Petition for Writ of Certiorari — Lopinson v. Pennsylvania
Supreme Court brief1968
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‘ "SUPREME COURT, UB
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JOHN F. DAVIS, |
“Supreme Court of the Unit ,
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October Term, 1968 er -
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: a COMMONWEALTH OF PENNSYLVANIA, Respondent
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Petition for Writ of Certiorari to the
_ Supreme Court of. Pennsylvania :
Sa Ee ene | ; Sr _——
OSCAR SpIvick,
A. CHARLES. PERUTO, ea
Attorneys for Petitioner —
' Of Counsel: | ae ~ ee wae
* ae 16th Floor, e aes oi
--. + Two Penn Center Plaza
“& ‘Philadelphia, Pa. 19102 -
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INDEX. eae
Be | _ Page
ae Citation to Spices naw: icietc awe Nites etd ec 8
Jurisdiction .......:+.4.: pany Sins ovbes thexbaeeueees 2 :
Statute Involved ...: er ies rhe vieceae ene :
- Questions Presented . a se case ye Me seesecee BY > he
- Statement of the OR i. sack. eV eatanienaee ss 1
_ Reasons for Granting the Writ aah ee 21 -
Conclusion - Peal waged aucun ex OMT ye bt
' Appendix A—Opinion of the Supreme Court of Penn-.
: sylvania .... 2.6256. 0ee tees eee ere es 86. :
. B-Opinion of Trial Court .:............ 59.
C—Petition for Re-Argument Eee, |
ed D—Answer éo Petition. for Re-Argument... . 90" ie 4
A BE Record Excerpts Relating to Newspaper - Ss
7 I Sg DUES a On nw PEREIS 8 ee 92 ae if
F—Reécord Excerpts Relating to ‘Testitiony Se °
of Frank Phelan ps ooo e ask pest . ee | Xe
ee pe ea Sti lactose Cau caste
| | _ TABLE oF ¢ CIFATIONS -
Cases: - oe
Brady v. Maryiand, 373 US. 83 (1968) “wee oe
_ Commonwealth v. Dessus, 428 Pa. 4177 (1966)... .23; 24
Commonwealth v. Patrick, 416 Pa. 437 (1968) . 19, 20:
Commonwealth v.. Powell, Pa. A.2d ——(Nos.
874, 423, J anuary ee 1967, decided. January
co ‘Glare Se
rare Atanas v. Schmidt, 423 Pa. 432 (1966) ., - +20; 26°
o
a“
' Douglas v. ‘Alibems,, 880 U.S. 415. (1966) . pie
Egeobedo v. Illinois, 878 US. 478 (1964)... ae Bas
_ Francis v- -Reswebber, 829 U.8."459 (1947)... 81
~ Jencks v. yo ag 853 U.S. 687 (1967). er
eeeree ste ee ee eee
| oe Arizona 884 US. 436 (1966). . 6, 19, 20, , 26
Pointer v. ‘Texas, 880 U.S. 400 (1965) SRS yon 29.
| Roviaro v. United States, 853 U.S. 58 (1957) ...... 28
_ Sheppard v. Maxwell, 384 U.S. 333 (1966) . 21, 22, 23°
S Witherspoon v. Illinois (Miscellaneous Docket No. 344). 30
United States Constitution: | ett eee
Fifth Amendment ........ rks oes Wack gandckak ae
Sixth Amendment »................. se cin 4 5, 27, 29-
as ees erent St
Fourteenth Amendment . ae. .8, 4,5; 6, 27, 29
United States Statute:. ° Pan tt pes eas Ss
28 USC. $1257(8) ..0 2. eB
_ Pennsylvania Statutes: ; oa oe ‘.
' Act of June 29, 1918, P.L. 528, “eae eerkie Laweeee
_ Act of June 24, 1989, P.L. 872, §701; as amended by
the Act of December 1, 1959, PL. 1621, $1 ..... 7
Other ‘Authority: - ce
* Oberer, Walter E., 89: Texas Law Review 545, (May,
1961), condensed - in the 7. 6, 1964 issue of
The mer CON ara BPE ee rae F 30
tit TABLE Seana eee
oe IN THE
‘Sapreme Court of the United States
October nay 1968, No. -—-
_ Jack LopINsoN,. Petitioner °
ComMONWEALTE OF Sabres conte Reapovident
ert,
a
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- Petition for Writ ‘ol Certiorari .to the
’ Supreme Court of. Pennsylvania ;
Petitioner prays that a Writ of Certiorari i issue to re-
view the judgment of the Supreme Court of Pennsylvania,
entered in the above entitled case on September 26, 1967,
affirming the judgments and sentences of the Court of Oyer
and Terminer of a County, er
bf »
Citations ‘to Opinios®. low
i The opinion of the Supreme Courslee Pennsylvania i is
reported at 427 Pa. 284, 234 A. 2d 552 (1967) and is at- 7
tached hereto as Appendix “A” (pp. 36 to 58, infra).
The opinion of the Trial Court is unreported and is -. |
_ printed in Appendix’“B” hereto. (pg. 59 to 70, infra).
J urisdiction
Petitioner was tried before a jury on two bills of i in-- =
dictment charging Petitioner with murder. He was found
‘guilty and sentenced by the Trial Court to death in the eléc-
tric chair following separate jury verdicts fixing this pen-
alty. _The jury trial verdicts of guilty and fixing the death
penalty were entered_on March 4, 1965.
Following hearing and. argument, the Trial Court de- ;
nied Petitioner’s motions for’ new trial and in arrest of”
judgment and on November 8, 1965, entered judgment of .
- guilty‘on the bills of indictment and sentenced. Petitioner
to death in the electric chair on each bill:
hy: Petitioner subsequently appealed to the Supreme Court -
of Pennsylvania. Thé Trial Court’s judgment and séntence -
were affirmed by the Supreme Court of Pennsylvania by
opinion and order entered on September 26, 1967. Petition _
to the Supreme Court of Pennsylvania for reargument was —
denied by order entered November 24, 1967.
_. * ~The jurisdiction of this Court is invoked under 28
- BBC SIaerKS).
‘oa
ae
Statute hieatiad.
"phe 5 sabaiaas provisions involved are Pennsylvania
ng tes, Act of June 24, 1939, P.L. 872,§701; as.amended -. ~
e ‘Act of December 1,-1959, P.L. 1621, a, and the -
is Ph of’ June. 19, 1913, PL, 528, §1.
d "4 ‘ >
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ss . . . . » - *s +
os lenge exist?
Questions Presented
1. Ina murder case whet bh public reaction is extremely ©
* high and newspaper publicity adverse to Petitioner is un- __.
precedented in volume and nature, has Petitioner been de-_
nied due process of law and equal protection of the laws by .
_ the Commonwealth of Pennsylvania where he is indicted
immediately ‘following his Arrest. without any opportunity
- tochallenge the array of any member of the Grand Jury or
_ even to investigate and ascertain whether er. for chal-
2. In the face of auch unprecedented edveres news-
paper publicity, which included extrajudicial statements of.
. - police officials, the prosecutor and other officials of the Court, -
has Petitioner been denied a fair trial in violation of the
_ Fourteenth Amendment to the Constitution of the United , |
' . States by Trial Court rulings denying’Petitiorier’s requests
for postponement, ofthe trial and the Trial Court’s refusal
to make any effort or attempt to direct press reporters in.
attendance at the trial from publishing exten fatigial mat- .
- ters prejudicial to Petitioner? aS
a 3.* Has Petitioner been deprived of a fair trial in vio-
lation of the’ Fourteenth Amendment.to the Constitution of =
the United States where the Trial Court has@ermitted many
witnesses to give damaging and prejudicial and inadmissi- . :
ble hearsay testimony, and where, on appeal, the Supreme
Court of Pennsylvania holds that the rulings of the Trial -
. Court pertaining to the hearsay testimony are clear error,
. but not sufficient error -to warrant a reversal of the con-
victions? . 2 ,
ad Questions 3 and 7 are not oer as independent aiiihinin Jor 5
granting the writ, but if this Petition is granted, *the questions
will be briefed and argued to show that many errors were maile,
most of which standing alone might be “harmless”, but that all
errors considered in the aggregate add. up to an unfair- trial and
a denial of ‘7 Seeees. . : ;
a 2
“a >
*
4
.
~
restricts and limits examination of jurors on the veir dire
as to knowledge and ceeaecee formed as a result of the news-
paper stories?’ ~ - .
_§. Has Petitioner been denigs a fair trial: in ‘iehotlon
~ of the provisions of the Fourteenth Amendment to the Con- —
stitution of the United States, which incorpoxaté the right
of confrontation contained in the Sixth Amendment to the
United States Constitution, where the major Commonweaith -
witness is permitted to testify at the trial with his eyes and
" portions of his face eoncealed from the view of the deferid-
ant and the jury by heagy black glasses whieh the.witnessis —
not required to wear for any medical or opthalmologioal y rea-
sons?
° 6.. Has Petitioner Laie denied a ee trial in violation
_of the provisions of the Fourteenth Amendniént to the Con-
stitution of the United States, which incorporate the right °
of confrontation contained in the Sixth Amendment to the
United States Constitution, where the major. Commonweal
witness against the defendant refuses to” answer proper
questions on cross-examination and the Court refuses to di-
rect the witness to answer such proper questions on the
ground that such witmess himself is an admitted murderer
_ facing a death sentence.and the Court concludes it js there-
fore powerless to compel answers by threat of ee
for contempt? 7.
a Has Pétitioner been denied a fair trial in violation |
‘ of the provisions of the Fourteenth Amendment to the Con-
stitution of the United States where the Commonwealth is ;
__ permittedo prodiice several witnesses to give rebuttal tes-
timony as to the.character — of Petitioner and ©
where such witne®es are permitted to characterize Peti-
tioner as a “scoundrel” and “unmitigated liar”?
| % Ja eta
4. Has: Petitioner been denied a fair trial i in violation ae
_ of the provisions vf the Fourteenth. Amendment to.the‘Con-
stitution of the United States where, i in the face of extraor- -
dinary adverse newspaper publicity the Trial Court unduly oe,
od
Waits eatin a vit Nt Rial BN AAs Ra csp ACETONE LILLIES
eo
; 4 Seat
_- §, Has the Petitioner _— denied rights’ guaranteed
by the Sixth Amendment to the United States Constitution, —
‘as incorporated into the Fourteenth Amendment to the Con-
~ stitution, where, suibpoenas issued and served upon wit-
nesses are quashed, without hearing, by the Court because
they call for the production of meenly elitainéd | wiretap
trénseripts? ; t
/~ -Where a 1 defendant i is convicted of murder ahd sen- 3
tenced to death chiefly on the testimony of a witness who is
“the alleged co-conspirator and aecomplice of the defendant,
does due process and a fair trial require the prosecutor i
_diselose to the defendant evidence and reports in the prose-
‘eutor’s possession concerning such witnéss which would be .
favorable- to the defense, and does suppression of such evi- |
* dence or reports by te _—— constitiite a denial of due " @
“process? :
10. — Petitioner been depiived of the equal protec- .
tidn of the laws as guaranteed by the Fourteenth Amend-
‘ment to the Constitution of the United States where the ©
Supreme Court of Pa nsylvania decides in another case sub- _
sequent to.the instant case, but actually pending at the same
_ time, that the tge of gruesome and inflammatory color slides
of homicide victims is not to be permitted in a murder trial
where the Commonwealth pathologist can adequately and.
effectively testify without the use of such photographs, but
_ fails to consider and rule upon the very same question raised ~
by Petitioner i in his appeal?
~ @.-
11. Does the examination of prospective ji jurors as to.
their conscientious scruples relating to the imposition. of the
penalty and the rejectiog of all jurors who manifest
ples or hesitancy against the imposition of the death —
' penalty deprive the Petitioner of trial by a jury of his
“neers” in violation of the due process and equal protection
of the laws provisions of the Fourteenth ee to'the |
United er aca eee ce
. *
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&,
6
12. Is the imposition of the death penalty by a State *
as punishment for crime a cruel and unusual punishment
prohibited to the States by the Fourteenth Amendment to
. the Constitution of the United States incorporating therein
_ the provisions of the Eighth Amendment? -
13. Does the imposition of the death penalty against
Petitioner deprive Petitioner of equal protection of the laws
as guaranteed to him by the Fourteenth Amendment to the ©
' United States Constitution where in other cases other per-
sons convicted-of first degree murder are sentenced to life
_ imprisonment?
-14. May mint taken from Petitioner by. police
officers be admitted as evidence against Petitioner where
the statements were taken without counsel being present
. and without Petitioner having been advised of his Consti- .
tutional right to coufisel and the Constitution: right to re-
- main silent where the trial of the case is subsequent to this
Court’s decision in Escobedo vs. Illinois, 378 U.S. 478 (1964)
but prior to Miranda vs. Arizona, 384 U.S. 436 (1966) and
. Johnson vs. New Jersey, 384 U.S. 719 (1966): but where at
. . the trial Petitioner’s counsel specifically challenges the ad-
missibility of the statements on the very ground that. appel- —
lant was: not informed of his Constitutional rights at the
time of his interrogation by the poree!
15. Has Petitioner been deprived of life and liberty i in
violation of the Fourteenth Amendment of the United States
Constitution where the Trial Court and the Supreme Court _
of Pennsylvania summarily dismiss, without hearing, Peti-
tioner’s timely application for a new trial based on essential.
facts and evidence discovered following the trial, but prior :
. to the entry of judgment on the jury verdict and the impo-
sition of sentence?
16. . Has tlie Supreme. Court of Petitisylvania deprived
Petitioner of life and liberty in violation of the Fourteenth
: Améndment of the United States Constitution in affirming
| convictions of murder and the ee of the death sen-
ana tc atinnns erat
e ‘ . ® I °
? . .
= Sat p Lee
ETRE MR RTE PERE NL IIIT IIL IO OE! SUPE PS IIE TOI I IT ‘ ee ’ ere PEEPS E cre? hae ASIST
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7
7 .
tence in an opinion mn order where certain essential facts, ee
upon. which the opinion is predicated, are mis-stated and ‘it
is obvious that the appellate court has based its opinion,
in part, on factual errors made by it and when the factual
- errors are called to the Court’s attention in a timely petition
for re-drgument the Court denies such ——
Statement of the Case
| Petitioner was con\ victed of murder with sentence of
death being imposed by a jury after a trial in-the Court of
~ Oyer and Terminer of,Philadelphia County. ‘The homicides
_ occurred inthe City of Philadelphia on June 19, 1964, in the
basement of Dante’s Restaurant, located at 1809 Chestnut
Street. Indictments charged Petitioner with.the murders of
Judy Lopinson, his wife, and Joseph Malito, his Dante’s
Restaurant partner.
ePetitioner wai ted J uty 15, 1964, by the Medical
_ Examiner of Phil ia, following an inquest conducted
‘ by the Examiner. These proceedings are reported in the ~—
Record at pages 4a to 292a. Petitioner was denied any right
to participate in the inquest proceedings and the right to
_ examine, either personally or by counsel, any-of the: wit- .
nesses who were called and testified. At the conclusion of
the inquest and the arrest of Petitioner the two Bills of.In- ©
dictment were presented by the District Attorney to the .
Grand Jury. of Philadelphia County which indicted on both ~~
' Bifls. . Petitioner was never afforded a preliminary hearing
or any other opportunity to cross-examine the witnesses who -
appeared against him at the inquest or. before the Grand:
Jury.
” From the date of the homicides until the conclusion of
the trial, this case received probably more publicity than any
other case in.the history of Pennsylvania.
From June 19, 1964, to September 11, 1964, Petitioner —
had been represented first by an attorney who was involved
in the case as a witness and principal, and then for a short
time by other privately retained counsel. On September 11,
1964, after indigency proceedi gs, the undersigned counsel
were appointed by the T to represent Petitioner.
Following that eae: a number of pre-trial motions
and petitions were filed and disposed of by the Trial Court.
The pre-trial motions are set forth in the Record at pages
496a to’1050a..
Petitioner moved to. quash the indictments on the
ground-that he had heen indicted within minutes following —
his arrest and thereby had been deprived of legal-and con- .
stitutional rights in not being given the opportunity to chal- |
lengé the array of the Grand Jury and individual jurors re- -
garding prejudice caused by the exceptional publicity. The .
‘motion to quash and the proceedings relating thereto are ©
set forth in the record starting at page 616a. The opinion
of the Trial Court dismissing the motion is reported at page - °
738a. The dismissal was appealed to the Supreme Court of
Pennsylvania, which quashed the appeal without hearing,
on motion of the Prosecutor.
On January 18, 1965, the iain proceeded to trial over.
Petitioner’s objections to trial at a time of tremendous preju-.
dicial publicity. All applications for continuance were de-
nied on the ground that the Trial Court could not control the _
_. press (and refused to make any attempt to-do-so). Jury
"selection was made in-the prejudicial atmosphere of an uii- —
“Akt the tris, thi Commonwealth's presentation included
more than fifty witnesses and sixty exhibits. The defense
included thirty-six witnesses and twelve exhibits. The ver-
dict was rendered March 4, 1965, forty-five days after eom- |
_ mencement of the trial.
_ Motions for a new trjai and in arrest of icteiant were
timely filed with the Trial Court. These motions are re-
_ ported at pages 6044a and 6045a of the Record, and the oral
argument relating thereto on pages 60538a et seg. All of the
questions here presented were raised at that time or sescied
from the State Supreme Court’s opinion. © ~
. Prior to the lower court’s disposition of the iitiene, the
‘Commonwealth's essential witness, Frank’ Phelan, i
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Fea ee ciety iene snore wasenidntiratiese inne snlihattel mew -
appeal
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his testimony. Petitioner also sebesil access : to aniianihy
withheld evidence regarding the mental competency of this |
witness. By petition filed with the Trial Court a hearing
was sought for the purpose of presenting’evidence on these . _
points for consideration by the Trial Court with respect fo
the pending motions for new trial. The petition was sum-:
‘marily dismissed, without hearing, by the Trial Court. ‘The
petitioncis set forth in the Record at page 6035a. Petitioner
ot thy dismiseal to the Supreme Court of Pennsylva-
nia but ori motion of the Commonwealth, and again without
hearing, the Supreme Court of Pennsylvania quashed the
appeal. ~
On November 8, 1965, the Trial Court denied Peti- -
tioner’s motions for a new trial and in arrest of judgment
and imposed the sentence of death. An appeal to the Supreme
_ Court of Pennsylvania immediately followed and on May
12,:1966,-the Trial Court filed with the Supreme Court of
- Pennsylvania its opinion in support of its denial of the mo-
tions. The opinion of the Trial Court.is.set forth at page
i 6348a et.seq. of the Record and is attached | ae -_
pendix “B” (pp. 59 to 10, infra}.—
_——Atthe trial of the case, it was the Commonwealth's
theory that the murders were actually committed by Frank
Phelan, who was hired to do so by Petitioner’ Frank Phelan
so testified. In purported substantiation of the testimony of —
Frank Phelan, the Commonwealth called many witnesses -
who testified concerning Petitioner’s financial affairs and —
marital infidelities. Much of the testimony produced by the
Commonwealth of this nature was admittedly ee
hearsay. .
On September 26, 1967, the Supreme Court of pe 2
_ sylvania affirmed. The opinion and order of the Supreme
Court of Pennsylvania i ‘is reported in 427 Pa. 284, 234 A. 2d
552, and is also attached hereto as Appéndix “AY (PP. 386
to 58, infra).
. Petitioner filed his timely comprehensive petition for
reargument setting forth that the Supreme Cqurt of Penn-
ayivania | had made a sqries of factual errors in Bs opinion.
eT eee
10
“The opinion omtuined aciiiaiaariia as of law based on °
' facts completely contrary to the facts contained in the Rec-
. ord. The Commonwealth’s answer failed to deny or dispute
.that the opinion of the Supreme Court of Pennsylyania did
in fact contain the erroys. The.petition for reargument was. .
denied November 24, 1967. The petition and answer are
attached hereto as Appendix “C”. (pp. 71 to 89, infra). and
“Appertilix “D” (pp. 90, 91, infra). respectively.
The federal questions: sought to be reviewed in- these
proceedings were raised in the Trial Court and i in the appel-
_ late court at: the i cate and in the following
* manners: ee |
pe "Theat of due process ‘resulting el Petitioner’s
indictment within minutes following his arrest was raised -
by pre-trial motion to quash the indictments (R 616a). The
denial of the motion to quash was appealed to the Supreme
‘Court of Pennsylvania. following the action of the Trial
- Court and was. raised again 'in the appeal following judg-.—
ments and sentencing (R 739a to 751a).
2. The question of adverse publicity + was raised by Pe-
titioner’s motions for continuance before trial and during -
jury selection (R 1058a, 1165a, 1344a, 1550a). At those .
times counsel for Petitioner also urged upon the Trial Court \ »
that it make some.effort to control the news reporters who
were in the courtroom by directing that matters not dealt |
with in open court be excluded from the news reports. The
~ following Colloquy between counsel for Petitioner and ‘the
Court appears on the Record at pages 1346a to 1351a:
“MR PERUTO: I don’t say that you can restrict’ «
~ ‘them, sir; but this I do say: Unless we have adhing
by nature of a Court order, after all, the Judge runs |
the courtroom, regardless of the freedom of the press,
and-I think that unless the Court does something;
namely, order them not to print ‘stories, but, rather,
factual reports, and even then no factual reports which a
could ee disturb the trial, , Sych“as what has be- _
4
aemeee
28 AREY LE PE SLID
es a
/*
cetera, or leading stories indicating guilt of the defend-
z. not the defendant’s right to fair trial is deprived him
’ because of the press. Now, we have two conflicting
‘yights. And Your Honor said—
| “THE COURT: You told us that yesterday. You
_ don’t have to-repeat —— What i is _ — of,
“now? .
“MR. PERUTO:. The other point I want to. make
‘is this: Your Honor says we don’t have a right to stop _
them. Without arguing that point, let me-just say this:
If I went up to grospective jufors and said to them the:
same things that are printed in these newspapers, Iam .
certain, and Your Honor would be perfectly proper in
doing so, I am certain that I would immediately be held
in contempt of Court.
“THE COURT: You said that yesterday, or Mr.
Spivack did, one or the other.” —
In the same connection the Trial J udge went on to say:
_ “Now, more specifically on the application today,
I cannot restrict the press on this. They are not parties
before-me. I can’t prohibit them from entering the
courtroom. I ean’t propibit the press from coming into .
the courtroom and printing in the newspaper anything .
| that is said in the courtroom. That’s what they have.
done.
- “The jurors already selected, I am’ sure they did
not get the information from any other source and they
apparently have some feature writers on the staff of
the newspaper and they are writing -up some aspects of
this case as if it were a novel they were writing, but, .
there again, I don’t see how you can restrict that.” *
+. A sampling of the pre-trial newspaper publicity is set forth
“as Appendix “E” hereto (pp. 92 to 97, infra).
a a’!
. ‘ .
come of evidence, and the importance of evidence, et
ant, I say this, it is not a question primarily of whether
or not the press has a right to print, but whether or ~
% .
12
oo ° The Commonwealth, through six sina. named
below, offered inadmissible ‘hearsay testimony, which sup-
plied the entire motive and explanation for the murders in.
accordance with the Commonwealth’s theory of the case. Ob-
jections to the inadmissible hearsay were raised at the trial
by Petitioner’ during the questioning of Pasquale I joseph Vin-
cent Malito (R 3678a-3679a) ; Jean Salvi (R.5638a-5641a) ;
' Rosemary DiPlacido, (R 5646a-5648a) : Sidney Cardonick
(R 3626a-3631a) ; Detective Rocco Molinari (RB 3645a) ;
and David Seftin / (R'6455a-5656a). The Trial Court ad-
mitted the objectionable hearsay upon the Prosecutor’s as-
sertion that he/did not seek-to prove the truth of the hear-
. _ say, but sought to admit it merely. to prove. the “victim’s |
intent” and the “state of mind” of the decedent. However,
in summation to the jury, the Prosecutor | cited the same
hearsay as, proof of facts, arguing that sach facts estab-
lished Petitioner's motive (R 4745a and R 5889a). The de-
vious tactic of the Prosecutor in offering the evidence, not
as proof; but subsequently arguing if vigorously to the jury
| _’. @8 proof was included as a ground for ; a new trial before the -
Frial Court and was raised in the appeal to the Supreme :
Court of Pennsylvania. The Supreme Court in its opinion.
"» pecognized, but glossed over, the import of the Prosecution
: tactic, stating: ;
A. “However, in view of all the ‘atbnong in the case,
we are convinced it had no influence on the-verdict, even ~
_ though the Commonwealth did refer to it vigorously,
’ but briefly, in its summation. It was; therefore, harm-
less error.” (427 Pa. 284, 807; 234 A 2d 552, 565 -
pendix “A”, p. 58, infra).
4. The unfair limitations and catia finposed a
upon Petitioner’s counsel i in, the exa:aination of prospective
jurors. was repeatedly raised thro:ighout the j jury selection
_ stage of the trial. For example, prospective juror Helen J.
_ Koschusko, stated that she had read about the case in the:
newspapers and - — involved a very hideous ci rime.
18.
She further stated in response to the question as-to. ishuther
she knew of any. reason why she could not: be fair to both-
sides, “No, I think there is two sides to every story and you
should listen to both sides.” (R1192a) Following this state-
ment, she was asked by Petitioner’s counsel: “Well, could
you follow the instructions of the Court. with regard to.
- whether or not there-would be two sides of the story for you
hear?” The Court sustained the Commonwealth’s objec-
ion to this question, yet it is elementary that in a criminal
"prosecution conducted under the American System of Juris-.
- prudence that there is no burden upon a. cotntial defendant
to present any defense.
Another example relates to the prospective jurot Helen
Drabyk. She admitted having read and heard: about: the
case, She was asked if what she read in the newspapers
caused her to feel that she could not enter the j jury box with
_ a perfectly open and fair mind. The Trial Court, refused to
permit her to answer this questitn (R1329a).* .
Prospective juror Clarence Depue. acknowledged. that
’ he knew about the case because he had “read headlines and’ :
things like this.” Petitioner’s counsel asked him if he did
: . not read the rest of the newspaper. The Court sustained the
- Commonwealth’s objection to that question’and Mr. Depue
did not answer it (R 1487a). A similar objection was sus-*¥ ~
tained with respect to the prospective juror Harry J. Don-
nelly (R 1475a).
Prospective juror James C. Hills also stated that ‘won .s
must hear both:sides.” The Court ruled as before on. this
question (R 1515a-1517a).. Petitioner’s counsel was not
even permitted to ask a prospective juror who, when asked -
if he woulé consider all possible verdicts, including the ver-
dict of not guilty, answered: “If nai tans were ‘proven.
not guilty, of course,” whether he would follow the.Court’s
_instruction as to the law that there is no. burden <a> ~
defendant to prove his innocence (R 1658a-1654a). T!
severe limitations of voir dire examination resulted in Pett
tiqner’s exhaustion of all peremptory ne allowed by (
the Court.
14
5. and 6: “The exsential Denineneesith witness, ‘Frank
Phelan, was a co-defendant, not on, trial -with Petitioner.
However, the Trial Court, over objection, severely restricted ~
and limited Petitioner’s cross-examination and ‘upheld the -
witness’ refusal to answer. propér questions. Frank Phelan
testified while wearing black glasses hiding his eyes. De- |
spite Petitioner’s repeated demands the Trial Court refused
to direct the witness to remove, the glasses to:allow the jury —
‘to see his eyes, even though the witness admitted. that the -
' glasses were worn by choice rather than ‘medical necessity.
The witness gave.as his reason for wearing and refusit g ”
*yemove the black glasses: “I’m not here for display,; I’m
to relate-a story about Dante’s” (R:2722a). There is on
tached. to this Petition as Appendix “G” a number. plex -
-cerpts from the RecordMhich illustrate how. the“questions |
_! relating to tke right of Petitioner to confront his accuser
and the right of Petitioner to a fair trial anil due process -
were denied by the Court’s overruling of. motions to direct
the witness. to answer proper questions and by the Court’s
denial of other motions to strike the witness’ testimony be- -
’. cause of his refusal to answer questions and bythe denial of
- Petitioner’s motions for the withdrawal of ajuror. The
Trial Court’s justification for failing to direct the witness
to answer proper questions which the witness refused to an-
‘Swer was that the Court.was powerless to make such an or-
.der because thee witness himself was an ‘admitted murder ”
facing a death sentence and that fo threaten such a witness»
with. punishment for contempt if he did not answer ques- -
tions_was therefore ean A 24698-2470 and app
dix “B,’ ” n, 667). .
7. The question of fair “ae and due process was likes,.
‘ ‘wise raised during the trial and-on appeal to the-Supreme” -
Court of Pennsylvania in connectien with Commonwealth
witnesses who were permitted, over objection and. without .
any control or admonition by the Trial Court, to call Peti-
tioner a “scoundrel” and ari “unmitigated liar” {R 5442a).
* The Supreme Court of Pennsylvania acknowledged that the
Trial Court should have limited these rebuttal character wit-
\
-
[ESAT or STEELER SHURE OOUNNPRERERNOITeSeRTiennrTENRETT PE 7 arial lia wick
. : ; : ‘ . _
e . - .
. . " . .
a4
* ° tain transcripts.and tape-recordings of telephone conversa-
a
15
nesses to mere. statements of the Petitioner’ $ general reputa-_
- tion for truthfulness in the community. but the — i.
_ Court of Pennsylvania went on to say that the failure of th fe
Trial Judge to do so “‘is not of such'moment as to. saa’:
a new trial” ,427 Pa. 284, 309; 234.A. 2a. 5b2, 566, Ap-
pendix “A”, p. 55, infra).
5 | Baked « on reliable information, Petitioner subpoe-
naed the Djstrict. Attorney andthe Police Commissioner of
~-Philadelphia for the appearance and the production of cer-.
4
tions betweeri Frank Phelan and Petitioner.~The transcripts
resulted from wiretapping by the police of the telephone‘of
- Petitioner’s father and served as the basis for obtaining the
testimony of Frank Phelan. | Petitioner, when apprised of |
the existence of the transcripts, considered them as essential
_ aids.in the impeachment of the major Commonwealth wit-
ness. On petition of the Prosecutor the subpoenas were .
,» quashed -by: tye Trial Court without hearing (R 3156a-
8167a); The’grounds urged by the Commonwealth i in sup-
‘port of its petition were first that the ‘subpoenas called for
the production of*ilegally obtainefl evidence-and secondly, —
that thgevidence was the work product of the police afd the © ~
District Attorney. The Trial Court ‘rejected — ae
arguments that under the decision-in Jencks vs. United.
. Dad
States, 353 U.S. 657 (1957); etitioner wag entitled to all.
statenients of any witness in possession of the prose-
cutor or the police and that if the-Police Commissioner and
District Attorney sought to avoid producing’ the statements
_ .bécause the admission of the commission of a crime was in-
volved in obtaining them, then the subpoenaed witnesses
themselves should be required to plead the protection of the
Fifth Amendment (R 3156a-8167a). Although the quash-.
*. ing of the “subpoenas was challenged in the appéal to the ©
Supreme Court of Pennsylvania as a denial of the right to
'. p¥ocess guaranteed to’ the Petiti er by both the Federal
and State Constitutions, in-its opihion the Supreme Court
makes po mention or rererenee to. this error a the Trial an
Court, sa Pernt - :
’
_-
Neo
16 ape ae
9. Despite the fact. that’ the pre-trial newspaper ye-
ports of the case revealed that the witness Frank Phelan -
_ had been examined by the Court’psychiatrist and-by other
ont “a my GAIA RN LIONEL IGE ©
ta eaes ha alenelaal y Ae MA et : rope. , ;
psychiatrists retained by his own counsel, Petitioner Kad no .
‘basis on which to expect that the mental competency of this
witness fvas a factor in the case until the witness took the
stand and testified. Although Petitioner had made a pre-
trial eee naa deka to retain a.psy-
chiatrist: Specialist to aid in the defense, the request was
denied by the Court. The petition is set forth ip the Record
_ at pages 496a through 498a and the Record at pages 512a-
_ 518a shows that one of the reasons why a psychiatrist was
indicated was to aid the defense with respect to matters un-.
_ related to the mental condition of the Petitioner. However,
after frank Phelan’s testimony, very little, doubt remained
that a serious question as to the witness’ “competency did
exist. During his testimony on the stand, Phelan stated that
he was a user of drugs, that he had: beep furnished with
’ drug prison authorities win his ‘incarceration while
aw. trial (R 2373a- ,, that he had urges. to kill —
people and that he needed ion reason to kill; that he had 4
_ desire to “blow up” the courtroom and kill everyone in it;
_ that he had a desire to “float” €o the electric chair and to”
have the Petitioner “float” with him. (R 2725a)..
-. @ On the basis of the testimony. of the witness Petitioner.
reriewed his request,to the Court that Petitioner be permit-
_ ted to retain a psychiatrist to aid in the defense (R 28753).
_. The request was opposed. hy the Prosecutor (R 2965a) and .
denied by the Court (R 2968a).
When the request was denied, Petitioner then requested
that the Court order the Prosecutor to turn over to the de-
fepse psychiatric reports of the witness which were in the
. possession ef the Prosecutor. One report had been made by
he urt’s own neuro-psychiatric division arid the other by
| chiatrist retained by the Prosecutor who had examined .°
the witness. ‘The Prosecutor opposed these Pequests, al-
. though en — the reports were in his posses-
ig | |
sion;and the Court, concurring with the Prosecution, re-
fused to direct that the reports be turned over to Feteionne’s
‘ courlsel (R 2978a).
In addition to ‘information concerning the amie con-.
dition of the witness Frank Phelan, the Prosecution had in
its possession other evidence and material relating to this
witness which might have been of material benefit to the de- >» ?
fense. Yet, instead of making available to counsel any in-
* formation concerning the witness, the Prosecutor regarded -
_ his function as solely that of an advocate wao had to win
at any cost and ‘was therefore enjoined from revealing any-
thing of which he was possessed which might have. prover.
favorable to Petitions: :
10. The objectigns to the use of the gruesome, horrible ;
_ and inflammatory’ coldx photographs projected for display. to
the jury were raised abies the trial and on appeal to the
Supreme Court of re nnsylvania. Reproductions of “4
0
photographs projected for the Jury’s view are contain
- the Record at pages ¢ 6500a through 6507a. In its opinion the f
Supreme Court does*not rule on o¢ éven mention the
tions relating to Petitidner’s objections.to the use. of
_ photographs. The thrust of Petitioner’s objection was that
the testimony of the Commonwealth pathologist and the
3 pathologist’s own admission. cRarly demonstrated that the. -
picturés were not:of importance in letting the Jury know
_ how the victims were killed. This.was thoroughly and effec-
tively done and accomplished ‘by the testimony of the path-
ologist. Yet, without even a\mention of this point in its
opinien, ‘the Supreme Court - f Pennsylvania, just three
months after deciding the instant: case, ruled that it is re-
versible error in Pennsylvania for a judge to permit exhibi-
tion of inflammatory color slides of homicide victims in a
. case where the pathologist can adequately and effectively .
.. testify without showing the photographs to the Jury. See
Commonwealth #8, Powell, ——Pa. A. 2d —— (Nos.
_ 874, 423, J anuary
ri? ;
_— 1967, ‘decided January 3, 1968).
‘
te ORG oT DOG AED
. NIE Se,
: ‘
18
_ 11, 12, 18. The constitutionality of the death sentence
as punishment for crime and the related question as to.
whether a criminal defendant may obtain a fairtrialfroma .
_jury composed of individyals who have been selected because
; they do not. have conscientious or religious scruples against
imposing the death penalty was raised before the Trial
‘Court in support of the motions for néw trial and in arrest
of judgment and was also raised on. appeal to the Supreme
Court of Pennsylvania. Neither Court in their respective
opinions dealt with or ruléd on the question. The question .
- of death in the electric chair as constituting a cruel and
unusual punishment was not raised either if in the Trial Court
+ proceedings or on appeal. - .
| 14: At the trial objections were overruled to the admis-
: sibility of the statements of Petitioner made‘ during police
interrogation while he was a suspect. On appeal the Supreme
_ Court. of . ‘Pennsylvania erroneously stated in its opinion
_ that the objections were not properly founded because Peti- .
_ tioner’s counsel was present at all times during the question-
_ing of Petitioner. The Record clearly demonstrates that this
was not so. At page 8935a it is clearly established that coun-
sel was not present when Petitioner was questioned and that -
Petitioner was not warned of his Constitutional rights:
DETECTIVE JAMES ‘WEISBACK (Cross mina-
tion) : ‘en
“Q, Did you ™ the defendant if he desired coun-
sel before you questioned him?
A. No, sir, I did not.
'Q. In your presence did anyone else mention any-.
_ thing with regard'to legal assistance to the defendant?
A. Not in my presence, sir.
Q. Did you tell: the defendant that anything aa
he would say could be used against him?
A. No, sir, I did not.”
The Record: also establishes with the utmost clarity
that Petitioner raised the very question of no counsel and no
6 PRR PETROL Ot EM
ere anes AN Rc Cote
warning before the Trial Judge and that the Trial Judge,
™
relying on legal authority of Commonwealth vs. Patrick, 416 |
Pa. 487 (1965), since overruled by Miranda vs. Arizona, 384
U.S. 436 (1966), overruled Petitioner’s objections to the
admissibility of the statements. See R 4015a and 4016a:
“MR. SPRAGUE: I will ask Your Honor to rule .
upon the admissibility of these statements, then, sir.
THE COURT: Do you. wish to say anything?
MR. PERUTO: Simply to point out three things,
’ sir. That at the time of the making of this statement the
defendant was without counsel, not having been warned
of his rights or in any fashion stated that whatever was
to be said was to be used as evidence'against him, ~
Also at the time of the making of the statement the
defendant was wounded and was in pain, as. is evi-
-denced by the fact that the doctor said that that sort of
‘ wound would produce pain. And the records themselves
show that thereafter he was given certain drugs to re- °
lieve pain. |
And I think that, therefore, they are circumstances
_ surrounding the time of the giving of the statement; |
and, therefore, the statement could not be considered as
one given with the knowledge of his rights or in such
frame of, mind as to be held responsible for his
statements.
‘THE COURT: Do you wish to say — Mr.
Sprague?
MR. SPRAGUE: Yes, sir.
: . That there is no requirement that the defendant a
. this stage had to be advised as to any rights. The only ©
issue is whether or not what he said was voluntary. And
the Court can rule upon’this. be
The latest case passing upon this is the case
of Commonwealth of Pennsylyania versus Charles
Te erwarene
Pein ~ . 20
- Patrick. And I quote what the Supreme Court of Pean-
sylvania said there::
‘We conclude that a ’ statement or: iin
‘made during interrogation by the police, if volun-
| tarily made, may be constitutionally admissible
in evidence, even though the accuséd was neither .
warned of his right to remain silent nor of his
Ss
| Eight to, comment "™ : pe Pees a aul
—_
| On the heats of Commonwealth vs- Patrick, ee. Trial:
- Court below ruled that Petitioner’s statements were voltin-
tary and therefore admissible even though the Record
clearly shows no warning to Petitioner. of his constitutional
rights. ,
7 Although the Supreme Court since Commonwealth vs.
Patrick has now made it very clear. that the law of the
Commonwealth, ‘i ‘in line with the Miranda. decision, is that
police questioning of a suspect is unconstitutional in the
absence of counsel unless the suspect is effectively warned ©
of his right to remain silent (Commonwealth vs ‘Schmidt,
423 Pa. 482 [1966] ), when the point was referred to in the
opinion of the Supreme Court, the Supreme Court dismissed
- ’ i on’ the erroneous statement that: counsel was present at
all times when the Petitioner, was interrogated. 3
15. The Petition for leave to file supplemental reasons .
“in support of the motions for new trial and in arrest of
| judgment and for a hearing thereon based wpon allegations
| of newly acquired information and newly discovered evi-
“=|... dence was summarily dismissed by the ‘Trial Court. On.
-._ appeal-to the Supreme Court of Pennsylvania the dismissal
without hearing was briefed and argued as an additional
ground for reversal of. the lower court judgments. The |
_ Supreme Court of Pennsylvania, by erroneous statements
contained in the brief of the Commonwealth was misled
into overruling Petitioner’s arguments on this point on
the ground that Petitioner had failed to answer the Com-
monwealth’s request that the Petition be supported by
°
im
PER OS CIV ELINA SETI I PEE SEMPRE SS icant . z stated Sind
21
specific allegations as to the newly acquired information
- , and newly discovered evidence. The actual fact is thatePeti-..
tioner had no opportunity to respond to the Commonwealth’s
motion because the Trial Court dismissed the Petition, with- -
out any hearing, on the same day that the Commonwealth ©
filed its motion. The only opportunity that Petitioner had~
‘to call the Supreme Court’of Pennsylvania’s attention to -
_ the erreneous: factual statenient contained in its opinion: —
was by. petition for reargument which was timely filed and
which did demonstrate to the Supreme Court tlie errors
-made by it in ‘its factual recitals and conclusions. See Ap-
pendix “C” attached hereto (pp. 71 to 89, infra).
2
16. The factual errors‘contained in the opinion of the |
Supreme Court of Pennsylvania were raised by petition for
re-argument filed pursuant to the rules of the Supreme -
Court of Pennsylvania. within ten days of the issuance of
. the Court’s opinion. The petition for re-argument and the
answer ‘of the Commonwealth with respect thereto are set
forth in Appendices “C” and “D” respectively. -
: - Although the petition for re-argument recites fartual
_ errors made by the Supreme Court of Pennsylvania in such
a vital area as the constitutional right to counsel, and al-
_ though the Commonwealth’s: answer to the petition,for re-
argument does not challenge or in any..way_dispute the
claimed errors; the Supreme Court, without hearing, sum-
marily denied the petition. for re-grgument, thus allowing
its factually inaccurate opinion to remain the law of the
case and the law of the —r
~ Reasons for Granting the Writ
3. ‘The Trial Court’s rulings relating to the news-_ .
paper publicity surrounding the case were clearly contrary
to the decision of the Supreme Court in Sheppard vs.
‘Maxwell, 384 U.S: 333- (1966). At the time of the Trial
Court’s rulings, the Sheppard case had not yet been decided.
- However, it had been decided by the time the Pennsylvania.
—— Court considered. the ee Despite this _
' _ it. was the Trial Court’s duty to do so. The Trial Court .
stated: “. . .. They apparently have some feature writers .
on the staff of the newspapers. and they are writing up
22
and the additional fact that the Sheppard ¢ case was exten-
sively argued on appeal, the. Pennsylvania Supreme Court
gave the question only superficial treatment in its opinion
and ‘completely ignored the precise rulings of the. Trial
Court which were held to be erroneous in Sheppard: For
__ example, the Trial Court overruled motions for continu-”
ances-and Petitioner’s request that the Trial Court order
the hewspaper reporters in the courtroom to print only
factual reports of the proceedings rather than extrajudicial -
_ “color” stories and commentaries and features discussing
evidence and statements not part of the case as unfolded —
in the courtroom. The trial Court claimed inability to con-
trol the press, while this Court stated in the Sheppard case
some aspects of this case as if it were a novel they were
. writing, but, there again, I don’t see how you can restrict
' ao"
In the Sheppard case this Court specifically stated
_ what the Trial Court could and should have dore:
(a)... The judge should have at least warned |
the newspapers to check the accuracy of their accounts
(384 U,S.. 333,. 360).
-(b) ... The: inte Pern have tila nate
an alleviate this problem by imposing control over the
statements made to the news media by counsel, wit-
nesses and specifically the Coroner wm police officials
(384 U.S. 383, 860).
(ce) ... The trial court might well: — pro-
scribed exise:duilicted statements by any lawyer, party,
witness or court official which divulge prejudicial mat- ~
ters. . . the identity of prospective witnesses or their
probable testimony . . . any belief in guilt or innocence
. or like statements concerning the merits of the
case (384 U.S. 388, es.
.
DPR ORS Re TIE
eee eee a ae
a
-(d).. .. The Court.could also have requested the
appropriate city and county officials to promulgate a
regulation with respect.to dissemination of informa- .
tion about the case by their ans (384 U. 8. 333,
362).
ee Reporters who wrote in broadcasted
prejudicial stories, could have -been warned to the im-
propriety of pubjishing material not introduced in the
| proceedings (384 U. s. 333, 362).
Perhaps the most baimtiteinh ruling of the Seiiiinait
decision and the one most clearly ignored by the Supreme
Court of Pennsylvania is the conclusion by this Court that
. where there is a reasonable likelihood that prejudicial news
- prior to trial will prevent a fair trial, the Judge should ~
continue the case until- the threat abates (384 U. 8. 333,
Be parallels. For a state appellate court to ignore these simi-.
‘larities and to ignore the precise points which fit. exactly
363).
The instant case and the Sheppard case have very many
into the rulings and-holdings of the Supreme Court of the
United States has the effect of limiting this Court’s deci-
sion to only the specific case before it. It is urged that the ._—
ruling of the Sheppard case was intended to apply to every
_ eriminal proceeding, ee the instant. case and not
| merely to Sam Sheppard. -
_ 2. The decision of the Supreme Court of: Pemmegivania
and its. opinion affirming the judgments and sentences of
court dealing with federally guaranteed oe
rights.
(a) Subsequent to the trial of the instant case
but prior to the appeal to the Supreme Court of Pennsyl-
_vania; that, Court handed down the decision in Common-.
wealth vs. Dessus, 423 Pa. 177 (1966). In the Dessus case,
an indictment for murder was quashed on the ground that
oe hene—t- 4
ee
‘the lower court ignore three -recent decisions of the same -__
24
it ‘was ‘unconstitutional . for the defendant to have — :
-. indicted by\the Grand Jury the same day as his arrest.
This, the Supreme Court of Pennsylvania held, constituted
an effective denial. of due process becduse the defendant
was not afforded,an opportunity for challenging the array
within a reasonable time. or proving by legally competent
evidence that one.or more of the Grand Jurors ‘should be
digtualified for cause. In its opinion in the instant case -
the Supreme Court ‘of ‘Pennsylvania distinquished the
D on the ground that it was based.on new rules
of criminal procedute which had come into effect. subsequent
. to the indictment in the instant case ignoring | the sub-
stantive constitutional right set forth in Dessus. In the
instant case, the Court said, Petitioner had the opportunity :
to challenge even after his indictment because the law prior ,,
to the new rules of criminal procedure permitted motions
to quash indictments based on qualifications of Grand
Jurors even after indictment. This was an erroneous. ap-
plication by the Supreme ourt hecause of the record facts
in the instant case. —_.
_ Petitioner was arrested on July 15, 1964. ‘He was in-
- dicted the same day. Under the procedure of+indietment
immediately following. arrest no preliminary hearing was
ever afforded to Petitioner. Approximately two months .
. after arrest and indictment cotinsel for Petitioner were
appointed by the Trial Court. ‘By this time the Grand J ury
that had indicted Petitioner had served its term and was.
discharged. It was a virtual impossibility for counsel ap-
pointed \two months’ after indictment to then sk to dis-
cover whether grounds had'gxisted’at the time of indictment
for challenging members of the Grand Jury. Counsel for
. Petitioner nevertheless did file a motion to quash the in- °
dictment’ on the ground that no opportunity existed for
ss challenging the Grand J ury and that it. was too late at that
time.to seek to discover whether actual ‘grounds for chal-.:
lenge might have existed and Petitioner was denied due
process just as — had been.
25
(b) Another decision, dealing ‘with wintiine the .
same question as was raised in the appeal in the instant
casé was handed down on January 8, 1968 by the Supreme ..
Court of Pennsylvania. Reference is made to the case of —
Commonwealth vs. Powell, —— Pa, ——, — A. 24 ——
- -€Nos. 874, 428 January Tel, 1967). In the Powell case
» the Supreme Court of Penrisylvania said :.
“We are of the: ‘opinion that the proper test to ie
applied by a trial court in determining the admissi-
bility of photographs in homicide cases is whether or .
not the photographs are of such: essential evidentiary
value that their need clearly outweighs the likelihood
of inflaming the minds and passions of the jurors.
: Applying this weighing process to the facts of the in- |
_ Stant case, we find that the trial judge abused’ his dis-
_ eretion by admitting the photographs. Here, ~we have .
clear felony murder case where the force used and the .
_ nature and.extent of the injuries involved have no
bearing on a finding of first degree.felony murder.
_. Moreover, assuming their relevance with respect to ~
- appellant’s intent to commit grievous bodily harm, no-
where is it illustrated to our satisfaction that the path-
ologist could not have adequately and effectively tes-
, tified without the use of these photographs. Whatever.
did these photographs may have ‘been, their use was ..
clearly outweighed by. the emotional impact it woufd
undoubtedly have on the jury. For this reason alone ©
appellant is entitled to a new trial.
“J udgment reversed. and 4 new trial ordered.” wit
In the instant case the color slides reproduced on pages |
6500a through 6507a were exhibited to the Jury over the ob- ©
jection of Petitioner. It is submitted that no real. argument
is required ‘to establish that the pictures shown to the J ury
. are the most horrible, gruesome, and inflammatory imagi- -
\nable. The Record in the instant case clearly establishes,
— the photographs, a horrible murder where victims
oo al sstsine’ many grievous bullet wounds of*the head.
- These facts were never in dispute. The. Record’ further
establishes that the Commonwealth pathologist adequately.
' and effectively testified without the use of the photographs.
. It is therefore proper to ask why the use of photographs ...
in the Powell case was clearly outweighed by the emotional
impact it would undoubtedly have on the Jury, y nl use
of similar’ photographs under similar circumstan
instant case was held to beproper. It should be observed
that.in the instant. case although the precise questions as
were raised in the Powell case. were in fact raised in-the —
lower court and before the Supreme Court of Pennsylyania,
the appellate court makes no mention of this subject in its.
opinion. The Powell decision camé down on January 8, 1968.
' It was argued on November 22, 1967. At thesvery. time.
that the Powell case was argued the petition for re-argu-
ment in the’ instant case was still. pending before the Su- .
preme Court of Pennsylvania. May.a State court limit the
- application of a rule of law ‘to only the case before it or
must:a rule dealing with such basic questions as fair trial
and due process be applied for. the benefit of all pene
accused of crime? @
(c) The third case in which the ican Court
of Pennsylvania has stated a rule of law dealing with Fed-
eral constitutional rights which it has refused:to apply to - .
the precise facts in the instant case is SO pe rage vs.
. Schmidt, 423 Pa. 432 (1966). The Record rly estab- -
lishes that Petitioner was questioned -in’ the absence of
‘counsel and withqut’ being warned of his right to remain
silent at atime when Petitioner was regarded by the police
as a suspect. In the Schmidt case the Supreme Court held:
that Escobedé'vs. Illinois, 8378 U.S. 478 (1964), equired :
‘a warning to a criminal suspect of the right to remain silent
before police questioning in the absence of counsel. Thus;
_-without giving any-retroactive effect to Miranda vs. Ariz-'
ona, 384 U.S. 4386 (1966), the Supreme Court of Penn-
sylvania declared. that in all cases tried subsequent to
in.the |
sae 2, Seated meg \
Excobedo the statéments or confessions of a criminal de- AG
fendant are inadmissible if made in the absence of,counsel:
or an effective warning of the right to remain silent. In. \
the instant case, the Supreme Court of Pennsylvania, in \a-
its opinion, erroneously concluded that certain statements - m_ |
made by: Petitioner were in fact voluntarily.given to the~.. %,
police in the presence of ‘counsel and it referred to unre-. . :
lated statements in its opinion (see Appendix “A,” p. 45). f
- The Court was no doubt led into this error by reason of the
argument of the Commonwealth as set forth in the written
brief. filed’ by it with the Court. Despite’ the fact that the..*”"
petition "for reargument clearly’ points out the a al
factual conclusions set forth, in the Supreme Court’
-. jon and clearly demonstrates by record references that very
damaging statemeiits-were taken by the police in the ab-
sence of counsel and in the absence of any warning of the
right to remain silent, the Supreme Court denied re-argu-
ment and. thereby again refused to apply a rule, of law
-clearly enunciated in another case forthe equal protection ..
of your Petitioner. ¥
8. The instant. petition raises three. federal constitu-
tional questions under the confryntation clause of the Sixth
Amendment. All appear to be novel and not within the cases -
already decided by this Court:
, (a). The first such question raised is whether the
‘Fourteenth Amendment té the United States Constitution
‘incorporates within its due.process and equal protection
clauses the provisions of the Sixth Amendment guarantee-
ing to a person accused of. federal crime the right to com-..
~ pulsory process for obtaining witnesses in his-favor. In the -
instant case Petitioner caused the,issuance and ‘service of .
subpoenas on the Police "heap of Philadelphia and
i a |
the District Attorney of Philadelphia compelling their at- .
- tendance on a day certain af the frial for the purpose of
giving eviderice concerning alleged phone calls made. to.
and from a certain phone, which, information furnished to
| Petitioner’s counsel indicated, had ‘been illegally inter- .
cepted by.«the police by the use of electronic wiretapping
devices. The Trial Court, on motion of the Assistant District |
Attorney trying the'case for the Commonwealth, suppressed
,. the. subpoenas. hearing or other opportunity was
“afforded Petitioner to establish the right te enforcement .
, of the process which had been properly issued and served.
The question presented ‘by’ the summary quashing of sub-
- poenas merely because they are served upon’ public officials -
and seek the production of illegally obtained evidence
- is whether a constitutional riglit is to’be denied a criminal -
‘defendant merely because enforcement thereof may_require
embarrassing disclosures by. public officials. The Supreme
Court of Pennsylvania in its opinion makes no mention of
this point and completely ignores the argument that the
quashing of. the subpoenas was an erroneous ruling of the
Trial Court...
e (b) The facts which give rise to the dtiliiie
reason urged for granting the Writ, together with the facts va
shown in the Statement of the Case which relate to the de-
liberate withholding by the prosecution, with, the concur-
rence of the Trial Court of evidence also present the ques- °
tion of whether fair trial and due process require the prose-
eutor to make available to the defense evidence and infor-
"mation ‘which would be helpful to the defenses. Jencks vs. —
United States, 853 U.S, 657 (1957) ; Roviaro vs. United -
. States, 353. U, S. 68. (1957) ; and Brady vs. Maryland, 373
| U.S. 88, (1968), indicate that where evidence favorable to
, an accused i is-requested and is withheld by the prosecution, |
_ due process is violated. Certain evidence in the instant case
that may have been helpful to the accused was requested
and the requests were denied. But just as important is that’
_. fact that other evidence, which could not be requested be-
_ cause its existence was uriknown to the defense atthe time ..
of trial, was also withheld. The good faith of Ahe Prosecu-
tor in withholding this materia] is. not raised. hese
. the failure to disclose _ .
.
ee a eee eS
29
: (e): During’ the three poe that ‘toe major Com-
monwealth witness, Frank Phelan, was on the stand, he
wore black glasses that completely concealed his eyes and
‘other portions of his face.\He refused to remove the glasses ~
on request and the Court lrefused to direct him to- remove
ther. Douglas vs. Alabama, 380 U.S. 415 (1965) and~
' Pointer vs. Texas, 380 U. §. 400 (1965) hold that the con-
frontation clause of the Sixth Amendment is included within
the constitutional rights guaranteed an accused by the
- Fourteenth Amendment. It is submitted that the lower
' court’s rulings in refysing to direct the witness to remove
the “mask” constituted a denial of the ——w
guaranteed right of confrontation. : :
It is no answer to the denial of this right to say, as
: the Supreme Court of Pennsylvania in its opinion did, that
‘because the Trial Court charged the Jury to take into
copsideration in evaluating the witness’ testimony his re-
‘ fusal to remove the dark glasses, that Petitioner was not:
prejudiced. |
’ In Appendix “G” to this Petition, a number of: ex- -
cerpts from the Record have, it is submitted, amply dem- .
- . onstrated (other forceful’ reasons for the Supreme Court:
of the United States cons‘deration of the entire confronta- —
tion question. Included in the excerpts are illustrations that
demonstrate how the Court permitted a witness to direct the —
trial of the casein choosing and selecting those questions —
which he would or would not answer. The right of confron-
‘tation includes the right of a full and complete cross-ex-
amination. For the Trial Court to permit a witness to refuse
to answer proper questions, not because the witness himself
__is asserting any constitutional privilege, but merely because
the witness decides that the question is-not relevant.or ~~ :
- merely because he simply will not answer the.question, runs -
contrary to everything embodied within the ¢onstitutional . -
right, of confrontation. It is no valid reason’ for a court, |
.. robed in the majesty of law and justice, to say that it will
not direct 4 witness to answar a proper question because
3 such direction would be a “futile —
ae a _— - — T tv eT Te nites ” s
“30°
- 4.,The instant case.also raises several cofistitutional '
_ questions relating to. thé death penalty. This Court has
never definitely answered all of these questions. The’ two
questions raised in the Trial Court and before the Supreme —
Court of Pennsylvania were never considered by. either
Court in their opinions, although. they were briefed and . q
argued by Petitioner. In fact, none of the briefs of the
Commonwealth even bothered to treat the questions. One
question is: Does disqualification of jurors for scruples
against capital pun} ent constitute denial. of a fair trial
"on the issue of guilL? See Walter E. Oberer 39 Texas Law
. Review 545 (May, 1961), condensed in the April 6, 1964
issue of The Nation.. The Oberer Mticle makes the point
that a jury of twelve individualscwho have been selected
from a larger number because they have no conscientious
or religious ‘impediments to decreeing death as punishment
_ for crime are also psychologically and constitutionally pre-
‘disposed to finding guilt to a much greater extent than
“would a jury composed of a normal cross-section of the
community. This issue takes on added significance in the
instant case when it is considered that-249 prospects were .
- examined on the voir dire. before it was possible to swear
twelve jurors and two alternates for the actual trial. A sub- -
stantial number of the 249 prospects called were rejected
’ for cause ‘on the ground that either the prospect had con-.
_.' seientious or religious scruples against the death penalty
or that even though the juror could vote for the death
penalty in the case of the actual murderer he would not
vote for the death penalty in a case where the accused had
not actually committed the murders but was charged. with .
, hiring someone else to do the actual killings. On January 18,
1968 this Court granted Certiorari in the case of Wither-
spoon vs. Illinois, (Miscellaneous Docket No. 344) ‘on al-
most the precise point that was raised by Petitioner in the
instant. case. ‘The only distinguishing feature is that in
Witherspoon ve. Illinois there appears to bea state statute
which permits challenge for cause of prospective jurors
en
: eid aaa Pee 2 I AR SRR IIIT Tt Oo ES
SORTER RCP RETO tate , 2 :
31
_ opposed to or havin conscientious scruples against capital .
punishment. In Pennsylvania there is no such statute but ©
the law and practice recognizé the right of the prosecution
to challenge for cause on the same ground.
Also urged as a reason for granting the Writ in the
VU
instant case is the proposition that. where-both life im- .
prisonment and the death penalty co-exist as punishment:
for the same crime, imposition of the death penalty: violates
the equal protection of the laws clause’ of the Fourteenth
Amendment. Also, is the death penalty and particularly
the penalty of death in the electric chair, a.cruel and un-
usual punishment? This Court-is being urged to consider
these questions in the light of contemporary legal and social
standards and is being asked to reconsider. its earlier pro-
nouncements relating to the subject matter contained in
Francis vs. Reswebber, 329 U.S. 459° (1947), and in re
Kemmler, 136.U.S. 436 (1890). The Francis case, ‘under -
its peculiar facts decided by:a vote of five to four that elec- . -
» trocution did not constitute a cruel and unusual punishment
thereby making it unnecessary to decide whether this pro-
_vision of the Eighth Amendment was incorporated within
. the due process ¢lause of the Fourteenth Amendment. In
view of the many recent decisions of this Court effectively
incorporating the Bill of Rights into the Fourteenth Amend-
ment as-it relates to criminal prosecutions #t would appear
that the time has come for the Supreme Court of the United
States to clearly state whether the cruel and unusual
punishment provision of the. Eighth Amendment is obliga-
tory on the statés and it is, whether capital sateen ,
violates this provision. |
5... Another aspect of the edvnce. newspaper publicity
relates to the severe limitations placed upon the Petitioner °
in the examination of prospective jurors. As shown in the
statement of the case, Petitioner was prohibited by the
-Court from inquiring of any prospective j juror as to whether -
.the juror had formed any opinions concerning the guilt of
Petitioner as.a result. of the publicity. The Trial Court
82
strictly limited inquiry to whether the prospective juror had
a “fixed” opinion ‘as to guilt or innocence. It is urgéd upon
this Court that the‘principle of voir dire examination be-
comes meaningless, especially in a celebrated case, if the
accused ‘is not permitted to demonstrate by in-depth exami-
nation of the prospective juror the real impact of the pre- -
trial publicity on the prospective juror. This Court: should
determine whether due process includes the right to in-depth
examination of prospective jurors on the effect of adverse
pre-trial publicity ‘or whether the accused is estopped to
_make further inquiry when the prospective juror states that .
he has not formed a “fixed opinion” as to guilt or innocence.
_ A substantial portion of the opinion of the Supreme Court .
of Pennsylvania is devoted to Petitioner’s complaints con- .
cerning the jury selection. However, nowhere in the opinion
is there any discussion or ruling on the objections that, per-
° tain to the Trial Court’s prohibition against asking pro-
spective jurors who admitted: knowledge of the case, the
extent of such knowledge. Due process of law requires a
trial by an impartial tribunal. This Court is asked to de-
’ termine whether narrow restrictions ‘severely limiting in- .
quiries as to the tribunal’s impartiality constitutes a denial .
of that due process and no better case than the instant one
‘could exist as a vehicle for such determination. | :
6. The instant case presents a situation where a com-*
bination of an erroneous ruling by the.Trial Court and a
misapprehension of the facts by the appellate. court have
effectively denied Petitioner a substantial basic right, which
may now be lost forever because of the Trial Court’s- failure .
to rule properly at the time the question arose. Reference
is-made to a petition, filed with the Trial Court, after’ the
verdict of the jury but prior to the entry of judgment and
_ while the case was still.within the control and jurisdiction
_of the Trial Court. As a result of proceedings in the com-
~“panion case involving the witness Frank Phelan, which oc-
curred subsequent to Petitioner’s trial, Petitioner’s counsel
for the first time learned of certain facts which, if known
GI I ELA L DIAL ALIA A |
33°
at the time of trial might have resulted in (a) a determina-,
tion that this witness was not mentally competent to testify
against Petitioner or (b) that the statements and testimony
he gave against Petitioner were untrue. When Petitioner
acquired this information it was , formally brought to the |
attention of the Trial Court with a request that the Court ©
fix a hearing to allow Petitioner to present the after-
acquired evidence. The Trial Court summarily dismissed
the Petition, entered judgment and sentenced Petitioner.
The dismissal of the request was appealed to the Supreme
Court of Pennsylvania which, likewise, on motion of’ the
Commonwealth’ and again without hearing, questioned the
appeal. The evidence available at the time of the filing of ©
the petition included the testimony of Frank Phelan, who —
had informed Petitioner’s counsel of his desire to testify
in recantation of the testimony delivered at the trial and
who had given to Petitiorier’s counsel statements supporting
‘the recantation. It is doubtful that this testimony is still
- available today. It also included information concerning
the mental condition of the witness as disclosed by the re-
ports of a number of psychiatrists who had studied and
examined the witness at the direction of the court and the
prosecutor and the witness’ counsel. None of this informa-
. tion was made available to Petitioner until after Peti-
: tioner’s trial.
Tt is submitted that the manner in whieh’ the Trial
Court summarily dismissed a timely application relating to
the question of whether an accused sentenced to death was
properly convicted constituted clear denial of due process.
__ Although the Supreme Court of Pennsylvania quashed
the appeal taken on the Court’s Order of dismissal of the —
petition, the question was raised again on the, appeal of the
judgments and sentences. In its opinion affirming the judg-
ments, the Supreme Court of Pennsylvania concluded that’
: the dismissal was proper because Petitioner failed to pro- |
_ duce particulars of the allegations contained in the petition
_. in response to a motion therefor by the Commonwealth.
aa
The Supreme Court of Pennsylvania was in error on this —
‘point because it had been misled by errors contained in the
‘Commonwealth’s appellate brief. The Commonwealth’s
brief argued, that Petitioner had failed to respond to the
- Commonwealth’s motion for particulars in support of the Y
allegations contained in the petition. The actual facts, con-
_ cerning which there is no dispute whatsoever, are that the
Trial Court dismi nd denied the petition without hear-
ing before the Commonwealth filed and served its motion
for particulars. Petitioner was at all times ready; willing ©
and able to provide the particulars. In fact, that was the
purpose of the petition requesting a hearing. As a result
of the Trial Court’s rulings, the appellate court’s quashing ~
of the appeal and the appellate court’s misapprehension of
_-the actual facts, Petitioner has been effectively shut-out by
the passing of the very considerable period of time since
the Supreme Court of Pennsylvania was called to that
Court’s attention forthwith. A Petition for reargument to
the Supreme Court was filed within ten days of the issuance
of the opinion ¢ontaining the erroneous factual conclusions.
‘That petition for reargument, and the Commonwealth’s
answer thereto, which contains no denials, is included as
Appendices “C” and “D’’’ respectively to this petition.
| The Supreme Court of Pennsylvania in its opinion, sets
forth other erroneous factual conclusions which the Record
clearly, demonstrates. A major error of fact made by. the
_ appellate court, is that Petitioner’s counsel was present at
the time very damaging statements were given to the police.
It is conceded that at the time that the police interrogation |
occurred, Petitioner was not warned of his right to counsel *
or his right to remain silent or even told that what*he said
might be used against him. The Record also clearly demon-
strates that at the time of interrogation Petitioner was a
suspect. In fact, the record. shows that at the time of the |
interrogation he was even restrained and.in custody because
he was in the hospital asa result of a serious: bullet wound
os @
‘sustained at the time of the murders. Yet, even though
these facts are clearly established by the Record and were:
set forth with clarity in Petitioner’s brief to the Supreme’
_ Court of Pennsylvania, which brief included ‘complete cita-
tions to the Record, the Supreme Court of Pennsylvania
. concluded that the interrogation of the Petitioner took place -
in the presence of his counsel. Despite the fact that this
erroneous conception of the actual facts was called to the
attention of the Supreine Court of Pennsylvania by a timely
and comprehensive petition for reargument (Appendix
“C”) the appellate court did nothing to remedy the error.
The question-raised by the. failure of the Supreme
Court of Pentisylvania to réctify clear errors of fact upon
which critical decisions are based, is whether a state court
may avoid constitutional. mandates of the United States
Supreme Court by a misstatement of facts, even though’ |
_ such misstatements are inadvertent rather than deliberate.
' LESTER J. SCHAFFER
: Conclusion
_ For the foregoing reasons, this Petition for Writ of :
Certiorari should be granted. |
OSCAR Spivack
AL CHARLES PERUTO.
— : Attorneys for Petitioner
Of, Counsel:
g
7 36 |
APPENDIX “A”
Opinion of the Supreme Court. of Pennsylvania
OPINION BY Mr. JUSTICE EAGEN, September 26, 1967 :
Judith Lopinson and Joseph Malito were shot to death
_in the basement office of Dante’s Restaurant in the City of .
‘Philadelphia about 3:80-o’clock a.m. on June 19, 1964.
Dante’s, at that time, was operated by Jack Lopinson, hus-
band of J udith,. and Malito under a partnesrhip ee
ment. i
On July. 15, 1964, following the conclusion of a
three-day inquest conducted by the medical examiner of
= Philadelphia, Jack Lopinson was charged with the murders
and held for action by the grand jury..He was indicted the ©
same day. Subsequently, Frank Phelan was arrested and
also indicted for the murders. ss
_ On October 26, 1964, Phelan plead euity to the indict-
ments, and later, following a hearing before the court of
Oyer and Terminer of Philadelphia County, was adjudged
guilty of murder in the first degree and sentenced to death
in each case. We have this day —— the j judgments. See
Commonwealth v. Phelan, 427 Pa. 266,' A.2d° (1967).
_Lopiason plead not guilty and elected to go to trial
before a jury. On March 4, 1965, after trial, he too,. was
found guilty of ‘murder in the first degree in each case and
_. the penalty was fixed at death. Following dismissal of mo-
tions for a new trial and in arrest of the judgments by the
court en banc, sentences were impoged by the trial judge
in accordance with the _ — These appeals fol-
7 lowed. *
In adatlionin with _ our shatniaiey duty, we have °
studied the record and it fully —* the convictions and mat
“sentences.
==<The trial widenis was more than ample to establish
: these facts:
1 Act of February 15, 1870, P. L. 16, 82, 19. P. S. §1187.
Pe Ne ERIE EE ET
“tapghnaiin peer Phelan ‘to kill both his wife ond >
Malito, to ‘which Phelan agreed; Lopinson drove Phelan
in his automobile to Delaware to secure the murder guns
for which Lopinson paid the purchase price; the time and
‘place forthe commission of the killings were suggested by —
z Lopinson ; originally the crimes were planned for two nights -
prior but at the last minute were deferred} a few hours
.. before the killings, Phelan and Lopinson ai ussed and |
_. finalized the plans in’ the former’s automobile; at Lopinson’s
- suggestion Phelan entered the basement of the restaurant ° :
through a rear cellar door and secreted himself, while f
waiting for Judith Lopinson and Malito to come fromthe -
first floor of the restaurant after it closed to the basement
office to count the day’s receipts; upon their arrival Phelan.
entered the office with-a gun in each hand and sfimmarily \
shot each victim in the head twice; after Phelan went up- _
‘stairs and reported the shootings to Lopifson, together they |
returned to the office and, upon discovering that death had \
not yet taken its toll Phelan at the request of and in the \
_ presehce of Lopinson, fired. additional bullets into the heads
of the victims. The two then returned upstairs and dis- ©
cussed the explanation previously agreed upon. that Lopin-
son would give the police, namely, that the restaurant had
‘been held up by two unknown-men who had fatally shot
Judith Lopinson and Malito, and also shot Lopinson. To
fortify this, story, Phelan, with consent, then. shot Lopinson_.
through the fatty’ tissue of his thigh, and after Phelan
left the premises Lopinson fired a bullet from his own gun |
. into a wall of ‘the restaurant. When the police arrived,
Lopinson told them the concocted story about the restaurant
_ being robbed. 2 A
if From the evidence the jury could also find that Lopin-
son: wanted to get rid of his wife for another woman, his _
-mistress;. and killing Malito would help solve his financial 7
_ troubles and render the false robbery story ™ two unknown _
- intruders more plausible..
2 At trial Lopinson admitted he gave this story to the police
_ and that it was a lie.
ie
- “Lopinson’s excellent counsel (court appointed) chal-
lenge the: validity of the judgments on a multitude of
grounds. It is asserted that a substantial number of rulings
in-the court below were erroneous, and while “many of the.
rulings taken separately may not constitute harmful error,”
_ the end result was to deny Lopinson ‘ a fair trial. F |
We shall discuss a mayer — of the assignments of
error in detail. ‘ ;
Denial of : a Preliminary Hearing
: | Following the conclusion of an inquest conducted by.
_* the medical examiner of the City of Philadelphia, Lopinson
was held for action by the grand jury without the usual
procedure of a hearing before a magistrate or a justice of
_ the peace. This did not void the subsequent judgments.
_ The Philadelphia medical examiner possesses all of
e powers of a coroner by virtue of the provisions of the
hiladelphia Home Rule Charter, including jurisdiction to
conduct an inquest when sudden, violent or unnatural
deaths occur, and to act as a committing magistrate if the.
deaths are found to be the result of homicide. As correctly
stated by the court below: “It has been the law in England
and Pennsylvania, at least since-4 Edward 1 Statute 2.
(A.D. 1276), that-the Coroner has imposed upon him the ~
- duty ‘to-use prompt measures for apprehending persons so
charged’ (with responsibility for sudden death &c. of |
another). . . ‘for which purpose he may direct his war-
‘rant to the Sheriff for arresting and securing them.’ |
“3. Henry: Vil . 1-{A.D. 1486) states, ‘The coroner
(is)... the pro officer to take inquisitions super visum
corporis.” = * /
' “Both of the above statutes of England are the law.
in Pennsylvania. Digest of Select British-Statutes in Force
in Pennsylvania, by Roberts (1847) p. 106, and XXI,
_ XXXIV (‘a coroner’s duty after a murder committed’).
. “The Philadelphia Code of Ordinances, 2-102, enacted’
under-duthority of the e Pladeiphia Home Rule Charter,
ae
transfers all powers, na duties of the Coroner b a Medical
Examiner, particularly those ‘relating to tle investigation
of sudden violent and suspicious deaths and the deterMina-
tion of whether the person or persons responsible shall ae
"charged with crime.’
“If the Coroner (here the Medical Examiner) finds a
person responsible for a homicide, it is his duty to commit
that person, without bail. Power of Coroner &c., 11 Phila.
887 (1875) ; Rentschler v. Schuylkill County, 1 Schuylkill.
Legal Record ‘289 (1880). When.the Coroner returns his —
inquisition, an indictment may be found against the person .
charged. Com. v. Lafferty, 11,C.C. 518 (1892). See also
Com..ex rel. Bandi v. Ashe, 367 Pa. 234 (1951) ; “Marvin v.
Monroe County, 154 Pa. Super. 75, 78 (1943).” See also,
Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, tan 2d
210 (1950).
Refusal of Motion To Quash the Indictment®
“© On the very same day he was arrested, Lopinson was
indicted by a grand jury which had already been in session
for a two-week period. Lopinson had no prior notice of the
_ presentment of the bills to the grand jury, and it is argued - .
he was completely denied the opportunity of investigating se
and challenging any member of the grand jury for cause or .
of challenging the array. A pretrial motion to quash the
indictments on this: ground was overruled below after
hearing.
If Lopinson were denied all opportunity of entering a
proper challenge to the grand jury or a member thereof, this: -
‘would constitute a denial of*due process of law and the in-
.dictments should have been quashed. See Commonweglth v.
-Dessus, 423 Pa. 177, 224 A. 2d 188 (1966). But such is not
As of the date Lopinson was indicted (July 15, 1964)
under Pennsylvania Jaw then controlling, a challenge to the
iia jury could - entered either be one or —_ an indiet-
ry, case here,
- ment was returned; the only time limitation was that it be
- entered before the plea in court. See Commonwealth v. .
v. Magid & Dickstein, 91 Pa. Superior Ct. 518 (1927) ; and,
’ 17 P.L.E., Grand Jury §4. However,-when such a challenge
| Weiner, 101 Pa.. Superior Ct. 295 (1930) ; Commonw saith >
- Was entered, the burden was upon the complaining: party to
-. establish the(facts to support the challenge. See Common-
v.'Commonwealth, 82:Pa, 306, 22 Am. Rep. 758 (1876) ;
Commonwealth v, Haines, 57 Pa: Superior Ct. 616 (1914) ;
and, Conienonwenith v. Carlueci, 48 Pa. Superior, Ct. 72
SSE ie sae
| When Lopinson ‘filed the motion to quash the. indiet-
“ments here, the lower court fixed a time for hearing and
afforded him. the.opportunity of producing any pertinent
-, fact desired. Nothing was produced te show, that the grand
“ - jury Was’ illegally impaneled; or any member thereof was
“unqualified to sit: ‘Hence, Lopinson.was given*full oppor- |
\.- sabealth %,. Williams, 149 Pa, 54, 24 A..168 (1892); Rolland *.
tunity to enter a proper “challenge 6 the grand “jury. but’
since he failed to meet his burden of proof the challenge 4nd
~the mation to quash were properly overruled.
.Commonwealth v. Dessus, supra, relied upon by Lopin
| tg son is napposite. Dessus was indicted .a .after the effective ‘
date (January 1; 1965) of Rule 203' of. the Pennsylvania
* Rules of Criminal Procedure, and was, therefore, subject
not “thereto. Under this Rule, a challenge to the grand jury must
_ be made “before the [grand] jurors, are swérn unless oppor-
~ tunity did-not exist prior thereto; in any event.a challenge
¥:
“must be’ mage before the bill of indictment is a indtted to
the grand jury... ...” (Emphasis added.) Since Dessus was
- arrested and indicted on the same day aritl could not under
Rule 203, then controlling, enter a challenge after the in-
dictrhent’ was returned, he was completely’ and effectively ,
déprived of his rights.in this hes Again, nbs is not the
Stee ee
ay
_ ” Refusal To Grant a Continuance
» Because of the nature of the crimes and the surround-
ing circumstances, the case’ provoked extensive publicity i in’
,
, .
o 7
‘ raat ,
‘the Philadelphia newspapers immediately following the .
occurrence, when the arrests were made, and at the time of:
trial.:Pretrial‘and during the period of voir dire examina-
tion of the prospective jurors, Lopinson movéd the court for.
- a continuance on the ground that the extent and nature of
the publicity rendered it-impossible to secure a jury in the
- ease free from bias. and prejudice, These motions were
' ‘overruled.
_” There can be no question. but that Lopinson was entitl-
ed to be tried by a tribunal free from prejudice, passion and
~ bias: Sheppard v. Macwéll, 884 U.S. 333 (1966); and
Chambers v.-Florida, 309 U. S, 227 (1940). In short, he was
entitled to a fair trial and this required that. the jury’s con-
clusions be induced only by evidence and argument in open
eourt and not by outside influences. See Patterson v. Color-
ado, 205 U.S. 454 (1907).
While there is no claim made here that any perticular )
petit juror was biased, it is urged that, in view of the pub-
licity, any jury selected i in Philadelphia at the time must be
“held to be presumptively biased. Of course, if Lopinson did
in fact receive a fair trial by an impartial jury, this con- - -
tention is devoid of merit: See Beck v. Washington, 369 u: S.
541 (1962). We now turn our attention to that inquiry.
The murders occurred on June 19, 1964, and the ar-
rests.on July 15th. In October 1964, Lopinson filed a motion —
. for a change of venue, because of prejudicial publicity, to
which the Commonwealth filed an answer denying that the
publicity had the effectealleged, but voicing no objection to |
the request. Shortly thereafter, Lopinson’s. motion was vol-
unitarily withdrawn.
The trial. began on January 19, 1965, seven sai
’ after the’ murders were committed and more than six
months after the. arrests. Voir dire examination of the pros-
oe
£
42
pective jurors began immediately, and a ‘total of 250 indi-
viduals were examined before twelve jurors and two alter-
nates were chosen. As each juror was selected, he or she was -
immediately sequestered and remained so until the verdig
_ was recorded.* The fourteenth juror, or second alternate,
was accepted on J anuary 28th.
Extensive voir dire examination was “permitted and
challenges for cause were liberally allowed. Two of the jur-
. ors selected for the trial had read .nothing about the case;
two others were not asked by counsel during the examina- .
tion if any reading thereof took place; several had read news
accounts of the case only “slightly” or superficially; and,’
none had engaged’ in an extensive or intensive reading of
the news articles pertaining thereto. Each juror selected |
‘ unequivocally indicated he was free from: bias, had not -
formed any opinion and would enter the trial with an open
‘mind, free from the influenée of anything he might possibly |
have read or heard in connection with the case. Not one of
the jurors selected was challenged for cause and there is
'.nothing in the record. to indicate that any such cause did’
exist. Under such circumstances, it is our view that a fair
and impartial jury-tried the case and we certainly do not
feel compelled to find, as a matter of'law, that bias. or pre-
formed opinion invaded the jury box and. influenced the
verdict. The contention that an unfair trial resulted on this ©
basis i is bottome@ on pure speculation. One who claims such
an injustice must rely on more than mere guess. Cf. Beck
v. Washington, supra; Irvin v. Dowd, 366 U.S. 717 (1961).;
and, United States ex rel. ited v. Handy, 351 U.S. “ABA
( 1956).
_-
Voir Dire Examination of Jurors
- During the voir dire examination of the prospective
jurors, the court permitted irfquiry concerning their having «
8 The twy alternates were discharged ‘from further duty ‘upon
‘submission of the case to - jury.
%
48 eres:
any conscientious scruples against the imposition of the .
death penalty in a proper case, \and particularly where the ,
proof established the accused did not'commit the ‘actual
killing, but arranged for someone else to do it fg him. If
such. conscientious scruples existed, a challenge for cause ; |
was sustained. This was not error.
_ Identical questions were asked of jurors in Common- °
. wealth v. Bentley, 287 Pa. 539,.185 A. 310 (1926), and
-. approved by this Court. See-also, Commonwealth v. Gelfi, .
282 Pa. 434, 128 A. 77 (1925) ; and, Commonwealth v. Hen- »
derson, 242 Pa, 372, 89 A. 567 (1913). CAE.
‘As stated in Commonwealth v. Bentley, supra, at 546:
135 A. at.313: “In conducting the preliminary examination,
. considerable latitude must be permitted to elicit the neces-
; ‘sary information, but it is to be strictly confined to inquiries
disclosing qualifications, or lack of thém, and not extended
so as to include hypothetical questions, when their evident
purpose is to have the jurors indicate in advance what their
decisions will be under a certain state of the evidence or
upon a certain state of the facts, and thus possibly commit
' ‘them to definite ideas-or views when the case shall be finally
submitted to them for their decision. The purpose of the ex- -
‘ amination in the present case was not to obtain information -
as to the verdict which the juror would render upon+the
production of certain evidence, but whether he could consist-
ently. render a verdict such as the law contemplated, if the
testimony established guilt beyond a reasonable doubt.”
Lopinson also contends that the scope of his voir dire
> examination of the prospective jurors was unduly limited.
'’ An examination of the record disclosing the extent of the
_ examination allowed completely refutes this position. More-
‘’. over, it is manifestly premised upon the mistaken belief
that the purpose of the voir dire examination is to provide.
a defendant with a better basis upon which to utilize’ his
.
m 44
‘peremptory challenges.‘ This.is not so. As stated by Presi- —
dent Judge RICE in Commonwealth v. Brown, 23 Pa..Su-
_perior Ct. 470, at 498 (1903) : “[T]he right of peremptory
challenge is not of itself a right to select but a right to
reject. jurors.” Accord Commonwealth v. McGrew, 375 Pa.
518, 525,100 A. 2d 467, 470 (1953) ; and Commonwealth
. v. Morgan, 280 Pa. 67, 71, 124 A. 339, 340 (1924).
It is further stated in Commonwealth v. McGrew, ibid., .
that: “The examination of jurors under voir dire is solely
for. the Purpose. of securing a competent, fair, impartial
- and unprejudiced jury: . . . Neither counsel for the de-
: fendant nor for the Commonwealth ‘should be permitted -
to elicit any information of this nature, ‘or to ask direct or .
~ hypothetical questions designed. to disclose what a juror’s -
_ pyesent impression or opinion may be or what his attitude —
or decision will likely be under certain facts which may be -
. developed in the trial of the case. While considerable lati-
tide should be permitted on a voir dire, the inquiry should.
~ . be Btxictly confined to disclosing qualifications or lack of
- qualifications of a juror and whether a juror has formed .
a, fixed opinion or may be otherwise subject to eee: 2
- tion for ca
“It is also. welt settled that the scope of the voir dire
_ examination rests in the sound discretion of the trial Judge
and his decisions, even.in a challenge for cause, will not be
reversed in the absence of palpable error.” .- i
'. Lopinson also challenges the correctness of the court’s
. rulings sustaining challenges to certain questions asked oe
the possible jurors. The rulings were correct.
4In appellant’s brief, the following appears in this connection:
- “Jury selection and voir dire examination is not limited merely to
eliciting facts that would éonstitute the basis for challenge and»
cause. The voir dire is the only real opportunity the defendant
has to learn something of the background and nature of the pro-
spective juror. Even where proper cause for challenge may not -
exist the defendant is required to decide whether he will allow the
prospect to serve.cr wil} — thé prospect by the ‘exercise of a
peremigneey challenge.” ;
45 . F 3 oe rot
In one instance the question sought to learn if the pro-.
> posed juror had formed “any opinion . . . regarding the
statement of any person connected with ‘the, case or with:
regard to any material fact of the case.”’ The only legitimate
_ inquiry in this'area was whether or not the juror had
formed a fixed opinion in the case as tothe accused’s guilt
or innocence. See Commonwealth ex rel. Ryan v. Rundle, ~
411 Pa. 613, 192 A. 2d 362 (1968), cert. connes, 375 U.S.
948 (1963).
' Other questions in ‘this coinees sought to examine ;
‘the prospective juror upon his understanding and accept-
tance of certain principles of law. This was improper ex-
_- amination: Commonwealth v. Calhoun, 238 Pa, 474, 86.
“A. 472 (1913).
Still other questions scan to discover the jurors’
: potential reactions if the defendant did not take the stand
or produce othér evidence. Again, such questions were:
wholly unwarranted and properly excluded. See Commen-. ~
wealth v. Wireback, 190 Pa. 138, 42 A. 542 (1899).
Trial Rulings .
A Philadelphia police officer received: a radio call re-
porting a shooting at Dante’s Restaurant and in company
with another. officer went immediately to the scene. In the
basement office, he found the dead bodies of the victims and
Lopinson sitting.on a chair behiid a desk.. At trial, the -
officer described what he saw and the conversation’he had
-with Lopinson at this time, including the latter’s explana-
tion of how the restaurant had been ‘held up by two unknown
- men, who had shot the victims during the robbery. Since
Lopinson was without counsel at the time and not. fore-
warned of his right to remain silent, it is urged:that the
use of this evidence at trial was icerere re d proscribed.
We cannot —.
®
46
Apart from the fact that the instant trial took place .
. before the effective date of Miranda v, Arizona, 384 U.S.
436 (1966), the situation involved was not such.as required
the police officer to stop and warn. Lopinson of his consti-
_ tutional rights. As of the time involved Lopinson was not in
custody, or even.a suspect. Further, the officer was merely |
engaged in a general investigation antl an. “on the scene”
questioning as to what happened.. His testimony as to Lopin- |
_ son’s statements under these circumstances, even in. the |
absence of a warning of constitutional rights, was clearly ..
admissible. See Miranda v. Arizona, supra; Commonwealth
. _. Eperjesi, 423 Pa. 455, 224 A. 2d 216 (1966) ; and, Com- .
-monwealth v. Jefferson, 423 Pa. 541, 226 A. 2d 765 (1966).
- Following the homicides and while Lopinson was in a
hospital being treated for the bullet wound, he was inter-
viewed by investigating officers who were seeking-to ascer-
- tain a deseription of the two alleged hold-up men. Lopin-
- gon’s then self-retained counsel was present at all times
_ during this questioning and the record clearly. proves that .
. . Lopinson’s statements were truly volunteered, and not the
‘result of any conduct in violation of his pesemrvure: mee
rights. ~
Phelan appeared as a ere woitinsiias and testi- ,
fied he committed the killings at the request of and in con-
" cert with Lopinson. It is argued that the trial judge un-
fairly restricted counsel’s cross-examination of Phelan, the -
actual killer and Lopinson’ s -co-conspirator.’ Our reading
and re-reading of the pertinent portion of the record fails :
to sustain thie contention. .
- Phelan was examined for the better part of three days.
His direct examination covers forty-one pages of the printed
record, and his cross-examination covers five hundred and
four pages. While:a superficial . consideration of some few
trial rulings cited in Lopingoh’s brief might lead one to |
conclude that legitimate inquiry: was denied, a reading of
Phelan’s entire cence — dispels any such «*,
cma:
. e * “ \
CRETE ONE HT wer omon . PRT SPOOR RCAC R NON NY ORT EE
e ig eee a? . ee Pe Se : . ° ;
~
AT
It is certainly true that cross-examination is a vital
and fundamental part of a fair trial. Full cross-examina-
tion of a witness upon the substance of his direct testimony
is an absolute right, ‘the denial of which is error of constitu-
| _ tional dimensions. See Pointer v. Texas, 380 U. S. 400
(1965), and Alford v. United States, 282 U.S. 687 (1981)..
Moreover, the right of. cross-examination extends beyond
_, the subjects testified to in direct. testimony and includes the
right to examine on any facts tending to refute “inferences _
or deductions” arising from matters testified to on direct.
See Conley v, Mervis, 324 Pa. 577, 188 A. 350, 108 A.L.R.
160 (1936).° And in. cross-examination of an accomplice,
such as Phelan, very wide latitude should be. permitted. See
Douglas-v. Alabama, 380 U.S. 415 (1965) ; Snyder v. Mas-
sachusétts, 291 U.S. 97 (1934) ; Commonwealth v. Russo, °
888 Pa. 462, 181 A. 2d 83 (1957 )} Commonwealth. Pro-
phet, 307 Pa, 122, 160 A. 597 (1932).; and, Commonwealth
v. Gable, 171 Pa. Superior Ct. 468, 90 A. 2d 301. (1952). ~
: : Again, our study of Phelan’s testimony compels the conclu-
‘sion that a searching, exhaustive and repetitive cross-exam-
ination of Phelan was permitted: and if a few erroneous »
rulings were made during the progress thereof, no prejudi- ©
cial harm résulted. Phelan’s version of the conspiracy and -
killings, his prior, relevant statements in regard ‘thereto;
his vicious personal makeup and past activities were all the
subject of exténsive examination and fully exposed for the.
jury’s consideration. In short, the opportunity of placing
Phelan in his proper setting before the jury and putting the
5 While certain decisional points in ‘the Conleyfcase relating
to procedure have been criticized and overruled, ‘Kline v. Kachmar,
360 Pa. 396, 402 at n. 2, 61 A. 2d 825, 829 at n. 2 (1948), the vitality
of the substantive proposition for which Conley is’ here cited was —
untouched by: Kline and has not been subsequently questioned. See
Paren*z. v. Dickinson, 391 Pa. 162, 165, 187 A. 2d 788, 789 (1958) ;
King v. Holt, 200 Pa. Superior Ct. 431, 435, 188 A. 2d 760, 762
(1968). Cf. Miller v. Pennsylvania R. R. Co., 371 Pa. 308, oT, 89
_ A. 2d 809, 817 (1952) (STERN, J., dissenting).
43°
weight and credibility of his testimony to an adequate test .
was not denied. . ‘
. During one of the trial recesses, Phelan, in the absence
of the trial judge and the jury, allegedly made a vulgar re-
-mark manifesting intense hatred: for those of the Jewish
religion.* During cross-examination, counsel asked Phelan
if his testimony against Lopinson was “based on his hatred
of his (Lopinson’s) religion”, to which Phelan replied, “No.
I like Jack Lopinson. ”-In answer to another inquiry, he —
- categorically denied making the statement attributed to
.. him. Additionally,-his personal feelings for Lopinson before
and after the killings were carefully explored. The trial
judge refused to permit inquiry as to Phelan’s possible
prejudice and bias towards the Jewish people generally,
and sustained an objection by Commonwealth’s counsel to a
specific question seeking to ascertain just what Phelan did
say during the recess involved. While the last mentioned
ruling appears to be too restrictive in view of the examina-
tion theretofore permitted, we do not consider it to consti-
tute prejudicial error.
During his cross-examination, Phelan vnantieated belli-
geréncy and refused to answer a few questions. Lopinson’s
request to have the court direct him to answer or to strike
all of his testimony from the record was denied. This is
assigned as error, because it is asserted the questions were
proper inquiry in an attack on his credibility.
These, questions involved the’ circumstances incident to
Phelan’s arrest and subsequent treatment by the police, and
whether or not he was coerced into confessing and testifying
against Lopinson; his test firings of the guns, following the |
purchase thereof before the killings; his use of drugs, par- .
ticularly during the days immediately before:the commis-
,
sion of the crimes; and, his admitted desire and urge to kill. -
oo ae Commonwealth’s counsel, who was nearby, admitted the ut- -
terance of a vulgar remark by: Phelan directed towards Lopinson’ 8
counsel, but Apnied anything v was said. about the J vom people,
A trial court should not permit, a witness to decide
what questions he will answer. This is the court’s sole pre-
49
‘rogative, and it has been held in some jurisdictions that if a
trial judge deems it necessary to sustain a witness’s refusal
to answer certain relevant questions to protect him from in-
- eriminating himself, then his whole testimony on the subject
involved should be stricken. See People v. Cole, 43 N.Y. 508
(1871) ; McRae v. Boykin, 50 Ga. App. 866, 179 S.E. 535,
541-542 (1935), reversed on other grounds, 182 Ga. 252, 185
S.E. 246 (1936) ; and People v. McGowan, 80 Cal. App. 298;
251 Pac. 648, 645-646 (1926).
However, what Lopinson overlooks in ‘connection with
‘this particular assignment of error is the fact that the ques-
tions involved here were in most part answered, and the in- —
formation sought was elicited through subsequent portions —
of his cross-examination. The incidents complained of
showing Phelan’s reticence are taken out of context and
fail to take into account his entire testimony. Only two
facts, sought to be gained in the questions involved, xe-
- mained undisclosed at the close of his cross-examination,
(1) where he purchased the dope pills. which he admittedly —
used frequently, and, (2) the specific location of the test
firings of the murder weapons, Under these circumstances -
the trial judge properly refused: to strike his testimony .
from the record, and ‘Lopinson’s right to cross-examine was
-not constitutionally impinged upon. See United States v.. ©
Cardillo, 316 F. 2d 606 (2d Cir. 1963) ; United States v.
Toner, 178 F. 2d 140 (8d Cir. 1949) ; Stephan v. United
States, 133 F. d 87 (6th Cir. 1943), cert, denied, 318 U.S.
_ 781 (1948) ; and, United States v. Johnson, 129 F. 2d 954
(8d Cir, 1942), aff’d, 318 U.S. 189°(1948).
Lopinson’s final complaint about Phelan’s testimony
- is the refusal of the trial judge to order him to remove
ee a pair of sunglasses which he wore throughout his testi-
mony in chief. (While testifying as a rebuttal witness he
did appear without the sunglasses.) It-is argued that this
50 — . Ne at
al br Me,
. By ee ern the jary's right to: properly observe his de-:
_ ~~ meanor en the stand.
There i is no question but that-a witness’s appearance
: and demeanor is an important :consideration for the jury
«& assessing his credibility. As stated by Chief Justice
APPLETON in. his treatise on. evidence, at page 220: “The
witness present, the promptness and unpremeditatedness
of his- answers or the reverse, their distinctness and par-
ticularity or the want of these essentials, their incorrectness
_ in generals. or particulars, their directness or evasiveness,
are soon detected. . . . The appearance and manner, the
voice, the gestures, . the readiness and. promptness of the
answers, the evasions, the reluctance, the silence, the con-
tumacious silence, the contradictions, the explanations, the
‘intelligence or the want of intelligence of the witness, the
passions which move or control—fear, love, hate, envy, or
_ revenge—are all open to observation, noted and weighed .
by the: jury.” Quoted in 5 Wigmore, Evidence §1395, at’.
y7p. 126 (3d ed. 1940). See also, Danovitz v. Portnoy, 399 —
Pa. 599, 605, 161A. 2d 146, 149 (1960) ; High v. Berret,
148 Pa. 261, 264, 23 A. 1004 (1892) ; and, Robinson v. —
Robinson, 183 Pa. Superior Ct. 574, 575, 138 A. 2d 259,
260 (1957). .
The fact that Phelan refused to remove the sunglasses
. during his appearance as a witness in chief was repeatedly
brought to the attention of the jury by -Lopinson’s counsel, ~
and, undoubtedly, was more helpful than harmful to
his case.
In ‘addition, at the very conclusion of the cha ; the
- eourt specifically instructed the jury to consider the use
of the dark glasses and Phelan’s refusal to take tem off:
as bearing on his credibility. The very last instruction given
to the jury, in a supplement to the main hody of the charge.
‘was: “And, secondly, I want to charge you in a. matter
| _ that I had intended to during my charge relating to the
| -. wearing of dark glasses by one of the witnesses, Frank
Phelan, and an evidence by him. of a refusal to. remove his
SST ERE HES
= 51 : <i
glasses while he was amet examined on his first appearance
‘in court. 2 .
“When he appeared as a rebuttal witness, ‘you will
Fecall he was not wearing dark glasses. -
aes “J charged you relating to credibility or believability
of witnesses, such as their interest in the outcome of a case,
their apparent intelligence, and their ability to observe
clearly and relate accurately what they observed, and other.
facets of determining believability of a witness.
“Now, the fact that Phelan refused to remove his
. glasses is one of the numerous factors which you should °
consider in connection with your judgment as to whether
or not he was telling the truth, weighing their credibility .
or believability by every means that you have at your dis-
posal as intelligent individuals, but particularly I wanted
to-relate to you concerning the dark glasses, that it’s one -
of the numerous factors to be considered when you weigh
the credibility of that particular witness.” |
Following the conclusion of Phelan’s testimony, Lopin-
son’s counsel requested the court to have a psychiatrist.
examine the witness.” It was asserted that the nature of his
‘testimony was such as to raise serious doubts as to his
competency. The motion was refused. ;
2
the court is compelled to have a witness psychiatrieally —
examined at the request of a defendant, and it has beén .
decided in a recent case that no such right on the part of
- the defendant exists. See People v. Nash, 36 Ill. 2d 275, 222
No authority has been called toour attention stating a
'N.E. 2d 478 (1966). Regardless, the facts herein clearly a
support the court’s ruling.on the questions. ..
Long before trial Phelan had been examined by psy-
chiatrists retained by the Commonwealth and also by his
‘previous counsel, Mr. Walsh. Lopinson’s trial counsel were
-, fully aware of this before trial and had interviewed at °
7 A similar request had been made pretrial which was refused
without prejudice to renew it subsequently if sufficient cause ap-
4 ae |
? m7 ° *.
&
3 least one of the. paychiatrists involved concerning Phelan’ Ss
condition. fhe testimony of any or all of these specialists . |
"as to any: facts. disclosed. or conclusions reached as a, result
_ of their « examinations of Phelan was 3 available to the defense
through. subpoena. . They did not*seek to pursue it. In view
4 of this and the fact. that the court had full opportunity
’ to hear. and observe Phelan throughout his appearance ‘on.
the stand, we find:no abuse of discretion on its part in / -
refusing to order’an additional examination, ~~
» Lopihson complains that, the court permitted the Coni:/
monwealth to introduce: prejudicial - nenaay ‘testimony ca
at trial.
For \ “instance, judie Phelan’: s ‘eross-examination,
. Lopinson’ s counsel elicited answers saying Phelan had told | |
the victim, Malito, several days before the commission of . *
the crimes that he had a contract to kill ‘him. Phelan was
thoro ‘examined concerning the details of this con-. oe
versatfen, throughout which Lopinson’s counsel: sought to
-: vidicule the testimony and the fact that any such conversa- ©
tion occurred. Phelan then suggested that perhaps Malito-
had. told someone about it and, if.so, it could be verified.
At trial the Commonwealth was permitted to introduce the _
' "testimony of Pasquale Malito, a:son of the. victim. Malito,
who stated his father had told him about such a conversation
with Phelan on the same ‘day Phelan had testified the
colloquy occurred (i. e., the Sunday before the murders) ..
Under this setting the testimony was admissible for .
| the purpose of proving the statement was made. See Com-
monwealth v. Ricci, 332 Pa. 540,: 544-545, 3 A. 2d 404, rea
.406 (1989). Cie 7
Another example of seniteiey challenged on the ground :
| of hearsay came into. the case in this way.
__- Malito had entered the Dante partnership arrangernent
about two. months before his death, ‘and Lopinson was per-.
mitted great latitude at trial-in testifying about the busi-
‘ness transaction and his conversations with Malito in
Bec thereto. In Part he stated that Malito — to pay 7
’ .
° a
- ba 6 a + Cr re a ik sian siniaiia . i
” °
e: -
A ae ie
| him $15,000 for a share in‘the business, Inter changed the :
‘ offer 'to $5000, md 00 a Om Soe ae ae ne oe
. only $8500. © : ne
_. In rebuttal, the Commonwealth was permitted’ to ae;
troduce the testimony: of members of Malito’s. family who. .
told of conversations with Malito before his death, which .~
~ tended to refute this portion-o Lopinson’s testimony and -
establish that Malito had actually paid. him the $15,000. ..
agreed upon and was not. in debt to him, as Lopinesa :
Claimed. *
Assuming srguendo; that the atin was proper
rebdttal, we agree that it.should not have been admitted:
‘It was pute hearsay, and we are not persyaded that it
_ constituted'a valid exception to the hearsay rule.* However,
«in view at al the testimony in the case, we are convinced |
. it had-no influence on the verdict, even though the Common-
wealth did refer to it vigorously, but briefly, in its summa-
tion. It was, therefore, harmless error. See Commonwealth .
.v. Thomas, 410 Pa.-160, 189 A. 2d 255 (1963), cert. denied,
~~ 875 U.S=856 (1963) ; Commonweulth v. Daily, 280 Pa. 59,
124 A. 440 :(1924) ; and, Commonwealth, v. Curcio, 218°
’ Pa. 827, 67 A. 643 (1907). Seme error ‘in a protracted
- trial, ‘such as this, will unfortunately occur, but.we have.
_ consistently ruled that if the error did pot deprive the de-
fendant of the fundamentals of a’ fair trial, we will not
reverse the. conviction. See Gommonwealth v. ‘Thomas,
_ supra, and Commonwealth v. Barnak, 357 Pa. mh, 54 A. 2d
865 (1947). .
* At the medical examiner’s fremont. ‘Sidney Cardonick
testified about two conversations’ he-had with his friend, —
Lopinson, within months of the occurrence involved herein :
(1) wherein Lopinson expressed a: wish “to get rid” of his
' 8The ieee court admitted the evidence to show.the state of
mind of Malito and his intention as to his business transaction
“with Lopinson under an exception to the hearsay rule, recognized in
_ Commonwealth v. Marshall, 287 Pa. 512, 185 A. 301 (1926), and
Commonwealth v. Wilson, 394 Pa. 588, 148 A. 2d 234 i cert.
denied, re U.S. 844 Ome).
—-
a >
wife; wnt: (2) Neate which eN beingic some guns
-» from the witness and said “if you ever.want-to get rid of
| anybody, let me know. I know a hit man for $300.” -
-- * During the - period. between the in quest .and»trial, ~
Cardonick visited the office of, Lopinson’s pit and told.
- them his testimony at the inquest-about these conversations
“ sistent statements, mentioned befor
was not true, and was instigated by and the result.of threats
> made by an assistant. district ew Tkis interview was
.tape recorded. . “a
_At trial Cardantek repeated his tegtishonty, asvgiven “hes
at the inquest, and, ‘despite . - vigorous cross-examination, es
insisted it was true. He acknowl making the incon- * -
, to Lopinson’ s counsel.
_A verbatim typewritten tra seript of the tape record-
ing was read. to the witness by: Lopinson’s counsel, and he
admitted it was accurate and everything theréin recorded
-occurred. However, the trial court refused to permit a play-
ing of the tape itself. in the presence of-the jury: This is
assigned as error on the ground. that the ruling denied
‘Lopinson the impeachment weight and significance of: the «
recording itself.
. . [Tape recordings are admissible in evidengs
_. when they are properly identified and area true and correct
. reproduction of the statements made, and when the voices
are properly identified :” Commonwealth v. Bolish, 381 Pa.
500, 524,°113 A. 2d 464, 477 -(1955). See also Common-
“wealth v. Hart, 408 Pa. 652, 660, 170 A. 2d 850, 854-855 ©
(1961); cert.“denied,-868 US: 881+ (1961).And-where-a—
‘witness has: made a statement inconsistent with- his trial |
testimony, the agrieved party has the right to introduce
in evidence the entire statement for the purpose of impeach- _
ment. See 3 Wigmore, Evidence $1087, page 723 (3d ed.
1940). However, the entire contents of Cardonick’s state-
ment was given to the jury. That it: was complete and
accurate Was unquestioned. We aré not persuaded that the
denial of the opportunity to repeat the contents of the,
contradictory statement to the jury, through the use of the
tape recording, impinged upon a s right of im-
mal inaiadionen : 7 re ceetrmonfetcR
ee peireciiall testified at trial. ‘Also ‘several ;
witnesses calied by the defense were asked about his reputa- —
tion for being a law-abiding’ citizen: While some limited
'. their answers to, “good” or “excellent”, one embellished it -
by stating: “Everybody who knows J ack Lopinson : thin nks
he is a wonderful person, a good honest person. That if you"
‘need a friend he was there.” . ~
In rebuttal, the. Commonwealth called witinansied who"
a were asked, after being qualified: “Among the people who |.
oer him what was his reputation for truthfulness?” One
' - such witness, David Seflin; the father of Judith-Lopinson,
replied: I will have to clean that up a bit to make it
acceptable to the ladies in the court room. . He is an
‘ unmitigated liar’ and scoundrel.” _ Another ‘such 1 ‘witness,
Milton Jacobs, answered the — thusly: “Not truthful,
a very bad liar;” . on
Lepinson contends it was error to allow any beatiponiny ay
as to his reputation, and in any event the answers of Seflin.
and Jacobs, related above, were unrespongive, should have \
been: stricken from the record and the jury samekeea ‘to |
. disregard ‘them. — .
' + Sinee Lopinson placed his 0 own ‘etedibility i in issue by
testifying, and his general reputation‘in issue by other wit-
nesses, it was perfectly. proper for the Commonwealth to.
impeach his-credibility by. competent evidence showing that
his: genera] reputation for truthfulness in the “neighbor-
hood’’ where he lived and was known was bad. See Commor
‘Wealth v, Harvie, 345 Pa. 516, 28 A. 2d 926 (1942), and
Commonwealth v. Whité, 271. Pa, 584, 115 A. 870 (1922).
‘The answers to the questions submitted should have been.
limited to his general reputation. for truthfulness in the
-community, but the failure of the trial -judge to. so rule is ©.
not of such moment as to require a new trial. This is par-
ticularly true in view of the embellishments, noted before,
on the part of one character witness called by the defense.
. qe
_ See Commonwealth v. Palmer, 184 Pa. Superior C Ct. 171,
” 182 A. 2d 889 (1957).- 7
© |
a?
% .
| ge
| ‘¢
ce es ‘3 The Charge to the Jury iauccign ccs &:
Lopinson: urges that in his charge to the jury the trial -
| jade’, while not expressing any clear-cut. opinion of de- “a
_fendant’s ilt, did by “inference... . let the jury know
- that in its opinion the defendant was guilty of first degree
murder.” Our reading of the charge discloses no such indi-
_. @ation therein. ‘The charge was completely fair and re- ;
peatedly admonished the jury that the question of guilt or
imnocence and the. degree of guilt, if any, was for. its de-
cision alone. ~' |
Other asserted complaints about the: chitee are like-
‘“wise devoid of merit. Instructions to a jury must be read —
and considered in their entirety. Seé Commonwealth v. °
Whiting, 409 Pa. 492, 187 Ax 2d 563 (1963). When so read
_ and considered, the instructions in the instant case were
thorough, clear; impartial and free from error. .
Particular complaint is voiced as to the court’s instruc-.
tions on the penalty to be imposed. It is urged that they °°
~ “eonstituted a mandatory. injunction ‘to the jury to bring
back the verdict. of death.” Again sentences therein, taken
_out of context, are emphasized. The nature of the penalty
to be imposed. was left to the sole discretion of the jury,-as
an objective reading of the entire charge in. pertinent. part
will disclose. The jury was correttly instructed in part-as
follows: “You should consider - carefully the character of
_ this defendant, his: background, his previous behaviox, how _
- he has impressed you as an individuab-and-as-@ person. And:
= -give more Weight to the character of the individual
“as you understand it than to the character of: the crime oe
this pestionler. instance for which he stands convicted.
“Yo ou should ik decile upon the sentence out of any -
feeling of vengeance. You may -consider the age of the
defendant as well as other characteristics about him.. |
“The death sentence be imposed unless you..
_|. come-te-the conclusion that it is the proper sentence after
‘ eareful consideration of the defendant as an individual,
his character and background, and unless you believe that ©
it is justified on the basis of the criminal acts for which
you have found him guilty: of\murder i in the ‘first degree,”
————
—_—_
ff . cas ae
e 3 .
e.
. 57
_ Dismissal of Post-Trial Petition for Leave To File. -
% Supplemental Reasons in Support of Motion |
for New Trial and in Arrest of Judgment.
. The verdict of the jury. was returned. on March 4, 1965.
: ‘The motions for a new trial atid in arrest of ju ent were _
_ filed‘on March 5th.They recited only the usual pro forma —.
reasons in support thereof, byt permission was granted to .
file additional assignments: of error after the transcript of —
the. récord was filed. When this was effected,” fifty-seven
additional reasons in support of the motion for a new trial
were entered of record and argument — before the
court én banc. |
‘While the post-trial. ‘notibns ‘were , thus pending bites.
the court and before a decision thereon was rendered, Lopin- . °
‘son filed a petition with the court asking leave to enter
supplemental reasons in support of the post-trial thotians
and for .the- opportunity. ey taking testimony in conngttion :
- therewith. |
*~ “Phe crux of the petition was included i in two allega-
tions: (1) That subsequent to trial, Lopinson’s counse]-had
secured “medical proof” of Phelan’s incopmpetency at the -
time he testified; and, (2) That “at a proceeding: before
the court on July 27, 1965, Frank Phelan, under oath, re-
. eanted and repudiated his prfor ‘testimony and statements
'. against” Lopinson.
. The Commonwealth filed an answer to the petition
'. requesting that Lopinson plead ‘specifically the “medical «
proof” of’ Phelan’s incompetency. alleged. to be in counsel’s
possession. Lopinson failed to respond to this request and
. Subsequently, the court denied the petition to file supple- :
- mental reasons. ae
| The allegation that Phelan tecanted his testimony ant
statem against Lopinson js based on one of his state-
ments before the court on July 27, 1965, in connection with
his request for new counsel, namely, “and I just ‘vant to -
say for the record with ‘reference to any -criminal acts
alleged to-have been. perpetrated by me, I now confirm noth-
ing and ee deny ee seg ae
° . 58 rede | o.
kein that this ‘dinate to a recantation of his
testimony a a ah given. \publicly; under. oath,
* two §
showing: of a plain abuse of Maeetin: ee Commonwealth.
ex rel. Wilson v. Rundle, 412 Pa: 109, 194 A: 2d 143 (1963). »-~
‘No abuse of discretion is evident here. In eens.
Ruff, 92 Pa. Superior Ct. 580, 585-536 (1927), it-was
as to recantation that: “We cannot inte in this m tee
a ~ unless there is'a plain abuse of discretion: In 16 ©.J., page
“1188, section 2715,. the lav generally upon this subject is |
ing ‘testimony is exceedingly unreliable °
ay and it i it is- ie duty of the court to deny a new trial where °
i “itis fot satisfied that such: testimony is true. Especially .
= — ~. is this true where the recantation involves a confession of.
-.+ perjury... .’ There i is ‘no form of proof so unreliable as"
recanting testiniony.’* This language was expressly ap-
- proved in Commonwealth v. Palarino, 168 Pa. Superiof Ct.
‘ 152, 155, 77 A. 2d 665, 666 (1962), and i in Wilson, supra,
at 113, 194 A.-2d at
_.. JI Lopinson’s. counsel were in possession of: meilical
proof that Phelan was incompetent to testify at the Lopin-
_son trial, certainly there should have been no reluctance to. ©
-inform the court of the nature thereof. Moreover; until the
court was given ‘some definite knowledge of what this proof .
_ constituted, “ané intelligent appraisal of whether further
proceedings were indicated was-impossible. x
_ :While we have not discussed each and every aanerted:
lC—— of error, all have been carefully considered.
After a consideration thereof, we find nothing therein, -
singularly or collectively, that warrants the grant of Ss
new trial. Lopinson received a fair trial.and we. repeat, the -
- verdict and sentences were ‘fully warranted sad the evidence. .
Judgments affirmed. ;
Mr. Justice: COHEN dissents.
° For details, see Commonwealth v. Piston, 426 Pa. . 266, aa ais
. 2a (1967). ae
o
Pras a . 69 | ;
APPENDIX “B”
re
“Opinion of the Trial ‘Court
oat “Before aan: P. z » Guarentee. and Cuuporr, JJ. +
oe OPINION PER Cunagyt May 12, 1966
5 sir Defendant, J ack? Daetnto, has 5 cenit from judg-
'__ ment of conviction,‘ of first degree murder, after trial by
‘ ~ jury, upon which the death sentence was twice imposed. Bill
No. 469: charges the’ murder of Defendant’s wife, Judith
_ Lopinson, Bill No. 470 charges the murder of Defendant's be
‘ business partner, Joseph Malito.. °
'. ". The evidence disclosed that ‘defendant conspired with
one Frank Phelan whereby Phelan, for inoney, would kill
. the two victims. Prior to’ the trial-of Lopinson, Phelan had
plead guilty as the actual killer in the two murder charges
before Judge Alexander, hut: had not’ been sentenced. Subse-
" * quent to the trial of Lopinson, testimony on Phelan’s guilty >.
- pleas was taken before Sloane, P. J., Alexander and Bar-
bieri, JJ. Phelan was sentenced by the court to death. . 3
Phelan testified in detail atthe trial of Lopinson,-de-
scribing. brutal, cold-blooded killings by him in the basement
< Dante’s Restaurant, 1809 Chestnut Street, Philadelphia, ©
hursday, June 18, 1964, while Lopinson was alone on.
thi Restaurant floor. ‘Subsequently Lopinson. and Phelan .
‘ went to the basement, where Lopinson told: Phelan to shoot
the victims again. Then, on the Restaurant floor, Phelan.
2 shot Lopinson’ s thigh; to put on the picture of a rs ry. .
. After” Phelan left, ‘Lapineon shot at the wall, cheng ed
—~ police. - ?
While Phelan’ s testimony, if believed, clearly and une-
‘ quivocably convicted both himself and Lopinson of these two
atrocious crimes, there was ample other evidence upon
which the jury eertainly based its verdict: A witness identi- _
’ fied the deferidant as coming with another man to Delaware .
»
eS 2 MONA eS
‘> pp- paren’ tho esapesk fvspashleh: Phibin Bice ill’ a.
. statement that he was the other man. The death weapons
were retrieved from the Delaware River. ‘A ballistics expert 03
established most of the bullets recovered as having been shot.
from the same weapons. Lopinson’s intimate friendship
with another woman was testified to by many witnesses. 3
_ Lopinson himself .gave - and unconvincing testimony
. relative to his financial. ents with Malito. There
was considerable testimony ° which the jury could find
the defendant wanted to rid. of his wife. —
’ While defendant and his witnesses offered testimony to
nee contradict the Commonwéalth’s case, and to offer another -
* story of what occurred that night, there certainly was more |
_ than sufficient evidence for the jury to find the defendant
guilty. The matter of credibility of witnesses, ‘and of resolv- ©
ing conflicts in testimony is, of | course, for the jury. Here, °
. they convicted defendant. In the saab of the i their
| verdicts were cmey Rerem, . s
:
“A, -Defindant’s miuttitodinien assignments te a new trial
‘Sandi in arrest of judgment were argued before the Court en
_ bane, and were denied by the Court. ,
Fah. bing ut eiaailgueaiiin were anaweredl with vienins
. < by an‘opinion filed for having denied defendant’s-motions
to quash the indictments against htm, and will not be re- £}
peated here; but incorporated herein by reference. .
7 What appears to be defendant’s 5 primary reason for an
new trial relates to certain alleged hearsay testimony of
the Commonwealth’s witnesses. Carl Marsini, Jean Salvi .
and Rosemarie DiPlacido, ‘concerning financial transactions ... -
between the decedent, Jos8ph Malito, and the defendant;
. and from *% ewmammsdeene apace asaadiy Malito,
* weeibent’s son; aalaibie to a cumvssenhin Joseph Malito al- ater
== had with Phelan in which the latter told the former ;
he had & “contract” on Joseph Malito’s life. it: ay
. Carl Maréini, a-friend of Joseph Malito, testified that
* ipoth Rpellorentiy ts Mone 1964, Malito had told him that :
he had given $15,000. to. Lopinson fora partaisrship, in
Dante’s.
- Jean Salvi, Joseph Malito’s sister, “testified that she
_ had a bank account which was in her name but which ¢on-
' sisted of funds that were ake mn iad dex eee
- were’ subject to his instructions. She that shortly
.before April@4, 1964, Malito told her to withdraw $10,000
because he needed that sum to give to Lopinson, and that
pursuant to these instructions‘ she withdrew. $10,000 and ~
_ gave it to her brother. She also testified that on |May 15,
1964, Malito asked her for another $5,000 for ian She
a testified’ ‘that she withdrew the $5,000 and gave it Malito,
- . who told her that he had given it to Lopinson.
Rosemarie DjPlacido, Joseph Malito’s da iter, testi- : |
" <° her that he had giyen Lopinson $10,000. She further testi-
- fied that after“ Lopinson had returned fromi Fierida her
father again told her that he had given Lopinsor-$10,000 ;
t Lopinson was “broke” and was borrowing money from
him, Malito; and that he, Malito, could not understand how
_Lepinson could have “spent all that money in ‘such short
time.” ;
The Commonwealth ashi that this tentinndny was .
admissible to show the state of mind of decedent, and cites ‘
as authority, Com. v. Marshall, 287 Pa. 512, 523 (1926) and
Com. v. Wilson, 394 Pa. 588, 600 (1959).
The trial judge, at the time of its offer, ruled i in. favor
of the Commonwealth. _~ Q
In this respect, it is significant that Mrs. Salvi ~ testi-
“mony that she. withdrew-$15,000 of her brother’s money. ~
and gave it to him would have been admissible as fact testi- .
mony, and ~—_ _ testimony an inference ~— have
. - ib é
PF
e a)
°
62
heel x
n drawn that the ‘reason n Malito had requested the sigeiey
War te ‘give it to Lopinson.
Subsequently, defendant, himself teshi ed that he had ;
_ an original deal with Malito whereby Malito was topay hiin, |
~ Lopinson, $15, 000 for a‘half interest in Dante’s. This, he
said, was later changed and Malito was to pay him $5, 060
Malito’s death), and'that, Malito would pay. an additional
suk of $10,000 ‘by assuming a portion of df obligation of
Lopinson to a finance company which had lent him money.
if Lopinson testified that Mitchell Lipschutz, through a straw,
- owned one-half of the: ‘business and Lopinson owned the
“other half, and that it was this one-half interest that Malito-
was buying.
Lopinson’ was iain a $15, 00 note % Malito, which he
admitted he and his wife had'signed. Lopinsom was asked by
his counsel why he signed a note for $15,000 to Malito when
indebted to him for the balance of the purchase price foxsan
interest in the business, and. (b) Lopinson never*received
$15,000, but only approximately $3,500 thereof. Lopinson’s
reply was (1) that he had given Malito the $15,000 note
before the transfer of the one-half interest had “been .ap-
af proved by the Liquor Control Board .and there was then 2
possibility that the transfer might not be approved ; and that
(2) that the amount of the note was $15,000 because that
‘was what the amount was originally intended to be. Fur-
thermore, Lopinson testified that the note was supposed to:
have been*destroyed, and he assumed that it had been, but
, the-evidence did not “wee ‘where or under what cir¢um-
stances the note was fo $e.
Ata later stage mo the’ evidence Lopinson changed his
testimony and stated that Malito was not to pay off $10,000
6f Lopinson’s obligation to tif finance: ws en but that, to
\ tof which he said he had only received $3,500 at the time of | |
=
' ” (a) he did not owe Malito anything but, in fact, Malito was
~ therefore the note was to insure the return of the sum if the’.
Liquor€ontrol Board would not approve the transfer; and
- the contrary, he was te receive $5,000, and the remaining
oe a $10,0 000 was to be used-i -in some unspecified Sahin for ex’
— of the business;. |
The full details of the financial relationship between
3 Lopinson and Malito and others as to who owned what inter-
est and how much was paid by whom to. whom, were never
clarified ; nor were any documents produced other than the -
" note froni Lopinson to Malito.
In light of the hazy nature of the finan ial transactions.
between Lopinson, and Malito, the fact that Lopinson ad- - |
mittedly signed a -$15,000 note in favor of Malito, and the -.
- further fgct ‘testimony of Mrs. Salvi that she withdrew
_ $15,000 of her brother’s. money and gave it-to him, wecon- —
cluded that the admission of the testimony of Marsini, Salvi ©
and DiPlacido did not. constitute prejudice against the .
_ defendant.
“Relative ‘to: the seitiiomy of. Pasquale Malito, sin. of
_. Joseph Malito, to the ‘effect. that prior to the killing of his
_ father, the latter hdd informed the witness that Phelan had
told him-that he hada “tra” on his, Joseph Malito’s.
life, the Commonwealth urged this also as indicating a state
of mind: Here again, the defendant himself, in his direct
testimony, testified to the same incident in respect to this,
and there was no-substantial conflict between the testimony .
_ Of the defendant 4nd Pasquale Malito as to 0 what. Phelan had
said.
} The law respecting. such ovidunee % was ‘well stated by ._—
. Mr. Justice Benjamin R. Jones-in Com. v. Thomas, 410 Pa.
» 160 (1963). This was a first degree murder case, where the
admission of the testimony of four witnesses for the Com- ©
monwealth wan
. testimony, consisting of statenients and declarations of the
decedent, was hearsay. The Commonwealtig there .claimed
gach showed a state of mind, an exception to the hearsay
rule. Mr. Justice Jones there stated (pp. 47-171):
. While, in opr view, the admission of their i
sills into evidence could be justified -(Common-
wealth v. Marshall, 287 Pa. 512, 135 A. 301; Ickes v.
igned as error on the ground that their . |
°
° 2 2 - . . . i 8
a a nail “alll cater aa , ETT TT
° - a
- .
64 —
nie
‘ Iekes/ 287 Pa. 582, 85 A. 885; Nuttall v. Reading Co.,
. 285 F. 2d 546), yet, even if such testimony should not
have been admitied, its reception into- evidence was
clearly harmless error. If we view this testimony in the
light mest favorable to Thomas, such testimony, if be-
lieved, would point to a relationship ‘between Thomas
and the deceased. That such relationship did ewist was
shown by other evidénce—the admissibility of which is
not questioned —- presented by the Commonwealth.
Thus,\the admission of such evidence did no harm to
Thomas and an examination of the instant record in its
entirety fully confirms the fact:that the admission of .
the testimony of thees witnesses, even a erroneous, did
not prejudice Thomas. ot ;
This is clearly analogous to the case i bar. . ,
There ‘is, however, still a further reason why a new
trial should not be granted the défendant based on such as-
signment of error. After the-defendant had objected to the. _
admission of such testimony and the Court, overruling the —
objection, admitted the same, the defendant did not continue .
to stand on his objection. Both on ¢ross-examination of Com-
“-monwealth witnesses, and on_examination of his own wit-
~ nesses*defense counsel, on at least twelve different occasions
elicited testimony to show the state of mind of either Judith
or Malito, the decedents. He resorted to this type of evidence
in his cross-examination of the following Commonwealth’s
witnesses: -1) David Seflin, Judith’s father; 2) Joseph |
- Kauffman; 3) Mrs. Irene Feldman; and 4) Sergeant’ Mc-
Ginley. He injected such testimony in his direct examination
of the following witnesses in presenting defendant’s case::
1) Gene Groff (twice) ; 2). Jack Lopinson, the defendant
(three times) ; 3) Nathan Stein; 4) Ralph DiPlacido, and
<5) Mrs. Ann Lopirison, mother of defendant. ~ :
“. + “Furthermore, defense counsel; in his summation to the
jury, referred to such testimony of Ralph DIPIgei, the
son-in-law t of Joseph Malito. — _
3 . ” a
| eae . "sg
eae 2 65 — ae
"When counsel does mt stand 6n his. objection, but intro-
duces the same.type of testimony himself, he is deethed to _
have waived his initial objection to such testimony. In other
words he himself cannot later use the type of testimony to *
which he has objected in the Commonwealth’s case, without, - _
by his use thereof, waiving his prior ‘objection.
14:°
Thus, Wigmore (Third Edition) says, in Vol. 1, Sec. . —
"- “Tf the opponent duly objected and was errone-.
ously overruled in the first inst&fice, hé-could not claim ..
to present similar inadmissible facts, because his objec-
.tion would (in. theory) save him, on appeal, from any
harm which may accrue, and he needs. no other -
_ protection.
¥.
- “But if he did not object and exeept, he ines no such
protection ; and the question thus arises whether he can
protect himself at the trial by retorting in kind. "4:
B
By clear infexence from tation it is evident that
if he does put similar evide , he. has waived _ his
objection.
_ The defense urges that the trial judge erred in not. -
ordering the witness Phelan to answer certain questions
asked by defense counsel and, further, that the court should
have ordered this witness to remove the sun glasses which he
wore when he first testified. The trial judge took the position
that any direction by hini to Phelan to answer these ques-
- tions would have been a futile order, in view of the fact that
the witness had already entered a plea of guilty to an indict-_
ment charging hirh with the murder of two persons in
se respect to which he was presently incarcerated and awaiting.
‘sentence, and that therefore the Court was powerless to
inflict any effective punishment on Phelan for his refusal to
answer questions.
In evaluating the effect. of the above, it is significant.
‘that 1) the witness subsequently answered the questions;
Ay aS
66.
2) the questions, for the most part, bore only on collateral ‘:
issues; 3) the Trial Judge charged the jury that in weighing
~ the credibility of the witness they should appraise his “de-
meanor on the stand, remember the: manner in which he
testified, his apparent candor and frankress, or the lack of
- it”; and-4) the Trial Judge permitted wide latitude i in the
cross-examination of. Phelan by defendant’s counsel, as evi-
denced by the fact that, while the direct examination was -
os encompassed within 40 pages of testimony, the cross-éxam-
ination extended over 400 pages.
‘When Phelan {ater appeared on the stand, he was not
7 wearing dark glasses and-the jury then had an opportunity
- of seeing him eye to eye. Furthermore, the trial judge, in a
_ supplement to the main body of the a in the very last
instruction to the jury, said:
“And, secondly, I want to charge you in a ‘a matter
that I had intended to during my charge relating to the.
wearing of dark glasses by one of the witnesses, Frang
Phelan, and an evidence by him of a refusal to remove
his glasses while he was being examined on his first
appearance in court.
“When he appeared as a rebuttal witness, you will
recall he was not wearing dark glasses.
“T charged you relating to credibility or béliev- |
ability of witnesses, such as their interest _in the out-
come of a case, their apparent intelligence, dnd their
ability to observe clearly and relate accurately what _
they observed, and other facets of determining believ- ©
ability of a witness.
“Now, the fact that Phelan refused to remove his - —
‘glasses is one of the numerous factors which you shéuld:
consider in connection with your judgment as to
. whether or not he was telling the'truth. And, of course,
you are to consider the credibility ‘of all the witnesses -
as to whether or not they are telling the truth, weigh-
ing their credibility or bélievability. by every ‘meahs
that ia have at your — as sic ‘individu-
E “g
Fe : 67 -
ise ee eee Sain See
ais, but particularly I wanted to relate to you concern-
ing the dark glasses, that it’s one of the numerous fact-
_ ors.to be considered when = weigh the — of
— that — witness.” |
We concluded the defendant suffered no harm onreg
‘to this matter. Com. v. Morrison, 157 Super. ea (1945) ;
. “Com. v. Reed,.152 Super. 249 (1948). ° te
Other assignrients of error, we believe, — been |
amply and sufficiently answered by the Commonwealth in
their excellent brief filed with us and which we are sending
to your Honorable Court with the other Record papers. We
have every reason to believe they will be equally well covered —
in Conimonwealth’s brief to be filed in your Honorable
Court. In order not to doubly burden an already over-bur-
- dened record we will not here repeat what the District
— has already so ) ably covered.
- Finally, we-would indicate-that in a crimirial case the -
test by which all trial errors are to be measured is whether
or not they have deprived the defendant of the fundamentals
of a fair trial. Errors in the abstract, such as the he transgres- - a
sion of a rile of evidence, are not sufficient-to warrant.a new © :
trial where-a, review of the entire record clearly demon- —
_ strates that the errors could not prejudice the defendant aa
could not have affected the vérdict.of the jury. *
In the case of Commonwealth v.. Barnak, 357 Pa. 391, :
419, former Chief Justice ae, spegking for a majority of
the Court, said:
. “Taking a an saieen’ in criminal cases is not a game
in which the appellant wins if he can show that the trial
judge fell a few degrees short of perfection in.the con- ’
duct of his trial. This court has consistently refused
reverse convictions of murder in: the first degree, even
. with the death penalty imposed, for errors in the ‘¢on-
duct of the trial or in the admission of evidence or in |
_
>
: Be
68
the ve juitgh charge, when these errors did not deprive
| the defendant of the fundamentals of:a fair trial. °
; “In the recent case of Commonweilth v. Chavis, ,;
857 Pa. 158, 58 A. 2d 96, in which the defendant. was —
- eonvicted of murder in the first degree, With the death .
-. penalty imposed, this court affirmed the. judgment and
- §«
sentence despite certain manifest errors in the record.
In the case of Commonwealth v. Moyer and Byron, 857
Pa. 181; 58 A.-2d 786, in which both defendants were.
_ convicted of murder in the first degree, with the death
penalty gee od court affirmed the judgment and
sentence d iin manifest errors in the judge’s
charge. In Com. v. Skawinski, 318 Pa. 458, 169A: 895,
in which thé defendant was convicted of murder in the
first degree, with the death penalty imposed, this court
. in an opinion by Mr. Justice Linn refused to reverse
e judgment, and sentence even though the trial judge —
_ ne his charge to the jury committed plain error when he
id: ‘If for the good of the community you deem it
_Mecessary to find the accused guilty of murder in the ~
“ first degree and to fix the penalty at death, you may
consider that if oe! is dates? duty you should not shirk
it.’ ' 9? :
in the concurring opinion in the same case, Si ustice Pat-
terson said (p. 423) ;.
‘ “Distinction ‘between, hartnless ani prejudicial
error transcends confinement by formula on precise
rule. Determination of the category into which. given
. error shall be placed requires an exercise of discretion
by appellate gribunals which can only be resolved by
examination of the entire record. Challengéd state-.
ments must be viewed not as isolated utterances to a
: jury, but with due regard to their probable effect when.
considered with explanatory remarks which preceded
“or r followed the ey ataene in question. _
~ - : 69 : . Ae
“The objective review of an Seppetiati const must
guard against. magnification on appeal in a criminal °
_’ ease of incidents of little importance in their setting:
_ © Glasser v. United States, 315 U.S. 60, 62 Sup. Ct. 457. .
- Where the scales of justice are delicately poised be-
tween innocence and guilt, erro? which under some cir-
cumstarices would not be too great for reversal, should
not: be.brushed aside as immaterial. Where, however, as_ -
. .. here, examination of the entire record clearly supports
the finding of appellant’s guilt beyond any reasonable
an and where a fair and impartial trial has been
_ had, and the conclusion inescapable that the error did
not influence the jury against the accused, the true ad- _
ininistration of justice cannot be negatived by technical
. error which-has not deprivéd an accused of his legal —
right to a fair trial: cf, Commonwealth v. Blose, 160
‘ Pa. Superior Ct. 165, 170. °
“Discussion of basic principles regarding deter- "
mination of harmless error by #@ Supreme Court of the
United States in Kotteakos v. United States,828 U.S.> -
750, 66 Sup. Ct. 1239, is peculiarly applicable here. Mr.
Justice Rutledge said. (p. 761-2 66 Sup. Ct. 26 1246) :
“By its very nature no standard of perfection. can be
attained.- But- one of fair approximation can. be
_ achieved. . . For, as with all lines which must be -
. drawn Detween positive and negative fields of law, the
- precise border may be indistinct, but case by case de-
\ - termination of particular points adds: up in. time wo dis- |
. cernible direction. - ee,
“Tn the final analysis judgment in ~— case must
‘be influenced by conviction resulting from examination .
of .the” proceedings i in their entirety, tempered but not
governed in any rigid sense of stare decisis by what has
been done in similar ep. *. uci
The gins of former Chief J ustice Maxey in n thee :
above case was quoted with approval in Commonwealth v. -—
e
1
« a —
eer 4 Thompson, 889 Pa. 882 (1957) ; and in the case of Common- Ea
+. wealth v. Linkowski, 863 Pa. 420, 424 (1950), the Court: :
a ae. Commonwealth v. Barnak, supra :: ae
:' Mere error in the abstract is not sufficient to
ennai a retrial, and where the conclusion is ines¢ap-
: able that the error did not influence the jury against
the accused, or deprive him/of his. _ right toa fair:
trial, anew ‘trial will not. be. —— att
ne
a 7 Riaihiabiis
| In thee course of an extended. voir dire of 248 prospec-"
_ > tive jurors, (said to be ‘largest number in the history of: this
. Judicial District), arid the long’ trial lasting seven weeks,
: . with a transcript of 5828 pages of testimony, the presiding
. judge was obliged to consider the rule upon an incredibly
large number of objections; many of which demonstrated
nothing more than a play ; the gallery by defense counsel.
In the opinion of his colleagues who sat with’ him in the
Court en'bane, the record shows that the Trial Judge, in his
rulings on evidence and in his charge to the jury, displayed
_ sound judgment and a: zealous regard for the rights of the
‘defendant. We are, therefore, of the very clear opinion that
the defendant had a fair and impartial trial, that no basic
or fundamental error was committed by the Brial Judge,
> that the evidence proved defendant’s guilt ‘beyond. a reason-
Seriya doubt, and that therefore defendant’s motions for new .
_ trial -: in arrest of judgment were properly — .
i. a Court:
é
| | a : _.* Perer J. Hacan, PJ.
sh, eae os BcveeaNl is, MU ons EDWARD GRIFFITHS, J.
: ‘\ EARL CHUDOFF, J...
<3 :
eae
\
; e °
\ . « 3 . i : °
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APPENDIX ncn
_ Petition For Re-Aryunent Before Supreme Court
of Pennsylvania.
To the Risieais. the Justices of the Said Court:
- ’ The Petition of JACK LOPINSON, Appellant, respect- “2 -
’ fully prays your Honorable Court togrant a Re-Argument >
of this Appeal, and in aebeigret aT. submits .
the following: ca an
ee N PREMIMINARY STATEMENT |
“+ . Appelignt was tried and conyietid in i Philadelphia *
County of, Murder in the First De on two Bills of In-_
dictment (469 and 470, July Sessions 1964)? Motions for
New Trial’and In Arrest of Judgment wore denied by the
Trial Court and on November 8, 1965 Appellant was sen-
' tenced to death in the electric chair on eath Bill of Indict-. Be
ment. This Appeal to your Honorable Court followed and. F
on September 26, 1967 this Honorable Court per Justice
Eagen filed its opinion and order affirming the judgments
bhelow..A copy of the opinién of Justice Eagen is attached ~
hereto and made part hereof as Exhibit “A”...
| The following points taken from the opinion ‘of the .
. Court it is hoped will demonstrate that in certain essential »
areas the Court: inadvertently relied upon factifal errors.
contained in the Brief filed by the Commonwealth Appellee
and also misapprehended certain legal issues. It is submit-
_ ted that the following recital of the factual errors requires “
that Appellant be granted re-argument so that clarification . .
‘of the vital issues involved be achieved and the errors
corrected. —
*
II. MISSAPPREHENSION AS TO ESSENTIAL FActs RELATING
_TO PRESENCE OF COUNSEL ‘DURING INTERROGATION. |
A major argument aetna before this Hentalle
~~
€@2
«,
"Cond wai tht Gee, *Dital.athge’ ina “aecedt tm admitting
before the ‘jury certain statements made by Appellant to
| police detectives at a time when Appellant was regarded as =
a suspect and: without any preliminary warnings ‘by the
pdlice as to his right to counsél and his right ‘to remain
silent. See Appellant’s Brief at pages 159-and following. On
. pages 13.and 14 of Justice age ~ =— the ane
i statement appears :
“Following the hémicides and. while Lopinson. was
if a hospital being treated for the bullet wound, he was -
'. - interviewed by investigating officers who were seeking
. to ascertain a degcription of the two alleged hold-up
men. Lopinsgn’s then self-retained counsel was present
| Se at all times during this. questjoning and the record
. clearly proyes that Lopinson’s statements were truly
_ voluhteered, and not the result of any conduct in vio-. . =
lation of his constitutional rights.” (Emphasis added. ) 3
The. italicized language quoted. above i is incorrect. as
a-statement of fact. But Justice Eagen was no. doubt misled
into making it because of the following incorrect statement _
‘of fact which is set fortheon pages 09 and 110 of ~ Com- .
‘monwealth’s Brief: - .%) ©
: “Appellant, in his briet (p. 161) x makes the follov-
mae statement: ——
‘Despite the fact that ‘sniinals was a napa
mics the very beginning, he was questioned exe
tensively following, the homicides while in the,
hospital undergoing treatment for a bullet: wound.
. Stich: “questioning took’ place in. the absence .of
counsel and without any warning or statement
to appellant that he had the right to remain silent
and. the right to consult counsel and a right to
have counsel — at the time of any ‘interro-
gation,’ : oe ee
2
. *
This statement is inaccu bie in every vaste ~
record establishes -beyond dispute, a) at. the ,
’ thesintérview in the hospital, appellant’s oat rs
counsel, agers 8, ‘Li ca ail was — :
(R.. 4129a), .= sa :
‘The ecinan in ‘its Brief stntes that the facts set
forth on page 161 of Appellant's Brief are inaccurate. The
Supreme Court in its opinion relying on. this statement
contained in the Commonwealth’s Brief declarés . that
“Topinson’s then self-retained counsel was present, at all. - :
| times during this questioping”.
- “Neither: the statem t of the Commonwealth in* its
‘Brief nor its repetiti a te by this Honorable Court i in J ustics h
os Eagen’ s opinion is
The actual facts: are. that when: Lopinson was ques-° -
"tioned |'by:detectives, after they had conclided that he was
-involved in the crime and*was a suspect; NO COUNSEL:
FOR -LOPINSON WAS. PRESENT AND NO STATE-
MENT WAS MADE TO. HIM REGARDING HIS RIGHT- .
- TO COUNSEL OR HIS OTHER CONSTITUTIONAL .
_ RIGHTS. This is clearly established-by the gecprd and it = .
_ is the Commonwealth’s- erroneous ‘statement in its “Brief
that has -misled. the Court into believing, that the record.
shows otherwise. }.
The reférences to: +tb reieed white the foregoing may
. “be found is clearly set forth ™ Appellant's se on pages
160 through 163. _ .
_ For example, the_ eset starting at sage 887 estab ,
lishes without a doubt, that at the time of the ‘questioning:
complained of, Appellant was q suspect and that the ques-
‘tioning. in the absence of counsel: and & out a warning "
‘of constitutional rights occurred at a tal stage” of
ma, proceedings: a '
“1, The ‘detective, who questioned ‘Appellant, inferred ,
‘ - .that“he suspected that Appellant was involved in —
the homicides because he os only sustained a'flesh
m 5
\
. “>
z
i
stig,
-—~ wound, sical the dininale: on the premises
-at the time of the _— poldup hed been: killed
(887a) 7
2. The detective she thought. that the Appéllant was ¢
| lying i in the story that he had given to the se 7
. prior to the time of the questioning complained of.
(888a and een, 7
ro
That the police. regarded Appellant as a suspect at the
time he was questioned i in the hospital is resolved beyond a
doybt by the following excerpt from the record: .
| Detective James Fowler, (Cross Examination) : sg
"4Q, Detective Fowler, if you had these suspicions
that the story didn’t add up in your mind, why didn’t
you get a'search warrant? . gs
' MR. SPRAGUE: Objection ir. ee
T COURT: Sustained. Thais for the Court
to determine. pase -
:°@
, BY MR. SPIVACK:
Qe Did you make ‘any attempt to get a search
warrant?
A. No, sir, I did not.
Q. Did you ever ask the defendant for the cloth-
ing? :
7 Ghee er taeaoe
: Q. Why? .
A. I felt that he had a definite siieaaiiien with
the crime. I wanted to get them to the laboratory as -
fast as J could. It was 5:00 o’clock in the morning. I
knew % would take me some. time td get a search war-
di rant.
“When. Detective Wood came, I ‘told im to take
‘ ee ee ae ee ~-apee meee tee
9 bea as ate Salih Sass maid ny MPH ST mE ‘ AAO NSD LES BE
\
» them tothe laboratory. I thouightthen Thad reasonable
" grounds todothis.° ~- - |
./ Q. In other words, you thought that J ack el a |
had something to do with fhe crime, and you therefore |
wanted these pants and the jacket as evidence? ;
-A. I felt that he had seme connection with the
crime, 7 Yes, sir. “¢ _ (898a-894a) ;
After concluding that Appellant was very definitely
connected with the homicides, the police interrogated him _
thoroughly, and the very/damaging statements made by the ©
Appellant at that time to the Police, when: presented to the .
' jury, prokably did more to agsure his conviction than any
- other single element in the . There is no’ question that
this*Honorable Court has “that a suspect may not be —
interrogated in the absence of\counsel and a warning of
constitutional rights. The Commonwealth, in seeking to
overcome this clear rule of law, has misstated the facts as
to the presence of counsel and has thereby misled this Hon-
’ . orable Court,
C
The Record at pages 636 clearly establishes that
counsel was not present when Appellant was.questioned and .—
that Appellant was not warned of his Constitutional rights:
, Detective James Weisback (Cross ee : ‘ :
“4«Q. ‘Dia you ask the lenient if he desired coun-
"sel before you questioned-him?*.
- .A. No,sir,Ididnot:- - ' \ ane
. Q. In your presence did anyo e elge mention any- ~
thing with regard to legal assistange to the defendant?
| A. Not in my presence, sir. -
-Q. Did you tell the defendant that anything that
he would say could be‘used against him? ,
Ss oe No, sir, I ‘did not.” : NN es ed
The Record also ilies with the utmost clarity
that Appellant raised the Very question of no counsel and
no warning before the Trial Judge and that the Trial Judge,
_ relying on legal authority of Commonwealth v. Patrick, 416
Pa. 487 (1965), since overruled by Miranda v. Arizona, 384 -
U.S. 486 (1966), overruled Appellant’s objections to the ad-
_ missibility of the statements. See R. 4015a and 4016a:
Re os “MR. SPRAGUE: I will ask Your Honor to
| ‘*. rule upon the admissibility of. these statements, then,
are, =
THE COURT: Do you. wish to say anything?
ce ae _ MR. PERUTO: Simply to point out three
. things, sir.’ That at the time of the making of this
' statement the defendant was without counsel, mot hav-
ing been warned of his rights or in.any fashion stated
that whatever was to be said was to be used as evidence
againsthim. .
Also at the time of the making of the statement
’ . the defendant ‘was wounded and was in pain, as is evi-
denced by the fact that the doctor said that that sort.
of wound would produce pain. And the records them-
to relieve pain. : ;
' And I think that, therefore, they are clveumstanices
surrounding the time of the giving of the statement;
and, therefore, the statement could not be considered
as one given with the knowledge of his rights or in such
- frame of mind as to be held responsible for his state-
ments. ;
THE COURT: Do you wish to say anything,
Mr. Sprague? _- ©
MR:: SPRAGUE: Yas, sir.
- That there is no requirement that the defendant
at this stage had to be advised as to any rights. The.
_only issue is whether or not what, he said was volun-
tary. And the Court can rule upon this.
The latest case passing upon this is the case of
Commonwealth of Pennsylvania versus Charles Pat-
. selves show that thereafter he was given certain drugs —
ant
. E . s ° . ’
: = ee - _ bh aes te 2 noes 3
47
+
. rick. And I quote what the Supreme Court of Pennsyl-
‘vania said there: — 3
‘We conclude that a statement or confession made
during interrogation by the police, if voluntarily made,
may be constitutionally. admissible in evidence, even
though the accused was neither warned of his right to
_ remain silent nor of his right to counsel.’” _
'~ “On the basis of Commonwealth vs. Patrick, the Trial
’ Court below ruled that Appellant’s statements were volun-
tary and therefore admissible even though the Record
a shows no warning to aioe! ‘of his naiene
ights
Your Honorable Court since Common v8. Patrick
_ has now made it very clearthat the law af the Common-
wealth of Pennsylvaina, in line with.the Miranda decision, |
is that police questioning of a suspect is unconstitutional in. _ -
the ‘absence of counsel- unless the suspect is effectively
warned of his right to remain silent. Commonwealth v8.
« Schmidt, 428 Pa, 432 (1966).
Inasmuch as this Honorable Court’s decision in the
Schmidt case was also.enunciated through the opinion of
' Justice Eagen, it can only be assumed that the erroneous
statements i in the Commonwealth’s Brief are responsible for
the statements contained in Justice Eagen’s opinion in the
‘instant case. The Schmidt case is very similar to the instant _
case in that the crime of murder there involved occurred in
‘June of 1964, just as did the homicides in the instant case;
the police questioning occurred in June of 1964, just as in.
| re instant ‘case; and the trial of Schmidt took place i in Feb-
\of 1965, whereas the Lopinson trial took place in Jan- .
uary, | ebruary, and March of 1965. Inasmuch as the Rec-
ord inthe instant case so clearly conflicts with the opinion
of the Court, .it is respectfully submitted that clarification
is required and that Your Honorable — should thergfore
permit — 7 :
ey
eer iar detieibbiialh
oT ETE rare
78
III. MISAPPREHENSION AS TO-ESSENTIAL FACTS RELATING .
_ TO APPELLANT’S.PETITION FOR LEAVE TO FILE SUPPLE-
MENTAL REASONS IN SUPPORT OF MOTIONS FoR NEW
TRIAL AND IN ARREST OF JUDGMENT AND FOR HEARING.
Two additional misstatements of facf have given rise
‘to another misapprehension and erroneous factual conclu-
sion in the opinion of Justice Eagen, At pages 157 and 158 .
of Appellant's Brief the following statements appear :.
“On the basis of the information and reports ob-
tained by counsel.for appellant subsequent to the trial,
but while theicase ‘was still pending in the Court below, poe g
appellant’s counsel filed. with the Court below-a~‘Peti- —---
+ tion for‘Leave to File Supplemental Reasons i in Support
- of Motions for New Trial and in Arrest of Judgment
and: for Hearing to Take Testimony’ and; Re-Argu-
ment.” Said petition is set forth in the record at page
6335a et seq. In the petition it was alleged that: appel-
_ lant had medical proof to present to the Court of the
_ incompetency of Frank Phelan and that Frank Phelan,
-under oath, had recanted and repudiated the testimony
and statements he*had given agaifst appellant. The
petition also.recited that’ the information in the pos- _—
‘session of appellant’s counsel had come to counsel! sub-
sequent .to the time of the trial. Although the petition
requested a hearing on the allegations contained therein
the Court below denied the petition without hearing. - .
-“From the order denying the petition without —
hearing appellant immediately appealed to this Honor-
able Court. This Court, however, .on petition of the
Commonwealth entered its per curiam order on Oc-
tober 27, 1965, quashing the appeal. ”
The tarenbiie quotation from Appellant’s Brief cor-
_ rectly states the facts. The Commonwealth’s Brief. and the -
_ Docket Entries of the Court below unfortunately misstate
" them and as a result of their misstatements this Honorable |
79°
Court, per Justice Eagen, —_ been misled into an errone-
ous factual statement in its opinion.
On pages 105 and 106. of the Commonwealth's Brief the | ;
following appears:
.o
[he ers
- nor the Docket prepared by -the Clerk’s Office below state
“The Commonwealth filed a motion to require ap-
pellant to be more specific in his allegations. The spe-
- cific information was never given, and this (sic) court’ —
denied appellant’s — This action -was- clearly J
correct. “ | Shee _
” As will be iin iio sities the ‘foregoing statement
what actually happened.
In the Docket Entries, page a of the Record, the fol-
lowing ex
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.