Commonwealth v. Burton

330 A.2d 833, 459 Pa. 550, 1974 Pa. LEXIS 490

• Court: Supreme Court of Pennsylvania
• Decided: October 16, 1974
• Docket: 252 and 322
• Status: Published

Opinions

OPINION OF THE COURT

O’BRIEN, Justice.

Appellant was found guilty by a jury of murder in the first degree, assault and battery with intent to kill and conspiracy. Post-trial motions were denied and this appeal followed.

On August 29, 1970, at or about 8:30 p.m., Officers Harrington and Kenner of the Fairmount Park Police in Philadelphia were turning into the Cobbs Creek Guardhouse of the 93rd Police District when they saw an unidentified Negro man gesturing at them to stop. The man then fired into the face of Officer Harrington, seriously injuring his lower jaw. A gun battle ensued between Officer Kenner and the assailant. Officer Kenner was soon joined by two additional police officers and they called for additional support. Officer McConomy, who occupied a guardhouse at the 96th District Station, received the call for assistance and radioed Officer Von Colin at the Cobbs Creek Guardhouse to find out what the trouble was. Von Colin replied, “I am not sure.” Just then a second call came over the radio and Officer McConomy told Von Colin he had a second assistance call. To this Von Colin replied, “Oh yeah?” Officer McConomy then heard several shots through the receiver and asked Von Colin what was happening, but he received no reply. Officer Von Colin died of gunshot wounds.

At the scene of the shooting of Officer Harrington, police arrested Hugh Sinclair Williams, who, just before the arrest, dropped a bag containing a .32 revolver, fifteen cartridges, and a fragmentation grenade.

Pasquale DiCamillo, driving in the vicinity on the night of the crime, saw a police wagon parked with a man firing from behind a corner of the wagon and another man running into the street. Mr. DiCamillo later identified the person firing the shots as Russell Shoats and identified the other man as one of the Joyner brothers. Robert Grier testified that on the evening of the murder, he was driving in the vicinity and when he stopped to let police cars through, Russell Shoats, armed with a weapon, entered his car and forced him to drive out of the area. While Mr. Grier was driving, Shoats told him that if he told the police anything, he, Shoats, would get Grier’s family. Later, Detective Edward Staume, armed with a search warrant went to 432 South 56th Street and arrested Alvin Joyner. A search of Joyner’s home disclosed a rifle, 80-30 ammunition, 9-milli-meter rounds, and two army fragmentation grenades.

On the basis of information apparently given to them by Marie Williams, wife of Hugh Sinclair Williams, police concluded that the crime was the work' of a gang known as “The Revolutionaries,” which included her husband, Alvin Joyner, Robert Joyner, Richard Thomas, Russell Shoats, and appellant Frederick Burton. Appellant was arrested, and after a warrant was obtained, a search of his home disclosed a number of spent cartridges, a 9-millimeter shell, a fragmentation grenade similar to those found at the murder scene and a 24" by 20" drawing of a police sergeant on his knees with a black militant holding a gun to his head, with the caption, “This. Now.” ¹ Appellant was tried by a judge and jury and found guilty of murder in the first degree, assault with intent to murder, and conspiracy for his role in the conspiracy which led to the killing of Officer Von Colin. Appellant now brings this appeal, in which he raises several issues.

Appellant argues that the Commonwealth’s evidence was insufficient to prove his guilt beyond a reasonable doubt, emphasizing that no witness saw him at the scene of the murder or at the shooting of Officer Harrington. We reject appellant’s argument. As we said in Commonwealth v. Eiland, 450 Pa. 566, 570-571, 301 A.2d 651, 653 (1973):

“. . . Although more than mere association must be shown, ‘ “ [a] conspiracy may be inferentially established by showing the relation, conduct, or circumstances of the parties, and the overt acts on the part of co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed: . . . ” ’ Commonwealth v. Neff [407 Pa. 1, 179 A.2d 630 (1962)] . . . at 6, 179 A.2d at 632, quoting Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489, 492 (1958).

“Moreover, a co-conspirator is not relieved of liability because he is not present at the execution of the crime. Commonwealth v. Burdell, 380 Pa. 43, 110 A. 2d 193 (1955). As we noted in Commonwealth v. Thomas, 410 Pa. 160, 165, 189 A.2d 255, 258 (1968): ‘Where the existence of a conspiracy is established, the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators if such acts are done in pursuance of the common design or purpose of the conspiracy. Such responsibility attaches even though such conspirator was not physically present when the acts were committed by his fellow conspirator or conspirators and extends even to a homicide which is a contingency of the natural and probable execution of the conspiracy, even though such homicide is not specifically contemplated by the parties (Commonwealth v. Spardute, 278 Pa. 37, 50, 122 A. 161).’ ”

To prove that appellant was a member of the “corrupt confederation” responsible for the killing of Officer Von Colin, the Commonwealth presented the testimony of Marie Williams, wife of Hugh Sinclair Williams, one of those apprehended at the scene of the crime. Mrs. Williams testified that her husband, appellant, Russell Shoats, Alvin Joyner, Robert Joyner and Richard Thomas had met in her home about once a week during the four months prior to the shooting of Officer Von Colin. At these meetings, the group, including appellant, discussed how they, in the words of Mrs. Williams, would “eliminate the ‘pigs’ ” in order to get police pressure off the blacks. She further testified that about a week before the murder of Officer Von Colin, the group, including appellant, discussed their plans to blow up a police station around Sixteenth (the Cobb Street Station is located at 63rd Street).

As already noted, Russell Shoats, Hugh Williams and Robert Joyner were identified as being at the scene of the murder of Officer Von Colin. In addition, as previously related, a search of appellant’s home revealed spent cartridges, a 9-millimeter shell and a fragmentation grenade similar to those at the crime scene and the hand drawing depicting a policeman on his knees with a gun pointed at his head (Mrs. Williams identified a similar drawing found in her home and testified it was done either by her husband or by appellant). We believe that this combination of evidence was sufficient to prove that appellant was part of the conspiracy. See Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).

Appellant next complains of various acts committed by the district attorney, each of which, he contends, entitles him to a new trial.

First, he complains of the district attorney’s summation to the jury. Mrs. Williams, the Commonwealth’s main witness, had appeared at three preliminary hearings, involving appellant. At the first two, she invoked the Fifth Amendment on advice of counsel. At the third hearing, she was given immunity and she testified that she heard no plans on the part of appellant or his co-conspirators to blow up a police station. At trial, Mrs. Williams gave a different version, testifying that she heard appellant and his co-conspirators planning the bombing of a police station, shortly before Von Colin was murdered. At trial, she was cross-examined by defense counsel relative to the prior inconsistent version, but was questioned only briefly regarding a statement she gave police prior to appellant’s preliminary hearing.

The district attorney, in his summation to the jury, argued that if the original statement given to the police were different than her trial testimony, the defense would have brought it to light. This argument was advanced in an effort to bolster Mrs. Williams’ trial testimony, since the defense had pointed out the inconsistent testimony she gave at appellant’s preliminary hearing, wherein she denied knowing or hearing of a conspiracy to blow up a police station.

The defense objected to this line of argument and moved for a mistrial, which was denied. The judge then gave the following cautionary instruction:

“Counsel for the defense has objected to the District Attorney’s statement that the jury can infer from the fact that counsel for the defendant did not cross-examine Mrs. Williams on the statement given by her to the police prior to the preliminary hearing, that therefore her statement to the police was not in conflict with her testimony at the trial.

“The statement given by Mrs. Williams to the police is not in evidence in this trial, and there is no evidence that counsel for the defendant had a copy of that statement.

“Therefore, I instruct you to disregard and put out of your mind and pay no attention to this comment on the part of the Assistant District Attorney as to the failure of counsel for the defendant to cross-examine Mrs. Williams on this statement.”

We are of the opinion that any error that was caused by the district attorney’s argument was cured by the trial judge’s cautionary instruction.

Appellant next argues that the district attorney improperly displayed certain evidence to the jury and thus prejudiced his case. During defense counsel’s cross-examination of Officer Gillin, the district attorney, in front of the jury, began to handle the weapons that were introduced as Commonwealth exhibits. These included a pistol, an ammunition clip and fragmentation grenade. Defense counsel objected and requested a sidebar at which the judge reprimanded the district attorney for his actions. Appellant now argues that the above actions were so prejudicial that he is entitled to a new trial. We do not agree. The weapons had been identified and were later admitted into evidence and were, therefore, available for the jury’s inspection. See Commonwealth v. Mika, 317 Pa. 487, 177 A. 3 (1935).

Appellant next argues that the district attorney deprived him of his right to a public trial. He complains that on the fifth day of the seven-day trial, when Mrs. Williams was scheduled to testify, the district attorney requested court personnel to keep appellant’s wife out of the courtroom, explaining that appellant’s wife had threatened Mrs. Williams. The district attorney also ordered all members of the Black Panthers kept out of the trial while Mrs. Williams testified. Pursuant to this request, other members of appellant’s family were also accidentally excluded. When this came to light, on the day following Mrs. Williams’ testimony, appellant’s counsel moved for a mistrial, which motion was denied. While it is true, as appellant argues, that the district attorney had no authority to exclude spectators, after the trial judge was made aware of the situation, he ratified the actions of the district attorney at least insofar as appellant’s wife and members of the Black Panthers were concerned. This presumably was based upon the judge’s determination that appellant’s wife and the Black Panthers might cause the witness, Mrs. Williams, to change her testimony out of fear. See United States ex rel. Laws v. Yeager, 448 F.2d 74 (3rd Cir. 1971), Commonwealth v. Principatti, 260 Pa. 587, 104 A. 53 (1918). With regard to those members of appellant’s family who had been excluded by mistake, we note that the situation was immediately corrected when it was brought to the attention of the court. Under the circumstances, we do not believe that appellant was denied the right to a public trial.

Appellant next argues that the trial court committed prejudicial error when it allowed to go out with the jury, during their deliberations, the drawing of a police sergeant on his knees with a black militant holding a gun to his head, and the caption “This Now.” The drawing found at appellant’s home was relevant as part of the chain of circumstantial evidence tending to prove appellant’s part in the anti-police conspiracy which led to the murder of Officer Von Colin. It was within the trial judge’s discretion to send the drawing out with the jury and under the circumstances of this case we are unable to say it was an abuse of discretion. See Commonwealth v. Claitt, 454 Pa. 813, 311 A.2d 922 (1973).

Appellant next alleges two errors in the trial court’s instructions. First, he contends that the court failed to inform the jury that they could find appellant guilty of conspiracy, but find him not guilty of murder and assault and battery with intent to kill. In reading the trial judge’s charge as a whole, however, we are convinced that the jury was made fully aware that appellant could be found guilty of conspiracy and yet acquitted of the substantive crimes contained in the other indictments. Cf. Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971).

Second, appellant argues that the trial court erred in not instructing the jury on voluntary manslaughter. However, appellant did not request the charge.

Finally, appellant argues that he was denied due process of law by the exclusion of black prospective jurors by the district attorney’s use of his pre-emptory challenges. We do not agree. Appellant has failed to prove a prima facie case of racial discrimination in the instant case. While the district attorney used his preemptory challenges to exclude some black jurors, one was seated on the jury. Under these facts, appellant is not entitled to a retrial. See Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970).

Judgment of sentence affirmed.

MANDERINO, J., did not participate in the consideration or decision of this case. NIX, J., filed a dissenting opinion in which ROBERTS, J., joined.

1 . Appellant does not contest the legality of the arrest of the search.