time she was unknown Negro female.

Q Were the lights on or off?

A May I refer to my report, please?

Q Were the lights on or off?

A The lights were on at one time during that period, but they were off. The television was on.

Q What were Mr. James and the unknown female doing? A Engaging in sexual activities.

Q Were they dressed or undressed?

A Undressed.

Q For how long did this continue?

A I don’t recall, fifteen, twenty minutes, I believe.

(N. T. 230-231)

After a discussion at side bar the officer continued:

Q How long did this activity continue?

A From the time of my beginning the surveillance, there was a time that they were engaged in sexual activity and there was a time that they were just there. I can’t give you specific times that this man and this girl engaged in those activities.

Q Did someone interrupt? Did someone approach the house?

A Oh, eventually, later on.

*531 Q At what time, or approximately fifteen, twenty minutes?

A Approximately the first person that came that night was George Williams and the girl he was with.

Q Did Mr. Williams have a key?

A No. He did not.

Q How was Mr. Williams given entry to the apartment?

A George Williams and his girl stood on the front porch. They rang a doorbell. There’s doorbells on the front and I assume they rang a bell. We could see that the persons upstairs — apparently, the bell didn’t ring or they didn’t hear it because they just still sat there. A couple of minutes went by, maybe close to five, and then, finally, again Mr. Williams pushed the button and the girl jumped up and ran into a bedroom, which I told you before, and Henry Curtis James, who was the Negro male there, came downstairs and allowed them entry.

Q When Mr. James came to the door, was he dressed or undressed?

A He had a pair of jeans on.

Q When had he put on those jeans?

A Put those jeans on when the bell rang — I would have to assume the bell rang.

(N.T. 234-235)

It is plain that the two people involved in this incident wished privacy. In my opinion they were reasonable in believing that when they had turned out the lights, they had secured privacy. On the civil side, liability has been imposed for intrusions comparable to the officer’s in this case. See Hamberger v. Eastman, 106 N.H. 107 , 206 A.2d 239 (1964) (civil liability in tort for invasion of privacy where landlord places listening devices in married tenants’ bedroom). See generally Prosser, Handbook of the Law of Torts, § 117 (West ed. 1971).

*532 Contrary to the apparent belief of the majority, the individual’s right of privacy is not subordinate to the intrusive capabilities of the police. We may be assured that “the fantastic advances in the field of electronic communication,” Lopez v. United States, 373 U.S. 427, 441 , 83 S.Ct. 1381, 1389 , 10 L.Ed.2d 462 (1963) (WARREN, C. J., concurring), will continue. According to the majority, it is the individual’s burden to protect himself against such advances; let him adopt “the simple expedient”, says the majority, “of curtaining or otherwise covering the windows.” Accept this argument, and our privacy is gone, for soon the police will be able to see through our curtains, and our walls too. As one commentator has noted:

Most present building materials, such as wood and brick, are as opaque to infrared radiation as they are to visible light. However certain substances in widespread use, such as plastics, are excellent transmitters of infrared energy even when painted and thus opaque to visible light. To a lesser extent glass and derivative materials such as fiberglass also transmit infrared radiation. The day may soon arrive when the infrared emanations from a human body, passing through the four walls which have traditionally afforded privacy from visual intrusions, can be detected and reconstructed into a television picture by a nearby snooper. Such a development would remove the last barrier to unwanted visual observation of private areas.

Note, Electronic Visual Surveillance and The Fourth Amendment: The Arrival of Big Brother?, 3 Hast.Const. L.Q.-, 269 (1976) (footnote omitted)

What “simple expedient” will the majority recommend then?

I recognize the public policy favoring the advancement of the ability of the police to detect and prevent crime. However, I also recognize, as the majority does not, that the privacy of the home is a right guaranteed by the Fourth Amendment of the Constitution; it is not a mere privilege *533 subject to destruction at the hands of the state. See Gris-wold v. Connecticut, 381 U.S. 479, 484 , 85 S.Ct. 1678 , 14 L.Ed.2d 510 (1965). 1 The framers of the constitution did not intend that we should be driven to our cellars, there to communicate by passing notes. As one noted commentator has observed:

[AJnyone can protect himself against surveillance by fore-bearing to use the phone; and so far as I am presently advised of the state of the mechanical arts — anyone can protect himself against surveillance by retiring to the cellar, cloaking all the windows with thick caulking, turning off the lights and remaining absolutely quiet.

Amsterdam, Perspectives on the Fourth Amendment, 58 U.Minn.L.Rev. 349, 402 (1974).

In Lorenzana v. Superior Court of Los Angeles County, 9 Cal.3d 626, 636 , 108 Cal.Rptr. 585, 593 , 511 P.2d 33, 41 (1973), the California Court of Appeals said:

Surely our state and federal Constitutions and the cases interpreting them foreclose a regression into an Orwellian society in which a citizen, in order to preserve a modicum *534 of privacy, would be compelled to encase himself in a light-tight, air-proof box. The shadow of 1984 has fortunately not yet fallen upon us.

With the majority’s decision upholding the police use of the startron, “the shadow of 1984” has not “fallen”, perhaps, but a few more such decisions and it will.

There is a second, independent, disagreement I have with the majority, which leads me to conclude that the disposition in this case is in error. Specifically, I dissent from the majority’s decision concerning the trial judge’s handling of the jurors who became aware of the newspaper article concerning appellant.

The Pennsylvania Supreme Court has stated that the “minimal standards of constitutional due process guarantee [] to the criminally accused a fair trial by a panel of impartial and ‘indifferent’ jurors.” Commonwealth v. Stewart, 449 Pa. 50, 52 , 295 A.2d 303, 304 (1972), cert. denied, 417 U.S. 949 , 94 S.Ct. 3078 , 41 L.Ed.2d 670 (1974). “A jury’s verdict must be based upon evidence presented in the course of the trial, not on extraneous commentary presented in the forum of public opinion by news media.” United States ex rel. Dessus v. Commonwealth of Pennsylvania, 316 F.Supp. 411, 419 (E.D.Pa.1970), cert. denied, 409 U.S. 853 , 93 S.Ct. 184 , 34 L.Ed.2d 96 (1972), citing, Sheppard v. Maxwell, 384 U.S. 333 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966). Thus, where the juror’s decision is influenced by media reports, the conviction must be reversed. Irwin v. Dowd, 366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961).

Great care must be taken in striking the balance between the fundamental right of free press and the fundamental right to a fair trial. See Commonwealth v. Bruno, supra. In striking the proper balance, the trial judge has discretion to decide what procedures shbuld be employed. See Commonwealth v. Bruno, supra. However, “ ‘our system of law has always endeavored to prevent even the probability of unfairness’ ”. Commonwealth v. Stewart, supra, 449 Pa. at *535 57 , 295 A.2d at 306 , quoting In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (1955).

The application of these principles has led to a two step inquiry being made in cases where the accused claims that his right to a fair trial has been violated by prejudicial publicity. The first inquiry is whether the jury was aware of the publicity; 2 if it was, the second inquiry is whether that awareness prevented the jury from remaining impartial. In this case we need not make the first inquiry because one juror read the article and another was told about it. See Commonwealth v. Santiago, 456 Pa. 265 , 318 A.2d 737 (1974) (three jurors admitted to hearing inadmissible remarks). In making the second inquiry we must examine the specific item in question in light of the corrective actions taken by the trial judge.

If the publicity is merely an accurate factual account, with no comment as to guilt or innocence, a cautionary instruction by the trial judge, that in reaching their verdict the jurors must consider only the evidence at trial, will be held to remove any element of unfairness. See United States v. Jones, 542 F.2d 186 (4th Cir. 1976); United States ex rel. Dessus v. Commonwealth of Pennsylvania, supra. See also People v. Pisarski, 6 Ill.App.3d 235 , 285 N.E.2d 551 (1972) (articles were mostly factual and did not contain prejudicial information; jurors who had read articles swore that they were not affected). In this case the greater part of the news article in question was devoted to a factual summary of the evidence produced at trial and contained no comment as to guilt or innocence. Were this all, our inquiry would be complete, because there was nothing in this portion that could be said to affect the jurors’ impartiality, and the trial judge properly instructed them to decide the case based *536 only on the evidence produced at trial. However, the article also contained these two paragraphs:

Williams is on trial a second time for participating in the holdup with two others, including Carl Brown who was shot and killed the same night when Easton police surrounded the trio at a Washington Street apartment.

Williams was convicted in March of participating in the robbery. However, Northampton County President Judge Clinton Budd Palmer granted Williams a new trial two weeks ago. Palmer ruled that police had conducted an improper search of the apartment where they arrested Williams. He said some evidence collected during the search could not be used against Williams.

The majority states that the information contained in these paragraphs “was not inherently prejudicial; but was ambiguous at most.” Majority opinion at 1296. I find no ambiguity. The article informs the most casual reader of these facts: first, that appellant had already been found guilty of the very crime for which he was on trial; second, that President Judge PALMER had nevertheless granted him a second trial because, in the judge’s opinion, the “police had conducted an improper search” — i. e., in popular parlance, “because of some legal technicality”; and third, that because of this technicality, the district attorney was not going to be able to use all the evidence he had. This information was inherently prejudicial, as may be realized by reflecting that if the district attorney had made a statement to this effect at trial, a mistrial would have been required. See Commonwealth v. Heacock, 467 Pa. 214 , 355 A.2d 828 (1976). See also Commonwealth v. Reynolds, 254 Pa.Super. 454 , 386 A.2d 37 (1978); Commonwealth v. Sargent, 253 Pa.Super. 566 , 385 A.2d 484 (1978); Commonwealth v. Long, 258 Pa.Super. 251 , 392 A.2d 779 (1978). The fact that the juror read it in a newspaper instead of hearing it from the district attorney does not in any way diminish its inherently prejudicial quality. The question, therefore, is whether the corrective actions taken by the trial judge overcame the prejudicial impact of the article.

*537 The trial judge had warned the jurors not to listen to or read any news report concerning the case. Two jurors admitted to disobeying this warning. Upon discovering this disobedience the judge questioned each juror individually and repeated his warning. This was proper procedure. See Mares v. United States, 383 F.2d 805 (10th Cir. 1967); United States v. Accardo, 298 F.2d 133 (7th Cir. 1962) (purpose of individual interviews is to overcome any reluctance jurors may have to speaking out). The jurors swore that they had not been prejudiced, and that they would decide the case based solely on the evidence produced at trial. At this point the judge had to decide whether to dismiss one or both of the jurors, or declare a mistrial, or allow the case to proceed before these jurors. See ABA Standards Relating to Fair Trial and Free Press, § 3.5 (Approved Draft 1968) (Commentary); see also United States ex rel. Goodyear v. Delaware Correctional Center, 419 F.Supp. 93 (D.Del.1976) (judge excused juror who had read news item and replaced him with alternate juror). The judge warned the jurors of their duty to remain impartial and to decide the case solely on the evidence produced at trial, and then allowed them to remain as jurors. The majority says that this was not an abuse of discretion. I disagree. Some evidence is so prejudicial that a juror’s protestation that he will not be prejudiced cannot be accepted. In my opinion, that was the case here.

In Commonwealth v. Conti, 236 Pa.Super. 488 , 345 A.2d 238 (1975), this court examined the problem of a trial judge who while sitting as a fact finder became aware of inadmissible prejudicial evidence against the defendant. Instead of adopting a general rule that a judge as someone trained in the law could be presumed to ignore inadmissible evidence, we held that each case must be decided on its facts; “judges are subject to the same emotions and human frailties as affect all persons, lay jurors or not.” Id., 236 Pa.Super. at 499 , 345 A.2d at 244 . See Commonwealth v. Badger, 482 Pa. 240 , 393 A.2d 642 (1978) (counsel ineffective for not request *538 ing trial judge to recuse himself where judge knew that defendant had earlier pleaded guilty to the charge. Thus we held that even though the judge may honestly believe that he will not be affected, there are some cases where we will nevertheless say that the evidence was so prejudicial he could not ignore it. Evidence of a prior plea of guilty to the same crime by the defendant is such evidence. Commonwealth v. Conti, supra.

What is true of a judge, experienced in the rules of evidence, must be even truer of a lay juror. This court has stated that “[o]ur law of evidence is the product of the need ‘to shelter untrained citizens from the temptation to accept uncritically that which may be unreliable and of doubtful credibility.’ ” Commonwealth v. Conti, supra, 236 Pa.Super. at 497 , 345 A.2d at 243 , quoting, Levin and Cohen. The Exclusionary Rules in Nonjury Criminal Cases, 119 U.Pa.L. Rev. 905, 905-906 (1971). The Commentary to the ABA Standards relating to Fair Trial and Free Press discusses this precise issue:

There will certainly be occasions when a juror’s assurance of impartiality may properly be accepted, but there will be other occasions when the information is of such a character that prejudice ought to be presumed, regardless of the juror’s testimony as to his state of mind.

ABA Standards Relating to Fair Trial and Free Press, § 3.5 (Approved Draft 1968) (Commentary) (footnotes omitted).

In support of this recommendation the Commentary quotes the United States Supreme Court in Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964), where in discussing the problem of having a trial jury decide the voluntariness of a confession, the Court stated:

If it [the jury] finds the confession involuntary, does the jury — indeed can it — then disregard the confession in accordance with its instructions? If there are lingering doubts about the sufficiency of the other evidence, does *539 the jury unconsciously lay them to rest by resort to the confession? . . . These hazards we cannot ignore.

ABA Standards, supra, quoting Jackson v. Denno, supra, at 388-89, 84 S.Ct. at 1787 (footnote omitted).

The jurors here should not have been permitted to remain on the case. In Commonwealth v. Santiago, supra, a witness told one juror that the defendant had “killed an innocent boy and it isn’t the first one he has killed.” This remark was overheard by three other jurors. After individual interviews of each juror, the trial judge dismissed one juror but allowed the others to remain. In reversing, the Supreme Court stated:

In this case the remarks heard by the three jurors would not have been admissible during the trial, and their admission over objection, would have constituted reversible error. The prejudice to the appellant is no less when the remarks are made outside the courtroom. The appellant was entitled to an impartial and indifferent jury. His motion for a mistrial should have been granted.

Commonwealth v. Santiago, supra, 456 Pa. at 270 , 318 A.2d at 740 .

If evidence of prior convictions for unrelated crimes would be evidence warranting the grant of a mistrial, see Commonwealth v. Santiago, supra, so too must evidence of a prior conviction of the exact same crime; in fact such evidence is clearly more prejudicial than evidence of other crimes, which might tell the jury that the defendant is a bad person likely to commit crimes but does not tell the jury that the defendant had in fact committed the very crime for which he is on trial. These considerations are especially pertinent here, where the evidence of the prior conviction was aggravated by the explanation that it had been set aside because of a ruling suppressing evidence.

The judgment of sentence should be reversed and the case remanded for a new trial.

CERCONE, J., joins in this opinion.

. In Griswold Justice DOUGLAS, joined by three other members of the Court, held that the “various guarantees [of the First, Third, Fourth and Fifth Amendments] create[d] zones of privacy” protected from state interference by the Constitution. 381 U.S. at 484 , 85 S.Ct. at 1681 . In so holding, Justice DOUGLAS stated that the Fourth Amendment was a “protection against all governmental invasions ‘of the sanctity of a man’s home and the privacies of life.’ ” Id., quoting Boyd v. United States, 116 U.S. 616, 630 , 6 S.Ct. 524, 538 , 29 L.Ed. 746 (1886). See also Mapp v. Ohio, 367 U.S. 643, 656 , 81 S.Ct. 1684, 1697 , 6 L.Ed.2d 1081 (1961) (Fourth Amendment creates “right to privacy”). One possible effect of the contraceptive law held invalid in Griswold, according to Justice DOUGLAS could have been the difficulties of enforcement, specifically the possible invasions of privacy caused by the police searches for evidence. With respect to this possible problem he stated:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the [marital] relationship.

Id. 381 U.S. at 486 , 85 S.Ct. at 1682 .

The use of a startron to peer into a darkened bedroom at night is even more repulsive to the notions of privacy than a daylight search for contraceptives.

. In some cases the publicity is so inflammatory and so massive that the court will assume that the jury was aware of it, even though no juror admits to having heard or read the item in question. See Commonwealth v. Casper, 481 Pa. 143 , 392 A.2d 287 (1978); Commonwealth v. Bruno, supra; Commonwealth v. Price, 463 Pa. 200 , 344 A.2d 493 (1975); Commonwealth v. Bobko, 453 Pa. 475 , 309 A.2d 576 (1973).