Commonwealth v. Heckathorn

241 A.2d 97, 429 Pa. 534, 1968 Pa. LEXIS 835

• Court: Supreme Court of Pennsylvania
• Decided: April 24, 1968
• Docket: Appeal, 135
• Status: Published

Opinions

Opinion by

Me. Chief Justice Bell,

On October 6, 1965, the body of Clair Heckathorn, a farmer and resident of Mercer County, was found shot to death in his home. Shortly thereafter, the defendant, aged 16 years, was arrested and committed to Mercer County jail. He submitted to questioning by the arresting officers for several two-hour periods, both on October 6th and 7th. On October 7, defendant was taken to his father’s home and, with his father’s permission, a search was conducted which uncovered a revolver later found to bear evidence of defendant’s fingerprints.

On the morning of October 8, James Heckathorn, the brother of the defendant, “voluntarily” appeared at the Mercer County station house, and in the presence of police gave a statement confessing complicity of both himself and his brother in the homicide. Later that morning, defendant was brought to the station house and his brother’s statement was read to him. He admitted that his brother’s statement was true, and then gave a statement in which he admitted that he shot the deceased while he and his brother were robbing him. Up to the time of this confession, no charges had been filed against defendant, although the arresting officers had been previously advised to do so by Judge Rodgers.

Thereafter, a bill of indictment which included the counts of murder, voluntary manslaughter and involuntary manslaughter was found against defendant. Defendant was tried and found guilty of murder in the first degree and sentenced to life imprisonment. He has appealed from the judgment of sentence.

I.

Charge of Court on Voluntary Manslaughter

Appellant contends that the trial Court committed error by failing to charge the jury on the law of voluntary and involuntary manslaughter. Defendant particularly objects to this portion of the charge: “. . . At the present time, the only duty before the jury is to determine whether the defendant is not guilty or guilty of murder in the second degree, or guilty of murder in the first degree. That is all that you are required to do at this time.”

For over one hundred years it has been the well-settled rule in this Commonwealth that the jury has the right and power to decide the guilt or innocence of an. accused and- what crime or crimes, if any, he has been guilty of. Commonwealth v. Frazier, 411 Pa. 195, 202, 191 A. 2d 369; Commonwealth v. Steele, 362 Pa. 427, 66 A. 2d 825; Commonwealth v. Schmidt, 423 Pa. 432, 224 A. 2d 625; Commonwealth v. Meas, 415 Pa. , 202 A. 2d 74; Rhodes v. Commonwealth, 48 Pa. 396; Lane v. Commonwealth, 59 Pa. 371; see also, Act of June 24, 1939, P, L. 872, 18 P.S. §4701. Relying thereon, defendant-appellant contends that the Court committed fatal and reversible ■ error by its charge because it thereby' took from the jury its power to find defendant guilty of only voluntary manslaughter.

■Notwithstanding the aforesaid power of .a jury to find a defendant charged with murder guilty of voluntary manslaughter only, the law is likewise well settled that a defendant is entitled to a charge on- the law of manslaughter only when there is some evidence to support such a verdict. Commonwealth v. Pavillard, 421 Pa. 571, 220 A. 2d 807; Commonwealth v. LaRue, 381 Pa. 113, 112 A. 2d 362; Commonwealth v. Flax, 331 Pa. 145, 200 Atl. 632; Commonwealth v. Yeager, 329 Pa. 81, 196 Atl. 827; Commonwealth v. Carroll, 326 Pa. 135, 191 Atl. 610; Commonwealth v. Miller, 313 Pa. 567, 569, 170 Atl. 128; Commonwealth v. Crossmire, 156 Pa. 304, 27 Atl. 40; Commonwealth v. Buccieri, 153 Pa. 535, 26 Atl. 228.

Thus, the important question for us in this appeal is whether there was any evidence which 'was sufficient to reduce this killing to voluntary manslaughter. In this appeal,. defendant contends that he was innocent of any crime, and that at the most the killing amounted to voluntary manslaughter. These contentions, and particularly thé latter one, are based upon the theory or contention that defendant spent the night in the home of his uncle and that his uncle was killed the following day as the, result of an altercation during which defendant’s gun went off. We note, incidentally, that defendant did not testify that his gun went off accidentally or unintentionally, or exactly how it went off. This contention was not presented in the lower Court, The only evidence cited to support it in this appeal is the testimony of a witness for the Commonwealth that there was an indentation in the bed in the room of defendant’s uncle roughly conforming to the shape of' a body, which defendant’s counsel now con-, tends was the body shape of defendant. Defendant’s confession, which he now seeks to repudiate- because allegedly made under duress, was to the effect that he entered his uncle’s- house with the intention of stealing checks, and that in the process of obtaining them he had a short struggle with his uncle. He now seeks to combine the statement in his repudiated confession of' his alleged struggle with his uncle with the aforesaid testimony about the impression of a body on the bed ; obviously, there is no connection between these two bits of evidence. Furthermore, this evidence is clearly- and without the slightest doubt insufficient to prove a crime of provocation or passion—namely, voluntary manslaughter.

In Commonwealth v. Pavillard, 421 Pa., supra, this Court said (pages-575-576) : “Defendant’s second allegation of an error in the Court’s • charge raises a serious problem. The problem, concisely stated, is whether the trial Court, in a murder case, must charge on the issue of voluntary manslaughter where no proof of a killing under the influence of legal passion or provocation exists.

“In Commonwealth v. Nelson, 396 Pa. 359, 364, 152 A. 2d 913, the Court, citing many authorities, thus defined voluntary manslaughter (page 364) : ‘In Commonwealth v. Donough, 377 Pa., supra, the Court quoting from Commonwealth v. Palermo, 368 Pa. 28, 81 A. 2d 540, said (page 52): “ ‘“Voluntary manslaughter is a homicide intentionally committed under the influence of passion.” Commonwealth v. Colandro, 231 Pa. 343, 350, 80 A. 571 (1911); Commonwealth v. Cargill, 357 Pa. 510, 513, 55 A. 2d 373 (1947) . . .’”

“ ‘ “In Commonwealth v. Colandro, 231 Pa. 343, 80 A. 571, the Court said (page 350): . . .‘“The term ‘passion’ as here used includes both anger and terror provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected:” 21 Am. & Eng. Ency. of Law (2d ed.) 173. “Passion, as used in a charge defining manslaughter . . . means any of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection”; 6 Words & Phrases, p. 5227.’ ” ’

“In the. instant case there was absolutely no evidence of legal passion or provocation

* such as to reduce the crime from murder to voluntary manslaughter. ■ That being so, this Court has consistently and wisely held that the trial Judge is not required to charge the jury on the issue of voluntary manslaughter. Commonwealth v. LaRue, 381 Pa. 113, 112 A. 2d 362; Commonwealth v. Yeager, 329 Pa. 81, 196 Atl. 827; Commonwealth v. Miller, 313 Pa. 567, 569, 170 Atl. 128. A charge on a point or issue which is unsupported by any evidence is likely to confuse the jury and obstruct Justice.

“In Commonwealth v. LaRue, 381 Pa., supra, in a case very similar to the one at bar, the Court said (pages 121-122) : ‘Failure of the trial.Judge to submit to the jury voluntary manslaughter as a possible verdict was not error. Where there is some evidence which would reduce the crime to voluntary manslaughter, defendant is entitled to have the jury instructed upon the subject: Commonwealth v. Flax, 331 Pa. 145, 200 A. 632. But where there is no evidence of manslaughter, it is proper for the court to refuse to submit to the jury the issue of manslaughter. In Commonwealth v. Yeager, 329 Pa. 81, 85, 196 A. 827, Justice (later Chief Justice) Maxey said: “It is well settled that on a trial for murder where there is no evidence which in the remotest degree points to the offense of manslaughter, the court commits no error in instructing the jury that a verdict of guilty of manslaughter would not be warranted. See Com. v. Carroll, 326 Pa. 135, 191 A. 610; Com. v. Crossmire, 156 Pa. 304, 27 A. 40, and Com. v. Buccieri, 153 Pa. 535, 26 A. 228.” ’ ”

II.

Constitutional Bight to Counsel

Appellant next contends that the statement or confession of his brother, which he admitted was true and correct, was obtained in violation of his Constitutional right to counsel, and consequently was inadmissible. Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, upon which defendant relies, aptly states the recent tests which are applicable. In Johnson v. New Jersey, the Court, speaking through Chief Justice Warren, reiterated the prior law that “coerced confessions are, of course, inadmissible regardless of their alleged truth or falsity. See Rogers v. Richmond, 365 U.S. 534 (1961)”; and, more importantly, said (page 721) : “We hold that Escobedo affects only those cases in which the trial began after June 22, 1964, the date of that decision. We hold further that Miranda* applies only to cases in which the trial began after the date of onr decision [on June 13, 1966].”

In this trial, which commenced on March 28, 1966, defendant-appellant is entitled (1) to the Escobedo warnings but (2) not to the Miranda warnings, which laid down additional warnings or guidelines (see Johnson v. New Jersey, 384 U.S., supra, page 734). In Johnson v. New Jersey, the Court said (pages 733-734) : “Apart from its broad implications, the precise holding of Escobedo was that statements elicited by the police during an interrogation may not be used against the accused at a criminal trial, ‘[where] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent . . . .’ 378 U.S., at 490-491.”

In Commonwealth v. Schmidt, 423 Pa. 432, 224 A. 2d 625, the Court said (pages 440, 441) : “. . . In other words,, under Escobedo [v. Illinois, 378 U.S. 478], supra, an individual is not unconstitutionally deprived of the assistance of counsel during police questioning, unless he requested such assistance and was not effectively warned of his right to remain silent [footnote omitted]. ... In the present case, it was established by; credible and competent evidence, which the lower court accepted as true, that Schmidt never requested the assistance of counsel during the period of police questioning. His testimony to the contrary was rejected below as unworthy of belief. . . . Under the circumstances, the absence of counsel during the questioning did not per se render evidence of the incriminating statements constitutionally inadmissible.”

In this case, it is clear that appellant never requested counsel either before or after he had become the “focus” of the investigation.

III.

Hearsay Testimony

Appellant next objects to the admission of hearsay testimony. It will suffice to say that -the challenged testimony was not prejudicial to appellant and, more important, it was not objected to, and hence was waived. Commonwealth v. Dessus, 423 Pa. 177, 186-187, 224 A. 2d 188; cf. also, Lewis v. Pittsburgh Railways Co., 386 Pa. 490, 126 A. 2d 454; Enfield v. Stout, 400 Pa. 6, 161 A. 2d 22.

IV.

Voir Dire

Appellant contends that the comments of the trial Judge during voir dire constituted reversible error. Upon examination of the second prospective juror, who stated that he would be more lenient in his judgment of a minor even to the extent of requiring “more evidence” to convict, the Court emphatically condemned such views while referring to the growing wave of juvenile crime in Mercer County. While this comment ánd condemnation were improper (Gallegos v. Colorado, 370 U.S. 49), they were adequately cured by the'subsequent and thrice repeated corrective statements made by the trial Judge.

V.

Voluntariness of Confession and Due Process

Appellant contends that his statement or confession was procured from him involuntarily. According to the testimony of the police, defendant was questioned twice by two policemen for a period of approximately two hours each time, and after police officers had told him that anything he said could be used against him in Court and that he was entitled under the law to be represented by an attorney.* Such police interrogations did not make appellant’s confession coerced or involuntary.

However, appellant further contends that he was denied due process because of the refusal of the trial Court to submit to the jury the question of the voluntariness of his confession. We must sustain this contention. Prior to Escobedo v. Illinois, 378 U.S., supra, the law in Pennsylvania with respect to the voluntariness of a statement or confession did not require any warning (a) that the defendant or accused had a right to remain silent or (b) that what he said might be used against him at the trial. Commonwealth v. Bryant, 367 Pa. 135, 147, 79 A. 2d 193. However, this was changed by the Supreme Court of the United States in Escobedo v. Illinois, 378 U.S., supra; Jackson v. Denno, 378 U.S. 368; and later in Miranda v. Arizona, 384 U.S., supra. See also, Commonwealth v. Schmidt, 423 Pa., supra; Pa. Rules of Criminal Procedure No. 323. In Jackson v. Denno, the Court held (1) that there must be an independent pretrial or evidentiary hearing on the voluntariness of an alleged confession, and (2) that if such an evidentiary hearing is held and it is determined by the Court that the alleged confession was voluntary, the voluntariness of the confession must subsequently be considered and determined by the jury (or by a Judge if there be a plea of guilty) at the actual trial. Pa. R. Crim P. 323(e), following Jackson v. Denno, 378 U.S., supra, provides: “If the court finds the confession to be admissible, the defendant may not again raise the issue of admissibility at trial except upon a showing of evidence which was not available at the hearing, but he may offer evidence at trial on the issue of whether the confession was made voluntarily.” For this reason,

Judgment reversed, and new trial ordered.

Mr. Justice Cohen took no part in the consideration or decision of this case.

Italics throughout, ours.

In Miranda v. Arizona, 384 U.S., supra, the Court pertinently said (page 479) : “. . . the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make h statement. But unless and until such warnings and waiver arc demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Accord: Commonwealth v. Senk, 423 Pa. 129, 223 A. 2d 97.

The testimony is ambiguous as to whether he was advised of his right to remain silent, and is not as clear and as positive as it will have to be on a retrial.