Commonwealth v. Boyle

447 A.2d 250, 498 Pa. 486, 1982 Pa. LEXIS 554

• Court: Supreme Court of Pennsylvania
• Decided: July 8, 1982
• Docket: 451
• Status: Published

Opinions

OPINION

NIX, Justice.

This is a direct appeal from a conviction on three charges of murder of the first degree as a result of the death of Joseph, Margaret, and Charlotte Yablonski.¹ At trial the Commonwealth offered evidence to establish that Mr. Boyle, appellant, instigated and participated in a conspiracy to kill Joseph Yablonski, who was attempting to wrest control from Boyle of the United Mine Workers’ Union (UMW). As a result of this conspiracy, the jury found that Joseph Yablonski, his wife and his daughter were killed in January 1970.² Appellant sets forth a myriad of challenges to this most recent conviction. Many of them are totally without merit and do not require explication.³ We will address only the more substantial questions raised.

Appellant argues that the trial judge, who also presided at the first trial, by refusing a motion of recusal committed reversable error requiring a new trial. Recusal is required whenever there is substantial doubt as to a jurist’s ability to preside impartially.⁴ Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). See Code of Judicial Conduct Canon 3C(1)(a) (“Disqualification”); ABA Project on Standards for Criminal Justice, Standards Relating to: The Function of the Trial Judge § 1.7 (“circumstances requiring recusation”) (Approved Draft, 1972).

The mere participation by the presiding judge in an earlier stage of the proceeding neither suggests the existence of actual impropriety nor provides a basis for a finding of the appearance of impropriety. U.S. v. Lowrey, 77 F.Supp. 301 (E.D.Pa.1948) affirmed 172 F.2d 226 (1949). See, Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975); Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971); Commonwealth v. Smith, 274 Pa.Super. 280, 418 A.2d 406 (1980); Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978). Moreover, appellant fails to identify any specific event or incident during the earlier proceeding which would reasonably give rise to a question of the court’s objectivity.⁵

Appellant seeks to support his position by arguing that the charged bias can be demonstrated by the rulings of the challenged jurist at the second trial. He contends the record reflects this pattern of bias and that he is entitled to the award of a new trial presided over by a different judge. Commonwealth v. Goodman, supra, 454 Pa. at 360, 311 A.2d at 653-654.

The fact that the presiding judge’s rulings in the former trial were similar to his rulings in the retrial does not, standing alone, establish a. pattern of conduct which would compel a finding of bias or partiality.⁶ If the rulings at the second trial constituted a fair exercise of discretion, the fact that the trial judge had previously ruled in a similar manner under similar circumstances is to be expected.

Appellant cites as illustrative of the prejudice of the court the ruling relating to Mr. Boyle’s daughter’s admission pro hac vice and the exclusion of the accused at side bar and in-chambers conferences. These rulings were clearly correct and in no way suggested a prejudice by the court against the appellant.⁷ The other alleged erroneous rulings to demonstrate the court’s prejudice against the appellant are equally without merit. Not only did these rulings reflect a proper exercise of discretion, there was nothing to suggest a bias or unfairness to the defense. To the contrary, the record is replete with instances where the court displayed an extraordinary effort to protect the rights of appellant.

Appellant also charges that the trial court erred in allowing to be read to the jury the entire transcript of the sentencing of Turnblazer, a co-conspirator. First, the allegation is factually incorrect. The lower court deleted at defense counsel’s request that portion of the transcript that contained Turnblazer’s confession. Even more significant, it was the defense that first referred to portions of the transcript of Turnblazer’s sentencing in an effort to destroy Turnblazer’s credibility as a witness for the Commonwealth.

Turnblazer, the then president of District 19, was a key Commonwealth witness in that it was his testimony which provided the link between Boyle and the murders. On cross examination the defense attempted to attack Turnblazer’s credibility by showing that he had received favorable consideration from the Commonwealth for his testimony against Boyle. The defense referred to portions of the transcript of Turnblazer’s sentencing to establish that an agent of the FBI and the Special Prosecutor had deliberately misinformed the sentencing court of the extent of Turnblazer’s cooperation in the prosecution of Mr. Boyle.⁸ Although this evidence was objected to by the Commonwealth as hearsay, the trial court permitted a number of questions in this vein to establish the defense theory that the witness had received favorable treatment.

On redirect, the prosecution requested permission to introduce the entire transcript to the jury. As previously noted, the portion of the transcript containing Turnblazer’s confession was deleted. An objection to a reference of Boyle’s first trial and conviction in the transcript was overruled.

The Commonwealth maintained that the fact of Mr. Boyle’s first trial and conviction was information necessary for the jury to properly assess the appellant’s charge that the Commonwealth displayed favoritism in its treatment of Mr. Turnblazer. The Commonwealth’s explanation for seeking leniency for Turnblazer in the federal proceedings resulted from Turnblazer’s cooperation during the first trial of Mr. Boyle. They contend that Turnblazer’s testimony at that trial in large measure brought about the conviction of Boyle. This, of course, was in response to the defense’s contention that the Commonwealth’s favorable treatment of Turnblazer was designed to influence his testimony at the second trial. Mr. Turnblazer’s sentencing in the federal matter occurred after the completion of the first trial and before the commencement of the second trial.

Ordinarily, the fact of an earlier trial resulting in a conviction would have no relevance in a retrial. Here, however, the tactic taken by the defense in attacking Turn-blazer’s credibility made that information relevant, as supplying the reason for the Commonwealth position at the sentencing of Turnblazer. The prosecution’s case rested heavily upon the jury’s acceptance of the testimony offered by the witness Turnblazer. The defense on cross examination had attempted to establish that the comparatively lenient treatment accorded to Turnblazer was the result of collusion by the Special Prosecutor and the FBI to elicit damaging testimony against Mr. Boyle at the second trial. The reference to the first trial and conviction and Mr. Turnblazer’s role in bringing about that result was obviously relevant in permitting the jury to consider whether the sentence imposed was appropriate in light of Turnblazer’s prior cooperation, which was called to the sentencing court’s attention.

The appellant does not contest the relevancy but stresses the prejudicial impact of this evidence. It is argued that the probative value is far outweighed by the resultant prejudice that flowed from revealing the fact of the earlier trial and conviction. We have frequently observed that even when evidence is determined to be relevant, the trial court in its discretion may exclude it if the prejudicial impact outweighs its probative value. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977); Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972) (plurality opinion); Commonwealth v. Bamak, 357 Pa. 391, 54 A.2d 865 (1947); J. McCormick, Evidence § 185, at 438-40 (2d ed. 1972). As has been noted:

This balancing of intangibles — probative values against positive damages — is so much a matter where wise judges in particular situations may differ that a leeway of discretion is generally recognized. J. McCormick, Evidence § 185, at 440.

Here the relevancy of this evidence was occasioned by a defense tactic. The credibility of Turnblazer was not a collateral issue, but rather the jury’s acceptance of his testimony was critical to the success of the prosecution. Additionally, as the trial court noted, the first was nationally publicized and the voir dire disclosed that six members of the jury admitted they were aware of the earlier trial and conviction. Under all of these circumstances, we do not believe the prejudicial effect of this reference to the earlier proceeding so outweighed the probative value of the evidence as to deprive appellant of a fair trial and requires the award of a new trial.⁹

Appellant assigns as error the admission into evidence of certain portions of his testimony in earlier proceedings. After the introduction of these statements, the Commonwealth proceeded to establish that they, were untruthful. It is argued that Mr. Boyle did not testify in his second trial and therefore evidence impeaching his credibility as a witness was not relevant. Cf. Commonwealth v. Scoleri, 432 Pa. 571, 248 A.2d 295 (1968); Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967); Commonwealth ex rel. Marino v. Myers, 419 Pa. 448, 214 A.2d 491 (1965); Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961). It is also contended that these prior statements did not constitute admissions and therefore should not have been offered as substantive evidence.

The factual setting from which this objection arises is as follows: Exhibit 68, in the instant trial, was a copy of what purported to be the minutes of an Executive Board meeting of the UMW held in January 1970. These minutes stated that Pass, a co-defendant, had informed the Board of the formation of the Research and Information Committee (R & I Committee) at the 1968 Denver Convention of the organization.¹⁰ It was the theory of the Commonwealth’s case that the placing of this statement in the minutes was part of the design to conceal the transfer of the money used to pay the assassins who killed the Yablonski family members. In attempting to disassociate himself from any connection with this plot to murder, Boyle testified at his first trial that he had no involvement in the preparation of the copy of the minutes (Ex. 68) which Pass delivered to Tumblazer. At the second trial, the Commonwealth read to the jury the testimony of Boyle, from the earlier proceeding, denying touching these papers.¹¹ Thereafter, a fingerprint expert testified that Boyle’s fingerprint had been found on this exhibit.

The prosecution also introduced that portion of the record from the first trial wherein Boyle had denied sitting with Turnblazer during a 1972 airplane trip. It was claimed by the Commonwealth that during this trip Boyle and Turn-blazer had discussed aspects of the conspiracy. The Commonwealth called, at the second trial, a witness who testified that Boyle had in fact sat beside Turnblazer during that flight.

Additionally, the Commonwealth also introduced during the second trial Boyle’s testimony before the 1972 grand jury his testimony at the trial of co-conspirator Prater and testimony at his first trial to show that on each occasion he had given a different explanation of the formation of the R & I Committee.

Appellant is correct in stating that since he did not testify in the second trial, his credibility as a witness was not in issue and therefore there was no basis for the allowance of evidence to demonstrate his unreliability as a witness. Cf. Commonwealth v. Scoleri, supra; Commonwealth ex rel. Sprangle v. Maroney, supra; Commonwealth ex rel. Marino v. Meyers, supra; Commonwealth v. Butler, supra. It is also clear that the purpose for introducing this evidence was to establish Boyle’s untruthfulness, since the facts that appellant had handled Exhibit 68 and sat next to Turnblazer, during the 1972 airflight, could have been established by direct evidence, without reference to Boyle’s statements on those subjects. Moreover, even where impeachment evidence is properly admitted, it may not be used as substantive evidence. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973); Commonwealth v. DePasquale, 424 Pa. 500, 230 A.2d 449 (1967).

Nevertheless, we cannot accept appellant’s ultimate conclusion that the admission of this testimony was error. The justification for the admission of this testimony was not for the purpose of improperly commenting upon his silence at the second trial nor as impeachment of his credibility as a witness, but rather as substantive evidence of his guilt. This jurisdiction has long recognized the evidentiary principle that the making of false or contradictory or conflicting statements by the accused are admissible “since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory of guilt.” Commonwealth v. Bolish, 381 Pa. 500, 525, 113 A.2d 464, 476 (1955). Accord Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1037 (1978) cert. denied 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979); Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963); Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960); Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733 (1953); Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953); Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389 (1941); Commonwealth v. Jones, 297 Pa. 326, 146 A. 905 (1929). Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161 (1923).

The fact that Boyle exercised his right of silence during the second trial did not insulate him from the consequences of his earlier testimony. It has long been recognized that testimony from an earlier trial may be introduced in the prosecution’s case against a defendant regardless of whether that defendant takes the stand or not in the second proceeding. Commonwealth v. Doughty, 139 Pa. 383, 21 A. 288 (1891); Commonwealth v. House, 6 Pa.Super.Ct. 92, 93 (1897). See also, Harrison v. U.S., 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Walder v. U.S., 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1953); Edmonds v. U.S., 273 F.2d 108 (D.C.Cir., 1959); Ayres v. U.S., 193 F.2d 739 (5th Cir., 1952); Smith v. Slayton, 369 F.Supp. 1213, (D.C.Va., 1973); U.S. v. Grunewald, 164 F.Supp. 644 (S.D.N.Y., 1958).

It is generally held, unless a statute directs otherwise, that a defendant in a criminal case who takes the stand in his own behalf and testifies without asserting his privilege against self-incrimination thereby waives the privilege as to the testimony given so that it may be used against him in a subsequent trial of the same case.³ The fact that the defendant does not take the stand at the second trial does not prevent the use of his testimony given at the former trial, if it would otherwise be admissible. Heller v. United States, 7 Cir., 57 F.2d 627, certiorari denied 1932, 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298; State v. Simmons, 1908, 78 Kan. 852, 98 P. 277; State v. McPherson, 1915, 77 Or. 151, 149 P. 1021; State v. King, 1917, 102 Kan. 155, 169 P. 557; Scherpig v. State, 1929, 112 Tex.Cr.R. 61, 13 S.W.2d 872.

Moreover, the testimony taken from the first trial and introduced at the second trial was “otherwise admissible” as a voluntary admission. Although the responses of Mr. Boyle standing alone may appear neutral, when coupled with the evidence of their falsity those statements assist in proving his consciousness of guilt and efforts to avert suspicion. This evidence of the earlier false statements had independent probative value and was properly submitted to the jury to be considered as proof of a consciousness of guilt.

As a corollary argument appellant contends the trial judge refused to permit defense counsel to read into the record applicable balancing portions of the records in the prior proceedings to explain or rebut the portions introduced by the Commonwealth. This argument sets forth the bald assertion that the segments introduced distorted the prior testimony without any attempt to specify those portions of the record that would have clarified or changed the meaning of the evidence introduced. We have read these portions of the prior testimony in context and find no indication of a distortion or unfairness. Hence we conclude that this claim is also without merit.¹²

Accordingly, the Judgments of Sentence are affirmed.

HUTCHINSON, J., filed a concurring opinion. FLAHERTY, J., filed a dissenting opinion in which ROBERTS and LARSEN, JJ., joined.

1 . This retrial was the result of our decision in Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661 (1977) wherein we reversed the judgment of conviction and ordered a new trial on the grounds that the exclusion of proffered testimony relating to irregularities in the financial records in a local union was error because it had relevance in establishing that the local union officials had a motive to kill which was not shared by the appellant. This writer authored a dissenting opinion. Commonwealth v. Boyle, supra, 470 Pa. at 361, 368 A.2d at 670-671 (1977) (Nix, J., dissenting joined by former Chief Justice Jones).

2 . Jurisdiction is vested in this Court pursuant to the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S.A. § 722(1).

3 . These remaining issues are:

(a) Whether the court erred in refusing to allow certain defense evidence to be presented through the testimony of certain witnesses or whether the court erred in failing to allow the defense to call these witnesses as of cross-examination?

(b) Whether the court erred in refusing to allow witnesses to be called to show that other United Mine Workers Districts went directly to him for loans?

(c) Whether the court erred in failing to sustain defense objections to the closing speech of the prosecutor?

(d) Whether the court erred in not providing appellant the Government reports and records concerning District 19?

(e) Whether the court erred in denying the pre-trial application to dismiss the charges under Rule 1100?

(f) Whether appellant was denied due process of the law?

(g) Whether the court erred in denying certain points for charge?

(h) Whether the court erred in charging appellant would be responsible for the acts of his fellow co-conspirators.

4 . A jurist’s impartiality is called into question whenever he has doubts as to his ability to preside objectively and fairly in the proceeding or where there exists factors or circumstances that may reasonably question the jurist’s impartiality in the matter. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973).

5 . We have noted that the exposure of a judge in a pretrial proceeding to highly prejudicial and inflammatory evidence may provide a basis for recusal of that jurist from presiding at the trial of that matter where the objectionable evidence would not be admissible at the trial stage. See Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 312 (1976).

6 . It is significant that there is no allegation that the court received any information from an extra-judicial source that may have inspired a prejudice against the appellant. See, e.g., U. S. v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Berger v. U. S., 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). The allegation is confined to the court’s participation in the former trial.

7 . Appellant claims that the court erred in refusing to allow his daughter, Antoinette Boyle, a member of the Montana Bar to act as his co-counsel. The record does not indicate that Ms. Boyle’s ability to contribute to the defense was impaired by denying her admission pro hoc vice. The defense did not intend to have Ms. Boyle serve as lead counsel, her role was merely to assist other counsel. Without her formal admission pro hoc vice, she was free to remain in the courtroom and to participate in the conferences between counsel and the client. Thus, the ruling to which objection is now being made relates only to form and not to substance. See Ross v. Reda, 510 F.2d 1172 at 1173 (6th Cir. 1975); Thomas v. Cassidy, 249 F.2d 91 (4th Cir. 1957), cert. denied, 355 U.S. 958, 78 S.Ct. 544, 2 L.Ed.2d 533 (1958).

Mr. Boyle contends that the court erred in refusing to allow him to be present at in-chambers and sidebar conferences. Appellant’s counsel attended the sidebar conferences and he was not limited in the right to confer with appellant prior to, during and after these discussions. A defendant’s presence in chambers and at sidebar is not required where he is represented by counsel. Cf. Rogers v. U. S., 422 U.S. 35, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975).

8 . Mr. Turnblazer entered a plea of guilty before the federal court for violating Yablonski’s civil rights. See 18 U.S.C. § 241. The Commonwealth did not prosecute this witness on the state murder charges.

9 . Appellant also claims that by allowing the jury to hear Tumblazer’s sentencing transcript, the prosecution unduly bolstered Tumblazer’s credibility because of statements made by individuals concerning Tumblazer’s honesty and cooperation. We do not believe that the Commonwealth’s evidence represented an inordinate response to the defense’s efforts to challenge Tumblazer’s truthfulness.

10 . Mr. Pass made arrangements with Mr. Boyle to secure $20,000 to be used to hire the murderers of the Yablonskis. The Research & Information Committee (R & I Committee) was formed as a front to launder the funds to be paid to the hired assassins.

11 . The dissenters’ characterization of Mr. Boyle’s testimony regarding his handling of the minutes in question is inaccurate. Nowhere in the relevant portions of this testimony does Mr. Boyle assert that he had no recollection of the events in question. Moreover, if the dissenters seek to imply that Mr. Boyle’s handling of the minutes in question constituted a qualified denial, this too is without support in the record. We believe that a fair reading of the testimony (N.T. 7-76 — 7-85) would justify a factfinder concluding that Mr. Boyle categorically denied touching the minutes in question. We note further that appellant in his brief also views his trial testimony as a categorical rather than a qualified denial.

Use of an FBI Agent ... to show that the fingerprint of the defendant Boyle was found on exhibit C-8 when during the fírst trial the defendant Boyle had denied ever touching exhibit C-8.

Appellant’s Brief, p. 24.

3 See the annotation in 5 A.L.R.(2d) at p. 1408, in which cases to that effect from twenty jurisdictions are collected----

Edmonds v. United States, 273 F.2d 108, 112-13 (D.C.Cir., 1959).

This principle has long been recognized in this jurisdiction. Commonwealth v. House, 6 Pa.Superior Ct. 92 (1897). In House the Superior Court stated:

The general proposition that the testimony of a defendant cannot be used against him on a second trial of the same indictment, if he elects not to go upon the witness stand, is not strongly urged in the present case, and is not well founded upon principle or authority. He cannot be compelled to give evidence against himself, but if he gives it voluntarily he cannot object to having it used against him. His constitutional privilege, as far as that testimony is concerned, is waived, and cannot be reclaimed in any subsequent trial of the same indictment. As was said in Com. v. Doughty, 139 Pa. 383 [21 A. 228] his admissions or declarations would be evidence against him; and if so why not his testimony under oath?

Id. at 104.

12 . The charge by the dissenters that appellant was not afforded an opportunity to explain his prior statements is totally without factual support. This testimony was offered by the Commonwealth in its case in chief. The defense was free to offer testimony to explain these obvious inconsistencies and/or to establish the truthfulness of Mr. Boyle’s responses. Moreover, as previously noted, Mr. Boyle has failed to specify any segment of his prior testimony which would have constituted an explanation or have indicated a distortion of those portions introduced by the Commonwealth.