Appendix — Blystone v. Pennsylvania

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IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTI! OF PENNSYLVANIA 1

vs. $

SCOTT WAYNE BLYSTONE : CRIMINAL ACTION NO. 2 of 1984, 21/4

of sone 2 2/4 of 1984 and 2 3/4

ORDER 84

AND NOW, this 27 day of April, 1985, upon consideration of the

foregoing motion, the Public Defender's Office is hereby permitted to withdraw

from the within matter and Attorney Samuel J. Davis is hereby appointed to

represent this defendant in all appeals curently before this Court and in any

appeals which may follow either in this Court or in a higher Court.

wee of tos dl 158 17

ve . *

9 ao”

| 28

: IN THE SUPREME COURT OF THE

Petitioner, : UNITED STATES OF AMERICA

vs. : OCTOBER TERM, 1988

COMMONWEALTH OF PENNSYLVANIA, :

Defendant. : NO.

Petitioner, Scott Wayne Blystone, 4 prisoner at Western

State Correctional Center of Pittsburgh, Pennsylvania, has

submitted a Writ of Certiorari and request for leave to proceed

in forma pauperis. Since it appears that he is unable to pay

costs for commencement of said Writ, this following Order is

entered this day of , 1988:

IT IS HEREBY ORDERED, that the Petitioner's Motion to

proceed In Forma Pauperis is granted and the Clerk is directed to

file the subject Writ of Certiorari.

EY THE COURT:

COMMONWEALTH OF PENKSYLVANIA No. 37 U. D. Appeal Docket, 1986

ARGUED: MARCH 9, 1987

REARGUED: MARCH 7, 1988

ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by

this Court that the convictions of the Court of Common Pleas of Fayette .

County, Criminal Division, of murder of the first degree, robbery, and

criminal conspiracy to commit those offenses are sustained and the sentences

of death and ten to twenty years imprisonment are affirmed.

DATED: OCTOBER 17, 1968

—

J-33-88

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT 4

COMMONWEALTH OF PENISYLVANIA, : Wo. 37 V. b. Appeal Dkt. 1986

Appellee 0 P

Appeal from the Judgments o

Sentence of the Court of

vs : Criminal Division, at Mos. 2,

2k, 2 2/4 & 2 % of 1986,

entered on April 17, 1986

SCOTT WAYNE BLYSTONE,

Appellanc : ARGUED: MARCH 9. 1987

: REARCGUED: MARCH 7, 1988

OPINION

MR. JUSTICE McDERMOTT FILED: OCTOBER 17, 1988

A jury found the appellant. Scott Wayne Blystone, guilty

of murder of the first degree,’ robbery .” criminal conspiracy to

commit homicide,” and criminal conspiracy to commit robbery.*

After further deliberation that same jury set the penalty for the

gurder conviction at death.’ The appellant was also sentenced to

116 Pe. c. 8. §§2501; 2502(a).

216 Pa. c. 8. 63701

318 Pe. cs. $903.

542 Pe. c. s. 6711

—

ten to twenty years imprisonment for the robbery conviction. ®

directly appeals these judgments of sentence.’

It is the practice of this Court in cases in which the

death penalty has been imposed to review the sufficiency of the

evidence supporting an appellant's conviction. Commonwealth v.

Zettlemoyer, 500 Pa. 16, 26-27 n.3, 454 A.2d 937, 942 n.3 (1982),

cert. denied, 461 U.S. 970 (1983). We do so with an eye to see

whether, viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence ,

to enable the jury to find every element of the crime beyond a

reasonable doubt. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d

282 (1976). Im the instant case the evidence presented to the

jury, together with all reasonable inferences in favor of the

Commonwealth, discloses the following.

On the night of Friday, September 9, 1983, Scott |

Blystone, his girlfriend and another couple were riding around |

Fayette County in Blystone's automobile. Blystone, who was driv-

ing, worried about the fact that his automobile was low on gasoline

and he had no money with which to purchase more. At approximately

midnight, Blystone observed Dalton Charles Smithburger, Jr.,

hitchhiking. Blystone announced to his companions: 1 am going to

pick this guy up and rob him, okay, ...?" His friends endorsed the

idea, or at best did nothing to oppose it, so Blystone pulled over

18 Pa.c.s. §1103(1).

"See 42 fa. C. s. §§722(4); m- be.. A. P. 702(b).;

to pick up his victim. Unfortunately, Smithburger, who was not

acquainted with anyone in the car, accepted the ride.

Once underway Blystone asked Smithburger if he had any

money to contribute for the purpose of purchasing gasoline.

Smithburger replied that he had only a few dollars and reached into

his pocket. Dissatisfied with that response, Blystone drew a

revolver which he held to Smithburger's head. In no uncertain

terms Blystone ordered Smithburger to shut his eyes and place his

hands on the dashboard. Smithburger understandably offered no

resistance. Though in the course of a taped interview he would

later admit that "I almost splattered him right there in the car,"

Blystone assured Smithburger that he would lose only his money, not

his life.

Blystone pulled the car off the road at a lonely spot and

walked Smithburger at gunpoint a short distance into an adjacent

field. Blystone searched Smithburger, finding thirteen dollars.

He ordered Smithburger to lie face down on the ground and wait.

Smithburger complied. Blystone briefly returned to his companions

in the car to inform them that he was going to kill Smithburger.

The best that can be said for Blystone's friends is that perhaps

they were startled into ambivalence by the enormity of the

statement.

In any event Blystone decided to kill Smithburger. He

returned to the field where he found his victim as he had left him.

Blystone knelt on Smithburger's back and asked him whether he could

identify the vehicle which had picked him up. Smithburger correct-

ly replied, “all I know is it was green and the back end was

{J-33-88) -3

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———— ——

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—_ =e ~ VPS ae a oe Oe ee oe geo: oe ~~ al | wee

wrecked." Blystone then said, goodbye“ and emptied his revolver

into the back of Smithburger's head. "

Such “goodbyes” are rarely the end. Such deaths take on

a life of their own and rattle through the lives of the those who

know, until chance or nature loosens tongues. Appellant Blystone

heard more than the voice of his passengers; he heard his own voice

bragging in vivid and grisly detail of the killing of that unlucky

lad. (See the Appendix attached to this opinion.)

Blystone eluded detection as Smithburger's murderer for

over three months. However, his associates eventually exposed him.

The testimonial evidence they contributed to the Commonwealth's

case, along with physical evidence, would have been sufficient to

support Blystone's convictions. Additionally, an audio tape of

Blystone describing the murder to an informant was presented to the

jury (See Appendix). The combined effect of all this material was

to present the jury with evidence of the appellant's guilt which

was more than sufficient; it was overwhelming.

Nevertheless, the appellant attacks the sufficiency of

the evidence supporting his robbery conviction and, consequently,

the imposition of the death penalty. Specifically, the appellant

argues, the Commonwealth did not present sufficient evidence to

satisfy the corpus delicti requirement for the crime of robbery.

8the only aggravating factor the wy A to exist for

Y of setting the penalty at death was the fact that Blystone

illed Smithburger during the course of a felony, i.e., robbery.

42 Pa.C.S. §9711(d)(6). Thus, the death penalty cannot stand

should the robbery conviction fall.

(J-33-88}-4

ie ii *

—

To establish the corpus delicti of robbery, the Commonwealth must

prove a theft by criminal means. Commonwealth, v. Tallon, 478 Pa.

468, 475, 387 A.2d 77, 81 (1978). Ia other words, the Commonwealth

bears a burden to show that the crime actually occurred.

The Commonwealth presented ample evidence, apart from the

appellant's own admissions, that Scott Blystone did in fact rob

Dalton Smithburger. Both of the young women in the car that night

testified that the armed appellant took thirteen dollars from

Smithburger. One of the women testified on this point as follows:

Q. (Prosecutor): Did Scott say whether or not

he took the money?

A. He didn't have no money on him before and

that is how he got the gas is with that money.

Q. With that thirteen dollars?

A. With that thirteen dollars ...

Thus the appellant's argument on this point is meritless.”

Apart from the sufficiency of the evidence supporting

this robbery conviction, the appellant asserts a second theory

which would render this felony harmless for the purpose of setting

the penalty for his murder conviction. Blystone argues that the

robbery of Smithburger was completed prior to the murder and since

8 am. 2 also pat y that trial counsel was

neffective for failing to argue and preserve any corpus delicti

issue relating to the robbery conviction. Since we have addressed

the substance of the egepus — issue in our review of the

sufficiency of the evidence, we will not consider the

ineffectiveness lain.

(J-33-88)-5

ee i

r e

the killing was not committed “while in the perpetration of a

felony,” 42 Pa.C.S. §9711(d)(6), he cannot be gqencenced to death. 10

This proposition is absurd.

The crime of robbery is clearly defined:

(1) A person is guilty of robbery if, in the

course bf coumeting a theft, he:

(i) inflicts serious bodily injury upon

another;

(ii) threatens another with or intentionally

puts him in fear of immediate serious bodily

injury;

(iii) commits or threatens immediately to

commit any felony of the first or second degree;

(iv) inflicts bodily injury upon another or

threatens another with or intentionally puts him

in fear of immediate bodily injury; or

(v) physically takes or removes property

from the person of another by force however

slight.

(2) An act shall be deemed in the course of

committing a theft" if it occurs in an attempt to

commit theft or in flight after the attempt or

commission.

18 Pa.C.S. 63701066).

The evidence concerning the robbery and killing was

uncontroverted. The appellant searched /his victim at gunpoint,

taking thirteen dollars; forced him to lie down; and instructed him

not to move unless he wished to die. Blystone then traversed the

short distance to his automobile, remaining there only long enough

to announce his murderous intent and gain the endorsement of his

companions. Meanwhile, Smithburger remained motionless on the

ground out of fear that Blystone would fulfill his deadly promise

should he resist or attempt to flee. Indeed, Blystone described in

detail how he instilled doubt in Smithburger's mind as to whether

his robber was merely a few feet away or fled the scene: “He never

moved. He thought I was there. I stepped around him, right, and I

walked a little bit in a circle and I stopped. I didn't make no

noise, and I said ‘don't think I am gone, mother-f----r,' and then

I £----- g tiptoed off, you know.” Upon his return from the

automobile Blystone killed Smithburger; only then did he flee the

scene. Thus, this robbery was not complete when Blystone took

Smithburger's money, nor when Blystone went to his car, but when he

successfully fled the scene after murdering his vict in.

Finding the evidence sufficient to support the con-

victicns, we turn our attention to what the appellant characterizes

as errors of the trial court. The appellant contends that these

rulings by the court tainted his trial in such a way that he must

be granted another. We address these rulings of the trial judge in

chronological order.

A particularly incriminating piece of evidence in the

Commonwealth's arsenal consisted of a tape recording of a conversa-

tion between the appellant and a police informant (See Appendix).

On the tape Blystone is heard to recall the Smithburger robbery and

homicide in lurid detail. Of course, the appellant attempted to

keep this evidence from the jury by means of a pre-trial

suppression motion.

: ,

r eel a, Mi ß e * r n 8 - 3

After a suppression hearing the trial judge denied the

appellant's motion and portions of the tape ve ge played before the

jury during trial. The court found the tape admissible because the ö

surveillance was conducted in compliance with procedures permitted :

under the Wiretapping and Electronic Surveillance Control act!! in 4

that the informant consented to wear a “wire”. 2 The Act provides

in pertinent part:

§5704. Exceptions to prohibition on interception

and disclosure of communications.

It shall not be unlawful under this chapter for:

(2) Any investigative or law enforcement officer

or any person acting at the direction or request

of an investigative or law enforcement officer to

intercept a wire or oral communication involving

suspected criminal activities where:

(ii) ome of the parties to the compunication

has given prior — = Ry such yoo

However, no intercept under this *

— — 2 in — Si |

act |

the Ten . or the district — 18 :

or an assistant district attorney designated 3

writing the district 11 the county

wherein interception is to made, has .

— 71 facts yt Ly --y that the : |

consent voluntary ven approva

for the interception; however such — N

shall de subject to the and record P

keeping s of section 5714(a) (relating ;

to recording of intercepted communications)

Lace of October 4, 1978, P. L. 831, No. 164, §2, 18 b

K Pa. C. 8. 15701 et seq.

1215 this instance the informant carried a tape recorder

as well as a body transmitter which enabled the police to remotely

monitor and record the conversation. wa

that the Attorney General, deputy attorney

general, district atto or assistant district

attorney authorizing the interceptiog shall be

the custodian of recorded evidence clltained

therefrom.

18 Pa.C.S. §5704(2)(ii).

The appellant argues that warrantless consensual

monitoring, as authorized by the Act, violated his rights as

guaranteed by Article 1, §8 of the Constitution of Pennsylvania,

which provides:

The people shall be secure in their persons,

houses, papers and possessions from unreasonable

searches and seizures, and no warrant to search

any place or to seize any — * or things shall

issue without describing t as nearly as may

be, nor without probable cause, supported by oath

or affirmation subscribed to by the affiant.

This argument has been recentiy accepted by the Superior

Court. Commonwealth v. Schaeffer, 370 Pa. Super. 179, 536 42d 354

(1567515 We, however, have not heretofore considered the matter.

A look at the history of wiretapping in this Commonwealth

reveals that the General Assembly has been cognizant of intrusions

into the personal liberties of our citizens. For instance, our

original statute dealing with the issue of wiretaps forbade any

1571 should de noted that 8 to the Superior Court's

38a (1987) ii . 396 4.26

(1987), lth had eccepted ition

the

3 dy Ilent. Se 348 Pa.

502 A.2d 679 (1985); 340 Pa. Super.

5i8, —_ A. 2d 438 (1985). 560

2 1309 (E. 5. Pa. 1983),

e, 745 F.2d 49 (34 Cir.

. Therefore, the trial judge? s | appellant’ s

position on this issue was consistent with precedent.

[J-33-88)-9

wiretapping unless all parties consented. /* However, the current

electronic surveillance statute strikes a balame between citizens’

legitimate expectation of privacy and the needs of law enforcement

officials to combat crime. In this regard the General Assembly has

provided safeguards to protect the liberties of the citizens of the

Commonwealth. For instance, the statute requires the Attorney

General, deputy attorney general designated in writing by the

Attorney General, district attorney, or an assistant district

attorney designated in writing by the district attorney, to make a

review of the facts of each case. Consent for the interception

must be given by one of the parties. The Attorney General, deputy

attorney general, district attorney, or assistant district attorney

must be satisfied that the consent is voluntary. Only then will

approval for the interception be given. In addition, the

intercepted communications are subject to strict record keeping

requirements. >>

Appellant contends, however, that despite these

safeguards the statute fails to pass constitutional muster. We

disagree.

A statute commands the presumption of constitutionality

when it is lawfully enacted, unless it clearly, palpably, and

plainly violates the constitution. Hayes v. Erie Ins. Exchange,

Act of July 16, 1957, P. L. 956, No. 411 §1, 18 f. 8

$3742. See — v. Papszycki. 442 Pa. 234, 27 2

(1971).

15222 18 Pa.c.S. §5714(a).

1 2661-10

— 3

. 0 ²⁰ ¹.m/⁰ͤ —ͤn-mg— ͤR——- .

493 Pa. 150, 425 4A. 2d 419 (1981); Tosto v. Pennsylvania Nursing

Home Loan Agency, 460 Pa. 1, 331 A.2d 198 (1975). Any doubts are

to be resolved in favor of sustaining the legislation. Hayes,

supra, at 155, 425 A.2d at 421.

In the area of electronic surveillance it has already

been established that one-party consensual interceptions do not

violate the Fourth Amendment. United States v. Caceres, 440 U.S.

741 (1979); United States v. White, 401 U.S. 745 (1971) reh.

denied, 402 U.S. 990 (1971) (plurality opinion). However, since

state courts are free to provide broader protections based on state

constitutional grounds than those provided by the federal

constitution, Cooper v. California, 386 U.S. 58 (1967) reh.

denied, 386 U.S. 968 (1967); Commonwealth v. Sell, 504 Pa. 46,470

A. 2d 457 (1983), the federal precedents are not controlling, and

consideration of our state constitution is required.

It has been held that the protection provided by Article

I, §8 of the Pennsylvania Constitution extend[s) to those zones

where one has a reasonable expect ton of privacy, Commonwealth v.

DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979) cert. denied, 444 U.S.

1032 (1980); amd that Article I, §8 creates an implicit right to

privacy in this Commonwealth. Commonwealth v. Platou, 455 Pa. 258,

312 4. 2d 29 (1973) cert. denied, 417 U.S. 976 (1974). To determine

whether one's activities fal) within the right of privacy, we must

examine: first, whether appellant has exhibited an expectation of

privacy; and second, whether that expectation is one that society

is prepared to recognize as reasonable. Commonwealth v. Sell,

supra; Katz v. United States. 389 U.S. 347, 360 (1967) (Concurring *

(J-33-88)-11

— ˙ w es ee P

Opinion, Harlan, J.); Commonwealth v. Tann, 500 Pa. 593, 459 4. 2d

322 (1983). 9

The United States Supreme Court has held that a person

cannot have a justifiable and constitutioneily protected expecta-

tion that a person with whom he is conversing will not then or

later reveal that conversation to the police. Lopez v. United

States, 373 U.S. 427 (1963) reh. denied, 375 U.S. 870 (1963);

United States v. White, supra; Hoffa v. United States, 385 U.S.

293 (1966) reh. denied, 386 U.S. 940 (1967). Furthermore, as noted

above, the Court has held that one party interceptions do not

violate the Fourth Amendment. United States v. Caceres, supra.

Basically, the Supreme Court has recognized the simple

fact that a thing remains secret until it is told to other ears,

after which one cannot command its keeping. What was private is

now on other lips and can no longer belong to the teller. What one

choses to do with another's secrets may differ from the expectation

of the teller, but it is no longer his secret. How, when, and to

whom the confidant discloses the confidence is his choosing. He

may whisper it, write it, or in modern times immediately broadcast

it as he hears it.

As applied to this case the above cited cases are

particularly significant for two reasons: one, the Pennsylvania

wiretapping statute is based on its federal counterpart, Title 111

of the Omnibus Crime Control and Safe Streets Act of 1968, 18

r 1 ee ee ee

U.S.C. 662310-20, 1e the latter of which was cited with approval by

the United States Supreme Court iv Caceres, ids at e, and two,

it is the federal body of law from which we derive our test for

determining what actions fall under the rubric of a privacy right,

Katz, supra, (Concurring Opinion, Harlan, J.).

Although, unless dictated by Supremacy Clause consid-

erations, we are not bound to follow the federal interpretation éf

the federal act or the federal constitution in the interpretation

of our state statute and/or constitution, we are in this case,

persuaded by the rationale behind those decisions. As Mr. Justice

White stated in the lead opinion in United States v. White,

II agent who conceals his

police connect may write down for official

use his conversations with a defendant and

them, without a warrant

his encounters with the defendant and

violating the latter's ey

„ no

instead

his

U.S. at 300-303.

different result is required if the

immediate sapere and

111 2.

(2) or carries

„ ;

2 N17 transmits

the conversations either to recording equipment

located elsewhere or to other agents monitoring

1 —— of = I f

without electronic equipment no

2 defendant's constitutionally

justifiable expectations of privacy, neither does

10% blic Law 90-351, Title 111, §802, June 19, 1968,

Stats. 213.

= „ 81 608 U.S. 41 (1972);

„ . ir. 1978). U

401 b. s. at 751.78 (these statements were cited with approval in

Caceres, supra, at 742-43).

Theretore, since we find no constitutional defect in the

statute, and since the Commonwealth in this case operated in

compliance with the statute, the appellant's vivid recounting of

the brutal murder of Dalton Smithburger was properly admitted.

Appellant next argues that the trial court improperly

sustained a Commonwealth challenge for cause of a prospective juror

because that juror's opposition to the death penalty did not

illustrate an inability to perform as a juror. The relevant voir

dire testimony follows.

ence in this case anc the aw 48 his Hono

‘uGge Acams. Will ZivV@ YOU. anc 48 4 member ©

mis Jury you Delievec that the death pena. t'

eg WOuULG you impose such 4 pena.’

Yes, it is.

[Prosecutor]: Challenge for cause.

[Defense Counsel]: I would object to the chael-

lenge based on her answer.

challenge for cause. We would overrule the

Mrs. (prospective juror), we would

(Emphasis added) . |

A determination of whether to disqualify s prospective

juror is made by the trial judge based on both that juror’s answers

as well as demeanor, and will not be reversed absent 4 palpeble

abuse of discretion. Commonwealth v. DeHart. S12 Pa. 235, 248. S16

4. 24 656, 663 (1986). cert. denied, v. 8. „ 107 S. ct. 3241

(1987).

The trial court clearly considered these criteria in

granting the Commonwealth's challenge.

a — _ EE

This court, as to Juror Number 102, had no

difficulty in reaching the decision that her

attitude and manner, as well as her words,

indicated she had personal and 2 beliefs

which would prevent and substantially impair her

performance and duty as a juror in accordance

with the court's instructions and her oath. It

is conceded that the court's dismissal for cause

was abrupt, and that more extensive questioning

would have placed an Appellate Court in a better

position to resolve the issue so far as the

printed record is concerned, but this court is

clearly of the opinion, based on the printed

record as shown, and the attitude and manner of

the juror as this court found it to be, that she

did not meet the standards set forth and was

properly excluded from the jury for cause.

Slip op. at 60-61. Though the trial court is apologetic for the

state of the printed record, that concern is unnecessary. For the

purpose of ruling on the Commonwealth's motion, the dispositive

questions were posed and answered as indicated by our emphasis.

This exchange shows this prospective juror could not carry out her

duty to follow the law as the trial judge would instruct and,

therefore, was properly excluded. Commonwealth v. Sneed, 514 Pa.

597, 526 A.2d 749 (1987); Commonwealth v. Peterkin, 511 Pa. 299,

513 A. 2d 373 (1986), cert. genes. U. 8. 107 S.Ct. 962

(1987). See Lockhart v. McCree, 476 U.S. 162 (1986).

The appellant's final assertion of error on the part of

the trial court concerns the testimony of the victim's father,

Dalton Charles Smithburger, Sr. Appellant argues that the trial

court erroneously permitted the Commonwealth to introduce testimony

of the victim's character, intelligence and propensity to follow

orders. The appellant contends that the impact of this testimony

was to create sympathy for the victim which was irrelevant for

purposes of determining the guilt or innocence of the defendant.

(J-33-88)]-16

r ie tl le Rio 6) i et ee ne e r

Initially, we note that the appellant has waived this

issue by failing to object to this specific 9 The sidebar

conference during which the appellant's trial counsel voiced his

objection follows.

[defense Counsel): We would stipulate to the

testimony of Mr. Smithburger if it is merely to

the fact that he identified the body as his son.

[Prosecutor]: I intend to offer him to testify

as to (1) when he last saw his son and (2) what

he was wearing and (3) where he made identifica-

tion of the body and also (4) what type of

student his son was. [parentheticals added)

(Defense Counsel): I would stipulate to the

testimony as to (3) his Cer his son, but

I don't see any relevancy to (1) the last time he

saw his son and (2) what he was wearing, and I

would object. [parentheticals added)

Judge Adams: Does the Commonwealth wish to call

him in light of the stipulation?

[Prosecutor]: Yes.

— Adams: We will permit you to call him. We

would overrule the objection.

It is apparent from this record that the prosecutor offered this

witness to address four factual matters. The appellant's trial

counsel was willing to stipulate to one of these points and

objected to two others. The fourth matter, which is the issue

here, was not opposed then or later and, therefore, has been

waived.

However, it is of little import that the appellant did

not technically preserve his objection because the substantive

argument supporting it is meritless. That argument points to the

following testimony as prejudicial to the appellant.

Q. [Prosecutor]: Mr. Smithburger, what kind of

student was your son?

(J-33-88)-17

~~ = a A ee ee oe ~ oe

A. Well, he went to Tech School and he passed

his welding class.

Q. How would you describe your son ~ was he a

troublemaker?

A. No, never a troublemaker.

Q. How was he as far as listening?

A. He listened pretty good.

a. se wére to tell him something, would

A. Yes, he would.

QO. I believe you told the police that he was in

special education?

A. Yes.

[Prosecutor]: I have no further questions.

Evidence which has the effect of arousing sympathy for a

crime victim is prejudicial and inadmissible when otherwise irrele-

vant. Commonwealth v. Story, 476 Pa. 391, 402, 383 A.2d 155, 160

(1978). In this case it is not apparent that the above testimony

had the threshold impact of evoking sympathy for the victim in the

minds or hearts of the jurors. The assessment of the trial court

was that the “testimony was delivered in a matter-of-fact tone and

was not done in a manner which would inflame the jury." Slip op.

at 36. The mere characterization of the victim as an individual

having a learning disability does not make his homicide more, or

less, heinous.

Furthermore, this evidence was probative of the victim's

passive nature and thereby lent credence to the Commonwealth's

account of events prior to his death. Specifically, evidence of

[J-33-88)-18

„ r N i a i,

the victim's passiveness served to explain, at least in part, why

Smithburger remained prone in the field while Rlystone was at his

automobile discussing with his companions the necessity of killing

him. The appellant himself in his taped statement admitted that he

was surprised by Smithburger's obedience.

It t I was going to have to chase him

thr the field when I went back. It hte

for sure this mother-f----r ain't going to lay

there, but I wanted to warn them - you know,

Jackie and George - 1 wanted to warn them that I

was going to waste him - I went back. I went

back just 1 1 this mother-f----r to be

through the fields. I had to laugh. f

The testimony of Mr. Smithburger, being more probative than

prejudicial, was properly allowed by the trial court. See |

Commonwealth v. Ulatoski, 472 Pa. 53, 63 n.11, 371 A.2d 186, 191

u. 11 (1977). See also Commonwealth v. Story, supra, at 402, 383

A.2d at 160.

In addition to allegations of error on the part of the

trial court, the appellant asserts that his trial counsel was

ineffective because he failed to investigate and present an alibi

defense. Blystone, represented by a different attorney, presented

this complaint to the trial court long after the jury rendered its

verdicts and set the appropriate penalty for the homicide con-

viction. After a post-trial hearing conducted to air this griev-

ance the trial court determined that appellant's argument was

meritless. We concur.

Initially, we note the appellant did not comply with the

mandatory notice provision of the rule governing the presentation

of an alibi defense, which provides:

C. Disclosure by the Defendant

[J-33-88)-19

ee /

(% Mandatory.

(a) Notice of Alibi Defense. defendant ‘

who intends to offer the defense of alibi at

trial shall, at the time required for filing the

omnibus pretrial motion under Rule 306, file of

record notice signed by the defendant or the

attorney for the defendant, with proof of service

upon the attorney for the Commonwealth, ify-

ing intention to claim such defense. notice

shall contain specific information as to the

lace or places where the defendant claims to

| been at the time of che alleged offense and

the names and addresses of witnesses whom the

— intends to call in support of such

claim.

Pa.R.Crim.P. 305.C.(1)(a). The consequences to a defendant who

ignores the notice provision are also made clear in the rule:

(d) Failure to File Notice. If the

defendant fails to file and serve notice of alibi

defense or insanity or mental infirmity defense

as required by this rule, or omits any witness

from such notice, the court at trial may exclude

the testimony of any omitted witness, or may

exclude yy F evidence offered by the

defendant for F the defense,

t testimony the def t, Or may grant a

DN r NN

order as the interests of justice require. |

Pa.R.Crim.P. 305.C.(1)(d). |

This was not, however, an instance in which the alibi

defense was barred simply because of a failure to comply with the

Rules of Criminal Procedure. Blystone chose to present no defense

whatsoever after the conclusion of the Commonwealth's evidence. At |

that point in the proceedings the trial judge conducted a colloquy

out of the jury's presence to ensure that the appellant understood

his right to advance evidence on his behalf. The appellant gave no

indication to the trial court that an alibi defense was feasible. |

Consequently, there was not even an opportunity for the court to

{J-33-88)} -20 1 es

abuse its discretion in the application of the alibi defense rule,

Pa.R.Crim.P. 305.C.(1).

Additionally, it is apparent from the record of the

post-trial hearing that Blystone s alibi was a fabrication. At

that proceeding the appellant waived the attorney-client privilege

of confidentiality existing between him and his trial counsel.

Trial counsel then testified that the testimony of the alibi

witnesses would be contrary to the facts as recited to him by

Blystone. In other words, the alibi witnesses would be perjuring

themselves. It was also apparent that Blystone did not tell his

trial counsel of the possibility of establishing his presence

elsewhere at the time of the crime until after the Commonwealth

rested its case.

During the post-trial hearing the trial court, through

its own diligence, went so far as to locate one of the appellant's

alibi witnesses and import her from West Virginia for the purpose

of testifying at the proceeding. After hearing the witness’

testimony, and juxtaposing it with that which she had rendered in a

separate prosecution arising from the same incident, the trial

court found the witness was not credible. Slip op. at 56.

This Court will not label counsel ineffective for failing

to suborn perjury. Therefore, the appellant's argument is merit-

less.

In addition to the claims already aired, the appellant

raises three arguments challenging the constitutionality of the

death penalty. One of these arguments is couched in terms of error

by the trial court. The appellant asks: “Whether the trial court

erred in denying the defendant's motion for an evidentiary hearing

to present testimony concerning the prosecut tom pr oiene ss of the

jury that convicted him?" To accept the appellant's contention of

error, would be to accept the worth of his substantive argument to

the effect that death qualified juries are prosecution-prone. We

will not do this. Commonwealth v. DeHart, supra, at 250-53, 516

A.2d at 664-665. See Lockhart v. McCree, supra.

The appellant next asserts that the death penalty statute

is umconstitutional under both the United States and Pennsylvania

Constitutions because of its mandatory language. The part of the

statute operative in this instance states: “the verdict must be a

sentence of death if the jury unanimously finds at least one

aggravating circumstance ... and no mitigating circumstance,” 42

Pa.C.S. §971l(c)(1)(iv). We will not dwell on this issue beyond

noting that the appellant's argument was expressly re“uted in the

case of Commonwealth v. Peterkin, supra, at 326-28, 513 K 2d at

387-88.

The appellant also argues that this Commonwealth's death

penalty sentencing statute violates his Eighth Amendment protection

a9 because the operative

20 is overbroad, arbitrary,

against cruel and unusual punishment

aggravating circumstance in this case

19 e Eigh ITL I..

1 „ I.

California, 370 U.S. 660 (1962), reh on 351 ae os 71962).

20 pertinent portion of the sentencing statute states:

(d) Aggravating circumstances. - Aggravating

(Footnote Continued) —

. (J-33-88)-22

a eo

and does not differentiate those murders which justify the penalty

from those which do not. e

The statutory procedure governing the imposit on of the

death penalty in this Commonwealth channels the discretion of the

sentencing body to prevent the arbitrary and capricious imposition

of capital punishment. Commonwealth v. DeHart. supra; Commonwealth

v. Zettlemoyer, supra. Since we have previously held that the

sentencing system on its face does not operate in an arbitrary or

capricious manner, Blystone cannot prove 3 violation of his

constitutional rights by mere assertions that other defendants h

were similarly situated did not receive ceath sentences. See

McCleskey v. Kemp, ___ U.S. ; , 107 s. ct. 1756, 1776

(19867), ge. denied, __ U.S. . 107 S.Ct. 3199 (1987). The

focus of his challenge must, therefore, be upon the sentencing

mechanism as it has been employed to render his death sentence.

A sentence of death is not merely the product of evidence

which supports a particular aggravating circumstance. The Common -

wealth must first prove beyond a reasonable doubt that an aggravat-

ing circumstance applies to the particular homicide. Thus, an

aggravating circumstance has no relevance in the abstract; it can

only be applied against an individual defendant by the particuler

Footnote Continued)

circumstances shall be limited to the following:

(6) The defendant committed a killing

while in the perpetration of a felony.

42. Pa.c.S. §9711(4) (6).

(3-33-88) -23

sentencing body weighing the evidence before it. Should the

fact-finder determine the Commonwealth has satigfied its burden of

establishing the aggravating circumstance, then, and only then,

does a penalty of death become cognizable. Therefore, the

establishment of an aggravating circumstance represents the

crossing of a threshold from a condition in which the sentencer

cannot render a verdict of death to one in which it must. 42

pa C. 8. §9711(c)(1) (iv).

However, an individual may thwart the imposition of the

death penalty by offering evidence of mitigating circumstances

concerning his charact *. record, and the circumstances of the

offense. 42 Pa.C.S. §97llie). Im this manner the fact-finder aay

consider any relevant circumstance that could cause it to decline

to impose the death penalty. A balancing of aggravating and

mitigating factors which favors the defendant cannot be reversed,

as that determination by the sentencing body is unreviewable. On

the other hand, « sentence of death produces an automatic appeal to

this Court in which we will curb abuses of the trial or sentencing

proceeding. *!

2line Sentencing Act provides:

th) Review of death sentence

(1) A sentence of death shall be subject to

automatic review a, Supreme Court of Pennsylvania

pursuant to its ru °

(2) Im addition to its authority to correct

errors at trial, the Supreme Court shall either affire

the sentence of death or vacate te sentence of death

(Footnote Continued).

There is no question that the death penalty may be

constitutionally imposed for a murder committed in the course of a

planned robbery. McCleskey v. Kemp, supra, at 110 $.Ct. at

1774; Gregg v. Georgia, 428 U.S. 153 (1976), reh. denied, 429 U.S.

875 (1976). Im thir case the jury expressly found this aggravating

circumstance to exist and, thus, Blystone's case rose above the

level below which the death penalty may not be imposed. Since he

refused to present any evidence of mitigation, there was nothing to

block that passage. Based on its finding that there existed one

aggravating and no mitigating circumstance the jury returned a

sentence of death. We find no fault with the sentencing body's

performance of its duty.

Finally, it is the practice of this Court to examine, sua

Sponte, whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

(Footnote Continued)

and remand for the imposition of a life imprisonment

sentence.

(3) The 22 Court shall affirm the sentence

of death unless it determines that:

(i) the sentence of death was the product of

passion, prejudice or any other

arbitrary factor;

(ii) the evidence fails to support the

— of an avat circumstance

if in tion (d); or

(iii) sentence of death is excessive or

di ionate to the ralty imposed

in Sint ler cases, censtéoving boon the

circumstances of the crime and the

character and record of the defendant.

42 Pa.C.S. §9711¢(h).

considering both the circumstances of the crime and the character

and record of the defendant. Commonwealth v. Frey. 504 Pa. 428,

475 A. 2d 700 (1984), cert. denied, 469 U.S. 963 (1984). In

examining this claim we emphasize that the statute requires a

verdict of death in those instances in which the jury finds one or

more aggravating circumstances and no mitigating circumstance, 42

Pa.C.S. §971l(c)(1)(iv). Thus, by the very terms of the statute

the death penalty cannot be considered excessive to the

circumstances of this defendant.

Further, we note that the continuing study of capital

cases maintained by the Administrative Office of Pennsylvania

Courts (AOPC) reveals that stone s punishment is not out of

proportion to that imposed on similarly situated defendants. 2

For the foregoing reasons, we sustain the convictions of

murder of the first degree, robbery, and criminal conspiracy to

commit those offenses. The sentences of death and ten to twenty

years imprisonment are affireed.??

Mr. Justice Zappala files a Dissenting Opinion in which

Mr. Justice Larsen joins.

majority of those prosecutions.

23 the the Western District is directed to

transmit to the Governor a full and complete record of the

rer of this case both in the trial court and this Court.

2 Pa.C.S. §9711¢(4).

OO SS

THE FOLLOWING IS AS THE TAPE WAS HEARD BY THE COURT REPORTER:

BLYSTONE : Do you remember the body they found along the road

next to the Redhead -- along the Brownfield Road’? Remember the

body they found?

MILLER: Huh-uh .

BLYSTONE : Smithburger -- found hie laying in a field shot six

times.

MILLER : I don't read the g paper.

BLYSTONE: Shot six times in the head.

MILLER: Six times?’

BLYSTONE : Six times in the back of the head.

MILLER: Must have been a strong son-of-a-b----, huh?

BLYSTONE : They found five bullets in his head and a fragment

of one and they said he hed on a blue suit, « three piece suit, and

lived up on the mountains, and they found him about a mile from the

Redhead. Remember’?

MILLER: Scott, I don t read che God damn paper.

BLYSTONE : Tell you what - go to the library.

MILLER: I em not going to no f-----g library.

Ry I. RRR Rig BAY BN

JUDGE ADAMS: The tape gets stronger as it goes along. You may

continue, officer.

OFFICER THEN CONTINUES TO PLAY THE TAPE, AND THE FOLLOWING IS THE

TAPE AS HEARD BY THE COURT REPORTER:

BLYSTONE : Me and Jackie -- you got to keep this quiet -- we

were out one night, and we didn't have any gmoney, and I had a .22

and I kept telling them that we got to get money. We tried all

kinds of s--- and that wasn't working so I said “f--- it - I's

going to just drive up and blow somebody's brains out and take

their wallet." George was with us. Don't burn me.

MILLER : You think I's going to f-----g go to the state cops,

man, and tell them “hey, look, and #11 this and that, I know this

about Scott Blystone.”

BLYSTONE : Don't even tell Jackie thet I told you this or

she'll f£-----g flip. Amyway, there's this guy hitchhiking (ineudi-

ble to ceporter) and it was about 11:00, and we picked his up.

Jackie is sitting in the middle, and so he got in, you know, and he

said he was going up over the mountains, and I said “that's where

we are headed.” I said “we need gas money” and he said “well, I

got a little bit.” You know how everybody says they got « little

bit.

MILLER: Yeh.

BLYSTONE : So I said “how auch you got?” He said “not thet

much but I can give you something for gas" and then we pulled up te

the foot of the sountain -- thet road thet turns off from Hopwood.

MILLER: Taste this aan. This is bed.

BLYSTONE : I pulled off and I said “I got to make sure, man,

before I go up this mountain ‘cause I ain't got gas to get back and

then what the f--- would I do.” .

MILLER: Wait « inte, you picked this guy up’

BLYSTONE : Yeh, in Hopwood on Route 40. I knew what I was

going to do. I told everybody what I was going to do.

MILLER: Before you did it?

BLYSTONE : Yeh. They thought I was bull-s------g. Everybody

thinks that Scott bull-s---s.

MILLER: Ain't that good apple pie’

BLYSTONE : Tt is pretty good.

MILLER : I told you you showld have got one.

BLYSTONE : You don't believe this, do you?

MILLER: Go ahead.

BLYSTONE : He said something that ticked we off. you know, like

“I can only give you « few dollars” or something like that. and so

I pulled the gun out and stuck it sround behind Jackie and I put

the gun to his head and I said “get your f-----g hands on the

dashboard,” and then I started reaching in his £-----g cost.

That's the part I got to leave out, thet and one other part.

MILLER: Did he have « gun?

BLYSTONE : Bo, but I thought he did, and I elmost splattered

hie right there in the cer. That's when the car was wrecked -- the

back end was real f----d up, real identifiable. I told everybody

what I hed to do. So (inaudible to reporter) I seid to bie “get

them on the dashboard, put thes up there” and then we went owt the

Brownfie'd Road and stopped for a second. I told George 1 said

“you get shold of him until I get out of the car and come sround to

the other side.” I didn’t went this sother-f----r to get out and

Tun, you know.

— — ——

MILLER: George was holding him in the car, huh?

BLYSTONE : George was scared to death. 7

MILLER: He held him there, didn't he?

BLYSTONE : F----- g right.

MILLER: He didn't?

BLYSTONE : I went around the other side of the car and put the

gun to him and said get out." I went back in the field with him.

“George, come on” I said, “help ne. George kept f----- g around.

Jackie told me that George was back there making excuses -- "I got

to light a cigarette” and just a minute” and (inaudible to report-

er) and “I'm getting out and all this s---.

MILLER: He was scared.

BLYSTONE : In the meantime I had him back there searching hin.

If found his money (inaudible to reporter) which wesn't f----- 8

much at all.

MILLER: How much was it?

BLYSTONE : I guess I can tell you because the cops wouldn't

know -- $13.00.

MILLER: $13.00?

BLYSTONE : Yeh, unlucky mother-f----r, it was a Friday and he

had $13.00. I said “where's the rest and he said “that's all 1

got. I told him “lay down,” and I said “you wait right here.

I'll be right back.” I said “don't move or I 11 blow your f-----g

brains out." He said "I ain't going nowhere.”

MILLER: You going to eat these fries?

F * Vr) a a ee a

BLYSTONE : No, go ahead. So then I ran back to the car. I

said “he has got (inaudible) -- I didn't know ,how much it was. I

said “he has got about $15.00 on him.”

MILLER: Ain't no wonder you don't want them, man; they are

f£----- g cold

BLYSTONE : I said “he can identify us - he was looking.” He

kept looking. I kept telling him close your f----- g eyes, you

mother-f----r."

MILLER: When he was down on the ground?

BLYSTONE : No, when he was in the car. He kept looking at

us, you know, and he was looking in the back seat and I said “shut

your f----- g eyes, man." He'd go (some sort of sound), and I said

“turn your f----- g head." He woula turn his head like that, and I

said “man, you're dead." So then I ran back to the car and told

them “I got to kill him," -- said “can everybody handle ic.”

MILLER: You left him there and you ran back to the car?

BLYSTONE : He never moved. He thought I was there.

(inaudible) I stepped around him, right, and I walked a little bit

in a circle and I stopped. I didn't make no noise, and I said

“don't think I am gone, mother-f----r," and then I f----- g tiptoed

off, you know. I told them I said “I'm going to kill him.”

Everybody said “yeh, go ahead, kill him,” - you know, so I f----- .

ran back there and got over top of him and I said “what kind of car

were you in tonight?" He said “I wasn't driving, man." He said 1

told you I don't have a car, and I said “what kind of car picked

you up?" He said “all I know is it was green and the back end was

wrecked.” I said goodbye and he tightened up, and I f----- *

appendix - 5

a 1 * — - 2 1 9

wasted him. Blood splattered all over me, and then I came running

back to the car -- jumped in the car. Jackie hed it in drive. I

shot him six times. You should have heard it, man -- pow, pow,

pow, pow, pow, pow. Brains started oozing out of this f---. Every ;

hole I would put in his head, brains would start oozing out each 7

time I shot him, right?

MILLER: Uh-huh.

BLYSTONE : I found brains on my nose. Jackie picked them off

my face that night. I jumped in the car, and the car wag f-----g

rolling. We went back to George's house and got the blood off 2e.

MILLER: I bet they was scared. They probably thought you

was bull-s------ g.

BLYSTONE : I know. It's like they didn't believe me. I had

blood all over me.

MILLER: Was George there?

BLYSTONE : Yeh.

MILLER: He was right there? |

BLYSTONE : No, he didn't get out of the car. He never got |

out of the car. Then I ran back, and I didn't say nothing to him

until later on and I said “man, you were supposed to be with me."

Then Jackie told me what he was doing - he was stalling. I left |

some evidence back there. When I was searching him I pulled out a:

pack of cigarettes and I picked up the pack with my bare hand. We |

sat around (inaudible).

MILLER: Pack of cigarettes?

BLYSTONE : I know for two hours we sat at the house. I sat |

there and I said “man, they can't get the footprints - there is 2

appendix - 6

_— — =

million out there." “There ain't no scrapings under his nails or

nothing, or under mine,” and I said “we got all,the blood off." 1

kept telling them “get that pack of cigarettes." I said “that's

the only thing that can get me." I said "f--- it ve are going

back down,” and then we ran out of gas - we ran out of gas out

there.

MILLER:

BLYSTONE :

MILLER:

BLYSTONE :

MILLER:

BLYSTONE :

MILLER:

BLYSTONE :

Where at?

Right after we went back.

You ran out of gas right there?

About 200 yards from it.

Back towards the gas station?

Uh-huh.

You didn't have far to walk then?

Huh-vuh. Anyway, we got back there, and 1 told

George -- I said “look, the place might be staked out." I said ve

are going to get out of the car like we are taking a p---," and I

said “I'll take you over to the body and stand there and just keep

talking -- bull-s------g" and then I said “you look over and notice

and say ‘hey, what's that

MILLER:

BLYSTONE

the car.

MILLER:

BLYSTONE :

MILLER:

You like that apple pie?

Uh-huh. So we get over there, right -- get out of

I'd like another bite of that mother-f----r too.

(inaudible to reporter).

You should have bought one of these. You should

have let me buy vou one.

BLYSTONE : We get out of the car, pull our d---s out and

start p-----g, and George says “what's that?“ N

MILLER: You didn't p--- on him, did you?

BLYSTONE : Huh-vh. George said “what's that -- look” and we

were talking nice and loud in case there was any cops in the

bushes. He said “right there” and I said 1 don't know” and I said

“my God, it looks like a body“ and George said no, man" and I said

“look, man, it is a f-----g body.”

MILLER: In case there was somebody around?

BLYSTONE : (inaudible to reporter) went back there and said

“if you ask me, George, 1 blew his head off, man.”

MILLER: (inaudible). ,

BLYSTONE : So he said “my God, we had better call the |

police.” I said “yeh, let's look for some I.D. and see if we can .

find out who he is." I started looking. I had this f-----g light

-- looking around. : .

MILLER: Just in case there was somebody around?

BLYSTONE : Right. I said “try to find some I. D. on him.” I

knew we were looking for the cigarette pack -- couldn't find it

nowhere. Then I remembered when he laid down - when I took the

stuff off of him, I threw it down in front of him. I threw it down

in front of him when he laid down -- he laid straight down.

MILLER: On his face?

BLYSTONE : I said “George, it must be under his f-----g body”

and we walked over. George put the light on this guy. I grabbed

him by his f----- g coat, pulled him up -- moved him up, and man, he

was nothing put a pool of blood. One eye was out and his f- 6

appendix - 8 —

eyebrows - his whole brow, man, was like real swollen -- looked

like somebody had beat him with a baseball bet, -- cheeks were all

swollen. There was holes in them and coming out of his throat, and

s---, his teeth were in the ground. They were blown in the ground.

MILLER: Big time, huh?

BLYSTONE : This f----r was done -- he was a f----- g mess. I

tell you he was drenched in f-----g blood. I picked the pack up

and I stuck it in. I said “man, let's call the police.” We jumped

back in the car, went back to the house, and waited all night.

MILLER: You took that pack of cigarettes off of him?

BLYSTONE : We smoked them. They had blood on the filters and

we smoked the f----- S cigarettes, and we waited right. We kept

waiting and waiting to hear something on the TV or the radio.

MILLER: Were they Kools, man?

BLYSTONE : No, I can't tell you what they were ‘cause that's

another thing too -- they were unusual.

MILLER: I don't give a f---.

BLYSTONE : Then we went back two or three hours later, right.

MILLER: Lou vent back three times?

BLYSTONE : Twice.

MILLER: Oh.

BLYSTONE : I killed him and then we went back for the

cigarettes, and (inaudible) -- So we went back to the house, right,

and we are sitting around listening and waiting -- just f----- 8

waiting. I think about --

MILLER: * went back to George's house’

BLYSTONE : Uh-huh.

appendix - 9%

a 2 6 ¶ » * = —

MILLER: After you done run out of gas?

BLYSTONE : Well, when we left there the ggcond time when we

got the f-----g cigarettes, we are going up the f-----g road and

the car goes (sound) -- oh, f---, gan, I put it in neutral and

drifted it as far as I could and then pushed it over to the gas

station, and then chis dude got us some gas downtown.

MILLER: You gust have been right up on top of the hill

then’?

BLYSTONE : Yeh -- so anyway, about 11:00 the next day --

MILLER: Because I know you and George can't push that car

up thet f----- ghill.

BLYSTONE : Not uphill, no. It drifted a good ways. I was

rolling. When I came out I was rolling. We were acting like we

found a dead body. So the next day we all went to sleep for three

or four hours, and got up and turned it on, and we were waiting and

waiting -- nothing, man -- no TV, no radio, nothing. They had to

find him. I said “they should have found him at the crack of

dawn." Finally on WPQR “we interrupt this” -- you know hc. they

bull-s--- -- “body of an unidentified man found” I der t even think

they said “shot to death” -- they said where he was - that he was

dead, and about an hour or so later then said that he was shot.

Then it came out n the papers that he was shot six times in the

head, and they kept talking about it on the radio.

MILLER: This next day?

BLYSTONE : Yeh. It was om TV and it was on the news -- 6:00

news. It was in the paper for about three days that the State

Police needed help in the slaying -- that a man was shot with a .22

caliber pistol six times in the back of the head slong Brownfield

Road, and that he was 6-3 and weighed, | ...

MILLER: Is that the gun we shot off ay porch’

BLYSTOME: .. I wasted hia, Miles. That mother-f----r, when I

got over him, I was down ----

MILLER: You still got that f-----g thing now’

BLYSTONE : That's why I told you I cowldn’t sell it - the

nur der weapon.

MILLER: I hope you got that mocther-f----r put away.

BLYSTONE : I buried it. I bent down over top of hie ---

MILLER : Up there at your dad's house’

BLYSTONE : In the woods. I put it down to his head, and when

1 shot, man, the barrel was only this far from his face. Every

time I fired, f g s--- would splatter in my f-----g face. I

got up and ran back to the car, but they didn't believe ic.

Everybody was real (inaudible) - real calm ‘cause all they could

hear was shots. We went back Jackie sew it -- couldn't have

been right from here to the car, ond when George lit that lighter

and I picked hia up, you could see his face and he looked like «

f----- g ghoul -- like « gummy or something. His face was all

{-----g swollen and bleck and blue. His eyes were clouded over.

His f-----g teeth -- blew all his f-----g teeth out, and about half

of his jaw came off, but nothing ever happened. Wobody ever came

to us. Nobody ever ask no questions - nothing -- it's an unsolved

mur der

MILLER. Men, oh, gan.

AT THIS POINT THE TAPE WAS STOPPED.

appendix - 11

BLYSTONE: What I am trying to tell you, man, is -- it's

easy It's f-----g easy, you know.

MILLER: To kill somebody’

BLYSTONE : To get away with it.

MILLER : Yeh, I guess so - like chat God damn.

BLYSTONE : It was wild. You shuld heave seen it. You should

have seen George give we that f look. He was standing there

p-----g. He was standing like thir and he was f-----g looking, you

know. (inaudible) When I turned him over I thought he was going to

(inaudible) boom, boom, boom 1 was ready to go agein.

MILLER: You had ic loaded up ein, buh’

LIST I would dave man. It was -- | was ready to 66

1 Seer Miles, this man is six feet. Jackie said -- when he put

his hand like this (ineudible), I seid “put your hands on your

head.” He put them like this and his f-----g hands curled clean

down over his knees.

MILLER: He was « big dude’

BLYSTOME : I said “don't you % 1 told him -- I seid

„111 splatter you all over this f-----g car.” He seid “I ain't

doing nothing.” 1 seid “don't you touch the doorknob - dort

touch wy girl.” 1 seid “don't you teke your hands off your legs or

111 waste you” ---- and when I told him “goodbye” ----

— 12 “

MILLER: He didn't try {-----g nothing -- he never trie to

get away or nothing’

ers rot No. t thought I was going to have to chase him

through the field when t went back. I thought for sure this

mother-f----t ain't going to lay there, but I wanted to warn chem

~~ you know, Jackie and George -- I wanted to warn them that I was

going to waste bin | went back. I went back just expecting

this mother-f----r to be (inaudible) through the fields. I had to

laugh.

MILLER: So when you came back to the car you just f-----g

said “I'm going to waste the mother-f----r", and when you went back

to him you said “I'm going to waste you” and he didn't --~--

at vs ro] No, I didn't tell him then.

MILLER: — f----9-g get up or nothing?

BLYSTONE ; I didn’t tell him then. I didn't cell him I was

going to waste him them. I asked him what kind of car he was in

and he said “wll I know ie it was green and it was wrecked in the

back.” I said “well, goodbye.” He tightened up -- tensed up. I

think he s--- himself. His whole body went rigid because I was

sitting on hin.

MILLER: You was sitting on hin’

BLYSTONE : Sitting on his beck, you know -- had my knees

across hie, and I told him “well, goodbye,” (inaudible) -- the

barrel, So I put it to his head and then pulled it off an inch and

then I said “goodbye.” He went like that, and that's the lest move

he made and I hit hia.

MILLER: He didn't wove after that’

MILLER: I guess not, man -- f-----g gta pieces of lead

LIST He never moved.

flying in your f-----g head.

BLYSTONE : Pow, pow, pow, pow, pow, pow. I jumped up, came

running beck. We went back to the house and Jackie said “what's

that on your face” and I seid “that a f-----g piece of his brain.” ö

She said, “oh, dy God, brains.” (inaudible) -- and was playing ,

with it and threw it in the ashtray -- had to wipe my face of --

nad to take a shower and soak ay clothes in cold water. You know

that number 12 football jersey I had, the white jersey with the

blue shoulders’

MILLER: Yeh.

BLYSTONE : That's the one I killed him in. I think I had

these pants on too I am not sure. These are jeans. I forget

what it was.

MILLER: God damm. You f-----g (inaudible) ---- you just

f-----g done it. You don't want none of this milkshake, do you?

BLYSTONE ; (inaudible) There ain't nothing te getting away

with something, you know. It's very easy. If you'd go ---

MILLER: Wait until I throw this s--- in the beck of the

truck, gen. I am not going to throw it down here. That's f-----g

ignorant. 1 11 give this sandwich to Rover. Remember Rover? 1

hope it f-----g blows out 11 them papers and #--- you know.

BLYSTONE If you know what you are doing, man, you can get

away with anything, including qurder. It ain't hard at 211

BLYSTONE. I knew the only Way I could get ‘aught is if

somebody talked, but nobody's going to talk ‘cause I'm going to

kill chem too.

MILLER: Yeh, no

BLYSTONE . George -- ever since then George has been like ---

MILLER: Ain't you afraid chat f-----g George might tell

somebody?

Is Trou No, see i told George that i'd waste him too. I

seid “I'll torture you.” I cold him I'd blow his f---~-~ 6 c--- off

and everything else if he opens up his south. Like (inaudible).

He is an accessory to murder. He went back there and touched the

body with me, and Jackie's an accessory.

MILLER: How did he touch it if he was holding the t

lighter?

BLYSTONE . He touched hie. He was feeling Freund on the

ground and around the body. I didn't want to touch it because of

the evidence but I thought that is where the other t- is. I

said “it's under his body.” When I took the s--- off of hia I

threw it on the ground, and then I told hie to lay down on the

ground, and he got down on his knees and got down. Sure enough it

was right there. I rolled hie over and it was under his f-----g

chest, end I said “we got it ~~ let's get the f--- out of here.

Let's go call the police and then tell them about this body.”

MILLER, You didn't call chem though?

(BACKGROUND NOISE - INAUDIBLE TO REPORTER)

BLYSTONE, You ednet going to say nothing about this?

MILLER: What the f--~ do you think ~~ even if I did.

(INAUDIELE TO REPORTER)

MILLER: You know, if I don't find « job pretty soon, san,

I'm going to f-----g go steal something. *

BLYSTONE. Murder is « real f-----g experience. It's wild. -

She thinks it's wild.

MILLER. Did she freak out?

BLYSTONE . Ne, she's all right. She was worried for a few

days. 1 was worried about her losing it, but she wasn't right

there when | wasted hin.

MILLER: She's still £-----g involved.

AT THIS POINT THE TAPE WAS STOPPED BY THE OFFICER AND ADJUSTED.

JUDGE ADAMS: You may start the tape.

BLYSTONE. George never believed we. When | used to say

“E'LL RiLL bam” he'd Look at ee like “yeh, sure, okay.” but now

when i tell George “hey, 1 11 Kill you, he looks at me like “this

sother-f----© is going to kill somebody.

MILLER. He thinks you are for real, ain't ic’

BLYSTONE. He chinks I's for reel.

MILLER. Theat you have the nerve!

BLYSTONE : When I tell hie that I'll Kill him, it don't eean

es going to “beat you up or hurt you; it seans I's going te bill

you,” and Jackie looks et ee different, you know.

MILLER. The only thing Ie really f----¢ up about, Scott,

is +--

PLYSTONE. It don t sabe you feel bed, Miles. It don't make

you feel like an ogre.

9 appendix - 16

——— — = — 8 po

MILire. You don't dream abou’ it or nothing. hub?

BLYSTONE: Bo. We leugh sbowt ic. Miles. it gives you «

realization that you cen do it, man. :

MILLER. And get away with ic.

BLYSTONE . You cen welk up and ---

MILLER. lL hope this 0 t your aon.

BSLYSTONE . You can walk and blow somebody's brains cut and

you know that you cen get away with ic. Tt gives you « feeling of

power. self-confidence, you know. Like. I sean I had ccufidence in

myself before because I did it. but Jackie and George they had

doubt im their @inds and I said “the sother-f----c does this, 1 0

going te kill hie.” but now when I say it te thee ---

MILLER You just did it te prove it te thee’

BLYSTONE . No, it was necessary. The guy could identify us.

you knew. It prowed « point et the same time. He saw ay face,

Jecke s face, George's face. and he saw che car, you knew, and we

talked to his for five minutes before | ewen pulled the gun. and he

wee looking ot ws and all this «---.

MILLER. Theat freaks ge cut. gan. thet he didn't even cry

to get away.

SLYSTONE. Re was so scared. When I was searching bie, his

body was shaking.

MILLER. He acted like he wes stupid. man.

BLYSTONE. He @ight heve tried te get away. you knew, bet

like I seid, | walked away from bie out to where I could walk

without lin ne noise. and I steed there for « ainute -- stood

there, and I didn't aake « sound and he didn't gowe, aan. Then I

made a noise and said “don't tink I'm gone.” I said "I'm righc

here. You move and I 11 kill you.” Then I went back to the car

and I said “look, I got to go back there and kill him,” and I said

“does anybody have any f----- g beefs," --- no, kill hin.

MILLER Everybody said “kill hia,” huh?

BLYSTONE Yeh. I ran back to the f----- g guy and bent over

him.

MILLER: And George even saic "kill him?”

BLYSTONE : Yeh, George said “kill hia.”

MILLER: God damn.

LIS TONE And Ik g killed him --- got back in the car

MILLER: You think he wouldn't say nothing because he

didn't even want to go out with you.

BLYSTONE : He wanted to come. He run his mouth, like I am

saying.

MILLER: He didn't want to go the second time?

BLYSTONE : To go back to see the body, yeh, he wanted to, but

once he saw the body he realized. I don’t know where he though the

blood might have come rom his brains, or you know, but it

didn't him him, and when he was standing there p s. Miles, his

eyes were like ---

MILLER: Glued on the guy?

BLYSTONE: He'd look at the guy and then look at me --

(inaudible) and then when we lifted him up and George seen

(inaudible).

MILLER: He gust have had a lot of blood on him, all over

his clothes and

— — 18

s *,

;

* *

BLYSTONE : Right -- Slew his eye out -- it was all over him.

MILLER: You should have took his jacket, man, to keep your

ass warm (inaudible). I would have if I'd killed so somebody, man

(inaudible).

BLYSTONE : (Inaudible), and like I said, the weirdest thing

was his f----- g eyebrows. It looked like somebody took this f----r

and beat him with a baseball bat in the face. The concussion, man,

from them bullets hitting him from the back and ‘then coming up and

slamming against his skull and cheekbones and s--- and roof of the

mouth, it looked like something off of a horror movie, -- a mon-

ster. His eyebrows were out to here, bis g cheekbones were

out to here, his nose was real swollen and part of it was blown off

- his teeth were gone. It blew his teeth - you could see his

teeth sticking in the ground.

MILLER: Wasn't the wind blowing or anything that night to

blow the f----- g light out in your lighter?

BLYSTONE : It didn't blow it owt. We both had a lighter. We

were looking around like we were looking for 1.D., but we wasn't.

MILLER: God damm (inaudible).

BLYSTONE : I saw the jacket Dalton Smithburger -- but

don't tell nobody because they might be related, you know. A guy

might blow your f-----g head off for just talking about.

MILLER: Yeh, I imagine -- no s---.

BLYSTONE : He lives up in Farmington, I think. He lives up

on the mountain somewhere -- Farmington, Chalk Hill, or

Markleysburg.

appendix - 19

) —

MILLER: Dd he freak out when he seen you vasn't taking

him up over the mountain?

BLYSTONE ; Yeh, when I saw him there on that road there I was

checking him out, you know, and I pulled over and he said “heading

for the mountain“ and I said “hey, we are going up there too” and

he said “that's good" and I said “but look I need some cash” and he

said “well, I don't have much money.” I pulled off down that road

and then I said “look, if I go up this mountain I got to have some

money because I won't be able to get back.” I said “I don't mind

taking you up but ..."

MILLER: When did you put the f----- g gun on him, man?

BLYSTONE : I'll tell you. I told him I was going to take him

up because we were going ourselves, but I said “we got to have a

way back, and he said “well, I got a few dollars on me," and I

said “I don't know.” He said "I can give you a few for gas and

then he started getting in his jacket and then I reached around ;

Jackie and I said “put your f-----g hands on the dashboard,” and he .

said “oh, oh“ and I said “put your f-----g hands on the dashboard.”

I kept telling him, I warned him -- I said “the more you open your

eyes, the more trouble you are going to be in.” He kept f-----g |

trying, man. He kept sneaking looks. He'd see a lightpole coming

by, you know, through his eyelids, and he would look up and look ;

around to see where le was, and I said “mother-f----r, shut your

f-----g eyes, man." I knew when I pulled the gun I was going to :

kill him (inaudible). He saw the back of the car, you know.

MILLER: When did he do that?

BLYSTONE : When we picked him up. He came from the back and

he could see it was a green Dart with a a f----- g demolished rear

end, and that ain't hard to f-----g identify, ‘and t told everybody

- I said “look, if I would have killed that mother-f----r, we would

be in jail right now." (Inaudible) All the guy had to do -- he

didn't have to say it was a Dart or Dodge. All he had to do was to

say a green car with a mashed rear-end and they would pick me up as

the driver.

Mi LER Yeh, ‘cause there ain't none around.

BLYSTONE : Yeh, take me in front of him and he will say

“that's the g guy right there - the guy who robbed me," so I

told them the only think to do was to f-----g kill him. I said “do

you want to end up in jail?" Believe me, if he was alive we'd all

be in jail for armed robbery (inaudible). That's why I don't want

to f--- around any more. If I think that mother-f----r is going to

identify me, or his being alive is going to hope me get caught or

if I ain't going to have time to get away or something, I'm going

to kill him. Then I know I can take my time. The next job I am

thinking about doing - if I murder this guy, my intention is to dig

@ grave, but it was getting dark, and you called and Jackie called.

1 was going to dig one because I am ready to do the job which would

help get my house, my apartment, have enough money for Christmas

and (inaudible).

MILLER: Il wish the f--- you'd have sold me that gun, man.

You f-----g blew my job of making ten or twenty bucks.

BLYSTONE ; Miles, I can't. It is a f-----g murder weapon,

you know.

MILLER: It ain't doing no good out there, man.

BLYSTONE: No, but (inaudible) rather it not be used.

MILLER: ‘ Them guns, man -- (inaudible! there is a left

twist and there is 4 right twist, okay?

BLYSTONE; Most is right-twist.

MILLER: How many of them is there around that's got a

right twist or a left twist? I mean, God damm, man, how in the

hell can they match that up?

BLYSTONE : They have records of those bullets, okay. They

did an autopsy on the guy. They have prints of those bullets,

okay, in the unsolved crime files. Every time that a .22 is

confiscated, they are going to try to mateh it to whe fired it, and

they match it. When they match it whoever has thet gum is going

to be charged with murder.

—

MILLER: How in the hell do you know if you got « right

twist or a left twist?

BLYSTONE : Most guns have a right had twist. Very few gune

have a left-hand twist. (Inaudible) have them. Most of them is

right, but the bullet is it really don't matter - right or

left-hand twist. More what they look for is rifling grooves; you

got (inaudible) grooves plus a firing pin. Every firing pin hits «

case at a certain spot, like off-center, to the left, to the right,

low or high or (inaudible) takes a certain shape of impression.

With an automatic, with a .45 - a let of people don't know this --

when you chamber « .45 you throw your clip in there - chamber one,

and that fires - well, if you fire or whatewer, when you eject chat

f-----g thing, you leave what is called “chamber marks" on your —

casing. They can identify -- they can watch the gun up with the

chamber it came out of with the bullecs just by the little

scratches and s--- because every chamber puts “a different mark on

it -- every firing pin puts a different mark (inaudible). A lot of

people think “well, 1 11 change the barrel and they will never

know,” but they will match the firing pin and the chamber,

especially in an automatic. Same thing with bolt rifles. If you

had @ microscope, you could look, chamber six or seven rounds, jack

them out and line them up on a microscope and see if they all match

up, scrape marks, everything.

MILLER: So even if they did find that gun let's say

they did find that God damm gun I am getting ready to take off,

man.

BLYSTONE : I want to take a >---.

MILLER: Even if they did find the gun -- that's not saying

that they can f----- @ watch it up according to what they say.

BLYSTONE : They can.

MILLER: They can -- how?

BLYSTONE : What they do, they have it on file, man; it is

like an x-ray.

MILLER: Inaudible.

BLYSTONE : What they do is when they got a murder, they will

take pictures of the bullets.

MILLER: Inaudib.e.

BLYSTONE ; (Ineudible) ---- and every time they find « .22,

and they confiscated it for gurder, it will go to the unsolved

cases (inaudible) with 22 They are going to go through the .22 ’

appendix - 2)

; we 8 * *

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unsolved murders and they are going to fire a bullet into those

ballistic (inaudible) and all they got to do -- they probably got

20, 30 unsolved .22 murder cases, right -- they just take it and

check it, and when they get one, you are --- (inaudible).

MILLER: I'm going to take off. man (inaudible) -- I don't

know whether it does amy good whether I go home or not. aan. I[ go

home and she's (inaudible) and I go to Frank's, you know what 1

mean, because she is always there. Either she is there, or I go

there and Frank and them tell me that she just left, and I know

they are lying, you know what I mean - I know they are lying

because I'll sit up the road sometimes and smoke a cigarette

because I figure that I'm going to go home and she is not going to

be there. and then tell me bull-s--- like chat, and guaranteed,

man, I've stood up the road and smoked a cigarette. Didn't you see

her? Bull-s---; that's bull-s--- ean.

AT THIS POINT THE OFFICER TURNS OFF THE TAPE.

1433-1988

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, No. 37 W.D. Appeal Dkt. 1986

Appellee Appeal from the Judgments of

Sentence of the Court of

Common Pleas of Fayette County,

Criminal Division, at Nos. 2,

2 1/4, 2 2/4 & 2 3/4 of 1984

entered on April 17, 1986

SCOTT WAYNE BLYSTONE,

ARGUED: March 9, 1987

REARGUED: March 7, 1988

Appellant

DISSENTING OPINION

JUSTICE ZAPPALA FILED: OCTOBER 17, 1988

Because I disagree with the majority opinion's

conclusion regarding the constitutionality of the Wiretapping and

Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et. seg.

I must dissent.

Since the majority sets forth the actual provisions of

the Act, it is only necessary to summarize the Act. Under the

Act, with the consent of a participating individual, the

government may electronically eavesdrop upon a person using a

body tap upon the approval of the Attorney General, the District

Attorney or their enumerated authorized agents. Noticeably

missing from the Act is 2 requirement that a disinterested

judicial officer review the facts to ascertain whether probable

cause exists for the intercept. It is the failure to provide for

the later requirement which causes me to conclude that this part

of the act is unconstitutional. ‘he consensual interception.

—

authorized by § 5704 amounts to a search and seizure requiring

either a warrant o: probable cause as required by Article I,

section 8 of our Constitution. N

There is no question that the interception of an oral

communication is considered a “search and seizure” as those terms

are constitutionally defined under both the federal and state

constitutions. See, Katz v. U.S., 389 U.S. 349, 19 L. Ed. 20 576,

88 s. Ct. 307 (1967); Commonwealth v. White, 459 Pa. 84, 327 A. 20

40 (1974). As the majority correctly points out, in interpreting

the Fourth Amendment's protection against unreasonable searches

and seizures, the United States Supreme Court has taken the

approach that one party consensual interceptions do not violate

that provision since an accused waives his “expectation of

privacy” by conversing with another party. In short, the United

States Supreme Court and the majority can discern no difference

between communicating with the police informant who in turn

reports to the police and surreptitiously recording the

conversations directly by interception. This analysis embodies

the propos iti e that the key factor to be considered in a wire

intercept is whether the individual has a “legitimate expectation

of privacy" and whether he has waived that expectation by

disclosing information to any other party. While on the surface.

the majority's reliance upon the federal court's position seems

to have merit, closer analysis reveals that blind adherence to

this proposition is erroneous.

[J-33-1988) -2

In its rush to adopt federal jurisprudence to support

its position, the majority merely pays lip service to the

admonitions of Mr. Justice Brennan of the united States Supreme

Court which we heeded and embraced in Commonwealth v. Sell, 504

Pa. 46, 49, 470 A. 2d 457, 459 (1983):

[T]he decisions of the Court are not, and

should not be, dispositive of questions

regarding rights guaranteed by counterpart

provisions of state law. Accordingly, such

decisions are not mechanically applicable to

state law issues, and state court judges and

the members of the bar seriously err if they

so treat them. Rather, state court judges,

and also practitioners, do well to scrutinize

constitutional decisions by federal courts,

for only if they are found to be logically

persuasive and well-reasoned, paying due

regard to precedent and the policies

underlying specific constitutional

guarantees, may they properly claim

persuasive weight as guideposts when

interpreting counterpart state guarantees. 8

In refusing to adopt the United States Supreme Court abolition of

"automatic standing” under the Fourth Amendment of the Federal

Constitution in Sell, we reaffirmed our prior holding that the:

state may provide through its constitution a

basis for the rights and liberties of its

citizens independent from that provided by

the Federal Constitution, and that the right

so guaranteed may be more expansive than

their federal counterparts. (Citations

omitted)

——

Commonwealth v. Tate, 495 Pa. 158, 169, 432 4. 20 1382, 1387

(1981). In Sell, we then analyzed the federal case law limiting

standing under the Fourth Amendment against the evolution of

protected liberties guaranteed by Article I, section 8 of our own

[J-33-1988) -3

constitution and had no problem in rejecting the federal analysis

of “automatic standing" under our comparable constitutional

clause.

It is also important to note that in Commonwealth v.

Sell, supra, we upheld the overriding importance of "privacy"

under our constitution:

In construing Article I, section 8, we find

it highly significant that the language

employed in that provision does not vary in

any significant respect from the words of its

counterpart in our first constitution. The

text of Article I, section 8 thus provides no

basis for the conclusion that the philosophy

and purpose it embodies today differs from

those which first prompted the Commonwealth

to guarantee protection from unreasonable

governmental intrusion. Rather, the survival

of the language now employed in Article I,

section 8 through over 200 years of profound

change in other areas demonstrates that the

paramount concern for privacy first adopted

as a part of our organic law in 776

continues to enjoy the mandate of the people

of this Commonwealth.

504 Pa. 65, 470 A. 2d 467. Thus, unlike our federal counterparts,

the right to privacy has been elevated to 4 paramount right

guaranteed to every citizen of this Commonwealth. This paramount

status was even acknowledged by the legislature in defining an

"oral communication" under the Act.

"Oral communication." Any oral

communications uttered by a person possessing

an expectation that such communication is not

subject to interception under circumstances

justifying such expectation.

[J-33-1988] -4

18 Pa.C.S. § 5701. If a person has a legitimate expectation of

privacy, that paramount right should not be infringed upon

without a corresponding justification. *

Both the majority and the United States Supreme Court

adher to the view that a “person cannot have a justifiable and

constitutionally protected expectation that a person with whom he

is conversing will not then or later reveal the conversations to

the police.” (Citations omitted) (Slip Opinion, p. 12). The

majority adopts the federal rational without offering any

persuasive argument for doing so. Under the majority view, a

person could never be sure of having a confidential conversation

with another. Communicating in and of itself would waive any

right of grivacy. As is evident, such an approach has a chilling

effect, rzlegating the right of privacy to nothing more than a

useless ideal which could a be exercised when one is alone.

1 find comfort and support for my position in this

appeal from a recently decided decision of the Supreme Court of

Oregon. See Stare of Oregon v. Roger Jonathan Scott Campbell,

306 Ore. 157; 1988 Ore. LEXIS 400 (filed July 12, 1988); Accord,

Commonwealth v. Bl „ 400 Mass. 61; 307 2d 1029 (1987)

(Similar Massachusetts interception statute held unconstitutional

as being unreasonably intrusive to impose risk of electronic

surveillance on every act of speaking aloud to another person).

In Campbell, the court was faced with the question of whether or

not under its state constitution, police use of a radio

[3-33-1988] -5

transmitter to locate a private automobile to which the

transmitter had been surreptitiously attached is a “search or

seizure”. In rejecting the state's argument that the court

should embrace the decisions of the United States Supreme Court

which validated such a use, the court boldly disassociated itself

from the United States Supreme Court's decisions allowing such a

monitoring, United States v. Knots, 460 U.S. 276, 103 S. Ct.

1081, 75 L. Ed. 20 55 (1983), ane United States v. Karo, 468 U.S.

705, 104 s. Ct. 3296, 82 L. Ed. 20 530 (1984) because the United

States Supreme Court's interpretation in those cases did not

comport with the intecpretations of the Oregon Supreme Court

regarding search and seizure and privacy protection as set forth

in Article I, § 9 of the Oregon Constitution. After finding that

privacy is an interest protected by Article I, § 9 of its state

constitution the court discussed blind adherence to federal

jurisprudence.

Even were the provisions identical, this

court would nonetheless be responsible for

interpreting the state provision

independently, though not necessarily

differently. Majority opinions of the

Supreme Court of the United States may be

persuasive, but so may concurring and

dissenting opinions of that court, opinions

of other courts construing similar

constitutional provisions, or opinions of

legal commentators. What is persuasive is

the reasoning, not the fact that the opinion ;

reaches a particular result. (Emphasis

supplied)

Oregon v. Campbell, 1988 Ore. LEXIS 400 at p. 6.

After a thorough review resulting in the rejection of

the United States Supreme Court's reliance on reasonable

[J-33-1988) -6

a search.

expectation of privacy analysis, the Oregon Court considered the

that information legitimately available through one

means may be obtained through any other means vithout engaging in

In the court's poignant rejection of that premise it

determined that:

{t)he constitutional provisions against

unreasonable searches and seizures do not

protect a right to keep any information, no

matter how hidden or private“, secret from

the government. (Citations omitted) What

the provisions forbid are unreasonable

searches and seizures, i.e., certain acts of

the government. Article I, section 9

"presents the police with a web of rules that

are meant to protect the privacy interests of

"the people“, and the police violate section

9 if and only if they violate these rules.

aa v. Tanner, 304 Ore. at 320. Whether

police conduct is a search does not turn on

whether its object could be discoverec by

conduct that is not a search. For example,

in ae v. Lewis, ra, the defendant

expos mse to public view through his

living room. This Court held that the police

officers did not engage. in a search by

photographing him from a house across the

street with a 135 m.m. camera lense, which

provided only minimal enhancement of what

could be observed with the unaided eye.

7 . . Vv

—

1 E 1 14 ch had 12 4

living room to observe what could be

from th milarly, an undercover

po invited into a home and

observes illegal conduct, the officer has not

committed a search, but an unconsented entry

into the home by other police officers to

observe what the undercover officer could or

did not observe sou-g te 2 searc’. The issue

is not whether at the police learned by

using the transmitter in this case was

"exposed to public view", but whether using

the transmitter is an action that can be

characterized as a search.

[J-33-1988] -7

The problem presented by this case is

essentially much like that presented'jin Katz,

which was whether using a hidden listening

device placed in a public place could be

considered a search. Conversations in public

may be overheard, but it is relatively easy

to avoid such eavesdroppers by lowering the

voice or moving away. Moreover, one can be

reasonably sure of whether one will be

overheard. But if the state's position in

this case is correct, no movement, 90

location and no conversation in a “public

place" would in any measure be secure from

the prying of the government. There would in

addition be no ready means for individuals to

ascertain when they were being scrutinized

and when they were not. That is nothing

short of a staggering limitation on personal

freedom. e could not be faithful to the

principles underlying Article I, section 9

and conclude that such forms of surveillance

were not searches.

Id. at p. 12.

Even accepting arguendo, the majority's logic regarding

the expectation of privacy, I am perplexed as to why 4

conversation between two nonconsenting persons is entitled to all

the protections embodied in the federal amendment while a

conversation with one consenting to eavesdropping does not. If

the key element is the expectation of privacy, then the consent

of one participant is insufficient. Unlike the majority, I fail

to see the distinction between having the consent of one

participant or none as the polestar in guaranteeing a fundamental

right. Furthermore, I cannot accept the majority's conclusion

that one who communicates to another does so at the expense of

his privacy rights. Implicit in the right to privacy is the

[J-33-1988] -8

right to determine who benefits from your knowledge. Knowledge

is as much a possessory right as the right to possess and protect

our homes and personal property. An individual then may desire

not to expose his inner thoughts or ideals to the public at large

which he may not trust, but only to selected individuals. of

course, he takes the risk that a friend may betray him and his

confidences, but that risk is one that he individually and

knowingly assumes. Under such circumstances, he voluntarily

chooses to limit his privacy.

Finally, taking the majority's reasoning to its logical

extreme, if there is no- difference between directly intercepting

oral - and receiving and recording information from

an informant, then there will be no difference in directly

probing and tapping the innermost thoughts of individuals in the

future with the advent of more sophisticated electronic

equipment. If the ends justify the means and the goal is to

prevent criminal activity at the expense of individual liberties,

then, under the majority's interpretation, I see no way to

prevent intercepting thoughts even before they are orally and

publically communicated.

Accepting the importance of the right to privacy, as

the majority must, the issue still becomes whether che

governmental intrusion is reasonable, not whether an individual

possesses an expectation of privacy. We have specifically

rejected the United States Supreme Court's analysis of the

15-33-1988] -9

legitimacy of privacy as a key element in interpreting Article I,

section 8 of this Commonwealth's Constitution. Instead, we have

held that our primary concern is the reasonableness of the

intrusion. Commonwealth v. Sell, supra.

In other areas of criminal law we have consistently

held that a warrantless search or a search pursuant to a warrant

must be based upon probable cause. To ensure an objective

determination of whether the intrurion is supported by probable

cause, we have required a disinterested judicial officer to

review the facts either preliminarily, in the case of a search

pursuant to a warrant, or subsequently, in the case of a

warrantless search, to determine if sufficient facts were present

to establish probable cause that criminal activity was occurring.

This neutral determination suffices to protect a person from an

unjustifiable intrusion. Under § 5704(2)(ii), however, the

legislature has impermissibly taken the “probable cause”

determination from the judiciary and given that determination to

a law enforcement official who cannot be said to be either

neutral or detached. In Commonwealth v. Johnston, 515 Pa. 454,

530 A. 2d 74 (1987), we specifically rejected the approach now

taken by the majority in balancing the individual and

governmental interests to be protected in determining whether a

search was reasonable. Instead, we held that a —

that probable cause existed for the search supported a finding

that the search was reasonable. Without such a neutral

determination the search would be unreasonable.

[J-33-1988] -10 *

Based upon the foregoing analysis, I cannot accept the

constitutionality of § 5704 of the Act. I am cognizant of the

principles that a statute is presumed to be Constitutional and

that the legislature does not intend to promulgate

unconstitutional legislation. 1 Pa.C.S. §1922(3). However, when

a statute so blatantly ignores a liberty entrenched in our body

of laws for over 200 years, that presumption must necessarily

fall. Unlike the Sup*rior Court's approach in Commonwealth v.

Schaeffer, — Pa. Super. 536 A.2d 354 (1987), I cannot in

good conscience redraft the statute to include a requirement so

basic to our system of justice to achieve a desired result. See

1 pa. c. S. § 1921(b). It is clear to me that given the importance

of the right to privacy in our jurisprudence, as even

acknowledged by the legislature in this Act, 1 cannot conclude

otherwise than that the legislature did not intend for a

disinterested objective determination of probable cause prior to

intercepting oral communications. See 1 pa. c. s. 5 1921(a).

Therefore, I would find Section 5704 unconstitutional and remand

this matter to the trial court for a new trial during which the

information obtained pursuant to the Act would be suppressed.1

Mr. Justice Larsen joins in this dissenting opinion.

1. President Judge Cirillo of the Superior Court has

written a rather lengthy and scholarly opinion on this issue in

ponmonwealth Vv. schaetter ra. Except for his reasoning on

the constitutionality o 5 of the Act, I note with approval

his analysis of the issue and would incorporate his opinion into

this one.

[J-33-1988] -11

Co tl SO Oe * 2

oad r e ee nr

COMMONWEALTH, : IN THE COURT OF COMMON PLEAS OF

FAYETTE COUNTY, PENNSYLVANTA

vs. : CRIMINAL DIVISION

SCOTT WAYNE BLYSTONE, : NOS. 2 of 1984, 2 1/4 of 1984,

2 2/4 of 1984, and 2 3/4 of

Defendant. : 1984

OPINION

ADAMS, J.

A Fayette County Criminal Court Jury found the

defendant, Scott Wayne Blystone, guilty of the charges of

murder in the first degree, robbery, criminal conspiracy to

commit homicide, and criminal conspiracy to commit robbery.

Following the sentencing hearing, the jury unanimously

sentenced the defendant to death.

Jeffrey W. Whiteko, trial counsel for the defendant,

(hereafter referred to in this opinion as "trial counsel"), timely

filed a motion for a new trial and motion in arrest of judgment.

Subsequently, the defendant maintained that trial counsel

was ineffective at trial. Trial counsel, with the consent of the

defendant, was permitted to withdraw, and the court, with the

approval of the defendant, appointed Samuel J. Davis (hereafter

referred to in this opinion as “post-trial counsel”) to represent

the defendant on all issues raised by the defendant, including

ineffectiveness of trial counsel.

Trial counsel in his motion for new trial and motion

in arrest of judgment alleged the following: ‘

1. ‘The trial judge erred in denying the defendant's

motion to suppress communications and evidence since the

APPENDIX A

Commonwealth failed to establish probable cause to permit the

wiretapping of defendant's conversation.

2. The District Attorney should not have permitted

the wiretapping of defendant's conversation since it was not

demonstrated that the informant was reliable.

3. The itle on Wiretapping is unconstitutional and

violates the defendant's right of privacy assured by the Fourth

and Fifth Amendments to the United States Constitution.

4. The District Attorney's Office should not have been

permitted to issue warrants for wiretapping this particular

defendant's conversation since the said office cannot be an

independent source to judge the evidence when it has a strong

interest in the outcome of the cases.

5. The defendant's Fourth and Fifth Amendment rights

were violated since the District Attorney's Office did not have

probable cause to issue the warrant.

6. The informant's consent vas not given voluntarily

and thus defendant's motion to suppress the communication and

evidence should have been granted.

7. The trial judge erred in not sequestering those

jurors selected during voir dire since the case was highly

publicized in the media.

8. -The trial judge erred in not sequestering the jury

during the trial because of the adverse trial publicity. Said

adverse publicity was highly prejudicial against the defendant

during his trial.

9. The publicity brought forth by the media during

defendant's trial was highly prejudicial against the defendant.

10. The publicity concerning the trial of a co-defendant

was highly prejudicial to the defendant.

ll. The defendant's case was prejudiced when Commonwealth

witness, Neil Christopher, referred to the 22 caliber handgun

as the “murder weapon.”

12. The defendant's case was highly prejudiced when

Commonwealth witness, Jacqueline Guthrie, twice referred to

defendant's criminal record.

13. The trial judge erred in permitting the Commonwealth

to introduce into evidence a .22 caliber handgun since it failed

to establish a chain of custody.

14. The verdict was against the weight of the evidence

since the testimony of Jacqueline Guthrie and Barbara Clark were

contradictory.

15. The verdict was against the weight of the evidence

since the Commonwealth failed to prove the identity of the voice

on the tape beyond a reasonable doubt.

16. The trial judge erred in permitting the media to stand

directly behind the jurors during the playing of a tape.

17. A juror should not be challenged peremptorily by the

Commonwealth simply because that juror is against the death penalty.

18. The death penalty is unconstitutional because it

constitutes cruel and unusual punishment under the Eighth Amendment.

19. The trial judge should have permitted defense counsel

to introduce evidence to establish mitigating circumstances,

although the defendant was against such a decision.

Defendant's post-trial counsel filed supplemental

motions for new trial and motions in arrest of judgment setting

forth the following reasons:

1. That the present situation does not present

circumstances in which the death penalty is appropriate, and

its imposition shocks one's sense of justice, and said death

penalty should be overruled by the trial court and a term of life

imprisonment imposed.

2. That the defendant's right to a jury consisting of

a fair cross-section of the community, as guaranteed by the

United States and Pennsylvania Constitutions, was denied because

the trial court allowed the prosecution to challenge for cause

those potential jurors who had conscientious, moral or religious

reservations about imposing the death penalty.

3. That the defendant was denied his right to effective

assistance of counsel by trial counsel's failure to use a

peremptory strike to eliminate the juror, Battaglini, from the

jury after the defendant's chal" ze for cause as to said juror

was denied.

4. That the jury's verdict of guilty on the robbery

charge was against the evidence and the weight of the evidence

in that insufficient evidence was presented regarding the taking

of any of the victim's property.

5. The trial judge erred in failing to instru t the

jury specifically that the corpus delecti of the crime of

robbery must be made out by independent evidence aside from the

defendant's admissions or confessions concerning said offense.

6. That the defendant was denied his right to effective

assistance of counsel in that his trial counsel failed to object

to the charge of the Court which neglected to clearly state the

corpus delecti requirement for the charge of robbery.

7. That the evidence adduced at trial did not

sufficiently prove the corpus delecti of the crime of robbery.

Specifically, there was a lack of independent and substantial

evidence concerning any theft of the victim's property.

8. That since the verdict of guilty on the robbery charge

returned by the jury was erroneous, then the death penalty vas

improperly imposed by the jury in that the robbery formed the

sole aggravating circumstance found by the jury.

9. That the defendant was denied his right to effective

assistance of counsel in that his trial counsel disregarded his

specific ingtructions regarding the questioning of the prosecution

witness, Jacquelie Guthrie.

10. That the defendant was denied effective assistance

of counsel by trial counsel's failure to make a motion in limine

to require the Court and prosecutor to caution all prosecution

witnesses to avoid any mention of the defendant's prior record.

Said failure resulted in three instances in which prosecution |

witnesses mentioned or implied that the defendant had been involved

in prior criminal activity.

ll. That the procedure by which the alleged coaversaticn

of the defendant was tape-recorded violated the defendant's

rights to privacy and self-incimination guaranteed him by

Article I, Section 8, of the Pennsylvania Constitution.

12. That the procedure by which the alleged conversation

of the defendant was tape-recorded violated the defendant's N

—

rights to due process of law as guaranteed by the Fourteenth

Amendment to the United States Constitution, and Article I -

Section 1 of the Pennsylvania Constitution, and his right to

be heard in a criminal prosecution secured by Article I, Section 9,

of the Pennsylvania Constitution. .

13. That the defendant was denied his right to effective

assistance of counsel by trial counsel's failure to attempt to

rehabilitate jurors who expressed reservations concerning the

imposition of the death penalty.

14. That the defendant was denied his right to effective

assistance of counsel by trial counsel's failure to call any

alibi witnesses on his behalf, despite his knowledge of the same.

15. That the defendant was denied his right to

effective assistance of counsel by trial counsel's failure to

properly investigate the existence and possible testimony of

the defendant's alibi witnesses.

16. That the defendant was denied his right to effective

assistance of counsel by trial counsel's failure to object and

request a cautionary instruction when a witness mentioned or

implied the existence of the defendant's prior criminal record.

17. That the defendant was denied his constitutional

right to a fair trial by the three references by two separate

witnesses which mentioned dr implied the existence of the defendant's

prior criminal record. In addition, the defendant was denied

his right to effective assistance of counsel by trial counsel's

failure to move for a mistrial when the references to the

defendant's prior criminal record were elicited before the jury.

18. That the trial judge erred in allowing the

victim's father to testify concerning the victim's character,

intelligence, and propensity to follow orders. Said testimony

was irrelevant or in the alternative was so highly prejudicial

to the defendant as to outweigh its slight relevance.

19. That the aggravating circumstance on which the

jury based its death sentence finding is unconstitutional in

that it is over-broad and bears no reasonable relationship to the

determination of the appropriate penalty for defendant's

conviction of first degree murder.

20. That the three references by two Commonwealth

witnesses to the defehdant's criminal record improperly tainted

the death sentence determination by the jury.

21. That the trial court erred in denying the defendant's

motion for an evidentiary hearing to present testimony concerning

the prosecution proneness of the jury that convicted him.

22. That the defendant was denied his constitutional

right to effective assistance of counsel by his trial counsel's

failure to raise any prosecution proneness objections at pretrial

or during the trial of the case.

A hearing was held April 12, 1985 on the allegations

of ineffectiveness of trial counsel. Several areas of ineffective-

ness of trial counsel, not specifically enumerated in defendant's

supplemental motion for new trial and motion in arrest of

judgment were also raised.

The court will deal with each allegation and, where approximately 6:00 p.m. on that date and 2:00 or 3:00 in the

appropriate, combine those issues that are related. morning of September 10, 1983 the defendant, Scott Wayne Blystone

was in the company of Jacqueline Guthrie, Barbara Clark, and

1. HE VERDICTS OF GUILTY OF MURDER IN THE FIRST DEGREE WITH THE George Powell (hereinafter in th’s opinion Scott Wayne Blyst

IMPOSITION OF THE DEATH PENALTY, ROBBERY, CONSPIRACY TO COMMIT will be referred to as “Blystone,* Jacqueline Guthrie as

MURDER, AND CONSPIRACY TO COMMIT ROBBERY WERE AGAINST THE 4 eGuthrie,° Gerbera Clask es “Clerk,* end George Sewell cs

WEIGHT OF THE EVIDENCE. i Povel) t

j The test of the sufficiency of the evidence is whether, f * san: 120

after the Court has reviewed all of the evidence in the light ee ee 6 ee , eee eee

Minti-Hart“

most favorable to the Commonwealth and has drawn all reasonable * ＋ꝙꝗ⁊ꝛ—262— 2 Cg

"AM-PM Mini-Mart," they drove east from Uniontown on Route 40

to Hopwood.

At approximately 12:00 midnight, as they approached

inferences therefrom in favor of the Commonwealth, the evidence

i is sufficient in law to enable a jury to find each and every |

element of the crimes charged beyond a reasonable doubt.

Commonwealth vs. Carter, 329 Pa. Super. 490, 495, 496, 478 K. 24 1286,

1288 (1984); Commonwealth vs. Nelson, 320 Pa. Super. 488, 491,

467 A. 2d 638, 640 (1983).

. A new trial will be granted on the grounds that the 1

' Blystone said "I am going to pick this guy up and rob

verdict is against the weight of the evidence only where the

him, okay, Barbie?" (TT 5-B) Barbie said “yeh, okay, go ahead,

| the area of the Pizza Hut” situate in Hopwood, Blystone observed

a young man hitchhiking. The Commonwealth established that the

hitchhiker was Dalton Charles Smithburger (hereinafter in this

opinion referred to as “Smithburger") . ,

verdict is so contrary to the evidence as to shock one's sense

4 of justice. Commonwealth vs. Jensch, 322 Pa. Super. 304, 313,

469 A. 2d 632, 637 (1983).

Whether to grant a new trial for this reason is committed

I don't care," and Powell said “yeh, it's cool." (TT - 6-B)

Blystone stopped the car and asked Smithburger if he wanted a

ride. Smithburger was not known by any of the parties but was f

to the sound discretion of the trial court. g nwealth vs. described as “tall with dark hair and wearing a light blue suit

and black shoes."

Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982);

Commonwealth vs. Jensch, supra, at 313, 469 A.2d at 636. Blystone asked Smithburger if he had any money, to

Applying this standard, the Commonwealth established which he replied that he only had three dollars.

‘ |

that on the evening of September 9, 1983 between the hours of

: 8 |

_ —— 8 ‘ e

= r . — 4 1 ‘A A. 7) _

- 1

Blystone turned off Route 40 toward Little Brownfield.

He then pulled a gun which he had been carrying all evening and

pointed it to Smithburger's head. Blystone ordered Smithburger

to close his eyes, put his hands on the dashbdard and look

ahead. Smithburger complied. Smithburger then opened his eyes.

Blystone started to yell at him. de said “I told you once, you

mother fer, if you don't keep your f'n eyes closed I will blow

your f'n brains out." (TT + 7-B)

Blystone again asked Smithburger how much money he had

and again Smithburger stated that he had three dollars. Blystone

told Smithburger “you are only going to lose your money, not

your life.* (TT 88)

When they arrived at the Little Brownfield area, Blystone

got out of the car, walked around the car, took Smithburger out

of the car, and walked with him into a nearby field. Blystone

returned in five minutes without Smithburger. He asked what he

should do "kill the boy or what because he can ler us."

(TT - 9-B). Guthrie shrugged her shoulders and Powell said

"do what you have to do. (TT - 10-B)

Blystone left the car and shortly thereafter six shots

were heard. The time was approximately 12:30 a.m. When

Blystone returned, he said “it was thrilling.” (TT-10-B)

Blystone then drove to the “Hi-To Gun Club,” where he

stopped and told Clark, Guthrie and Powell that he would kill all

of them if they told. (TT - 11-B) From there they proceeded

to Powell's apartment where Blystone laid money on the stand and

said that he had gotten 813.00 from the boy.” (TT - 12-B)

At this time Blystone described what had happened.

Blystone said he made Smithburger lie face down and that before

he shot him he asked him what kind of car he wee in, and

Smithburger said all he knew was that he was in a green car

and it was smashed in the back -- in the rear — and then he

said “bye-bye” and then shot him. (TT - 12-B) .

The Commonwealth further established that sometime

around the 12th of December, 1983, Miles Miller (hereafter in

this opinion called Miller“) contacted the Pennsylvania State

Police stating that he had received information from Powell

that Blystone had killed a man in Brownfield and had taken $13.00

from him. Powell told Miller that he, Blystone, Guthrie, and

Clark were present when the killing occurred.

On December 15, 1983, District Attorney Gerald R.

Solomon met with Miller, Sergeant George R. Fayock of the Pennsyl-

vania State Police, Trooper Roy Fuller of the Pennsylvania State

Police, Trooper Robert V. Teagarden of the Pennsylvania State

Police, and Assistant District Attorney Ralph C. Warman.

After reviewing the State Police file, Mr. Solomon and

Mr. Warman met privately with Miller. Miller related the same

information to the District Attorney and Assistant District

Attorney that he had previously related to the State Police

concerning the information he had received from Powell relating

to the homicide. 5

Miller voluntarily agreed to have a body wire placed

on his person without any promise, threat or coercion, and on

December 12, 1983, executed a memorandum of consent to be wired.

The District Attorney executed a memorandum of approval as

required by the Act. ,

Trooper Robert V. Teagarden, a n of the Pennsylvania

State Police for approximately fifteen years, specializing in

undercover work and electronic surveillance work, had an

A-Certification for electronic surveillance and wiretapping which

authorized him to monitor the conversations where one party had

consented to have the conversations intercepted and recorded.

An electronic recording device was placed on Miller

by Trooper Teagarden, which received and electronically recorded

the conversations.

In addition, there was a transmitter placed on Miller

which transmitted conversation with Blystone to a recording

device in a van of the police officer that would receive and

record the conversation.

Miller met with Blystone and their conversation concerning

the homicide was recorded. .

The conversation of Blystone and Miller is as follows:

"BLYSTONE: Do you remember the body they found along the road

next to the "Redhead" -- along Brownfield Road? Remember the

body they found?

MILLER: Huh- uh.

LTS TONE: Smithburger — found him laying in a field shot six times.

MILLER: I don't read the fucking paper.

BLYSTONE: Shot six times in the head.

A-74

+e Spa +. de F

‘= =" a, Be a Me a pi i ee ly

MILLER: Six times?

BLYSTONE: Six times in the back of the head.

MILLER: Must have been a strong son-of-a-bitch, huh?

BLYSTONE: They found five bullets in his head and a fragment of

one and they said he had on a blue suit, a three piece suit,

and lived up on the mountains, and they found him about a mile

from the Redhead. Remember ?

MILLER: Scott, I don't read the God damn paper.

BLYSTONE: Tell you what -- go to the library.

MILLER: I am not going to no fucking library.

BLYSTONE: te and Jackie -- you got to keep this quiet -- we

were out one night, and we didn't have any money, and I had a

22 and I kept telling them that we got to get money. We

tried all kinds og shit and that wasn't working so I said

‘fuck it - I'm going to just drive up and blow somebody's

brains out and take their wallet.’ George was with us.

Don't burn me. ö

MILLER: You think I'm going to fucking go to the state cops,

man, and tell them ‘hey, look, and all this and that, I

know this Scott Blystone.'

BLYSTONE: Don't even tell Jackie that I told you this or

she'll fucking flip." (TT - 100 - 101)

The recorded statement further revealed that Blyst.ne stated he

picked up Smithburger in Hopwood along Route 40. He knew what

he was going to do and he told everybody what he was going to do.

He told Smithburger that in order to go up the mountain where

Smithburger wanted to go that Blystone needed gas money.

Smithburger said "well, I got a little bit." (TT - 102)

This “ticked” the defendant off when he said "I can only give

you a few dollars,” (TT - 102) so he pulled 8 the gun and put it

to Smithburger’s head. Blystone told Smithburger get your

fucking hands on the dashboard.” (TT - 103) Smithburger

started to reach in his coat. Blystone said that Smithburger

didn't have a gun, but he thought he did and that he almost

splattered him right there. (TT - 103)

Blystone took Smithburger out of the car at gunpoint

and took him into a field. He found $13.00 on him. He took

the money from Smithburger and told him to lay down" and "you

wait right here. I'll be right back. Don't move or I'll blow

your fucking brains out. (TT - 104) Smithburger said

"I ain't going nowhere." (TT 104)

Blystone returned to the car and told Guthrie, Clark

and Powell that Smithburger could identify him. Blystone said

"I got to kill him. Can everybody handle it?" Everybody said

"yeh, go ahead, kill hin.“ Blystone went back to Smithburger

and asked him what kind of car picked him up. Smithburger

replied "all I know is it was green and the back end was wrecked."

(TT - 105) "I said goodbye, and he tightened up and I fucking

wasted him. Blood splattered all over me. I shot him six times.

You should have heard it, man. Pow, pow, pow, pow, pow, pow.

Brains started oozing out of this fuck. Every hole I put in

his head, brains would start oozing out each time I shot him. I

found brains on my nose. Jackie picked them off my face that

8 Fa 8

e wn , 1 * oS were A-76

r ee ee | ee ee

night." (TT -105)

Blystone and the others went back to Powell's house

for about two hours. While there Blystone reqlized that he

had handled a cigarette pack with his bare hands, so they went

back to the site. Blystone told Powell "I'll take you over to

the body. In the event anyone was observing Blystone and

Powell, they pretended to accidentally discover the body.

Blystone said to Powell “look, man, it is a fucking body,”

and they walked over. George put the light on this guy. “I

grabbed him by his fucking coat, pulled him up - moved him up

and, man, he was nothing but a pool of blood. One eye was out

and his fucking — — his whole brow, man, was like real

swollen -- looked like somebody had beat him with a baseball bat

cheeks were all swollen. There was holes in them and coming out

his throat and, shit, his teeth were in the grounc. They were

blown in the ground.” (TT - page 107)

Blystone stated that nothing ever happened and it was

an unsolved murder. He stated that it was easy to kill someone

and get away with it. He further stated, “murder is a real

fucking experience. It's wild.” (TT - 113) He boasted,

"George never believed me. When I used to say „111 kill him,’

he'd look at me like ‘yeh, sure, okay, but now when I tell 7

George ‘hey, 1 11 kill vou, he looks at me like ‘this motherfucker |

is going to kill somebody.” (TT - 114) "when I tell him that

I'll kill him, it don't mean I'm going to ‘beat you up or hurt you;

it means I'm going to kill you. (TT - 114) "And Jackie

looks at me different, you know." (TT - 114).

—

—— r

Judith Menner, who lives near Brownfield close to the

1 * 4

Blystone further stated it don't make you feel bad, | 1 „ n , testified that she heard

Miles. It don't make you feel like an e, and in res

ogre, ponse nshots at approximately 12:30 a.m. on the morning of September 10,

9 to a question from Miller, “you don't dream aout it or nothing, ‘ 9 *

‘ 1983. (TT - 9)

a a

‘ huh?", Blystone replied “no, we laugh about it. Miles, it gives ö or. Manuel Pelaez, the pathologist, performed an

1 „ |

you a realization that you can do it, man. You can walk up and | eines ial rger which revealed six gunshot wounds in the i

5 * * — , back of the head of Smithburger which, according to the patholo-

with it. It gives you a feeling of power, self-confidence, you 1 TT - 20)

gist, was the cause of his death.

* 2 Smithburger was killed with a .22 caliber handgun.

Miller identified the voice on the ta s t of

| N e ee | Blystone was carrying a .22 caliber handgun on the night of the

' Blystone, and also testified as to what Blystone had told him as

; . killing.

to the murder of — Miller's testimony in court was ee chased 0 in silent and did not testify

totally consistent with that which was presented on the ta

‘ N <4 nor offer any evidence during the trial of the case, and he

(although not in as 2 detail). elected to remain silent and did not offer any testimony during

The testimony of Guthrie and Clark was corroborated :

4. the sentencing phase of the trial.

by the testimony of Arthur Richard Evans, a bartender at the | tui tb en ing phase of the trial he refused to

* a

Hopwood Tavern" in Hopwood, Pennsylvania, that Dalton Charles — counsel to call any witnesses on his behalf despite

Smithburger, who was known to Mr. Evans, left the tavern on the 7 him

N wie ’ the efforts » his trial counsel and the court to encourage

' evening of September 9, 1983 at approximately 11:30. At that

to do so.

time Smithburger took with him a quart bottle of beer in a paper- | 5 t will discuss each of the verdicts of guilty

in turn.

Gina Marie Mathieson testified that she saw the victim

— * 8

in the "Pizza Hut Restaurant in Hopwood around midnight. She 1 0 ER IN THE FIRST DEGREE AGAINST TH® WEIGHT

described Smithburger and stated that he left the "Pizza Hut" ‘

OF THE EVIDENCE?

carrying a Pepsi-Cola in a papercup, and that she saw him walk

in the direction of Route 40. (TT - 7) Saal sylvania Crimes Code, 18 P.S.C.A., Section

2502(a), the definition of murder in the first degree is as follows:

; me 4

"Criminal homicide constitutes murder

of the first degree when it is committed

by an intentional killing.

An intentional killing is defined

under (d) of the section as follows:"

Killing by means of poison, or by lying

in wait, or by any other kind of willful,

deliberate, and premeditated killing.”

Clearly the evidence presented by the Commonwealth

would enable the jury to find beyond any reasonable doubt tat

Blystone killed Smithburger by shooting him six times in the back

of the head during the commission of the crime of robbery, and

that he did so willfully, deliberately, and with premeditation

and with malice.

Blystone's purpose in picking up Smithburger was to

rob him. He announced his intention to do so and did in fact

rob him.

Thereafter, because Blystone was fearful that Smithburger

might identify him and other occupants of the car, he announced

his intention to kill Smithburger and did so by firing six shots

into the back of his head.

The Commonwealth's case was established by eye witnesses

who were present and who testified as to events leading up to

the robbery, and upon recorded statements of Blystone as to his

role in the murder, as previously set forth in this opinion.

There is no question in this court's mind that the Common-

wealth produced evidence beyond a reasonable doubt which would

justify the finding of the jury that he was guilty of murder in

the first degree.

3. WAS THE VERDICT OF ROBBERY AGAINST THE WEIGHT OF THE EVIDENCE?

Blystone maintains that the jury,s verdict on the

robbery charge was against the weight of the evidence for the

foliowing reasons: Insufficient evidence was presented with

regard to the taking of any of Smithburger's property; no corpus

de lecti of the crime of robbery was made out; and it was improper

to introduce Blystone s admissions or conversations that

he did in fact rob the victim since no corpus delecti of the crime

of robbery had been proven.

Under the Crimes Code, robbery is defined as follows:

"(1) A person is guilty of robbery if, in the

course of committing a theft he

(i) inflicts serious bodily injury

upon another;

(ii) threatens another with or

intentionally puts him in fear

of immediate serious bodily

injury;

(iii) commits or threatens immediately

to commit any felony of the first

. or second ;

(iv) inflicts ly injury upon

another or threatens another with

or intentionally him in fear

of immediate bodily injury; or

(v) ically takes or removes property

rom the — of another by force

however slight.

(2) An act shall be deemed “in the course of

committing a theft“ if it occurs in an

attempt to commit theft or in flight after

the attempt or commission.”

18 Pa. Cons. Stat. Ann., Section 3701

We would first note that, contrary to Blystone's contention,

it is not necessary, in order to convict of the crime of robbery,

that the Commonwealth must prove beyond a reasonable doubt that

anything was in fact taken from the victim. The statute provides:

—

"An act shall be deemed in the course

of committing a theft if it occurs in an attempt

to commit theft.* 18 Pa. Cons. Stat. Ann.,

Section 3701

It is well settled that before the Commonweal fh may introduce a

confession or admission of guilt made by the accused, it must

be first established by independent evidence that a crime has been

committed. Commonwealth vs. Fried, 327 Pa. Super. 234, 239, 475

A. 2d 773, 775 (1984) (citing numerous cases supporting this

proposition). However, while the corpus delecti rule requires

that the Commonwealth establish through independent evidence that

a crime has occurred before the admission of the accused may be

admitted into evidence, it does not require that the corpus

delecti of the crime be proven beyond a reasonable doubt.

Commonwealth vs. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980).

The preliminary burden of proof by the Commonwealth is slight,

and it is for the trial judge to decide when the Commonwealth

has sustained its burden establishing the corpus delecti. Once

the trial judge has done so, the Commonwealth may admit the

statements and admissions of the defendant to meet the ultimate

burden of proof beyond a reasonable doubt that the defendant has

committed the crime, in this case the crime of robbery.

Blystone was charged with homicide as well as the

crime of robbery. The Commonwealth established the corpus delecti

of homicide when testimony was introduced to show that Smithburger

was found dead in an isolated area where he had been taken by

Blystone at gunpoint, having been shot in the head six times.

Once these facts had been established by the Commonwealth, the

admission of Blystone that he had committed the murder are

admissible to prove the crime of murder, and his statement that

he murdered Smithburger during the course of the robbery so

that the victim could not identify him is also admissible to

show motive, intent, malice, and that the r was committed

in the course of committing a felony.

Blystone is not challenging the admissibility of

1 but maintains that

his statements on the charge of homicide,

although the statements are admissible to prove homicide, his

statement that he committed a robbery is not admissible unless

independent of the homicide the Commonwealth is able to establish

a corpus delecti of robbery. This is an interesting argument

but this Court rejects it.

Once the Commonwealth makes out a corpus delecti of

the homicide, the statement of a defendant that he killed the

victim in the course of a robbery is admissible not only to

show that he did kill the victim but also that he did so while

in the course of a robbery.

It is not necessary to prove independent of the

confession that the death occurred during a felony. Commonwealth

vs. Weeden, 457 Pa. 436, 444, 322 K. 2d 343, 348 (1974);

Commonwealth vs. Leamer, 449 Pa. 76, 83-84, 295 A.2d 272, 275

(1972). Com. vs. Coley, __ Pa. Super. _, __, 504 A. 24 1286, 1290(19%

Further, the crimes of murder and robbery arose from a

single transaction and had in common the killing of Smithburger.

Blystone is however challenging the use of the statement that

Blystone robbed the victim to establish an aggrava

circumstance justifying the ition of the death

as will be later on this opinion. Blystone

also seeks to suppress his taped statements.

—— —— 2 ....

Thus Blys tones statement describing the single criminal incident

during which both of the crimes occurred was admissible as to

both once the corpus delecti of murder was esfablished.

Commonwealth vs. Steward, 263 Pa. Super. 191, 197, 397 K. 2d 812,

814 (1979).

In any event, there was ample evidence presented by the

Commonwealth to establish a corpus delecti of a robbery.

The evidence of the Commonwealth established, independent

of all the statements of Blystone, that he robbed Smithburger.

Blystone observed Smithburger standing along Route 40. He

picked him up and inguired of him as to whether he had any money.

Blystone became irritated when Smithburger told him he only had

three dollars. Blystone then pulled a gun, placed it to

Smithburger's head, told him to shut his eyes and place his

hands on the dashboard, and told him that he was only going to

Lose his money, not his life. He then drove the car to an

6 isolated area, removed the victim from the car at gunpoint, took

him into an open field, and six shots were heard. Blystone

returned without Smithburger and subsequently showed his

companions thirteen dollars that he did not have prior to picking

up Smithburger. This establishes a corpus delecti of robbery

beyond a reasonable doubt, at which time the statements of

Blystone are admissible on the issue of robbery. These statements

established in detail that Blystone intended to find a person to

rob, that he made a statement prior to picking up Smithburger

that he intended to rob him, and that he killed him in the course

of the robbery to prevent Smithburger from identifying him.

. . = * 5 5 i |

eee ee ee eee _

Applying the standard, the test of the sufficiency

of the evidence, as previously set forth, this court is of the

opinion that the evidence is sufficient in law to enable a jury

to find each and every element of the crime of robbery beyond

a reasonable doubt.

WAS THE VERDICT OF CONSPIRACY TO COMMIT ROBBERY AGAINST THE

WEIGHT OF THE EVIDENCE?

WAS THE VERDICT OF CONSPIRACY TO COMMIT MURDER AGAINST THE

WEIGHT OF THE EVIDENCE?

(a] A person is guilty of conspiracy

with another person or persons to commit

a crime if with the intent of promoting

or facilitating its commission he:

(1) agrees with such other person or

persons that they or one or more of them

will in conduct which constitutes

such cr or an attempt or solicitation

to commut such crime; or (2) agrees to

aid such other person or persons in the

planning or commission of such crime or

of an attempt or solicitation to commit

such crime. eee

e No person may be convicted of

conspiracy to commit a crime unless an

— = in ah. racy

is alleged proved to have been

yO aa ee”

* * * q P. C. S. A. Section 903.

As to the charge of conspiracy to commit robbery, the

Commonwealth established that Blystone, as he was driving on

Route 40 toward Hopwood with Powell, Guthrie, and Clark, saw

Smithburger, the victim, hitchhiking along the road. Blystone

sa d to Clark "I am going to pick this guy up and rob him,

okay, Barbie?" Barbie replied, “yeh, okay, go ahead, I don't

care” and George said “yeh, it's cool." (tT - 5B) (TT - 6B)

{

Blystone then picked up Smithburger, drove off Route 40

onto an isolated road and then placed a gun to the head of the

hitchhiker, Smithburger. When they arrived ay the Little

Brownfield area, Blystone pulled off the road. Blystone told

Powell to watch Smithburger so that he would not get out while

he went around the car. Blystone then left the car, went to

the other side and, during the interval, Powell pointed his hand

to the back of Smithburger's head. Blystone, when he got to

the other side of the car, removed Smithburger from the car

and took Smithburger into the field.

An overt act was committed in pursuance of the

conspiracy when Blystone removed Smithburger from the car at

gunpoint, took the sum of $13.00 from him, and subsequently

killed him so that he could not identify them.

There was sufficient evidence from which a jury could

find beyond a reasonable doubt that Blystone entered into a

conspiracy with the other occupants of the car to rob the

victim, Smithburger.

As to the charge of conspiracy to commit —

after Blystone had left the car with the victim at gunpoint,

had taken him into the field, and had robbed him, he returned

to the car and asked Powell, Guthrie, and Clark as to what he

should do “kill the boy or what because he can identify us.

After Blystone made that inquiry, Guthrie shrugged her shoulders

and Powell said “do what you have tc do.“ Blystone went back

into the field and shot Smithburger six times in the back of

the head.

The overt act in pursuance of that conspiracy was the

killing of Smithburger by Blystone. The Commonwealth has

presented evidence from which a jury could find beyond any

reasonable doubt that there was a — eateiias Blystone

and the other occupants of the car to murder Smithburger so that

he could not identify them.

For the reasons stated herein, the court denies the

motion for new trial and motion in arrest of judgment on the

charge of conspiracy to commit robbery and conspiracy to commit

murder.

WAS IT ERROR FOR THE COURT NOT TO CHARGE THE JURY THAT THEY

MUST FIRST NDEPENDENTLY DETERMINE WHETHER THE COMMONWEALTH HAD

ESTABLISHED A CORPUS DELECTI OF ROBBERY BEFORE THEY COULD

CONSIDER THE CONFESSION OR ADMISSION OF GUILT BY THE DEFENDANT?

WAS THE DEFENDANT DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF

COUNSEL BY COUNSEL'S FAILURE TO OBJECT TO THE CHARGE WHEN THE

TRIAL JUDGE DID NOT CHARGE THE JURY THAT THEY MUST INDEPENDENT!.Y

DETERMINE WHETHER THE COMMONWEALTH HAD ESTABLISHED A CORPUS

DELECTI OF ROBBERY BEFORE THEY COULD CONSIDER THE CONFESSION OR

ADMISSION OF GUILT BY THE DEFENDANT? *

Trial counsel did not request the court to charge that,

in order for the jury to consider the admissions and confessions

that he robbed the victim, the Commonwealth must first

establish by evidence other than the admissions or confessions

of the defendant that a crime was committed. Therefore, this

issue is waived on direct appeal.

Blystone also contends that he was denied his

right to effective assistance of counsel in that trial counsel

did not request the court to charge on the issue of corpus

delecti.

The court would first comment that the standard for

evaluating counsel's ineffectiveness has been articulated many

times by our Appellate Court. The test is whether the

particular course chosen by counsel had some reasonable basis

designed to effectuate his client's interest. Although weigh

the alternatives we myst, the balance tips in favor of a finding

of effective assistance as soon as it is determined that trial

counsel's decisions had any reasonable basis. Commonwealth ex

rel Washington vs. Maroney, 427 Pa. 599, 604, 235 A. 2d, 349, 352

(1967); Commonwealth vs. Mott, 278 Pa. Super. 332, 335, 336, 420 A. 2d

567, 568 (1980).

However, it is only when the course or strategy

foregone by counsel was of arguable merit or could have supported

the claimed defense that the court must inquire as to counsel's

position for not pursuing it.

Additionally, there is a presumption that trial

counsel was effective, and the burden of establishing counsel's

ineffectiveness rests upon the defendant. Commonwealth vs. Miller,

494 Pa. 229, 233, 431 A. 2d 233, 235 (1981).

The court will apply this standard in evaluating

Blystone's various contentions of ineffectiveness of counsel.

Blystone contends, and properly so, that when the

facts of the case present a corpus delecti issue, this issue

should be framed in crystal clear terms in the jury instructions.

See Commonwealth vs. Fried, 327 Pa. Super. 234, 475 A.2d 773

(1984); Commonwealth vs. Frazier, 411 Pa. 195, 191 A. 2d 369

(1963). However, in this court's judgment there was no issue of

corpus delecti and it was not ineffectiveness of counsel in

failing to request the court to charge on the corpus delecti issue.

The court, for reasons previously set forth in this

opinion, determined that the Commonwealth did clearly establish

a corpus delecti of robbery, independently of any admissions or

statements of Blystone, as well as the corpus delecti of homicide.

In order for counsel's failure to request a charge to

constitute ineffectiveness so as to warrant a new trial, it is

necessary to establish that the requesting of the charge would have

affected the outcome of the case. Clearly, it would not have; 4

therefore, there is no merit in seeking a new trial on this issue.

DID THE TRIAL COURT ERR IN REFUSING TO SUPPRESS THE TAPE RECORDING "I

OF THE CONVERSATION OF MILES MILLER AND THE DEFENDANT?

Blystone maintains, inter alia:

(a) That the trial judge erred in denying the

defendant's motion to suppress communications

and evidence since the Commonwealth failed to

————

establish probable cause to permit the wire-

The issue is whether the District Attorney met the requirements

tapping of defendant's conversation.

of the Pennsylvania Wiretapping and Surveillance Act, 18 Pa.

(b) That the District Attorney should

* . c. s. A., Section 5704(2) (ii) and whether the Mt is unconstitutional ~

t not have permitted the wiretapping of ö

: in violation of the Fourth and Fifth Amendments to the United

defendant's conversations since it was not

States Constitutions, and in violation of Article 1, Section 8,

1 demonstrated that the informant was reliable. a

of the Pennsylvania Constitution, as an unlawful invasion of

privacy.

unconstitutional and violates the defendant's

18 Pa. C. S. A. Section 370402) (ii) provides in pertinent

right of privacy assured by the Fourth and

8 part:

Fifth Amendments to the United States

"It shall not be unlawful under this chapter

Constitutions. for (2) any investigative or law enforcement

officer, or any person acting at the direction

(d) That the District Attorney's Office or request of an investigative or law enforce-

ment officer to intercept a wire or oral

should not be permitted to issue warrants communication involving suspected criminal

activities where (ii) one of the parties

for wiretapping this particular defendant's to the communication has given prior consent

to such interception; however, no interception

conversation since the said office cannot be under this eg shall be made unless the 4

ö attorney general or the District Attorney, ...

an independent source to judge the evidence of the County wherein the interception is to

be made, has reviewed the facts and is satisfied

when it has a strong interest in the outcome that the consent is voluntary, and has given

0 a prior approval for the interception; however,

" of the cases. ' such interception shall be subject to the

record and record-keeping requirements of

(e) That the defendant's Fourth and Fifth Section 5714(a) (relating to recording or

intercepting communications) and that the

, Amendment rights were violated since the attorney general. . or district attorney

„ « authorizing the interception shall be

District Attorney's Office did not have the custodian of recorded evidence obtained

therefrom.”

probable cause to issue the warrant.

During the suppression hearing held before trial, the

(f) That the informant's counsel was not

Commonwealth established that the State Police had been conducting

given voluntarily and thus defendant's motion

an on-going investigation since September of 1983 when Smith-

to suppress the communication and evidence should

burger's body had been found. In December of 1983 Miller provided

have been granted.

the Pennsylvania State Police and later the District Attorney

(g) That the Commonwealth failed to establish

| of Fayette County with important information concerning the |

— that the voice on the tape was Dlys tone 8. . 0 1 g

a — 5

A-90

Smithburger homicide. Miller stated that he had spoken to

Powell approximately one month or so prior to going to the State

Police with his information. He related what Powell had told him

about the murder, specifically how Powell, Clark and Guthrie were

present with Blystone on the night that Smithburger was murdered.

Miller also revealed the particulars of the crime as

related to him by Powell. Miller described where Smithburger

had been picked up by Blystone and the others on the night of

the murder, where they drove Smithburger on that night, the

fact that it was Blystone who had done the actual shooting, and

the amount of money that Biystone had taken from Smithburger.

Under the totality of the circumstances, this court is satisfied

that there had been a sufficient determination of probable cause

to justify the authorization for intercepting and recording

Blystone's conversation with Miller.

The District Attorney fully complied with the statute,

determining that Miller's consent was voluntarily given and was

not the result of either threats or promises. Thereafter,

Miller executed a memorandum of consent witnessed by First

Administrative Assistant District Attorney Ralph Warman. The

District Attorney then executed the memorandum of approval

authorizing the interception and recording of Miller's conversa-

tion with Blystone. The District Attorney also served as

custodian of the recorded evidence in accordance with the statute.

Trooper Robert V. Teagarden, a member of the Pennsylvania

State Police for approximately 15 years specializing in undercover

work and electronic surveillance work, had an "A Certification”

in electronic surveillance and wiretapping, which authorizes

him to monitor conversations where one party to the conversation

has consented to have the conversation intercepted and recorded.

An electronic recording device was placed on Miller by Trooper

Teagarden which received and electronically recorded the

conversation. In addition, a Cal transmitter was placed on

Piller which transmitted conversations with Blystone to a

wecording device in a van that also recorded the conversations.

As to the question of staleness, a determination as

to staleness of information as it relates to probable cause must

be made on a case-by-case basis. Commonwealth vs. Samuels,

326 Pa. Super. 361, 565, 474 K. 24 632, 634 (1984); Commonwealth

vs. Ryan, 300 Pa. Super. 156, 170, 446 A. 2d 277, 284 (1982).

In the instant case, the information provided by Miller is not

the type which would become stale and unable to sustain a finding

of probable cause with the passage of time.

Blystone contends that a person in the District Attorney's

position cannot be a neutral and detached issuing authority;

however, the situation in the instant case was governed by

the statute, 18 Pa. C.S.A. Section 5704, which states that the

District Attorney is a proper issuing authority under the

circumstances, and the court finds as a fact that the Act was

fully complied with.

The contention that the Act is unconstitutional must

also fail.

Article I, Section 8, of the Pennsylvania Constitution

reads:

"The people shall be secure in their

persons, houses, papers and possessions

from unreasonable searches and seizures,

and no warrant to search any place or to

seize any person or things shall issue without

describing them as nearly as may de n nor

without probable cause, supported by oath

or affirmation subscribed to by the affiant.*

All issues raised by Blystone challenging the

constitutionality of the Act are addressed in the case of

Commonwealth vs. Victor Hassine, ____. Pa. Super. ____, 490

A. 2d 438 (1985). See also Commonwealth vs. Doty, __ Pa. Super.

„ 498 A. 2d 870 (1985). The court set forth in Hassine that

it is abundantly clear that the type of wiretapping executed here,

similar to the one conversant consensual tap allowed under Federal

Law, is legal under the U. 8. Constitution - citing U. S. vs.

Caceres, 440 U.S. 741, 744, 99 S. Ct. 1465, 1467, 59 L.Ed. 2d. 733,

738 (1979).

The court then determined that the General Assembly

has given legal responsibility to the law enforcement officers

to properly conduct wiretapping where one person consents. 18

Pa. C.S. Section 5704(2) (ii) and 5714(a).

The function of determining whether or not to permit this

type of wiretapping was delegated by the Constitution to the

General Assembly. Commonwealth vs. Baldwin, 282 Pa. Super. 82, 95,

422, K. 2d 838, 845 (1980); Commonwealth vs. Bennett, 245 Pa. Super.

457, 461, 369 K. 2d 493, 494 (1976). The court further stated “in

such a situation we s all not disturb the Legislature's exercise

of discretion especially where the statute does not clearly,

palpably and plainly violate the Pennsylvania Constitution.

iad Be bd ~~ ’ = 8 2 8 1 8

— —— —— — ———— ꝰ —

hes

The Commonwealth identified the voice on that tape as

that of Blystone by the testimony of Miller, a friend of Blystone,

who engaged Blystone in the conversation cheq, wes recorded.

Therefore, since the Act authorizing the recording «! the

conversations is constitutional, and the Commonwealth fully

F i A w ᷣ Ü-! ep ²¹æt f W dB li,

complied with all of the terms and provisions of the Act, and the

Commonwealth established that the recorded voice was Blystone, the

refusal to suppress the recorded conversations was proper.

— ea |

10.

DID THE TRIAL JUDGE ERR IN PERMITTING THE MEDIA TO STAND

DIRECTLY BEHIND THE JURORS DURING THE PLAYING OF A TAPE?

Blystone maintains that the trial judge was in error

in permitting the media to stand behind the jury box while a

tape was being played.

Blystone did not object to the position of the reporters

at the time of the playing of the tape, and the court does

not know in fact where the reporters stood during the time the

tape was played. The court was not aware that the reporters

were standing behind the jury box during the playing of the

tape, but there was no evidence of any impropriety and nothing

offered in any way to show prejudice to Blystone. Blystone

having failed to object when the incident, as alleged, was

taking place, he has waived his right to do so now.

THE TRIAL JUDGE ERRED IN ALLOWING THE VICTIM"S FATHER TO

TESTIFY CONCERNING THE VICTIM'S CHARACTER, INTELLIGENCE, AND

PROPENSITY TO FOLLOW ORDERS.

Prior to the calling of Dalton C. Smithburger, Sr. as

a Commonwealth witness, the trial counsel asked for an offer

of proof. In response to this request the District Attorney

stated, 1 intend to offer him to testify as to when he last saw

his son and what he was wearing and where he made the identifica-

‘

tion of the body and also what type of student his son was.*

(TT 20 In response to this offer of proof, trial counsel

„„ ] ⏑⏑ —²˙V-j <a = —_—— 6 1

stated that he would stipulate to the identification testimony

and he objected to the other parts of the offer. The trial

court overruled Blystone's objection. (TT 7 25) The

following testimony was elicited by the District Attorney:

ur. Smithburger, what kind of student was

your son?

A Well, he went to Tech School and he passed

his welding class.

Q How would describe your son -- was

he a troub er?

No, never a troublemaker.

How was he as far as listening?

He listened pretty good.

If someone were to tell him something,

would he do it?

i a oF |

A Yes, he would.

I believe you told the police he was in

special education?

A Yes."

(TT - 26 = 27)

Blystone maintains that this testimony as to the

victim's character, intelligence, and propensity to follow orders

was improperly admitted.

Blystone argues that the fact the victim was in

“special education” could have created an impression in the minds

of the jurors that he was a particularly vulernable victim to

criminal activity, and that this testimony had the natural and

inevitable effect of creating sympathy for the deceased victim

while clouding the issue of Blystone's culpability for his death.

ee is, ee ee

i te ant

* * * c E

ll. DID THE TRIAL JUDGE ERR IN NOT SEQUESTERING THOSE JURORS

SELECTED DURING VOIR DIRE AND TRIAL?

The court feels that this argument is entirely without

merit. The testimony, in this court's judgment, is relevant

, in that it did tend to establish the passive nature of the victim

and to lend credibility to the testimony of the Commonwealth

Blystone maintains that the trial judge erred in

denying his motion to sequester the jury during voir dire and

trial, alleging that he was prejudiced because the publicity

surrounding the trial was of such a nature as to deny him a

witness that the victim, Smithburger, remained in the field for

a period of time without fleeing while Blystone returned to the

car to discuss the necessity of killing him.

The testimony of the father was delivered in 4 matter-

fair trial.

Pennsylvania Rule of Criminal Procedure llllia) provides:

"The trial judge may, in his discretion,

order sequestration of trial jurors in the

interest of justice. |

of-fact tone and was not done in a manner which would inflame

the jury.

Absent a showing of potential prejudice from the refusal

to sequester a jury, the discretion of the trial court will not

be disturbed. Commonwealth vs. Sourbeer, 492 Pa. 17, 19, 422

| N. 2d 116, 121, 122 (1980). Commonwealth vs. Bruno, 466 Pa. 245,

257, n.S, 352 K. 2d 40, 46, n.5, (1976).

The Appellate Courts have recognized that the trial

' court does not abuse its discretion in refusing to sequester

jurors where the trial judge continually cautioned the members of

the jury to refrain from reading, or listening to, media accounts

| of the incident. Commonwealth vs. Sourbeer, supra; Commonwealth

vs. Smith, 290 Pa. Super. 33, 42-43, 434 K. 2 115, 120 (1981);

Commonwealth vs. Gillespie, 290 Pa. Super. 336, 343, 434 K. 24 781,

785 (1961).

This court in the instant case acted promptly and

regulerly to insure that any publicity which might occur would

! : | have no effect on the proceedings. The jurors were cautioned.

ee eS eS —

at the end of each day's session to refrain from reading any

newspaper accounts, listening to radio broadcasts or conversations,

and to refrain from discussing the case among themselves. In

addition, the court questioned the jury panel prior to the

commencement of the trial and at the beginning of each day's

session to determine whether any juror had in fact read any

newspaper account or heard any radio broadcast that referred to

the case or otherwise related to Blystone. These questions

were always answered in the negative.

Moreover, unlike the characterization which Blystone

urges, the publicity in the instant case was not unusual or

prejudicial, but rather was factual and non-hysterical. The media

coverage did not exceed that which might be expected to accompany

any capital case. Under the circumstances the court is satisfied

that there was no abuse of its discretion, nor was there any

resulting prejudice to Blystone by virtue of the court s refusal

to sequester the members of the jury during the trial.

Blystone next argues that he was denied a fair trial

because of inherently prejudicial publicity surrounding both

his own trial and that of a co-defendant, George Powell. More

specifically, Blystone contends that the jurors selected to hear

his case had too much exposure to pretrial information to permit |

a fair trial.

The United States Supreme Court and the Pennsylvania

Appellate Courts have long recognized that one who claims he was

Genied a fair trial because of prejudicial pretrial publicity

must show actual prejudice in the empanelling of the jury.

+ tay BO»

Murphy vs. Florida, 421 U.S. 794, 800, 95 S. Ct. 2031, 2036,

44 L.Ed 2d 589, 595 (1975); Commonwealth vs. Bachert, 499 Pa.

398, 408, 453 K. 2d 931, 936 (1982) cert. denied, 460 u. S. 1043,

103 8. Ct. 1440, 75 L. Ed. 2d 797 (1983); Commonwealth vs. Casper,

481 Pa. 143, 150, 392 A. 2d 287, 291 (1978). However, this rule

is subject to an important exception:

In certain cases there ‘can be pretrial

publicity so sustained, so pervasive, so

inflammatory, and so inculpatory as to

demand a change of venue without putting

the defendant to any burden of establishing

a nexus between the publicity and actual

jury prejudice,’ .

471 Pa. 21. 127, . * 77),

because the circumstances make it apparent

that there is a substantial likelihood that

a fair trial cannot be had.

Commonwealth vs. Casper, 481 Pa. at 151, 392 A.2d at 291.

A presumption of prejudice pursuant to this exception

requires the presence of exceptional circumstances. Commonwealth

vs. Bachert 499 Pa. at 412, 453 A.2d at 938. Neither the mere

existence of pretrial publicity nor a possibility that prospective

jurors will have formed an opinion based on news eoccunts will

suffice to establish a presumption of prejudice. Commonwealth

vs. Casper, supra; Commonwealth vs. Keeler, 302 Pa. Super. 324,

329, 448 A. 2d 1064, 1066 (1982).

In cases similar to the instant case, the Pennsylvania

Supreme Court often refers to a frequently quoted passage in

Irvin vs. Dowd, 366 U. S. 717, 722-23, 81 S. Ct. 1639, 1642-43,

6 L. Ed. 2d 751, 756 (1961):

——

"It is not required... that the jurors

be totally ignorant of the facts and issues

involved. In these days of swift, wide-

spread and diverse methods of communication,

an important case can be expected to arouse

the interest of the public in the vicinity,

and scarcely any of those best qualified

to serve as jurors will not have formed some

impression or opinion as to the merits of

the case. This is particularly true in

criminal cases. 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 presumption

of a prospective juror's rtiality would

be to establish 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."

See Commonwealth vs. Bachert, 499 Pa. at 410-11, 453 A.2d at 937;

Commonwealth vs. Casper, 481 Pa. at 152, 392 A.2d at 292.

The inquiry of primary importance thus becomes whether

any juror formed a fixed opinion of Blystone's guilt or innocence

as a result of the pretrial publicity. The trial judge in this

case participated in the examination of the jurors, and to his

satisfaction all who were selected pledgedto give fair and

impartial consideration to the evidence. None of the jurors

expressed an inability to set aside any impression which may have

been gained from media coverage.

In selecting the twelve jurors and two alternates,

ninety-six potential jurors were individually examined during

pretrial voir dire. All jurors who indicated that they had

read or heard anything about the case which had caused them to

form a fixed opinion as to Blystone s guilt, were excused for

cause.

menen emen a a ae

The court is unable to discern, nor has Blystone

set forth, any actual prejudice in the seated jurors. The

court is also unpersuaded by Blystone's assertion that the

pretrial publicity was so inherently prejudicial that a climate

was created in which Blystone would be denied a fair trial.

A number of the local newspaper stories attached as

exhibits to Blystone's brief did not appear prior to the trial,

but rather during the course of the trial. Media coverage during

the trial and its effect on the jurors has previously been

addressed. Other articles from local newspapers appeared far

enough in advance of the trial so that any potential prejudice

was erased by the paseage of time between publication of the

stories and the commencement of trial. In any event, all of the

articles were highly objective accounts of preliminary proceedings

and events in this case. None of the articles can be said to have

been so sensational, inflammatory, or inculpatory that a presumption

of prejudice was created.

For the reasons set forth, the court rejects the contention |

of Blystone that he was denied a fair trial as a result of the trial

court's refusal to sequester the jury.

—

12. THE TRIAL JUDGE ERRED IN PERMITTING THE COMMONWEALTH ‘TO

INTRODUCE INTO EVIDENCE A .22 CALIBER HANDGUN SINCE IT FAILED

TO ESTABLISH CHAIN OF CUSTODY. *

As to this allegation of error, the standard for the

admissibility is set forth in Commonwealth vs. Mayfield, 262 Pa.

Super. 96, 107, 396 A. 2d 662, 667, 668 (1979). The court in

that case stated, citing Commonwealth vs. Jenkins, 231 Pa. Super.

266, 271, 332 A. 2d 490, 492 (1974):

“The admission of demonstrative evidence

is a matter committed to the discretion of

the trial court (citation omitted). The

Commonwealth need not discount every

hypothetical possibility of tampering with

the evidence, but need only trace the

chain of custody insofar as possible."

(citation omitted)

The court further stated, citing Commonwealth vs. Miller,

234 Pa. Super. 146, 155, 339 A. 2d 573, 578 (1975):

“There is no requirement that the Common-

wealth establish the sanctity of its exhibits

beyond all moral certainty. It is sufficient

that the evidence, direct and circumstantial,

establish a reasonable inference that the

identity and condition of the exhibits

remain unimpaired until they were surrendered

to the court.” id. at 155, 339 A. 2d at 578

In the instant case the court finds that the Common-

wealth did establish a proper chain of custody in order for the

weapon to be admitted into evidence.

Jacqueline Guthrie testified that during July of 1983

she and Blystone went to the Genovese Coal Company yard at

approximately 2:00 or 3:00 in the morning. Blystone had

previously worked at Genovese Coal Company and he was going

there because they owed him money and he wanted to try to get

0 1

1 ˙ ü wm ] P

his money. He cane back and showed her a black .22 caliber

gun in a leather holster. She testified that it was the same

weapon he had with him on the night of the killing on

September 9th, 1983. She testified she was familiar with the

weapon, that she had carried it, and that she had fired it a

couple of times prior to the evening in question. She examined J

the weapon presented in court, which was a .22 caliber H & R

handgun, and testified that this was the weapon she first saw

that night at the Genovese coal yard. She further stated that

in October of 1983 she was with Blystone at the Colonial Bar in

Fairchance and that Blystone gave the gun to Neil Christopher

and Neil left the bar’iwth it. (TT - 14-B - 15-B)

Eugene Tedrow testified that he was an employee of

Genovese Coal Company and that he was so employed by them in

July of 1983, that he had at the Genovese coal yard a .22 caliber

pistol, serial number AN 23544, and he had seen the gun in the

garage on a vanity table. He testified he was the night watch-

man, that the gun turned up missing in July of 1983, and he

described the gun as a .22 caliber H & R pistol.

Neil Christopher testified he received an H & R .22

caliber handgun from Blystone when he met with him at the

Colonial Bar, that Blystone requested he sell it to him, and that

he did sell it to a Richard Grimm of Pairchance, Pennsylvania.

He described the gun as a black handled u ( R .22 caliber pistol. ,

Richard Grimm testified he purchased an H ( R .22 caliber

pistol, containing a serial number, from Neil Christopher. Grimm

attempted to repair the handgun, but in effect destroyed it.

Grimm stated he subsequently turned the handgun, which he

purchased from Neil Christopher, over to an Officer Killinger

of the Pennsylvania State Police (TT - 43 - 45).

Corporal James L. Killinger of the Pennsylvania

State Police testified that he received a .22 caliber H & R

pistol, with the serial number AN 23544, from Richard Grimm.

Corporal Killinger stated that the weapon was completely torn

down, the barrel was missing, and the firing pin had been filed

off. He further testified he took the weapon to the State Police

Barracks in Uniontown, Pennsylvania.

Sergeant George R. Faylock, a Pennsylvania State

Trooper, testified he ‘is the custodial officer of all evidence

that comes into the possession of the State Police at the Union-

town Barracks in Fayette County. Fayock stated that on the 19th

of December, 1983, he received from Corporal James Killinger an

H & R .22 caliber pistol, serial number AN23544. The H & R .22

caliber pistol was signed out and transported to the crime lab

in Greensburg by Trooper A. James Anthony. Subsequently in

March of 1984 Trooper Earl Roberts the .22 caliber

pistol from the crime lab back to the lice Barracks

where it remained in the custody of Fayock until

it was brought to trial.

The Commonwealth traced the gun fror date it first

came into the possession of Blystone through the time it was

delivered into court. It is the court's opinion that the

Commonwealth has met the standard for admission of the weapon

on the issue of custody.

13.

THE DEFENDANT'S CASE WAS PREJUDICED WHEN THE COMMONWEALTH

WITNESS, NEIL CHRISTOPHER, REFERRED TO THE .22 CALIBER HANDGUN

AS THE "MURDER WEAPON.” ö

As to the contention of Dlys tone that he was

prejudiced by the characterization of the weapon as “the murder

weapon,” this contention is without merit. On direct examination

by the Commonwealth, the Commonwealth witness, Neil Christopher,

testified as follows:

"Q He had a gun with him?

Yes, it was with him that evening, yes.

Did he show it to you?

Yes.

GS Fr Oo

Why did he show it to you?

A He wanted to sell the murder - or the weapon.” (TT - 38)

At this point trial counsel made an objection. The court sustained

as to any characterization of the weapon.

0 No further reference was made to the weapon as the

“murder weapon from any other witness throughout the trial.

The Court is of the opinion that this did not in any way

affect the outcome of the trial and, if prejudicial, it was so

minimal that it cannot form the basis of consideration for a

new trial.

14.

15.

16.

THE DEFENDANT'S CASE WAS HIGHLY PREJUDICED WHEN COMMONWEALTH

WITNESS, JACQUELINE GUTHRIE, TWICE REFERRED TO DEFENDANT'S

CRIMINAL RECORD.

THE REFERENCE BY THE COMMONWEALTH WITNESS TO THE DEFENDANT'S

CRIMINAL RECORD IMPROPERLY TAINTS THE DEATH SENTENCE DETERMINATION

BY THE JURY.

THE DEFENDANT, BLYSTONE, WAS DENIED THE RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO MAKE A

MOTION IN LIMINE TO REQUIRE THE COURT AND PROSECUTION WITNESSES

TO AVOID ANY MENTION OF BLYSTONE'S PRIOR CRIMINAL RECORD; BY

TRIAL COUNSEL'S FAILURE TO OBJECT AND REQUEST CAUTIONARY

INSTRUCTIONS WHEN THE WITNESS MENT .ONED AND IMPLIED THE

EXISTENCE OF BLYSTOWE'S PRIOR CRIMINAL RECORD; AND BY THE

FAILURE OF TRIAL COUNSEL TO MOVE FOR A MISTRIAL WHEN THE

REFERENCES OF BLYSTONE'S CRIMINAL RECORD WERE ELICITED BEFORE

THE JURY.

During the trial, Jacqueline Guthrie, one of the

prosecution's main witnesses, responded to te direct examination

of the District Attorney as follows: (TT - 17-8)

» Did you yourself carry that weapon?

A A couple of times.

Why did you carry it?

A Because he was on parole and he told me to

carry it.

MR. WHITEKO: I am going to object to that, your

Honor. May we approach the bench?

SIDEBAR CONFERENCE:

MR. WHITEKO: We object to the testimony

with regard to his parole.

JUDGE ADAMS: We will sustain. Don't make

JUDGE ADAMS: You may restate your question.* )

The relevant part of the testimony of the witness, ‘

Guthrie, during cross-examination by trial counsel, is as follows: 4

(TT - 25-B)

"Q How long have you known Scott Blystone? |

Do you mean how long have I known him? ’

Yes.

About six years.

How did you meet him?

I met him through his sister.

How long had you been dating him? |

Since he came out of prison in --

How many years?

ea - Oo &. & &. 8

A year and a half or two years.* ‘9

The court would note that Guthrie's reference to Blystone having

been in jail was not in response to a que ion asked by the

Commonwealth, as indicated by post-trial counsel, but rather was

in response to a question asked by defense trial counsel during

cross-examination of Jacqueline Guthrie.

the general rule in this Commonveslth is thet the testinonial:

reference which indicates to the jury that the accused has been

involved in prior criminal activity is prejudicial. This is not to |

that all references which may indicate prior criminal activity

reversal. Commonwealth vs. Nichols, 485 Pa. 1, 4, 400 K. 24 1281,

(1979). Ta the case of Com. vs. Gaerttner, 335 Pa. Super. 203, 228,

vail - - —_— r n, ., r

484 A. 2d 92, 106 (1984), the court stated:

“Although there is no per se rule :

concerning the admission of evidence

pertaining to prier eoavict 10 Blystone had been in jail and that Guthrie had been dating

* cegta

ob ay my 1 — A. my ~ B.A, Ee . Blystone since he was released from jail. *

| been in jail 2 3 The court believes that, although this is prejudicial, 7

SS eS gy TY a 8 it was not so prejudicial as to warrant a new trial. The

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