Commonwealth v. Johnson

327 A.2d 632, 457 Pa. 554, 1974 Pa. LEXIS 872
Supreme Court of Pennsylvania·Decided October 16, 1974·No. Appeals, Nos. 34 and 257·Published·Cited by 72 cases

Opinion

Opinion by

Mr. Justice Roberts,

Appellant, Vincent Johnson, was found guilty by a jury on March 21, 1973, of murder in the first degree and aggravated robbery. Post-trial motions were denied and concurrent sentences of life imprisonment on the conviction for murder and ten to twenty years on [557] the robbery conviction were imposed. This direct appeal followed.1 We affirm.

On October 29, 1971, Kenneth Wakefield was assaulted and sustained severe head injuries, which resulted in his death. In connection with the investigation of this incident, the police requested appellant’s father to bring appellant (then age 17) to the Police Administration Building. The father did so on November 5, 1971, and appellant was taken into custody at 5:35 p.m. Miranda2 warnings were administered, and police detectives began questioning appellant regarding the assault on Wakefield.

Initially, appellant denied any involvement, but at 9:00 p.m. he began an oral statement in which he admitted the assault. This statement was completed at 9 :50 p.m., after which appellant, in the presence of his father, repeated the substance of the statement.

The following day at 4:40 p.m., a formal, written statement — substantially identical to the earlier oral statement — was taken. This statement was completed at 8:00 p.m. Appellant was arraigned at some later time, not shown by the record.

Appellant raises two objections to the failure to suppress his written statements.3 He argues, first, that the formal statement was not voluntarily made. The suppression court heard conflicting testimony on this claim at appellant’s August 27, 1972 suppression hearing and resolved the issue against appellant. The findings of the trier of fact, supported by the record, may [558] not be disturbed. Commonwealth v. Karchella, 449 Pa. 270, 273, 296 A.2d 732, 733 (1972); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972).

Appellant’s second objection to tbe admission of bis statement is based on the contention that it was tbe product of unnecessary delay between bis arrest and arraignment. Pa. R. Crim. P. 118 (now 130); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); Commonwealth v. Jones, 449 Pa. 619, 294 A.2d 889 (1972); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973). Tbe claim of unnecessary delay was not raised either at tbe suppression bearing or at trial. Since tbe claim was not timely raised, it may not be considered here.4 Commonwealth v. Scoggins, 451 Pa. 472, 477, 304 A.2d 102, 105 (1973); Commonwealth v. Agie, 449 Pa. 187, 189, 296 A.2d 741 (1972).

Appellant next urges several errors in tbe admission of evidence. First, one of tbe police officers testified that, prior to beginning tbe interrogation of appellant, be administered tbe constitutionally required warnings in tbe presence of appellant’s father. Tbe officer was then permitted to testify, over a hearsay objection, that be asked appellant’s father whether tbe father understood tbe warnings and that tbe father replied affirmatively. Tbe evidence was proper to show [559] the care taken to insure that both appellant and his father understood the warnings. Regardless of whether the father actually understood the warnings, the evidence tended to show the absence of a coercive atmosphere surrounding appellant’s statement. Since the father’s answer could thus be used to prove something other than its truth, it was not hearsay for that limited purpose. Commonwealth v. Jacobs, 445 Pa. 364, 367, 284 A.2d 717, 719 (1971), cert. denied, 409 U.S. 856, 93 S. Ct. 135 (1972); McCormick’s Handbook of the Law of Evidence § 246, at 585 (2d ed. E. Cleary 1972); G. Henry, Pennsylvania Evidence § 441, at 434-35 (1953). Evidence admissible for one purpose but not for another may be admitted, though a limiting instruction must be given if requested. Commonwealth v. Updegrove, 413 Pa. 599, 605, 198 A.2d 534, 537 (1964); 1 J. Wigmore, Law of Evidence § 13, at 300-01 (3d ed. 1940); McCormick, supra § 52, at 119, § 59, at 135-36. No such limiting instruction was requested here.

Appellant’s next evidentiary objection5 relates to testimony concerning a conversation between appellant and his father. According to the trial testimony of one of the police officers, appellant repeated the substance of his oral statement (in which he admitted the assault on the decedent and the taking of decedent’s trousers) to his father. The officer then testified, over objection, to the subsequent exchange: “A. . . . The father was upset. He asked him why he had to rob him and steal, that he gave him every opportunity, he gave him a job, he was making §100.00 a week— . . . . Q. What was [560] the defendant’s response to that? Did he say why he took the pants? A. He said he liked them, that he wanted them.” Appellant contends that this was an improper attempt to establish a “tacit admission” by silence. Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967). However, the challenged testimony was not an attempt to use appellant’s silence as evidence against him, for appellant did not remain silent. See Commonwealth v. Cheeks, 429 Pa. 89, 99-100, 101 n.5, 239 A.2d 793, 798-99, 799 n.5 (1968). Instead appellant responded to the question in a way which could be interpreted by the jury as a¿n express admission that he stole the trousers. And the father’s question was required to establish this possible meaning. Thus, the question was relevant solely because it was asked, not to establish the truth of the assertions in the question. Since the testimony tended to show an express admission by appellant, it was admissible as an exception to the hearsay rule. Commonwealth v. Cheeks, supra; Commonwealth v. Wentzel, 360 Pa. 137, 149-50, 61 A.2d 309, 315 (1948); McCormick, supra §262, at 628; Wigmore, supra, § 1048, at 2.

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Commonwealth v. Johnson, 327 A.2d 632, 457 Pa. 554, 1974 Pa. LEXIS 872 (Pa. 1974).

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