Petition — Pennsylvania v. Martin

ee

| Supreme Ovurt, U. &

FILED

states

MICHAEL RODAK, JR., CLERK

= =

IN THE

SUPREME COURT OF THE

1976

~~

No. 75-1238

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

v.

AUBRAN WAYNE MARTIN,

Respondent

PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME

COURT OF PENNSYLVANIA

RICHARD A. SPRAGUE

Special Prosecutor

Washington County

1622 Lecust Street

Philadelphia, Pa. 19103

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA. PA. 19107 (215) 561-4050

- og

TABLE OF CONTENTS

Page

SL 1. i os Saks Ghb hte eae ao Ween ]

ee Tl aii et eee eee ae 2

os sk awabesduk ke seatepucnaes 2

Constitutional and Statutory Provisions Involved .... 2,3

ecw aces eecevetnaweneys 4

Reasons for Granting the Writ .................... 6

aig ara ate ire tee ae ae ad 12

Appendix A (Opinion—Supreme Court of Penna., Nov.

IR ons ya 4564 504s Kae LOR a ao ee 15

Appendix B (Opinion of Pres. Judge Sweet, Ct. of Com-

mon Pleas of Washington County, Sept. 19,

SE a Wen ccavkkabcee ss nuuke heauey euaa cea 55

Appendix C (Statistical Summary—Death Penalty

ER SC Lec Ub aC SKE RENEE Se ee Ne ewes ence 61

TABLE OF CITATIONS

Pennsylvania Cases:

Commonwealth v. Bell, 417 Pa. 291, 208 A.2d 465

ete cl eu tebe e Ck es a weke Kae ae keen 1]

Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842

ins) cdcn Caacdenh Aether eunn ce aianees 6,7

Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241

SD Voc oie a ees o56 canis essen hee eecenwewe 1]

Commonwealth v. Lopinson, 449 Pa. 33, 296 A.2d 524

SS cca uni coechen ede ehccs uk ere keee es 6

Commonwealth v. Ross, 449 Pa. 103, 296 A.2d 629

ER ea a OL ee ae a 6 bee pean e COON 6

TABLE OF CITATIONS~ Continued)

Pennsylvania Cases: Page

Commonwealth v. Scoggins, 451 Pa. 472, 304 A.2d 102

Rr ree ne ry ein mary ravpe Sra 6

Commonwealth v. Senk, 449 Pa. 626, 296 A.2d 526

RRR err rcae er cbt rpoye aries ak

Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519

SE EC kde eee iad eaoueleerccerres 6

Federal Case:

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

ee RUUD wc olcsecdeeavacees 4,5,6, 7,8

Statute:

Act of June 24, 1939, P.L. 872 §701, as amended, Act

of December 1, 1959, P.L. 1621, §1, 18 Pa. Stat.

I nN ey Ne ee 3

il

eS es

iN THE

SUPREME COURT OF THE

UNITED STATES

1976

No.

COMMONWEALTH OF PENNSYLVANIA, Petitioner

v.

AUBRAN WAYNE MARTIN, Respondent

PETITION FOR Writ OF CERTIORARI TO

THE SUPREME CouRT OF PENNSYLVANIA

The Commonwealth of Pennsylvania, through the

Special Prosecutor for the District Attorney of Washington

County, respectfully requests that a writ of certiorari issue

to review the judgment of the Supreme Court of Pennsy!-

vania entered in this matter on November 26, 1975.

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania is

reported at — A.2d — (1975) and is reprinted herein at

]

Se ——————

2

App. A, pp. 13-51. The opinion of President Judge Charles

G. Sweet, Court of Common Pleas of Washington County,

upon the issue of the legality of the death penalty in Penn-

syivania, is unreported and is reprinted herein at App. B,

pp. 53-58.

JURISDICTION

The judgment of the Supreme Court of Pennsylvania

was entered on November 26, 1975. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3).

QUESTION PRESENTED

Were not the sentences of death properly imposed

pursuant to the jury's verdict and upon evidence presented

to the court demonstrating that the death penalty in Penn-

sylvania was not applied in this case in violation of the

standards discussed by this Court in Furman v. Georgia,

408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972), but

was applied, under the statute in effect at the time of the

commission of these crimes, to a narrowly circumscribed

group of the most henious crimes without arbitrariness or

discrimination, and under the careful guidelines of the

Supreme Court of Pennsylvania?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitu-

tion provides, in pertinent part, that “cruel and unusual

punishments” shall not be inflicted.

The Fourteenth Amendment to the United States

Constitution provides in pertinent part, “nor shall any

State deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

3

The Pennsylvania Murder Statute, Act of June 24,

1939, P.L. 872, §701, as amended by Act of December 1,

1959, P.L. 1621, §1, 18 Pa. Stat. Ann. §4701, which was

in effect at the time of the commission of these crimes,

provided in pertinent part, that:

“All murder which shall be perpetrated by means

of poison, or by lying in wait, or by any other kind of

willful, deliberate and premeditated killing, or which

shall be committed in the perpetration of, or attempt-

ing to perpetrate any arson, rape, robbery, burglary, or

kidnapping, shall be murder in the first degree. . . .

“Whoever is convicted of the crime of murder of

the first degree is guilty of a felony and shall be

sentenced to suffer death in the manner provided by

law, or to undergo imprisonment for life, at the dis-

cretion of the jury trying the case, which shall, in the

manner hereinafter provided, fix the penalty. In the

trial of an indictment for murder, the court shall in-

form the jury that if they find the defendant guilty of

murder in the first degree, it will be their further duty

to fix the penalty therefor, after hearing such addi-

tional evidence as may be submitted upon that ques-

tion. .. . After such verdict is recorded and before the

jury is permitted to separate, the court shall proceed to

receive such additional evidence not previously

received in the trial as may be relevant and admissible

upon the question of the penalty to be imposed upon

the defendant, and shall permit such argument by

counsel, and deliver such charge thereon as may be

just and proper in the circumstances. The jury shall

then retire and consider the penalty to be imposed and

render such verdict respecting it as they shall agree

upon.

4

STATEMENT OF THE CASE

This is the first case to reach this Court since Furman

v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 2d 346

(1972), in which there has been, after a full evidentiary

hearing, a judicial determination that the death penalty,

as applied in Pennsylvania, is and has been free of the

infirmities found to be present in Furman and, thus, it was

a legal and proper sentence in this case. President Judge

Charles G. Sweet of the Court of Common Pleas of Wash-

ington County, Pennsylvania, held upon evidence pre-

sented that the death penalty in Pennsylvania has not been

applied discriminatorily and that it has been imposed

according to the nature of the crime and the defendant's

prior criminal history. This is a petition for a writ of

certiorari to review the judgment of the Supreme Court of

Pennsylvania in Commonwealth v. Aubran Wayne Martin,

it, which that court simply disregarded, without comment,

the foregoing findings of fact by the Court of Common

Pleas, affirmed the three convictions of Martin for first

degree murder, and vacated the sentence of death imposed

on each conviction.

Aubran Wayne Martin was one of three hired assas-

sins who, in the early morning hours of December 31,

1969, entered the home of United Mine Workers insurgent,

Joseph A. “Jock” Yablonski and shot and killed him, his

wife, and daughter as they slept in their beds. Martin fired

two shots into the head of young Charlotte Yablonski as she

lay sleeping and ‘then assisted his two accomplices in

silencing the mother and father by firing four shots among

the rain of bullets that sprayed the bedroom of Jock and

Margaret Yablonski, murdering them both. Martin was

paid $1,700 for his participation in Yablonski’s assassina-

tion and received his one-third share of $240 taken from

Yablonski’s bedroom after the assassination.

On or about January 29, 1970, Martin was arrested in

Warrensville, Ohio and charged with the murders of the

Yablonski family. Following his indictments in Washing-

ee

5

ton County, Pennsylvania, he was extradited from Cleve-

land, Ohio. After the disposition of a panoply of pre-trial

motions, Martin was tried, before President Judge Charles

G. Sweet, Court of Common Pleas of Washington County,

and a jury. On November 12, 1971, the jury returned

verdicts of guilty of murder in the first degree on each of the

three indictments. The next morning, November 13, 1971,

after receiving instructions from the court, the jury

resumed deliberations on the issue of penalty and returned

forty-five minutes later to fix the penalties at death.

This Court, on June 29, 1972, ruled in Furman uv.

Georgia, supra, that the irnposition and carrying out of the

death penalty in three cases before the Court constituted

cruel and unusual punishment in violation of the Eighth

and Fourteenth Amendments.

Motions for a new trial and in arrest of judgment were

timely filed and were argued on July 5, 1972, before a court

en banc. President Judge Sweet, for the court en banc,

denied the motions by opinion filed September 29, 1972.

Martin was sentenced on September 19, 1973, follow-

ing a hearing before Judge Sweet. At the hearing, the

Commonwealth presented testimony, argument and a

memorandum of law in support of the contention that

Furman did not require the judicial elimination of the death

penalty in Pennsylvania, and concluded that the law, the

facts of the case, and the protection of the community

required the application of the death penalty to Aubran

Wayne Martin. (See App. B, pp. 53-58. Comments of Presi-

dent Judge Sweet reprinted from record.) Judge Sweet held

that the death penalty in Pennsylvania has not been applied

in an impermissibly discriminatory manner, either as to

race or to whether or not a defendant is represented by ap-

pointed or private counsel. Judge Sweet also found that

there has been no discrimination between those defendants

who piead guilty and those found guilty after trial and that

the death penalty has been imposed according to the nature

of the crime committed and the defendant's prior criminal

history. Accordingly, Martin was sentenced to the penalty

6

of death on each indictment. The sentence of the court was

pronounced according to law.

An appeal was taken to the Supreme Court of Penn-

sylvania by Aubran Wayne Martin from judgment of sen-

tence of the Court of Common Pleas of Washington County.

One of the points raised on appeal was the legality of the

sentence of death in light of Furman. The Supreme Court

of Pennsylvania, by opinion filed on November 26, 1975,

affirmed Martin's three first degree murder convictions but

vacated the sentence of death as to each indictment on the

ground that Furman precludes the imposition of the death

penalty under statutes such as the one herein involved. The

court, in its opinion, did not question the findings of Judge

Sweet, but held as a matter of law that despite the statis-

tical evidence, Furman precluded the imposition of the

death penalty under the statute in question. The case was

then remanded for the imposition of sentence. This petition

ensued.

REASONS FOR GRANTING THE WRIT

The Supreme Court of Pennsylvania Relying on Furman v.

Georgia, Su Incorrectly Vacated the Sentences

Imposed Upon Martin,

The Supreme Court of Pennsylvania has interpreted

the ruling of this Court in Furman as prohibiting the

imposition of the death penalty pursuant to the statute in

effect at the time of the commission of these crimes solely

because that statute permits a sentencing authority to

impose in its discretion either a sentence of death or life

imprisonment. Commonwealth v. Scoggins, 451 Pa. 472,

481, 304 A.2d 102, 108 (1973); Commonwealth v. Ross, 449

Pa. 103, 105, 296 A.2d 629, 630 (1972); Commonwealth v.

Lopinson, 449 Pa. 33, 34, 296 A.2d 524, 525 (1972); Com-

monwealth v. Sharpe, 449 Pa. 35, 44, 296 A.2d 519, 524

(1972); Commonwealth v. Bradley, 449 Pa. 19, 23-24, 295

7

A.2d 842, 845 (1972); Commonwealth v. Senk, 449 Pa. 626,

296 A.2d 526 (1972).

In sc holding, the Pennsylvania Supreme Court has

given a far broader interpretation and application to

Furman than is either required or justified in this case.

Since each of the Justices of this Court rendered a separate

opinion in Furman, the five opinions constituting the

majority must be carefully scrutinized. As a per curiam

decision, Furman can have no broader application than to

those points which command the acceptance of all five

Justices constituting the majority.

Only two members of this Court, Mr. Justice Brennan

and Mr. Justice Marshall, concluded that capital punish-

ment was cruel and unusual per se. Mr. Justice Douglas,

Mr. Justice Stewart and Mr. Justice White each separately

concurred in the judgment of the Court that the specific

death sentences before it were cruel and unusual punish-

ment, but each opinion was founded upon the discrim-

inatory and/or arbitrary application of a non-mandatory

death penalty in the three cases before the Court from the

states of Georgia and Texas. Because these latter three

opinions determine and limit the effect of Furman, each

must briefly be reviewed herein.

Mr. Justice Stewart concluded “that the Eighth and

Fourteenth Amendments cannot tolerate the infliction of

a sentence of death under legal systems that permit this

unique penalty to be so wantonly and so freakishly

imposed.” Furman, supra, 408 U.S. at 310, 92 S.Ct. at 2763.

Mr. Justice Stewart based his conclusion upon a belief that

the petitioners in Furman had been randomly and capri-

ciously selected to receive the death penalty. Furman,

supra, 408 U.S. at 309-310, 92 S.Ct. at 2762. Regardless of

the actualities then existant in Georgia and Texas, the

in-depth analysis of the application of Pennsylvania's death

penalty statute in question, the statistical results of which

were presented to the sentencing court in this case as well

as to the Supreme Court of Pennsylvania, and which are

more fully discussed infra, revealed that in Pennsylvania

8

no one who had committed the crimes of the petitioners in

Furman would have been sentenced to death. Only first

degree murder was punishable by death under the Penn-

sylvania statute in question. However, though applicable

to a felony-murder as was the case in Furman, the analysis

presented revealed that, at least in the last decade, the

practice in Pennsylvania has consistently been to impose

a sentence of life imprisonment where, during the course

of a felony, death resulted without an intentional violent act

committed upon the victim. (See opinion of Mr. Justice

Douglas noting that the death of the victim could have been

accidental. Furman, supra, 408 U.S. at 294, 92 S.Ct. at 2754-

2755, fn. 48.)

Mr. Justice White emphasized in Furman, supra, 408

U.S. at 310-311, 92 S.Ct. at 2763,

“| do not at all intimate that the death penalty is

unconstitutional per se or that there is no system of

capital punishment that would comport with the

Eighth Amendment.”

He concluded, however, that as the particular statutes

before the Court were then administered, the death penalty

was so infrequently imposed even for the most atrocious

crimes that there was no basis for distinguishing the few

cases in which it is imposed from the many in which it is

not. Furman, supra, 408 U.S. at 313, 92 S.Ct. at 2764.

However, the Commonwealth’s analysis of the death

penalty cases in Pennsylvania within the last ten vears

illustrates that within the small class of the most heinous

first degree murders, such as the slayings committed by

Martin, the death penalty has been applied in this Com-

monwealth with considerable regularity except where there

are Clearly mitigating factors which would make it inappro-

priate to sentence a given defendant to death despite the

atrocious nature of his crime.

The statistics analyzed below show that in the last ten

years in Pennsylvania, the death penalty has been fixed in

8.18% of all first degree murder convictions (35 of 428

9

“cases of first-degree murder). Thus, when viewed in terms

of how frequently the maximum penalty is actually given

for other crimes, such as robbery, burglary, etc., 8.18%

reflects a consistent application of the maximum penalty

for first degree murder in the most atrocious cases. The

death penalty in Pennsylvania then does not fall within Mr.

Justice White's category of infrequently applied penalties.

Mr. Justice Douglas concluded that a non-mandatory

death penalty is unconstitutional because he believed that

death sentences were often imposed on minorities or the

poor. However, the statistical survey of first degree murder

convictions in Pennsylvania from 1960 to 1972 which was

presented to the sentencing court and to the Pennsylvania

Supreme Court, clearly shows that in this Commonwealth,

the death penalty has not been discriminatorily applied on

the basis of race or ability to retain counsel.

Since 1960, 428 defendants have been convicted of first

degree murder in Pennsylvania. Of that number, 35 (or

8.18% ) have received the death penalty. Of the 428 defen-

dants, 249 (or 58.18%) were black and 164 (or 38.32% )

were white. Six (or 1.40%) defendants were Spanish-

American, and records did not indicate the race of nine (or

2.10% ) defendants convicted. Of the 35 death penalties

handed down, 20 (or 57.14% ) defendants were black, 14 (or

49.00% ) defendants were white, and one (or 2.86% ) was

Spanish-American. Of the 249 black defendants convicted

of first degree murder, 20 (or 8.03% ) were sentenced to

death; while of the 164 white defendants convicted of first

degree murder, 14 (or 8.54%) were sentenced to death.

Thus, it can be seen that on the basis of race alone, no dis-

crimination exists in the imposition of the death penaity in

Pennsylvania.

Of the 428 defendants convicted of first degree murder,

298 (or 69.63%) were represented by court-appointed

counsel, and 121 (or 28.27% ) were able to retain private

counsel. Six (or 1.40% ) defendants were represented by the

public defender, and information was unavailable as to 3

(or 0.70% ) defendants convicted of first degree murder;

10

none of the foregoing 9 defendants received the death

penalty. Of the 298 defendants represented by court-ap-

pointed counsel, 27 (or 9.06% ) received the death penalty.

Of the 121 defendants who were able to retain private coun-

sel, 8 (or 6.61% ) were sentenced to death. Thus, it can be

seen that while defendants represented by court-appointed

counsel constitute a great majority of the defendants con-

victed, only 2.45% more of those defendants receive the

death penalty as opposed to defendants represented by

privately-retained counsel. It is, therefore, apparent that

on the basis of poverty alone, there is no discrimination in

the imposition of the death penalty in Pennsylvania.

Of the 249 black defendants convicted of first degree

murder, 79 (or 31.73% of black defendants) were able to

afford private counsel, while of the 164 white defendants

convicted of first degree murder, 40 (or 23.78% of white de-

fendants) were able to afford private counsel. It appears

therefore that there is no correlation, in this context, be-

tween race and poverty as reflected in a defendant's ability

to retain private counsel. (See App. C, Statistical Summary,

Death Penalty Survey, pp. 59-62).

Clearly, the evidence presented to both the sentencing

court and to the Supreme Court of Pennsylvania, on appeal,

demonstrated that the evils found to be present in the cases

before this Court in Furman did not inflict upon Pennsyl-

vania’s practice the constitutional infirmities which were

present in Furman. The death penalty in Pennsylvania,

under the statute in question, was shown to have been con-

stitutionally imposed on the basis of two dominant factors

and not on the basis of race, poverty or type of adjudication.

Those factors are, in order of importance, the nature of the

crime committed, and the defendant's prior criminal his-

tory. Both of these factors are such that the defendant,

and only the defendant has control of them. Of the 35 death

penalties meted out in Pennsylvania since 1960 under the

statute in question, virtually all of them have been in cases

which involved especially atrocious murders, such as the

instant case, many of which received national attention.

1]

The case of Aubran Wayne Martin is an excellent

example of the careful and appropriate way in which the

death penalty has been applied in Pennsylvania only to the

most atrocious and reprehensible cases of first degree mur-

der. In the numerous death penalty statutes recently

enacted throughout the United States in response to Fur-

man, murder for hire is an aggravating circumstance or is

otherwise specified as an instance in which the death

penalty is appropriate. In Pennsylvania, under the statute

in question, and the decisions of the Pennsylvania Supreme

Court, the determination that certain conduct warrants the

death penalty has been a joint determination, the legisla-

ture limiting the death penalty to first degree murder, and

the court providing increasingly careful guidelines for the

determination of the appropriate penalty and limiting the

death penalty to only heinous crimes where consideration

of the criminaj history and psychiatric condition of the

defendant shows no mitigating factors. Commonwealth v.

Bell, 417 Pa. 291, 208 A.2d 465 (1965); and Commonwealth

vu. Green, 396 Pa. 137, 151 A.2d 241 (1959).

Pennsylvania was the first state to enact legislation to

provide for a separate proceeding for the fixing of penalty

after guilt had been determined in a first degree murder

case. This “split verdict” procedure was designed to be a

protective measure to ensure that only relevant evidence

would be considered by the sentencing authority. The effec-

tiveness of this safeguard in Pennsylvania is demonstrated

in the statistical analysis presented herein which reflects

the acceptable pattern of the imposition of the death pen-

alty in Pennsylvania under the statute in question.

12

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

RICHARD A. SPRAGUE

Special Prosecutor

Washington County, Pennsylvania

Attorney for Petitioner

1622 Locust Street

Phila., Penna. 19103

Dated: February 26, 1976

APPENDIX A

15

IN THE ~

SUPREME COURT OF

PENNSYLVANIA

Wesreren Distreict

No. 44 Marcu Term, 1974

ComMONWEALTH OF PENNSYEVANIA

APPEAL FROM THE JUDGMENT

Uv

; oF SENTENCE OF THE COURT OF

AUBRAN Wayne Martin, : COMMON PLEAS OF WASHINGTON

Appellant County, Criminat Division,

No. 153A, 153B, 153C,

January Term, 1970

OPINION OF THE COURT

Pomeroy, J., Filed: November 26, 1975

In the early morning of December 31, 1969 Joseph

Yablonski, his wife Margaret and their daughter, Char-

lotte were shot to death as they slept in their home in Clarks-

ville, Washington County, Pennsylvania. Approximately a

month later Aubran Wayne Martin, the appellant, was

arrested in Ohio and charged with the murders. After extra-

dition to Pennsylvania he was tried by a jury and on

November 12, 1971 was found guilty of three counts of mur-

der in the first degree. The jury recommended that the

death penalty be imposed. Post-trial motions were denied

in September, 1972 by the court en banc. A year later the

sentence of death was imposed on appellant on each of the

three counts. This appeal followed:.

It is not necessary for purposes of this opinion to give

a detailed recitation of the sordid facts surrounding these

murders. Various factual aspects of the crimes will be

mentioned hereinafter as the discussion of the legal issues

warrants. Suffice it here to recount that Joseph Yablonski

was a stormy petrel in the United Mine Workers of America

16

who in 1969 waged a vigorous but losing campaign for the

presidency of tnat organization. Claude Edward Vealey,

Paul Gilly and Aubran Wayne Martin were hired to assassi-

nate Yablonski for the sum of $5,200.' Martin was a late

substitute in this conspiracy for one James Phillips, who

had withdrawn after he, Vealey and Gilly had spent some

months in seeking, unsuccessfully, the right opportunity

for the assassination. The principal evidence against

Martin came from the testimony of his co-conspirator

Vealey; evidence filling out and corroborating his story

came from federal and State law enforcement personnel,

and others. According to Vealey, Martin entered the room

of Charlotte Yablonski and shot her twice with a .38 caliber

revolver, killing her. Immediately thereafter Vealey, in an

adjacent bedroom occupied by Mr. and Mrs. Yablonski,

tried to shoot them, but his rifle jammed and the clip fell

to the floor. Gilly came to his aid, fixed the rifle, and fired

once at the Yablonskis. Martin also entered the Yablonski

bedroom and fired four times at Jock and Mrs. Yablonski.

Vealey then took Martin’s revolver and for good measure

shot Yablonski three more times. It was Martin, according

to his companions, who took a money clip containing about

$240 dollars from the bedroom dresser, which later was

split among the three. Their mission accomplished, the

so hired, his version of the episode was that he agreed with Vealey,

with whom he had committed a number of prior burglaries, to

steal a valuable collection of coins in Tennessee for a guaranteed

payment to him of $2,000; that the Pennsylvania site of the pro-

posed burglary was told to him only after he, Vealey and Gilly had

set out from Cleveland, Ohio on December 30, 1969: that once at

the Yablonski residence he remained in the automobile as a lookout

during the burglary operation and did not enter the house, that the

coin collection was not found, but that he received at the scene $90

as his one-third share of cash which was stolen, and later the guar-

anteed amount, and that he did not learn until five or six days

later that murders had been committed at the Yablonski home. The

jury, obviously, did not believe Martin's story.

ra

17

carded weapons, ammunition, gloves and stolen film

canisters in the Monongahela River and along the roadside.

When they had returned to Cleveland, Vealey and Martin

were paid off by Paul Gilly.

Some eighteen errors are assigned, all of them directed

to the purported necessity of a new trial. We are satisfied

that no error of substance occurred, and will therefore af-

firm the three convictions of murder. The death sentences,

however, will be vacated and the case remanded for re-

sentencing.

The arguments advanced on behalf of appellant may

be conveniently grouped into those pertaining to alleged

errors which occurred prior to the commencement of the

trial proper, those pertaining to errors in the admission of

evidence at trial, and errors in the charge. We shall con-

sider them in that order, followed by consideration of the

sentencing.

I.

Alleged Pre-Trial Errors

1. Change of venue.

Appellant urges that massive and inflammatory pre-

trial publicity in Washington County foreclosed the possi-

bility of a fair trial, and that the trial court thus erred in

refusing the motion for change of venue.”

2. The motion was filed on October 28, 1971, four days prior

to the scheduled start of the trial on November 1, 1971. Rule 305

of the Pennsylvania Rules of Criminal Procedure (effective January

1, 1965) provides that “no pre-trial application shall be considered

if made less than ten days before trial unless opportunity therefore

did not exist or the defendant or his attorney was not aware of the

grounds for the application.” * 1e court scheduled a hearing on the

motion for November 1, 1971, stating that it would receive as

evidence bearing on the motion “anything that has happened from

and since the 21st of October at noon.” Appellant does not now

argue that this limitation was in error, and there is no need, there-

fore, to detail the chronology of events prior to October 28 which

18

The newspaper accounts admitted into evidence at the

change of venue hearing were comprised of one story which

described picketing at the United Mine Workers head-

quarters in Washington, D.C. by supporters of Jock Ya-

blonski; four relating to the denial of Martin’s mation for

continuance of the trial; one relating to an arrest of appel-

lant’s brother; and nine relating to the change of venue

motion. In four of these 15 articles, mention is made of a

statement given by Claude Vealey in June which had impli-

cated Martin, three of the articles mentioning that impli-

cation.

This court has many times said that “It is clearly estab-

lished that the grant or refusal of a change of venue or of

a continuance is within the sound discretion of the trial

court.” Commonwealth v. Richardson, 392 Pa. 528, 540,

140 A.2d 828 (1958). See also Commonwealth v. Powell,

328 A.2d 507 (1974); Commonwealth v. Martinolich, 456

Pa. 136, 318 A.2d 680, 683 (1974) appeal dismissed, — U.S.

— , 42 L.Ed.2d 661 (1974); Commonwealth v. Young, 455

Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Swanson,

432 Pa. 293, 248 A.2d 12, (1968), cert. denied, 394 U.S. 949,

22 L.Ed.2d 483 (1969); Commonwealth v. Hoss, 445 Pa. 98,

283 A.2d 58 (1971).

In Hoss, supra, where we upheld a refusal to change

the venue, we reviewed the considerations bearing on the

exercise of discretion as delineated in Rideau v. Louisiana,

Note 2 —Continued

clearly establish that there was opportunity to present a timely appli-

cation and an awareness of the grounds therefor. Suffice it to say

that a motion had been made in August for money to conduct a

public opinion survey in the county as a preliminary step to apply-

ing for a change of venue. This motion was denied on October 15,

the court then stating its opinion that “The newspaper, television

and radio cove: age of this event has not been legally offensive in

tone nor viciously slanted.” We have independently reviewed the

pre-October 21 material, the most important of which were reports

relative to Vealey's confession and guilty plea in June, 1971. We

agree with the trial court that it was basically factual and not in-

flammatory

19

373 U.S. 723, 10 L.Ed.2d 663 (1963) and Irvin v. Dowd, 366

U.S. 717, 6 L.Ed.2d 751 (1961). We identified three factors

as having particular relevancy: length of time between

arrest and trial; the effort of the trial court to abate

publicity; and whether publicity had caused prospective

jurors to form an opinion of guilt. Addressing those factors

as they apply to the case at bar, the record shows the

following:

(1) Martin’s trial (voir dire) commenced on November

3, 1971, twenty-one months following his arrest. For about

a year and a half of that time Martin was in Ohio, and fight-

ing against extradition to Pennsylvania. In Hoss the time

span was five months, which we called a “lengthy time

period.” 445 Pa. at 106, 283 A.2d at 63. The twenty-one

month period in this case was more than sufficient to per-

mit the tide of publicity which followed the Yablonski slay-

ings and subsequent arrests to ebb.

(2) In the instant case, as in Hoss, the trial court re-

leased an administrative memorandum or order as early as

April 29, 1970 seeking to abate publicity.* So far as appears,

3. The memorandum, in relevant part, was as follows:

“Law enforcement personnel other than the elected District

Attorney and the elected Sheriff are specifically forbidden to give

any interviews to any news media concerning the proceedings dur-

ing the pendency of such proceedings without the prior written

approval of the President Judge. By agreement with the County

Commissioners, the members of the Commissioners’ staff are like-

wise so forbidden. Elected officials are advised that statements by

them could prejudice the outcome of proceedings and the use of

discretion is advised.

“During the pendency of the proceedings, no media representa-

tive or any person other than counsel of record shall interview any

grand juror, juror or witness, for the purpose of publication of his

testimony, attitudes or views regarding or in any way related to the

proceedings whose pendency invokes these rules, and counsel of

record are limited to those contacts permitted by the Canons of

Ethics or by the Court.

“The contempt power will be exercised against any person,

who, knowing that the proceedings are pending, disseminates by

any means of public communication, an extra-judicial statement

related to the defendant or to the issues in the case that goes beyond

20

the restrictions thus imposed were observed both by coun-

sel in this case and by the news media.

(3) With reference to fixed opinions of guilt by venire-

men, the voir dire examination is, of course, the proper

occasion io develop the facts. “The voir dire examination

is the proper place to determine whether a defendant's

public notoriety has resulted in a prospective juror’s preju-

dice.” U.S. v. Hoffa, 367 F.2d 698 (7th Cir. 1966), vacated

on other grounds, 394 U.S. 310, 22 L.Ed.2d 297 (1969).

This is the normal rule and practice in Pennsylvania. Com-

monwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973);

Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467,

470 (1953). In the case at bar, 107 veniremen were asked

whether they had heard, read or secn anything about the

facts of the case, and 97 answered in the affirmative. On

the other hand, only 23 of the 221 persons examined stated

that they had formed a fixed opinion of guilt. in Hoss, the

corresponding ratio was 26 out of 138. Cf. Irvin v. Dowd,

supra. It is established that only those jurors who possess

fixed, unalterable opinions of guilt are erroneously not

excused. As the Supreme Court of the United States stated

in Irvin v. Dowd, supra: “To hold that the mere existence

of any preconceived notion as to the guilt or innocence of

an accused, without more, is sufficient to rebut the presump-

tion of a prospective juror’s impartiality would be to estab-

lish an impossible standard. It is sufficient if the juror can

lay aside his impression or opinion and render a verdict

based on the evidence presented in court.” 366 U.S. at 723.

It is clear to us, therefore, that appellant did not estab-

lish at the voir dire examination that a fair and impartial

jury could not be empanelled. Indeed, our own examination

of the pre-trial publicity indicates that while it was exten-

Note 3 —~ Continued

the public record of the court in the case, that is wilfully designed

by that person to effect the cutcome of the trial and that seriously

threatens to have such an effect or make such a statement intend-

ing that it be disseminated by any means of public communication.

(“The Rights of Fair Trial and Free Press”, Section 4.1).”

21

sive, it was, as in Hoss, basically “factual in nature” and

concerned largely with “reports of the procedural develop-

ments of this case.” See 445 Pa. at 105. The journalists

showed remarkable restraint in their reporting. It is worth

remarking that although the order denying the change of

venue was without prejudice to a renewal of the motion at

the conclusion of the voir dire, no such motion was made.*

It is true, of course, that there can be pre-trial publicity

so sustained, so pervasive, so inflammatory and so incul-

patory as to demand a change of venue without putting the

defendant to any burden to establish a nexus between the

publicity and actual jury prejudice. Denial of due process

of law is found to be inherent in the situation. Such a case

was Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209

(1973), cert. denied 414 U.S. 878, 38 L.Ed.2d 124 (1973).5

See also Sheppard v. Maxwell, 384 U.S. 333, 352, 16 L.Ed.2d

600, 614 (1966); Estes v. Texas, 381 U.S. 532, 14 L.Ed.2d

543 (1965). It is enough to say that the egregiously preju-

dicial elements of Pierce are absent in the case at bar.

2. “Keyman” Jury Selection.

Appellant has challenged the “keyman” jury selection

process as it operates in Washington County. There appear

to be two aspects to appellant's argument. First, there is a

claim that this process involves an improper delegation of

4. At the opening of trial on Tuesday, November 9, 1971,

immediately after selection of the jury had been completed, defense

counsel moved for a mistrial or a continuance on the ground that

several newspaper articles “during the last few days” had made it

impossible for Martin to receive a fair trial. The motion was refused.

It is to be noted that as jurors were selected they were immediately

sequestered.

5. In Pierce the Court believed that three kinds of newspaper

publicity in particular were “inherently prejudicial”: (1) reports

containing information received from the police that Pierce, the

defendant, had confessed to being the “triggerman”; (2) reports

that the defendant had a prior record for violent crimes; (3) reports,

replete with pictures, that the defendant had participated in a

staged reenactment of the murder.

22

authority by the jury commissioners to the “keymen” under

the Act of April 10, 1867, P.L. 62, §2, 17 P.S. §942. Second,

it is asserted that the “keyman” process denied appellant

his right to a fair trial, to due process of law and to equal

protection of the laws because it resulted in a jury which

did not reflect a representative cross section of the com-

munity. The issue was properly preserved for appeal.

(1) The selection of and qualifications of jurors in

Washington County, a County of the third class, are

governed by the Act of April 16, 1925, P.L. 244, as amended,

17 P.S. §1322, et seq. and the Act of April 10, 1867, P.L. 62,

§2, 17 P.S. §942. the Act of 1925, as amended, 17 P.S. §1332,

provides that the jury board in third class counties is to

consist of the judges of the court of common pleas and the

two elected jury commissioners and that one of the judges

and the two commissioners shall constitute a quorum of the

board. The Act of 1867 provides for the method of selecting

persons to serve as jurors:

“It shall be the duty of said jury commissioners,

president judge, or additional law judge of the re-

spective district, or a majority of them, to meet at the

seat of justice of the respective counties, at least thirty

days before the first term of the court of common pleas,

in every year, and thereupon proceed, with due dili-

gence to select, alternately, from the whole qualified

electors of the respective county, at large, a number,

such as to the term of the court of [common] pleas

next preceding shall by the said court be designated,

of sober, intelligent and judicious persons, to serve as

jurors in the several courts of such county during that

year; and the said jury commissioners, president judge,

or additional law judge, or a majority of them, shall,

in the mode and manner now directed by law, place

the names of persons so selected in the proper jury

wheel, and the said jury wheel, locked as now required

by law, shall remain in the custody of the said jury

commissioners, and the keys thereof in the custody of

23

the sheriff of said county.” 1867, April 10, P.L. 62, §2.

(emphasis added)

The Washington County “keyman” system operated

in the following manner. The prospective jurors were

selected by the elected jury commissioners, one Democrat

and one Republican, and a judge of the court ©! common

pleas," each providing one-third of the 2,000 names placed

in the jury wheel. Each jury commissioner mailed out 402

questionnaires, one to each of the party committee mem-

bers in every precinct in Washington County, requesting

the names of 4 prospective jurors. Each commissioner re-

ceived approximately 90% of the questionnaires back, thus

obtaining the names of 1500 to 1600 names (sic) by this

method. In addition, each commissioner received from

other sources between 150 and 400 other names. Each jury

commissioner then personally selected the 666 prospective

jurors which he was responsible for obtaining. The judge

obtained names of prospective jurors by personally getting

in touch with various civic, fraternal, voluntary, church

and veterans organizations throughout Washington

County.

Appellant contends that these selection procedures are

inconsistent with the requirements of the Act of 1867 that

the jury commissioners are “with due diligence to select”

prospective jurors because the commissioners in effect

merely rubber stamp the politicians’ choices. A similar

challenge was made to the Washington County keymen

system in the case of Grove v. Toninecz, 189 Pa. Super. Ct.

32, 149 A.2d 547 (1959). The Superior Court, although stat-

ing that it was “not approving the method here used as

worthy of universal adoption,” 189 Pa. Super. Ct. at 41,

found that the provisions of the Act of 1867 requiring that

jurors be selected from the “whole qualified electors” of the

county was directory and not mandatory and that therefore

the “keyman” procedure was not in violation of the Act of

1867. In reaching the conclusion that the language was

6. The judge in the case at bar was the Hon. Richard DiSalle.

24

directory, the Court relied upon the decision of this Court

in Commonwealth v. Zillafrow, 207 Pa. 274, 56 Atl. 539

(1903). We there had this to say of the provision in ques-

tion: “The statutory provisions alleged to have been disre-

garded, though not followed literally, were not contravened

as to spirit or ir cent. The provisions themselves are direc-

tory in character. They do not prescribe or bear upon the

substance of any duty, but merely upon the manner of its

performance, and do not differ in this respect from other

provisions of the same or analogous acts which have

already been held to be directory only.” (citations omitted).

What the Superior Court said in Grove, supra, would ap-

pear to be directly on point in the instant case: “Conceiva-

bly, political considerations in some instances mighi re-

sult in the selection of jurors who should never be per-

mitted to serve. But there is nothing in the record to indi-

cate that any of the persons suggested by the commis-

sioners was not qualified or that the defendant in drawing

a jury on the trial of this case was in any way prejudiced.”

189 Pa. Super. Ct. at 41.

In Commonwealth v. Carroll, 443 Pa. 518 (1971), this

Court upheld the “keyman” system as it operated in Erie

County against a challenge similar to the one in this case.

The practice in Erie was much like that in Washington

County. The two elected jury commissioners contacted the

committeemen of the political parties in Erie and leaders

of various churches, social, civic and fraternal organiza-

tions soliciting names of prospective jurors. This resulted

in furnishing half of the names placed in the jury wheel.

The other half was supplied by three judges of the court of

common pleas, one of whom obtained the names he placed

in the wheel by going through the voter registration lists

and gathering names. We said of these procedures: “The

‘key-man’ jury selection system has been sustained where

there is evidence that the jury commissioners have famili-

arized themselves with all of the significant elements in the

community and have made a special effort to consult lead-

-rs from these various population groups.” 443 Pa. at 525.

25

We find that the evidence here too is adequate to support

the finding of the trial court that the jury commissioners

familiarized themselves with and consulted the significant

segments of the community. Thus we conclude that the Act

of 1867 and the Act of 1925 were compiied with.

(2) The other facet to the “keyman” selection chal-

lenge is constitutional: that the Sixth Amendment guaran-

tee of trial by jury—encompassing as it does the “fair possi-

bility for obtaining [on the jury] a representative cross-

section of the community,” Williams v. Florida, 399 U.S. 78,

100, 26 L.Ed.2d 446, 460 (1970)—is violated by the system

in vogue in Washington County. See also Taylor v. Louisi-

ana, — U.S. —, 42 L.Ed.2d 690 (1975). Martin claims that

the keyman method does not allow for the inclusion, at

least in adequate numbers, of the youth, the poor, the un-

employed, the blacks, the Democrats and the politically in-

dependent of the community. To advance this argument it

is not necessary that Martin be a member of all of these

groups, or any of them. See Peters v. Kiff, 407 U.S. 493, 33

L..Ed.2d 83 (1972). But he must establish at least a “prima

facie case of invidious discrimination” before “the burden

of proof shifts to the State to rebut the presumption of

unconstitutional action.” Alexander v. Louisiana, 405 U.S.

625, 631-32, 31 L.Ed.2d 536, 542 (1972). In Alexander, the

claim was principally that the defendant was denied equal

protection of the laws and due process of law because he

had been indicted by a grand jury which had been em-

panelled from a venire on which were only a token number

of negroes. After reviewing the operation of the process in

the parish involved, the Supreme Court concluded that a

“prima facie case of discrimination” had been made out.

405 U.S. at 629-31, L.Ed.2d at 541-42. The Court went on

to observe: “This Court has never announced mathematical

standards for the demonstration of systematic exclusion of

blacks but has, rather, emphasized that a factual inquiry

is necessary in each case that takes into account all possi-

ble explanatory factors. The progressive discrimination

(sic) of potential Negro grand jurors is indeed striking

26

here, but we do not rest our conclusion that petitioner has

demonst:ated a prima facie case of invidious racial dis-

crimination on statistical improbability alone, for the selec-

tion procedures themselves were not racially neuiral. The

racial designation on both the questionnaires and the in-

formation card provided a clear and easy opportunity for

raciai discrimination.” 405 U.S. at 630, 31 L.Ed.2d at 542.

(Emphasis supplied). See also Turner v. Touche, (sic) 396

U.S. 346, 360, 29 L.Ed. 567, 579 (1970); Whitus v. Georgia,

385 U.S. 545, 17 L.Ed.2d 599 (1967); Avery v. Georgia, 345

U.S. 559, 97 L.Ed. 1244 (1953).

It is a fair reading of these cases that a method of jury

selection which violates the Sixth Amendment guarantee

of trial by jury must involve not only statistical improba-

bility of inclusion of a particular segment of the community,

but an inherently non-neutral—i.e., discriminatory—selec-

tion procedure.’ In the case before us appellant has failed

to demonstrate the presence of either of these factors. The

only statistical information presented to us is that of the

221 prospective jurors questioned in the voir dire, only 3

were black, but it is said to be unlikely that the keyman

selection system would turn up unregistered voters and

that “ [i]t is common knowledge that this group of unregis-

tered voters include (sic) large numbers of blacks and

youths.” (Brief for appellant at 28) It is also contended that

because there are approximately 66,000 registered Demo-

crats and only 29,000 registered Republicans in Wash-

ington County, the keyman system “discriminates against

political parties and affiliations alone in better than a two-

to-one ratio.” (id. at 24) These bare allegations, quite unsup-

ported by the testimony of anyone having actual knowledge

of the operation of the system or by any interpretive or

expert opinion evidence, are insufficient to establish a

prima facie case of invidious discrimination against any of

7. Although the case before us involves a petit jury as opposed

) a grand jury, the same principles apply. Alexander, supra, 405

LS. at 626, n.3, 31 L.Ed.2d at 539 n.3; Pierce v. Louisiana, 306

— .S. 354, 358, 83 L.Ed. 757, 760 (1939).

27

the groups allegedly improperly excluded. Nor has there

been any specific showing of how the keyman system dis-

criminates against these groups. The fact that a subjective

element is present in the selection process does not by itself

make the procedure inherently discriminatory. Unlike the

situations found to be present in Alexander, Avery and

Whitus, supra, appellant has failed to demonstrate that the

jury commissioners of Washington County were aware of

the age, race, color, political affiliation, etc. of the persons

whose names were received in response to their question-

naires, and that the commissioners then had the oppor-

tunity to select potential jurors on the basis of such charac-

teristics or affiliations.

The paucity of evidence in this record to support the

allegation of discrimination in Washington County's jury

selection system distinguishes this case from that decided

by the Third Circuit Court of Appeals in Smith v. Yeager,

465 F.2d 272 (3d Cir., 1972). The Court there held invalid

the keyman system as it operated in Essex County, New

Jersey. This was not, however, a ruling of unconstitution-

ality per se; there was ample statistical evidence of discrimi-

nation against blacks; and there was evidence that the jury

commissioners had given up seeking the names of potentia!

black jurymen from likely sources. In contrast, the evi-

dence here is that the three persons charged with the duty

of selecting potential jurors fulfilled their duties responsi-

bly; they had familiarity with the various significant ele-

ments comprising the community and consulted with

leaders of those elements to aid them in the selective

process. There was no proof that those selected were un-

qualified and no proof of invidious or systematic discrimi-

nation against or exclusion of any group. Cf. Common-

wealth v. Jennings, 446 Pa. 294, 300, 285 A.2d 143 (1971).

We hold that the attack on the keyman system in

Washington County as applied to this case is without

merit.

3. Voir Dire Examination.

Appellant alleges that several reversible errors oc-

curred during the course of the voir dire examination. The

principal of these relates to the scope of the voir dire itself,

appellant contending that in light of the refusal of the court

to grant a change of venue, a more thorough inquiry of

prospective jurors should have been permitted.

As this Court stated in Commonwealth v. McGrew,

375 Pa. 18, 525, 100 A.2d 467, 470 (1953). “the examination

of jurors under voir dire is solely for the purpose of securing

a competent, fair, impartial and unprejudiced jury.” We

also there observed that “the scope of the voir dire examina-

tion rests in the sound discretion of the trial judge and his

decision, even in a challenge for cause, will not be reversed

in the absence of palpable error.” Id. at 526.

In the present case the trial judge, the Hon. Charles

G. Sweet, permitted defense counsel to ask 20 out of 90 ques-

tions submitted; he allowed the Commonwealth to ask

three questions, the third dealing with scruples concerning

the death penalty; and he himself propounded eleven ques-

tions. Without detailing them, we think that the scope of

the inquiries put to the panel was sufficiently searching

and was well calculated to “securing a competent, fair,

impartial and unprejudiced jury.” McGrew, supra. We find

no abuse of discretion.

Appellant complains, specifically, that the judge's

question as to whether a juror had formed a “fixed” opinion

as to the guilt or innocence of Aubran Wayne Martin was

too restrictive; that the question should have been directed

to whether any opinion had been formed. This complaint

is without merit under our case law. Commonwealth v.

Lopinson, 427 Pa. 284, 298, 234 A.2d 552 (1967), vacated

on other grounds, 392 U.S. 647, 20 '..Ed.2d 1344 (1968).

‘~The only legitimate inquiry in this area was whether or

not the juror had formed a fixed opinion in the case as to

the accused's guilt or innocence”). See also Commonwealth

v. Hoss, 445 Pa. 98, 283 A.2d 58, 64 (1971); Commonwealth

v. Swanson, 432 Pa. 293, 300, 248 A.2d 12, 16 (1968): Com-

monwealth v. McGrew, supra at 525; Irvin v. Dowd, 366

29

U.S. 717, 723, 6 L.Ed.2d 751, 756 (1961). The complaint is

also without foundation in the record. Martin's lawyer was

allowed to ask jurors whether they had heard or read any-

thing about the case on television, radio or in the news-

papers, and, if so, “what was the opinion you got from that”;

he was not limited to “fixed” opinions in that question.

The trial judge’s rulings concerning three episodes

during the several days of the voir dire examination are

also asserted as prejudicial error. One incident was that a

person identified as a member of the Miners for Democracy

(a Yablonski-oriented group) said to three members of the

venire panel during a luncheon break that it would be an

honor to serve on the Martin jury. It is to be noted that

persons addressed were prospective jurors only, and there

is no showing that any of them was selected for the petit

jury. The rule of presumptive prejudice relative to conver-

sations with a juror during a trial is therefore not appli-

cable. Cf. Remmer v. United States, 347 U.S. 227, 98 L.Ed.

564 (1954). The judge conducted a hearing nevertheless,

and while he uismissed the incident as trivial, he allowed

questions to be asked about it on voir dire. In the absence

of any showing of prejudice, we find no error in the court's

refusal to strike the entire venire panel.

The next occurrence was the discovery that a juror

who had been selected and sequestered was a sister-in-law

of a Washington County detective. The detective was not

a prosecution witness and the potentiality for prejudice

found present in some other cases was thus absent here.

Cf. Turner v. Louisiana, 379 U.S. 466, 13 L.Ed.2d 424

(1965): United States ex rel. Fletcher v. Cavell, 287 F.2d

792 (3d Cir. 1961). In any event, Judge Sweet excused the

juror and allowed the defense an extra challenge for cause.

We find no abuse of discretion either in not allowing an

additional peremptory challenge* or in not striking the

entire panel of jurors, as the appellant requested.

8. The appellant also makes a broader claim to additional

peremptory challenges beyond the allotted t enty because of the

magnitude of the pre-trial publicity. The number of challenges is

fixed by statute, however, and the court was without power to en-

large it. Commonwealth v. Segers, — Pa. —, — A.2d —— (1975).

30

The final incident during the voir dire stage which

was Claimed to be so prejudicial as to call for a mistrial

was the publication in a Washington, Pa. newspaper of a

report that two of Martin's alleged co-felons in the Yablon-

ski murders, Paul Gilly and Silous Huddleston, had

pleaded guilty; whereas in fact both had pleaded not

guilty. At the time the article appeared (Saturday, Novem-

ber 6, 1971) nine jurors had been selected and seques-

tered. The trial judge, when the matter was called to his

attention, informed the incoming venire panel of the in-

accuracy, and allowed defense counsel to interrogate the

remaining prospective jurors as to this news item. Under

these circumstances we find no abuse of discretion in

denying the mistrial motion.

4. The “Death-Qualified” Jury

At the time of trial, the death penalty was an available

option to the jury should the defendant be found guilty of

murder in the first degree.? Veniremen were questioned

by the prosecution as to their views on the death penalty

and several challenges for cause because of their

responses were sustained, over appellant's objections.

The appellant claims that error in these rulings resulted

in a “death-qualified” jury.

The claimed error is that the trial judge failed to

comply with the standards expressed by the Supreme

Court of the United States in Witherspoon v. illinois, 391

by the jury. The recommendation was followed by the trial court at

the time of sentencing, which took place in 1973. In the meantime,

the Supreme Court of the United States held the death penalty un-

constitutional as applied in the State of Georgia. Furman v. Georgia,

408 U.S. 232, 33 L.Ed.2d 346 (1972). On the basis of Furman, this

Court in 1972 outlawed the death penalty in Pennsylvania. Com-

monwealth vu. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). The pro-

priety of the imposition of the sentence in this case is discussed

infra, part lV. .

31

U.S. 510, 20 L..Ed.2d 776 (1968). The nub of the Court's

holding is “that a sentence of death cannot be carried out

if the jury that imposed or recommended it was chosen by

excluding veniremen for cause simply because they

voiced general objection to the death penalty or ex-

pressed conscientious or religious scruples against its

infliction.” 391 U.S. at 522, 20 L.Ed.2d at 784-85. The Court

declined, however, “to announce a per se constitutional

rule requiring the reversal of every conviction returned by

a jury selected as this one was |[i.e., in noncompliance

with the above standard]” id. at 518, 20 L.Ed.2d at 782.

Indeed, the Court in Witherspoon merely reversed as to

the sentence of death; it permitted the conviction itself to

stand. See also Moore v. Illinois, 408 U.S. 786, 33 L.Ed.2d

706 (1972); Bumper v. North Carolina, 391 U.S. 543, 20

L.Ed.2d 797 (1968) in which the Court refused to apply

Witherspoon because Bumper had been sentenced only

to life imprisonment and not to death.

In the recent case of Commonwealth v. Dukes, — Pa.

—, 331 A.2d 478 (1975) we considered and rejected a

claim similar to appellant's. There, after reviewing the

holdings of Witherspoon and Bumper, we observed:

“Consonant with these cardinal decisions of the

Supreme Court o the United States, this Court has

repeatedly held that in cases in which the death

penalty has not been imposed or in which a sentence

of death has been imposed but cannot be carried out

as a result of the decision in Furman v. Georgia, 408

U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), non-

compliance with the Witherspoon standard of jury

selection is irrelevant. [Citations omitted]”.

Id. at —, 331 A.2d at 482. See also Commonwealth v.

Ashburn, — Pa. —, 331 A.2d 167 (1975). Since in the instant

case we have determined that the death penalty was not

32

properly imposed, see infra, appellant's challenge falls

within the ambit of Dukes, supra, and its antecedents.'?

Appellant's argument relative to the challenges for

cause which the trial court sustained proceeds to another

claim of due process denial, namely, that the exclusion

of jurors with an aversion to the death penalty resulted,

if not in a “death-qualified” jury, in one that was at least

“conviction prone.” Thus it is argued that “the kind of

juror who would be unperturbed by the prospect of send-

ing a man to his death is the kind of juror who would too

readily ignore the presumption of innocence, accept the

prosecution's version of the facts, and return a verdict of

guilty.” Appellant's brief at 35.

In Witherspoon, supra, the Supreme Court of the

United States refused to accede to this argument because

the data there before it were “too tentative and fragmen-

tary”, 391 U.S. at 517-18, 30 L.Ed.2d at 782. This Court

likewise rejected the same contention in Commonwealth

uv. Speller, 445 Pa. 32, 282 A.2d 26 (1971) because it was

“without persuasive foundation and is mere speculation.”

445 Pa. at —, (sic) 282 A.2d at 28. See also Commonwealth

v. Hudson, 454 Pa. 117, 314 A.2d 231 (1974); Common-

wealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Com-

monwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971)."!

We hold the trial court was not in error in following these

cases, and that it applied them correctly.

10. We do not suggest, by not discussing on their merits the

several challenges for cause here in question, that the teaching of

Witherspoon v. Illinois, 391 U.S. 510, 20 L.Ed.2d 776 (1968) was

in fact disregarded by the trial court.

11. Conceding that the cited decisions represent the current

state of the case law, appellant claims that the empirical data

hitherto found lacking have now been supplied in Professor Hans

Zeisels study, “Some Data on Juror Attitudes Towards Capital

Punishment .

This study, apparently completed in 1972, was under the au-

spices of the Center for Studies in Criminal Justice, University of

Chicago Law School. From the introduction by Norval Morris, Di-

rector of the Center, we learn that a rough draft of the Study was

used by defense counsel in their briefs in Witherspoon v. Illinois,

33

5. Pre-Trial Discovery

Appellant asserts that his pre-trial discovery was

unduly limited, and therefore (so we infer) that a prej-

udicial abuse of discretion was committed. While com-

plaining that the court “summarily denied” his motions for

production of documents, etc., appellant overlooks that the

prosecution agreed to a production of a large segment of the

requested items;'? that the court ordered discovery in

accordance with this consent of the Commonwealth, and

held a hearing on the items not agreed to; that although the

motion was denied “for overbreadth”, the denial was with

leave to counsel to refile; that a new motion was filed and

another hearing held; that at this hearing it was agreed

that still other results of the State’s investigation would be

made available to appellant,'* and that the items as to

which production or inspection was finally denied boiled

down basically to ballistic reports, fingerprints, notes of

supra, and Bumper v. North Carolina, supra. See Witherspoon,

391 U.S. at 517 n.10, 20 L.Ed.2d at 782 n.10. While we have no

reason to doubt the statements that the original data have been

augmented and the analysis improved, and have respect for the au-

thor of the study, we are not persuaded that the finished study

requires us to reach a conclusion contrary to that arrived at in

Witherspoon, Bumper and Speller, supra. The time period of the

Zeisel investigation was 1954-55, the places Cook County, Illionis

and Kings County, N.Y.; the sampling was of 464 jurors’ votes. That

this may be adequate for a meaningful study on juror attitudes we

have no doubt, but its acceptance as a basis for a change of the law

of Pennsylvania in this case is a different matter altogether.

12. The Commonwealth agreed to allow the defendant to copy

or examine defendant's written confession or statements; any and

all exculpatory evidence in its possession, all objects removed from

the deceaseds’ premises; fingernail scrapings from the victims

bodies; photographs taken at the scene; and the criminal records

of ali witnesses for the prosecution at the time they a.2 called to

testify. As to the autopsy reports, the prosecution advised that they

were available from the proper medical authorities.

13. The further agreement was that appellant could inspect

the objects removed from the home of the victims, the murder

weapons and additional photographs of the scene of the crime.

34

oral statements made by appellant and statements of co-

conspirators.'* These discovery proceedings were con-

ducted between August 16 and the last week of October.

They resulted in giving appellant a considerably broader

discovery than he was entitled to by our rules,'® and the few

items appellant was denied were not discoverable under the

rule.'® No “exceptional circumstances or compelling rea-

sons”, in the words of Pa. R. Crim. P. 310, see n. 15, supra,

were proved to warrant the production that was denied,'’

nor is it alleged that any prejudice resulted from inability

to inspect the non-produced items. See Commonwealth v.

Caplan, 411 Pa. 563, 192 A.2d 894 (1963); cf. DiJoseph’s

Petition, 394 Pa. 19, 145 A.2d 187 (1958). There was thus

no “summary” action by the trial court and there was no

14. We are advised by the Commonwealth's brief at 18 that

a copy of Claude Vealey’s confession was given to appellant's

counsel several months prior to trial.

15. The applicable rule is Pa. R. Crim. P. 310. It provides that

on timely application the court may order that the defendant or his

attucney shall be permitted to inspect and copy or photograph “any

written confessions and written statements made by the defendant.”

The Rule then stipulates, “No other discovery or inspection shall

be ordered except upon proof by the defendant, after hearing, of

exceptional circumstances and compelling reasons. . . . |n no event,

however, shall the court order pre-trial discovery or inspection of

written statements of witnesses in the possession of the Common-

wealth.”

16. For suggestions that the Pennsylvania discovery rule

should be “liberalized”, see Commonwealth ex rel. Specter v. Shio-

mos, 457 Pa. 104, 110, 112, 320 A.2d 134 (1974) (concurring

opinions of Pomeroy, J. and of Nix, J.). See and compare Rule 16

of the Federal Rules of Criminal Procedure; A. B.A. Standards Relat-

ing to Discovery and Procedure Before Trial, $2.1.

17. As an “exceptional circumstance” warranting special

treatment, appellant cited to the trial court and here repeats the

fact that he had been in Ohio for a number of months after his

arrest while contesting extradition, and that this delayed getting

into the defense of the Pennsylvania prosecution. He also pointed

to his untutored and impecunious condition in life as a “compelling

reason’. The trial court was not impressed with these contentions,

nor are we.

35

abuse of discretion. Commonwealth v. Mamon, 449 Pa. 249,

297 A.2d 471 (1972).

The appellant argues, however, that regardless of the

rule of court limiting discovery, “[{n]o category of informa-

tion within the possession of the prosecution is altogether

immune from the disclosure duty” of the prosecution under

the rule of Brady v. Maryland, 373 US. 83, 10 L.Ed.2d 215

1963). Appellant's brief at 10. The rule set forth in Brady

!s that “suppression by the prosecution of evidence favor-

able to an accused upon request violates due process where

the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecu-

tion.” 373 U.S. at 87, 10 L.Ed.2d at 218. There is, of course,

no doubt that evidence of this nature—that is, evidence

that “would tend to exculpate {a defendant] or reduce the

penalty,” ibid..—may not, as a constitutional matter be

withheld, and that a rule of court tw the contrary must give

way. Lewis v. Lebanon County Court of Common Pleas,

436 Pa. 296, 301, 260 A.2d 184 (1969). But the Supreme

Court has never given Brady the all-encompassing reading

now contended for. See, e.g., Giles v. Maryland, 386 U.S.

66, 73-74, 17 L.Ed. 737, 744 (1967); Moore v. Illinois, 408

U.S. 786, —, (sic) 33 L.Ed.2d 706, 713 (1972). See also Com-

monwealth v. Martinolich, — Pa. —, —n.16, 318 A.2d 680,

694, n.16 (1974).

In the case at bar the Commonwealth agreed to supply

to appellant any evidence of an exculpatory nature. See

n.12 supra. No such material was forthcoming, however,

for the prosecution represented to the trial court, as it does

in this Court, that in fact it had in its possession no evi-

dence that would tend to exculpate Martin. Martin con-

tends that it should be the court’s judgment, not that of the

prosecution, which controls in a matter of such importance.

The trial court declined to conduct an in camera inspection

of the results of the prosecution's investigation in order to

make iis own independent appraisal of the evidence. We

agree that it had no obligation so to do. As the Court of

Appeais for the Fourth Circuit has put it, the rule of Brady

36

“does not make it incumbent upon the trial judge to rum-

mage through the file on behalf of the defendant.” United

States v. Frazier, 394 F.2d 258, 262 (4th Cir. 1968), cert.

denied 393 U.S. 984. See also United States v. Harris, 409

F.2d 77, 80-81 (4th Cir. 1969), cert. denied, sub. nom. Ven-

ning v. United States, 396 U.S. 95 (1969); United States v.

American Radiator and Standard Sanitary Corp., 437 F.2d

174, 202 (3d Cir. 1970), cert. denied, 401 U.S. 948, 28

L.Ed.2d 231 (1971).!*

II.

Alleged Trial Errors

We turn now to consideration of alleged errors pertain-

ing to the trial itself.

(1) The first of these is a charge that the holding of a

night session on the first day of trial was an abuse of dis-

cretion and that it deprived appellant of the effective assis-

tance of counsel at that session. Powell v. Alabama, 287

U.S. 45, 77 L.Ed. 158 (1932); Commonwealth ex rel. Wash-

ington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Counsel first objected to the night session on the

ground of his need to use the evening hours for conferences

in preparation for the next day’s session. We recognize that

in our system of adversary proceedings a trial is an arduous

affair, demanding the closest attention and the most alert

responses that counsel can muster, that it is a drain both

on nervous energy and physical stamina, and that the day's

work is by no means over for the lawyer when the afternoon

18. The only item not produced which is now said by appel-

lant to be within the Brady category is a psychological report and

evaluation of Martin that, it is said, would have been useful to the

defense at the penalty phase of the trial. The Commonwealth states

that the only such document in its possession was a competency

report. This was obtained on court order on motion of appellant

made November 1, 1971. We are told that the report, which found

Martin competent to stand trial, was given to appellant by the court

prior to trial. Appellee’s brief at 20-21.

37

session comes to a close. In like manner, of course, a trial

can be tiring, even to the point of exhaustion, to parties,

witnesses, judges, jurors and other court personnel.

Normally, therefore, evening sessions are to be avoided. In

this case, however, the court decided to order the extra

session because the trial had not commenced until the

afternoon of that day, the jury had already been sequestered

for several days, and a number of witnesses scheduied to

testify on the first trial day had come from out-of-State

locations. Under these circumstances we cannot say that

overruling of the objection was an unreasonable exercise

of discretion.

Later in the afternoon the objection to continuing the

trial into the evening was renewed on the ground that

counsel was coming down with a cold or the “flu”, but the

objection was again overruled. If it were established that

counsel was indeed ineffective at the night session by rea-

son of illness, we would have to determine whether prej-

udice had resulted from such ineffectiveness sufficient to

vitiate the remainder of the trial. We have concluded,

however, that no ineffectiveness has been shown.

Our standard for judging effectiveness of counsel for

a defendant in a criminal trial is whether the conduct of the

lawyer “had some reasonable basis designed to effectuate

his client's interest . . . the balance tips in favor of finding

effective assistance as soon as it is determined that trial

counsel’s decision had any reasonable basis.” Common-

wealth ex rel. Washington v. Maroney, supra, 427 Pa. at

604-05, 235 A.2d at 352-53. We have reviewed the record of

the session in question against this standard. It lasted not

quite an hour and a half. Fourteen witnesses for the

Commonwealth were heard. Most of the witnesses were

persons who had discovered various objects associated with

the crimes, and their testimony was quite routine and

unexceptionable. Defense counsel conducted no cross-

examination of seven of these witnesses. Several other

witnesses recounted an occasion when Jock Yablonski and

others searched for a strange automobile whose occupants,

38

it was believed, were seeking to kill Yablonski. Counsel did

cross-examine these witnesses, and also another witness

who stated that he had sold an automobile to Martin in

Cleveland the day of the murders. On this record, it is

impossible to say that counsel was in any way ineffective

during the night session in question; his choice of witnesses

to be examined and of the subject-matter that called for

examination appears to have been altogether reasonable.

Since appellant was not incompetently served at the session

in question, he was not harmed in any way by the trial

court’s action. It follows that we need not inquire further

as to whether an abuse of discretion occurred when the

judge refused to accede to the claim of illness. Cf. Common-

wealth ex rel. Gallagher v. Rundle, 423 Pa. 356, 223 A.2d

736 (1966); Commonwealth ex rel. Jones v. Maroney, 417

Pa. 567, 209 A.2d 285 (1965).

(2) Appellant objected to certain testimony by an

F.B.1. Agent, Michel, a witness for the Commonwealth, in

which Michel related the contents of an oral statement

given him by Aubran Martin during an interview on Janu-

ary 15, 1970, approximately two weeks before he was

arrested for the Yablonski crimes. The agent testified that

Martin was given his full Miranda warnings, Miranda v.

Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966), but that the

printed form of waiver of rights was not signed “because of

the fact he stated he understood his rights fully . . . he said

he would be willing to answer questions but not sign the

form.” Michel then testified that in response to his ques-

tions Martin answered that he did not know where he had

been on the day of the murder; that he had not bought a car

with a girl named Joanne Guinn; and that he did not know

any one named “Paul” or “Claude”. Notwithstanding that

these statements were altogether exculpatory in nature,

Martin now contends that testimvny as to what he had said

should not have been admitted into evidence because, first,

prior to making of the statements (sic) Martin had declined

to sign a written waiver of his Miranda rights and, second,

because at no time was he asked by police officers if he was

represented by counsel.

39

Appellant's first argument for suppression of Michel's

testimony seems to be that the oral statement should not

have been admitted because Martin's refusal to sign the

written Miranda waiver form is a conclusive indication that

his oral waiver was not knowing and intelligent. We do not

doubt that in some situations a refusal of a person being

questioned to sign a waiver form, even though followed by

an apparent willingness to allow further questioning, can

be indicative of confusion or ignorance such as to require

the police to seek additional assurances of intelligence and

understanding before proceeding further. See e.g., United

States v. Nielsen, 392 F.2d 849 (7th Cir. 1968): United

States v. Jenkins, 440 F.2d 574 (7th Cir. 1971). In other

Situations the absence of a written waiver has not been

thought to vitiate ora] statements. See United States v.

Crisp, 435 F.2. °54 (7th Cir. 1971), cert. denied 402 U.S.

947, 29 L.Ed.24 116 (1971); Hodge v. United States, 392

F.2d 552 (Sth Cir. 1968). See also Commonwealth v.

Canales, 454 Pa. 422, 311 A.2d 572 (1973).

The record here satisfies us that Martin was aware of

his rights and voluntarily gave the oral statements now

challenged. Although Martin took the stand, he under-

standably did not dispute these statements, and at the end

of the trial his lawyer agreed with the trial judge that there

would be no error in not presenting to the jury the matter

of the voluntariness of the statements given to Michel.

Nor do we accept the argument that as a matter of law

the warnings were inadequate because Martin was not

asked if he then had a lawyer. We know of no case holding

this to be a requirement. Appellant relies upon Suillins v.

United States, 389 F.2d 985 (10th Cir. 1968). In that case,

however, there was no waiver of Miranda rights. The four

defendants testified that they had requested counsel but

that these requests were ignored. This was consistent with

police testimony that “at no time had any one of the four

expressly said that he or she did not want to consult a

lawyer before making a statement.” 389 F.2d at 988. There

is no such evidence in the case before us, nor is there

evidence that Martin was in fact represented by counsel at

the time of the interview.

40

(3) Claude Vealey, a co-conspirator of Martin, was the

chief Commonwealth witness. During cross-examination

of Vealey and in an attempt to impeach his credibility,

defense counsel confronted him with a document, defen-

dant’s Exhibit A, purporting to be a motion by Vealey's

lawyer, Elmer A. Guiliani, filed in the Court of Common

Pleas of Cuyahoga County, Ohio, to hire an investigator and

seeking a writ of habeas corpus in order to avoid extradition

to Pennsylvania. The motion stated that Vealey was not in

Pennsylvania at the time of being indicted (presumably for

the Yablonski murders) or “at any time”. Attached to the

motion, which was signed by the attorney, was an affidavit

(not under notarial seal) purportedly signed by Vealey, that

the facts stated in the motion were true. (The notary public

who took the affidavit was also Elmer A. Guiliani.) The

decument had attached to it an authentication under triple

seal, in accordance with the acts of Congress,'® to the

effect that it was from the records of “indictment and

capias” of Claude E. Vealey in the Court of Common Pleas

of Cuyahoga County, Ohio. Vealey stated that he did not

remember this pleading nor signing the affidavit and

refused to admit that the purported affidavit was his. The

trial court, while agreeing that the document was apparent-

ly sufficient to show that it was of record in Ohio, did not

allow it in evidence, observing, “we have not had it offered

through any witness.”2° Indeed, there was no formal!

motion that it be accepted into evidence.

We find no error. The document was no doubt properly

entitled to full faith and credit under the acts of Congress

as an Official record from a judicial proceeding in Ohio, but

there was nothing whatever in the the record in Ohio or

here to indicate that the notary public who purportedly took

U.S.C. $1738.

20. Attorney Elmer A. Guiliani was not then available as a

witness. The court gave permission to have the defense case re-

opened for the purpose of taking his testimony if the attorney

should later appear. This did not happen.

41

Vealey’s ostensible affidavit was in fact a duly qualified and

acting notary public in Ohio; this link was missing. Absent,

therefore, any admission by Vealey that he made the affi-

davit and any testimony from Guiliani that he was a notary

public and that he took the affidavit, there was no basis for

using the document for cross-examination purposes or for

its admission into evidence on an independent basis.?!

(4) During the course of Martin’s examination, in

response to questions put to him by his lawyer, he admitted

that in the past he had committed crimes of burglary,

larceny, resisting arrest and disorderly conduct. On cross-

examination, the prosecuting attorney was permitted, over

objection, to inquire whether Martin had also perpetrated

a firebombing. Martin denied that he had done so. In

rebuttal, over defense objection, the Commonwealth intro-

duced testimony by Claude Vealey that Martin had told him

that he had in fact committed that offense. Appellant

asserts that the cross-examination was improper, and

hence also the rebuttal testimony.

The Act of March 15, 1911, P.L. 20, §1, 19 P.S. §711

forbids examination of a criminal defendant as to prior

offenses (other than the one with which he is charged)

unless, inter alia, the defendant “has given evidence tend-

ing to show his own good character or reputation.” The trial

court allowed the questioning as to firebombing under this

exception to the general statutory proscription.

in Commonwealth v. Smith, 432 Pa. 517, 248 A.2d 24

(1968) this Court was faced with a very similar situation:

“Two errors are alleged. One is that the court

below erred in permitting the appellant to be cross-

examined as to his prior arrests which did not result

in convictions. The court held that appellant had put

his character in issue when, after he was asked if he

21. None of the following Pennsylvania statutes is apriicable

to this situation: the Act of Angust 21, 1953, P.L. 1323, $20, 57 PS.

$166; the Act of December 14, 1854, P.L. 724, §2, 28 P.S. $222: the

Act of April 27, 1876, P.L. 49, §1. 28 P.S. 223.

42

had had any difficulty with the police, he narrated only

two convictions, and emphasized several mitigating

circumstances with regard to those. This testimony,

the court indicated, led to the inference that appel-

lant’s character was good on the whole. He thus held

that questions as to prior arrests not leading to convic-

tions were proper under the first exception in the Act

of March 15, 1911, P.L. 20, §1, 19 P.S. §711. . . . We

agree with the analysis of the court below as to this

issue.” 432 Pa. at 519-520."

We think the rationale of Smith dictates resolution

of the present issue adversely to appellant. He had grasped

the initiative by admitting to several seemingly minor

offenses of a non-violent character; it was then open to the

Commonwealth to show that he had also committed a more

serious offense of a violent nature. We note, additionally,

that in his charge to the jury the trial court, in referring to

this portion of the testimony, properly instructed the jury

that they could consider it only “for the narrow purpose of

contradicting Martin’s statement about his own char-

acter.” = _

22. The only difference between this case and Smith is that

in Smith the challenged cross-examination by the prosecution per-

tained to “prior arrests”, whereas in the instant case reference was

made only to a crime which Martin allegedly had committed. This

difference is, however, of no significance, for the Act of 1911, in

describing the areas of prohibited examination, includes offenses

which the defendant allegedly “had committed, or been charged

with, or been convicted of .. .”

23. In addition to the assignments of error treated above, the

appellani has argued that three other rulings of the trial judge

were in error and sufficiently prejudicial to require a new trial.

These include the introduction into evidence of a photograph

claimed to be inflammatory and rulings that the prosecution had

not improperly denied defense counsel access to two possibly mate-

rial witnesses for or during trial. In addition, it is claimed that a re-

mark by the trial judge to both counsel relative to the length of

summary arguments to the jury was prejudicial to the defendant.

We have examined these alleged errors and find that they are with-

out merit.

43

HT.

Charge on Felony-Murder

In the course of his charge to the jury the trial judge,

after instructing on the elements of premeditated murder,

gave a careful and lengthy charge on the doctrine of felony-

murder and its application to this case. Towards the end of

this passage of his charge, the court summarized in the

following terms:

“If you accept the Commonwealth's case in those

terms, if you believe that the defendant Martin went

in there with a gun and participated in the shooting

of these people in their beds, and he did this for hire

and for wicked gain, then you have classical first

degree murder. If you accept the second theory, the

felony murder theory, and you can do that believing

either the Commonwealth theory or the defense facts

as testified to by Martin, then you could find Martin

guilty of murder in the first degree on the felony

murder doctrine. The defendant's facts substantially

as I explained to you fit the felony murder doctrine.”

(Emphasis supplied. )

At trial the defendant took the position that no charge

whatever was warranted on felony-murder,24 and now

24. The objection was made by an interruption of the judge

in the course of his charge, not by way of a specific objection or

exception to the claimed error at the close of the charge (only a

general exception to the charge was taken). This was not the proper

procedure. See Pa. R. Cr. P. 1119(b), 19 P.S. (1975 Pamphlet).

Because, however, the trial court was fully alerted to the position

ot the defendant, not only by the interruption, but also by reason

of objection to such an instruction before the charge was begun,

and in light of the fact that the point was argued to and fully con-

sidered by the court en banc on post-trial motions, we do not con-

sider it to have been waived for appeal purposes. Cf. Common-

wealth v. Clair, —- Pa. —, 326 A.2d 272 (1974).

44

argues vigorously that the inclusion of a charge on this

subject was prejudicially erroneous and requires a new

trial.

The thrust of appellant's argument is that neither on

the Commonwealth's version of the case, as related in the

Vealey testimony, nor on the defense account of what

occurred, as testified to by Martin, does the felony-murder

doctrine have any place in resolving Martin’s guilt or

innocence. Under the prosecution version, Aubran Martin

was in on the planning stage of the Yablonski slayings,

including the burglary of their home; was an active partici-

pant not only in both of those crimes, but was himself the

thief who took Jock Yablonski’s money clip; and that

Martin also received in due course his share of the fee for

the murders. If the prosecution’s theory of what happened

is accepted, so appellant’s argument goes, the sole purpose

of the conspiracy among Gilly, Vealey and Martin was to

kill the Yablonskis, and the fact that execution of the

purpose was preceded by a breaking and entering and

followed by a robbery was purely incidental. Under Martin's

version of what transpired he was never a party to any plan

to kill; he was merely a participant in a scheme to bur-

glarize and rob the Yablonski home, and aided and abetted

that scheme by serving as a lookout and driver of the

getaway car; he joined with his two confederates in testing

firearms before the group set out from Cleveland; he

himself carried a rifle to their automobile, and knew that

it and a pistol were carried by Gilly and Martin to the house

to be robbed. If this testimony is to be believed, then, appel-

lant’s theory continues, the fact that the sole purpose of

Gilly and Vealey was to kill the Yablonskis and not to

commit burglary or robbery renders the felony-murder rule

inapplicable as far as implicating Martin goes. That is to

say, under either account of what happened there was then

no meeting of the minds—no agreement—as to the purpose

for going to the Yablonski home, and Martin cannot be held

liable for what his companions did without his knowledge

or consent.

a I a ll te

45

Whichever version the jury might believe as to the

sordid events at Clarksville, Pa. on the morning of Decem-

ber 31, 1969, three stark facts stand out with indisputable

clarity: first, the home of Jock Yablonski was burglarized—

that is, it was forcibly broken into and entered with the

intent to commit a felony;?> second, after the breaking

and entering three persons asleep in the house—Jock

Yablonski, his wife and his daughter—were slain in cold

blood ; third, immediately after the killings, a sum of money

($276) was stolen from the home—that is, a robbery was

committed. When these facts are considered in light of the

well established principles governing the felony-murder

rule in Pennsylvania we must find appellant's arguments

to be without merit. See generally Commonwealth v.

Yuknavich, 448 Pa. 502, 506-07, 295 A.2d 290 (1972): Com-

monwealth v. Redline, 391 Pa. 486, 495, 137 A.2d 472, 476

(1958); Act of June 24, 1939, P.L. 872, §701, 18 P.S. §4701

(repealed, June 6, 1973, replaced by 18 Pa. C.S. §2502(a)).

The proposition that the felony-murder rule is not

applicable where the accompanying felony is after the fact

of murder and but incidental to it, is quickly answered by

our decision in Commonwealth v. Waters, 445 Pa. 534, 538,

285 A.2d 192 (1971) among others. In Waters we stated:

“We considered and expressly rejected this same

contention in Commonwealth v. Slavik, 437 Pa. 354,

261 A.2d 583 (1970). There we said: ‘This contention

was recently considered and rejected by this court in

Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734.

In that case, a conviction of first-degree murder was

sustained upon evidence that the defendant first

stabbed the victim and then took the victim's wallet

and emptied it. The Court, quoting from Common-

wealth v. Hart, 403 Pa. 652, 170 A.2d 850, said (page

28): “Defendant's highly technical argument amounts

to this: Unless the Commonwealth proves that the

25. Act of June 24, 1939, P.L. 872. $901, 18 P S. $4901 (ve-

pealed, June 6, 1973).

46

intention to commit a robbery was formed before the

beginning of the fatal assault, the evidence cannot

amount to a murder which was committed in the

perpetration of a robbery. In other words, defendant

would require a televised stop-watch in every robbery

or felony-killing to prove that the felonious intent

existed before the attack. . . .”’ 437 Pa. at 357, 358.”

See also Commonwealth v. Slavik, 437 Pa. 354, 358, 261

A.2d 583 (1970). (“This Court has held that if a homicide

occurs in the perpetration or attempt to perpetrate a

robbery, a conviction of murder in the first degree will be

sustained regardless of when the design to rob was con-

ceived. Commonwealth v. Stelma, 327 Pa. 317, 192 Atl.

906”) (sic); Commonwealth v. Hart, 403 Pa. 652, 170 A.2d

850 (1961); Commonwealth v. Dickerson, 406 Pa. 102, 107,

176 A.2d 421 (1962); (“if a homicide occurs while a defen-

dant is participating in . . . a robbery, it is immaterial when

the design to rob was conceived. A felony murder is

‘effected’ ”).

Martin’s second argument, addressed to his own fact

version, that there was “no meeting of the minds” of the

conspirators, is novel. But we are not here dealing with the

niceties attendant upon the formation of a contract; we are

dealing with the ramifications of a criminal conspiracy to

commit a felony. That Martin did not know ahead of time

that his companions, Gilly and Vealey, were intent on

killing and not on robbery is immaterial; he knew that

violence might be involved, whether or not planned ahead

of time. In Commonwealth v. Yuknavich, 448 Pa. 502, 295

A.2d 290 (1972), the defendant was the driver of a getaway

car for a service station robbery. In the course of the robbery

the co-felon killed the attendant. Speaking through Justice

NIX, we said:

“This Court has consistently held that the killing

need not be by the defendant in a felony-murder case.

It has been established ‘that in order to convict for

felony-murder, the killing must have been done by the

47

defendant or by an accomplice or confederate or by one

acting in furtherance of the feloniods undertaking.’

Commonwealth v. Redline, 391 Pa. 486, 496, 137 A.2d

472, 476 (1958); accord, Commonwealth v. Sampson,

445 Pa. 558, 563, 285 A.2d 480, 483 (1971); Common-

wealth v. Moore, 443 Pa. 364, 374, 279 A.2d 179, 185

(1971); Commonwealth v. Williams, 443 Pa. 85, 88,

277 A.2d 781, 783 (1971); Commonwealth ex rel. Smith

v. Myers, 438 Pa. 218, 228, 261 A.2d 550, 555 (1970);

Commonwealth v. Batley, 436 Pa. 377, 390, 260 A.2d

793, 800 (1970). Clearly, where a killing occurs in the

commission of a felony, all who participate therein are

equally guilty of murder.” 449 Pa. at 507.

The rationale which the Court then gave of the rule

reiterated in the above quoted portion of the Yuknavich

opinion is equally applicable to the case at bar:

“The nature of the felony in this case is such that

it should be obvious to anyone about to embark on

such a venture that the lives of the victims may be

sacrificed in accomplishing the end. A reasonable man

can be properly charged with the knowledge that

the natural and probable consequences of such an act

may well result in death or grievous bodily harm to

those involved. It is not unrealistic to ascribe to one

who willfully engages in a plan to commit armed rob-

bery, a wickedness of disposition, hardness of heart,

cruelty, recklessness of consequences, or a mind

regardless of social duty. Thus, when dealing with the

felony of armed robbery we are merely saying that it

is the same malice that is required for common law

murder.” Id. at 508.

See also Commonwealth v. Eiland, 450 Pa. 566, 570-71, 301

A.2d 651, 652-53 (1973).

It may be accepted that in some situations the felony-

murder rule operates harshly and that the policy of this

48

Court is to restrain the rule within its traditional limits. See

Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261

A.2d 550 (1970). The case before us is totally within those

limits, and under any version of the facts cannot be said to

impose “the consequences of murder upon a death wholly

unintended.” [bid at 225. The trial court committed no error

in charging as it did.

IV.

The Death Sentences

The jury returned a verdict on November 12, 1971 that

Aubran Wayne Martin was guilty of murder in the first

degree. On the following day, pursuant to the “split-verdict”

provisions of the Act of June 24, 1939, P.L. 872, Sec. 701, as

amended, 18 P.S. §4701 the jury met to consider penalty.

It fixed the penalty at death. Post-trial motions followed,

and were denied by the court en banc by an opinion and

order entered September 29, 1972. Approximately a year

later, on September 19, 1973, a sentencing hearing was held

by the trial judge at which the Commonwealth presented

testimony and arguments by both sides were heard. The

court thereafter pronounced the sentence of death on appel-

lant on each of the three indictments for murder.

On June 29, 1972 the Supreme Court of the United

States announced its decision in Furman v. Georgia, 408

U.S. 241, 33 L.Ed.2d 346 (1972). Contemporaneously with

its decision in Furman v. Georgia, supra, the United States

Supreme Court vacated the death penalty in two cases from

Pennsylvania which were then before it: Phelan v. Brierly,

408 U.S. 939, 33 L.Ed.2d 762 (1972) (on certiorari from the

U.S. Ct. of Appeals for the 3d Cir.); Scoleri v. Pennsylvania,

408 U.S. 934, 33 L.Ed.2d 747 (1972) (on certiorari from the

Supreme Court of Pennsylvania). See also Stewart v. Massa-

chusetts, 408 U.S. 845, 33 L.Ed.2d 744 (1972). The appli-

cability of Furman to the law of Pennsylvania came before

this Court in Commonwealth v. Bradley, 449 Pa. 19, 295

A.2d 842 (1972). In Bradley, the Court said:

ae a Pe ee a re

49

“Appellant's final contention is that the imposi-

tion of the death penalty in his case violates the Eighth

Amendment's ban against cruel and unusual punish-

ments as applied to the states through the Fourteenth

Amendment.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,

33 L.Ed.2d 346 (1972), the United States Supreme

Court recently held that the imposition of the death

penalty under statutes such as the one pursuant to

which the death penalty was imposed upon appellant

is violative of the Eighth and Fourteenth Amend-

ments. Accordingly, appellant's sentence of death may

not now be imposed. See Moore v. Illinois, 408 U.S.

786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).” (footnote

omitted) 449 Pa. at 23-24.

Bradley's interpretation of the Furman decision has

been consistently followed and death sentences imposed

have been vacated in every case which has come to us since

Furman.?* Our most recent decision in this line of cases

26. In an opinion from the bench at the conclusion of oral

arguments in the case at bar,.the sentencing judge reviewed the

salient statutes and decisions and expressed the view that the

death sentence was not unconstitutional in Pennsylvania. In the

course of his remarks he explained his conclusion as follows:

“In order that this matter may be reconsidered by the

higher courts, it is necessary that a capital case get there. If

all judges sentenced all murderers, even the most depraved

and heinous, merely to life in prison, the general effect of Fur-

man v. Georgia would become specific and universal. Because

believe that the Supreme Court of Pennsylvania has been act-

ing in the past month only in deference to Furman v. Georgia,

and not as a result of their own moral and legal philosophies—

because | believe that Truesdale (449 Pa. 325 (1972) and

Bradley (449 Pa. 19 (1972) are ipsedixit only and because |

believe that the protection of our community and the wicked-

ness of this defendant demands the death penalty, | have

elected to sentence Aubran Wayne Martin to death in the man-

ner and form that shall be provided by law at the time his

appeals have been exhausted.”

50

is that of Commonwealth v. Drobolenski (sic), — Pa. —,

334 A.2d 268 (1975). We were there presented with much

the same record and argument as the Commonwealth has

offered in the case at bar.27 What Justice ROBERTS said

in speaking for the Court in Drobolenski (sic) is equally

applicable here:

“We have repeatedly held that Furman precludes

imposition of death penalty under the statute in ques-

tion, (sic) Commonwealth v. Scoggins, 451 Pa. 472,

481, 304 A.2d 102, 108 (1973); Commonwealth v. Ross,

449 Pa. 103, 105, 296 A.2d 629, 639 (1972); Common-

wealth v. Lopinson, 449 Pa. 33, 34, 296 A.2d 524, 525

(1972); Commonwealth v. Sharpe, 449 Pa. 35, 44, 296

A.2d 519, 524 (1972); Commonwealth v. Bradley, 449

Pa. 19, 23-24, 295 A.2d 842, 845 (1972); cf. Common-

wealth v. Scoleri, — Pa. —, — A.2d — (1973); Com-

monwealth v. Senk, 449 Pa. 626, 296 A.2d 526 (1972).

The Commonwealth recognizes this but offers an evi-

dentiary record, not present in those cases, purporting

to show that there has been no discrimination in the

imposition of the death penalty on the basis of race,

wealth, or nature of the proceeding leading to convic-

tion (jury trials vs. pleas of guilty). However, as we

recognized in the above cases, Furman holds that ‘the

imposition of the death penalty under statutes such as

here involved, is violative of the Eighth and Fourteenth

amendments. Commonwealth v. Scoggins, supra, at

481, 304 A.2d at 108 (emphasis added). Had we viewed

evidence of the actual application of the statute as

necessary for deterrnination of its constitutionality, we

27. We have been furnished with an extensive brief amicus

curia by the Legal Defense and Educational Fund in opposition to

the Commonwealth's position. In light of our decision that the ques-

tion of the reach of Furman v. Georgia, supra is no longer an open

one in Pennsylvania with respect to the statute under which Martin

was sentenced, see Act of June 24, 1939, P.L. 872, Sec. 701, as

amended, 18 P.S. $4701, we have not deemed it necessary to ad-

dress the arguments tendered by the amicus.

mens

ee —

51

would have directed evidentiary hearings in those

cases. As we understand Furman, the constitutional

prohibition extends at least to all death sentences

imposed pursuant to statutes which give the sentenc-

ing authority unfettered discretion in imposition of the

death penalty. Because this statute gives such discre-

tion, the constitution forbids the execution of any

death sentences imposed under its authority.” Id. at

~~, 334 A.2d at 274.

See also Commonwealth v. Coyle, — Pa. —, 332 A.2d 442

(1975), cert. denied, — U.S. —, — L.Ed 2d — (Oct. 6,

1975).

The death penalty was improperly imposed upon

Martin and must be vacated as to each indictment. We will

remand for the imposition of legal sentences.

The convictions of appellant on each of the three

charges of murder in the first degree are affirmed; the sen-

tences of death are vacated, and the case is remanded for

resentencing.

Mr. Justice Roberts, Mr. Justice Nix and Mr. Justice Manderino

concur in the result.

Mr. Justice Eagen Dissents

APPENDIX B

i Oa

COMMONWEALTH No. 153 A, B, ¢ Jan ARY

Term 1970

US.

No. 517 ano 518 Jani ary

AUBRAN WAYNE MARTIN Term 1970

OviNiONn OF PRESIDENT JUDGE CHARLES G. SWEET, CoURT

Or Common PLEAS, WASHINGTON CouNTY, PENNSYL-

VANIA, RENDERED IN COURT ON SEPTEMBER 19, 1973

AND REPRINTED FROM NOTES OF TESTIMONY FILED ON

NOVEMBER 27, 1973

Up until Furman versus Georgia decided June 29, '72,

there was no question that the punishment of death was

available in a proper case of first degree murder in Pennsy]-

vania. Our own Supreme Court, while remanding on other

errors, has inferentially recognized the availability of the

death penalty as recently as Commonwealth v. Alvarez

decided April 22, 1971 and Commonwealth v. Hoss decided

October 12, 1971. The Supreme Court of Pennsylvania thus

recognized the legality and propriety of the death penalty.

In the case at bar, the trial jury mandated a death

sentence. The trial, assessed by a three-judge court en banc

here, has been without error. Accordingly, we must either

carry out the mandate of the jury, or find that it is unconsti-

tutional and ineffective.

Furman v. Georgia, consisting of nine U. S. Supreme

Court opinions, has been widely interpreted to outlaw the

death penalty, but it seems to me that it may very well not

have completely outlawed it for such a case as this.

Here we have the worst possible murder, the killing for

hire, not only of the target of the assassins’ aim, but two

other utterly innocent persons in his home also. This killer

before me now shared the loot from Joseph Yablonski’s

money clip, received his wages for the fatal trip from Cleve-

land to Clarksville, and applied them to his own use. He has

never exhibited the slightest remorse.

56

Since Furman v. Georgia, the new Crimes Code,

passed in December, 1972, has become effective June 6,

1973. It provides in Section 1102, “A person who has been

convicted of murder of the first degree siall be sentenced

to death or to a term of life imprisonmen:.” There is a pre-

sumption of constitutionality attached to that action of the

Legislature.

Furman v. Georgia, is a five to four decision which

involved two persons convicted of rape and one of murder,

and became applicable to other cases where death sen-

tences were then pending.

The present prisoner, obviously, is not directly con-

trolled by Furman. It seems possible that Furman uv.

Georgia has been excessively construed. Justice White, one

of five in the majority, concurring, said: “I do not at all

intimate that the death penalty is unconstitutional per se

or that there is no system of capital punishment that would

comport with the Eighth Amendment.”

Burger, Chief Justice of the United States, speaking in

dissent, said that only two Justices, “. . . have concluded

that the Eighth Amendment prohibits capital punishment

for all crimes and under all circumstances.” And goes on

to intimate that the line up of the Supreme Court on the

abstract constitutionality of the Eighth Amendment

applied to the death penalty is probably six to three in favor

of capital punishment.

Not too long ago, Warren, Chief Justice of the United

States, said, “. . . whatever the arguments may be against

capital punishment . . . the death penalty has been em-

ployed throughout our history, and, in a day when it is still

widely accepted, it cannot be said to violate the constitu-

tional concept of cruelty.” Trop v. Dulles, 356 U.S. 99.

Black, J., in 1971 in McGautha v. California, said, “The

Eighth Amendment forbids ‘cruel and unusual punish-

ment.’ In my view, these words cannot be read to outlaw

capital punishment because that penalty was in common

use and authorized by law here and in the countries from

which our ancestors came at the time the Amendment was

Pee aC Oe

57

adopted. It is inconceivable to me that the framers intended

to end capital punishment by the Amendment.” McGautha

uv. California, 402 U.S. 183 (1971).

It might be observed that McGautha, a six to three

case, squarely held the absence of standards to guide a

jury's discretion in determining whether to hold or apply

the death penalty, does not violate the due process clause

“4 the Fourteenth Amendment. This case was decided May

, 1971.

In order that this matter may be reconsidered by the

higher courts, it is necessary that a capital case get there.

If all judges sentenced all murderers, even the most

depraved and heinous, merely to life in prison, the general

effect of Furman v. Georgia would become specific and

universal. Because | believe that the Supreme Court of

Pennsylvania has been acting in the past month only in

deference to Furman v. Georgia, and not as a result of their

own moral and legal philosophies—because | believe that

Truesdale (449 Pa. 325 (1972) and Bradley (449 Pa. 19

(1972) are ipsedixit only and because | believe that the

protection of our community and the wickedness of this

defendant demands the death penalty, I have elected to

sentence Aubran Wayne Martin to death in the manner and

form that shall be provided by law at the time his appeals

have been exhausted.

In Mr. Sprague’s excellent brief, he shows that the

death penalty in Pennsylvania has not been applied in an

impermissibly discriminatory manner, either as to race or

to whether defendant is represented by appointed or private

counsel. He shows there has not been discrimination

between those who pled guilty or were found guilty. His

brief is persuasive that in Pennsylvania the death penalty

has been imposed on the nature of the crime involved and

the defendant's prior criminal history.

He also raises an interesting argument concerning the

applicability of the Act of 1925 (18 P.S. 2222), and its inter-

action with the statutory construction act.

af

58

| should say | have also considered State v. Dickerson,

268 Atlantic 2d, from the State of Delaware and State v.

Wadell, from the State of North Carolina.

Now, I don’t want this thing to become a legal football,

kicked back and forth across the State. Accordingly, |

propose to take this action.

First, | sentence Aubran Wayne Martin to suffer the

punishment of death for the murder of Joseph Yablonski.

Second, I shall sentence Aubran Wayne Martin to suffer the

punishment of death for the murder of Margaret Yablonski.

Third, I shall sentence Aubran Wayne Martin to suffer the

punishment of death for the murder of Charlotte Yablonski.

This execution shall of course take place in the manner

and form provided by applicable law at the time his appeals

have become exhausted.

To save an unnecessary remand in the event it is ascer-

tained | am in error, | formally state for the record what the

action of this court will be in the event it is sent back for

compliance with certain recent decisions. | would sentence

the said Martin to three consecutive life sentences, one after

the other, for the murder of Joseph Yablonski, Margaret

Yablonski and Charlotte Yablonski, and would provide that

he not be eligible for parole and/or furlough.

We will now proceed with the standard form.

a

APPENDIX C

61

Statistical Summary—Death Penalty Survey

Note. This survey was based on ail murder convictions where the defendant was found

guilty of first-degree murder in the state of Pennsyivama between january 1, 1960

and October 3, 1972. There were 428 such cases during that period. Out of that

number, there were 35 death sentences imposed by judges or juries. The basic

premise, therefore, is that 35 out of 428 cases resulted in death penalties, or

8.18% of ali first degree murder convictions resulted in death penalties.

Derewoant | At Finst Decwee | | Deatw Pena ty 7

CHARACTERISTICS | Comvicrions Cases

os | (% of column 1.

number ot % of number of % of death % of

cases-1. cases-2. cases-3. cases-4 group-5S.

AGE

under 15 4 93% 0 0.00% 0.00%

16 to 24 194 45.09% 16 45.71% 8.25%

25 to 34 93 21.73% 8 22.86% 8.60%

35 to 44 38 8.86% 5 14.29% 13.16%

45 to 54 19 444% l 2.86% 5.26%

over 55 4 0.93% 0 0.00% 0.00%

N/A 76 17.76% 5 14.29%

TOTAL 428 100.00 % * 35 100.00%* Mean= 8.18%

RACE

Black 249 58.18% 20 57.14% 8.03%

White 164 38.32% 14 40.00% 8.54%

Span-Amer. 6 1.40% 1 2.86% 16.66%

N/A 9 2.10% 0 0.00%

TOTAL 428 100.00% * 35 100.00%* Mean= 8.18%

SEX

Male 413 96 49% 33 94.29% 7.99%

Female 15 3.51% 2 5.71% 13.33%

TOTAL 428 100.00% * 35 100.00%* Mean= 8.18%

COUNSEL

Private 121 28.27% x 22.86% 6.61%

Court Appt'd. 298 69.63% 27 77.14% 9.06%

Public Def. 6 1.40% 0 0.00% 0.00%

N/A 3 0.70% 0 0.00% 0.00%

TOTAL 428 100.00% * 35 100.00%* Mean= 8.18%

ADJUD.

Jury Trial 306 71.50% 24 68.57% 784%

Guilty Flea 119 27.80% ll 31.43% 9.24%

N/A 3 0.70% 0 0.00°.

TOTAL 428 100.00°%. * 35 100.00%* Mean= 8.18%

62

[ DeFewoant | [ At First Decree Deatw Pema ty

| Cwaractemistics Comvictions | Cases

—_—_—_—_—_— >) -— ——- ———— —EE 4 ee

n | |

Below Average 108 25.23 % 4 11.43% 3.70%

Average 174 40.65% 16 45.71% 9.19%

Above Average 66 15.42% 3 8.57% 4.55%

N/A 80 18.70% 12 34.29%

TOTAL 428 100.00% ? 35 100.00%* Mean= 8.18%

EDUCATION

Less Than 6 yrs. 19 444% l 2.86% 5.26%

7 to 9 years 173 40.42% 12 34.29% 6.94%

10 to 12 years 153 35.74% 10 28.56% 6.54%

More than 12 yrs. 3 0.70% 0 0.00% 0.00%

N/A 80 18.70% 12 34.29%

TOTAL 428 100.00% * 35 100.00%* Mean= 8.18%

FAMILY

Both Parents 182 42.52% 12 34.29% 6.59%

Mother Only 105 24.54% 7 20.00% 6.66%

Father Only ll 2.57% 0 0.00% 0.00%

Other Relative 30 7.01% 2 5.71% 6.66%

No Family 20 4.66% 2 5.71% 10.00%

N/A 80 18.70% 12 34.29%

TOTAL 428 100.00 % * 35 100.00%* Mean= 818%

PSYCH.

History 43 10.04% 2 5.71% 465%

No History 305 71.26% 21 60.00% 6.89%

N/A 80 18.70% 12 34.29%

TOTAL 428 100.00% * 35 100.00%* Mean=8 18%