# Appendix — Blystone v. Pennsylvania

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0544%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 299

## Text

( 2
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
2
ve . *
9 ao”
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| 28

: IN THE SUPREME COURT OF THE
:

Petitioner, : UNITED STATES OF AMERICA
1

vs. : OCTOBER TERM, 1988
:
COMMONWEALTH OF PENNSYLVANIA, :
t
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
v.

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.

16

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

.
.
ö

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

4

.

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,

10

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

c

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

s

(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.

ö
(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

n

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,

0
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

9
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 “

N
ö

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

---.

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

te

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 *

0

rr

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
he

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)

10

*

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.

12
A-74

od

+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

11

a

14

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

15

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
— ˖

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 must, the balance tips in favor
of a finding of effective assistance as soon as it is determined
that trial counsel 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.24 567, 568 (1980).

As to the issue of inadequacy for failing to move for
a mistrial, trial counsel's conduct would only have been
inadequate if the action would bring about a different result.
In this particular case, had the motion for mistrial been

OO SSS

sought following the statements of the witness, Guthrie, in
response to the question by the Commonwealth, or the response
to the question by the defense, the motion would have been denied.
The court can see no rational basis to require the granting of
a mistrial head such 4 motion been made.

7 ll

17.

OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO PROPERLY INVESTIGATE
THE EXISTENCE AND POSSIBLE TESTIMONY OF BLYSTOWE'S ALIBI

*
WITNESSES, AND TRIAL COUNSEL'S FAILURE TO CALL ANY ALIBI

The court would first note that the defense did not

notify the Commonwealth prior to trial of any intended “alibi

de tense, as required by Rule of Criminal Procedure 305-C(1) (a) (4) .
Disclosure by Blystone under this rule is mandatory and is as

follows:

ct.

279,

i

|
ö
ö
"

2K
iff

ae
111

2

f

i
171
f

The court in Commonwealth vs. Fernandes, 333 Pa. Super.
289-290, 482 K 2 S67, S7T1-S72 (1984), discussed the

— — woe ww -

issue of whether it was proper for the court to exclude alibi

testimony where a defendant failed to notify the Commonwealth
of his intent to call alibi witnesses. There, as here, Blystone
had ample opportunity to advise the 3 of the alibi
defense, and failed to do so.

Rule 305 addresses the delicate balance between the
interest of the accused in presenting a full and complete
defense and the interest of the Commonwealth in avoiding
fabricated alibis, unfair surprise, and the inevitable delay
of justice wrought by an “eleventh-hour defense." See
Williams vs. Florida, 399 U.S. 78, 81-82, 90 S. Ct. 1893, 1895-
1896, 26 L. Ed. 2d 446, 450 (1970).

Blystone maintains that trial counsel was ineffective
for failing to interview and call Sharon Smitley, Donald
Smitley, Kathryn LaRue, Mary Kathryn Powell, and Bonnie
Gibbs.

Blystone did not notify his defense counsel of the
alibi witnesses until the Commonwealth had closed its case.
Prior to this time, Blystone did not give any indication to his
counsel that there were persons who could establish his presence
elsewhere at the time the crime was committed.

At the hearing held to determine whether trial counsel
was inadequate, Blystone, in open court, waived the rule of
confidentiality between attorney and client. Trial counsel
then testified that the testimony of the alibi witnesses would
be contrary to the facts recited to him by the defendant,
Blystone.

te - 7 * , . =) eee a ee

Trial counsel advised Blystone he would not be a party
to any action that could possibly result in perjury.

In summary, trial counsel did not attempt to call the
alibi witnesses or to interview them because of the late
notification, the fact that their testimony would not be relevant,

and the purpose for which they were being called would be

inconsistent with the statements made by Blystone to trial counsel.

The court would further note that at the clcse of the
Commonwealth's case, in the absence of the jury, trial counsel
indicated to the court that Blystone was going to rest and that
Blystone had elected to remain silent.

The court conducted a colloquy with Blystone and
Blystone's trial counsel concerning his right to testify or to
remain silent.

In the court's judgment, Blystone understood his rights
and elected not to testify, voluntarily and intelligently, and
elected not to call any witnesses. He did not in any way
indicate to this court that there were witnesses available he
could call in his defense.

Of those persons whom Blystone alleged he could call
as witnesses, only Sharon Smitley testified at the hearing held
to determine ineffectiveness of counsel. Her testimony was
very inconclusive, in the court's judgment, and if it had been
offered at trial, it would not in any way have established an
alibi for Blystone. She was unable to establish to any degree
of reasonable certainty the time Blystone was in attendance at

her party.

*

On cross-examination she stated she did not remember

what day of the week this was, whether it was Tuesday, Friday
or Saturday. She further testified that she could not state
with certainty what time Blystone arrived oy the time he left.
(T - 79 =93)

The Commonwealth called Cheryl Tkocs, the court
stenographer who took the trial of George Powell, a defendant
who was also charged with the homicide of Smithburger, and she
testified from her stenographic notes that Sharon Smitley had
responded to the cuestion: "How long were George, Scott and
Jackie at your party?" "I would say about an hour or 80.
(T - 100 — 102)

The other persons named by Blystone as alibi witnesses
did not testify at the hearing on ineffectiveness of counsel.
The court cannot speculate as to what their testimony would
have been had they been present at the trial. Therefore, as
to those witnesses, the court must find that Blystone failed to
prove their testimony would have been beneficial to his case ö
had they been called as witnesses.

It is the court's judgment that Blystone was fabricating
an alibi that was totally unsupported.

Under the circumstances of this case, the failure to
establish an alibi defense, if one was available (and the court
has stated it does not believe it was), was not that of counsel
but that of Blystone. Blystone cannot expect to wait until
the Commonwealth closes its case and then advise his counsel,

for the first time, of witnesses to be interviewed and called.

18.

‘+

The court also, as previously stated, finds as a fact

that Sharon Smitley is not a credible witness, that her testimony,
in the face of the overwhelming testimony of guilt presented by
the Commonwealth, would have been meaningless.

Therefore, the court finds that trial counsel was not
ineffective for failing to interview or call alibi witnesses

for Blystone.

THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE BY
TRIAL COUNSEL'S FAILURE TO PROPERLY PREPARE THE CASE FOR TRIAL
AND FAILURE TO PROPERLY INTERROGATE WITNESSES DURING THE COURSE
OF THE TRIAL.

Blystone maintains that trial counsel did not adequately
prepare for trial.

Blystone testified at the hearing on inadequacy of
counsel that trial counsel had only seen him three or four times
for a total of maybe two hours” prior to trial. 5

Trial counsel, Jeffrey W. Whiteko, a reputable lawyer
at this Bar, maintains a record of the occasions he had made
contact with Blystone concerning preparation for trial. These
records established that Whiteko met with Blystone on numerous
occasions and that he spent a great deal of ‘time, in addition to
the interviews with Blystone, reviewing statements and other
documentation. (T - 50 through 53)

The court feels that trial counsel spent ample time in
preparation of the defense and did all that could be reasonably

19.

required of him in preparing the case for trial.
As to the allegation of Blystone that trial counsel
failed to properly interrogate witnesses during the course of
the trial, the court finds that this is totally without merit.
There is no evidence to support this allegation.
Therefore, the court finds that Blystone was not denied *)

his right to effective assistance of trial counsel.

*

THE DEFENDANT, BLYSTONE, WAS DENIED THE RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL B. TRIAL COUNSEL'S FAILURE TC PURSUE THE
COMMONWEALTH'S OFFER or A PLEA BARGAIN OF LIFE IMPRISONMENT.

The court finds that the allegations of Blystone that
trial counsel was ineffective for failure to pursue a plea
bargain offer of life imprisonment is totally without merit.

Trial counsel, as well as Alphonse P. Lepore, Jr., the
Public Defender, discussed with Blystone the offer of the Common-
wealth of a plea bargain of life imprisonment. It was
recommended by trial counsel that he accept the plea barga.n,
but Blystone refused. Blystone did not want to accept the plea |
bargain because of his belief that the incriminating tape-recording —
would be suppressed, and he did not want to waive any of his rights.
Further, Blystone did not want to do back-up time for his other |
crimes. He stated he would be an old man when he got out.

The failure to accept the plea bargain was solely the determination

Oe ee ae

20.

21.

—

of Blystone against the recommendation of his trial counsel.

Blystone cannot now allege ineffectiveness for trial
counsel's failure to further pursue it in view of the position
of Blystone.

WAS 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, 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?

WAS THE DEFENDANT 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?

In all, five jurors out of ninety-six subjected to
voir dire in this case were excused for cause upon challenge
by the Commonwealth by reason of their responses to questions
concerning the imposition of the death penalty?

This court is of the opinion that it is necessary to
review the questions submitted to the jurors, and their
responses in their entirety on this issue in order to determine

whether the excused for cause was in order.

Juror number 102 - Hattie M. Royster was asked the
following questions by the Commonwealth and made the following

responses:

Tk, after hearing all of the evidence in this
case, you believed the defendant to be guilty
of murder in the first degree, would you
return such a verdict?

5 Yes.

If, after hearing all of the evidence in this

A Does that mean ‘capital punishment?" I
don t believe in that.

1 Q That is the deatz penalty. Do yon have a
; N moral or religious belief against capital
punishment ?

* A us Baptist and I don't believe in capital

' punishment.

Q rr

A Yes, it is.*
(TT - juror 102 -- page 2)

| At this point the Commonwealth challenged for cause. The

defense counsel objected. The court overruled the objection

without any further questions and excused the juror for cause.
At the time juror number 102 was excused for cause, the

‘+

Commonwealth had all twenty peremptory challenges remaining.*
The standard in determining whether a juror should be
encuses fer couse as „„

and was properly excluded from the jury for cause.
Juror number 120 - Mary 8. Slavic - was asked the
following questions and made the following.

penalty is set forth in Commonwealth vs. Datesman, Pa.
Super. „ A.24, 413, 417, 418 (1985) as follows: 9
“whether a juror’s views would prevent 3 t. te this trial, you were placed
or subtantially impair the performance of — = r. 1 Ir determination -
his duties as a juror in accordance with his LIAN
instructions and his oath.” death
penalty, want pA. Be
Datesman cites Witherspoon vs. Illinois, 391 v. 8. 310, 88 S. Ct. ee 00
A Wo; I have certain princi and ls
1770, 20 L. Bd. 24 776 (1968); Wainwright vs. Witt, 469 U. 8. BF yy SF - > — n
, LOS S. Ct. 844, 83 L. Ba. 24 841 (1985); and Adams vs. —̃ Gn Ges oe wo

Texas, 448 U. S. 38, 100 S. Ct. 2521, 65 L. Ed. 24 S81 (1980). juror, your Honor.

This court, as to Juror Number 102 - Hattie M. Royster -
had no difficulty in reaching the decision that her attitude
and manner, as well as her words, indicated she had personal and
religious 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

principles concerning the death penalty.
Do you have any religious, moral, or

2
3
1
2

dismissal for cavse was abrupt, and that more extensive question- N 21

ing 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

r

0

— means that you would not be asked to serve on
: this jury. We would ask that not discuss .
In fact, during the entire voir dire the Commonwealth only aith ang Gthae Sunes the qiestlans yee —
exercised ten peremptory challenges out of the twenty asked, your responses, or your reason for |
allocated. not serving on this jury. Thank you. You may

step down.
4 (TT - juror number 120 - page 5)

‘+

Juror numberlé - Mario &. Capotosto - was asked the
following questions and made the following responses:

*"Q Do you know of any reason why you should
not or could not serve on this gury?

A At the present time, I don't. 182
some reason. It depends on what s is all

about.

What do you mean by that?

Is this a murder case?

S F ©

Is there going to be a capital punishment
imposed in case it has to be?

Q That may come under consideration.

I don t believe in that. I don't believe
in taking someone else's life.

Q Then have a conscientious, moral, or
reli scruple against the death
penalty?

I have.

Under any circumstance could you impose the
death penalty?

I would not impose the death penalty.
Regardless of the circumstances?

A Regardless.
MR. SOLOMON: The Commonweelth would challenge
for cause.

JUDGE ADAMS: Mr. Capotosto, we would excuse
— I appreciate your honest explanation.
lease do not tell any other juror why you
were excused or tell them any questions
you were asked or your responses.

MR. CAPOTOSTO: I won't.
(TT - juror 16 - pages 6-7

Juror number 153 Carol Gowatski - was asked the
following questions and made the following responses:

"Q If, after hear all
and —

A Yes, sir, unless it was the death penalty.

@ De have any conscientious, moral, or

A tI really don't think I could vote for the
death penalty.

Q — any circumstances, could you vote for
t

a No, sir.

MR. SOLOMON: ©The Commonwealth would challenge
for cause, your Honor.

Juror number 158 Frances Page ~- was asked the following
questions and made the following responses:
"Q If, after you have listened to all of

Q@ You have religious scruples inst t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0544%3A03. Public record. Not legal advice.