Commonwealth v. Leamer

295 A.2d 272, 449 Pa. 76, 1972 Pa. LEXIS 351
CourtSupreme Court of Pennsylvania
DecidedOctober 4, 1972
DocketAppeal, 115
StatusPublished
Cited by33 cases

This text of 295 A.2d 272 (Commonwealth v. Leamer) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Leamer, 295 A.2d 272, 449 Pa. 76, 1972 Pa. LEXIS 351 (Pa. 1972).

Opinions

Opinion by

Mr. Justice Pomeroy,

Appellant was convicted in 1958 following a jury trial of the 1955 first degree murder of his 92-year-old grandfather, Samuel Jacob Learner, and sentence was fixed at life imprisonment. After the jury returned its verdict, appellant’s counsel made an oral motion for a new trial, which was withdrawn immediately prior to sentencing. In 1970, we reversed the dismissal of appellant’s 1968 Post Conviction Hearing Act1 petition and held, based upon our decision in Commonwealth v. Littlejohn, 433 Pa. 336, 250 A. 2d 811 (1969), that Learner’s waiver of the right to appeal, inherent in his withdrawal of the motion for a new trial, had not been voluntary because induced by a fear that on a retrial the death sentence might be imposed. Commonwealth v. Leamer, 440 Pa. 37, 269 A. 2d 708 (1970). Post-trial motions were subsequently filed nunc pro tune in the Court of Common Pleas of Blair County and were denied by a court en home on September 17, 1971. This appeal followed.2

[80]*80Tlie Commonwealth’s case of first degree murder against appellant consisted primarily of a confession, the voluntariness of which is not here challenged, and corroborating evidence discovered pursuant to this statement. According to his confession, appellant, then 30 years of age, went to the home of his grandfather on the evening of September 2, 1955, with the avowed purpose of committing a robbery. Finding the victim at home, appellant lured him outside the house, ostensibly to look at an albino deer, and then fatally struck him over the head Avith a piece of pipe. A small amount of money and a flashlight were stolen from the house, and a watch was taken from the body of the deceased. Appellant then transported the body to and deposited it in a nearby water-filled quarry hole.

At trial appellant took the stand to refute the confession. He stated that he had gone to the elder Learner’s house to borrow five dollars to help pay the rent; that when his grandfather made disparaging remarks about appellant’s Avife and suggested that he, the [81]*81grandfather, might be better able to satisfy her amorous proclivities, a scuffle ensued in which the deceased accidentally struck his head on the stove; frightened, appellant then removed the body to the quarry hole.

Of the more than thirty alleged errors asserted in his new trial motion, appellant now presses only seven. For reasons which follow, we conclude that all are without merit and therefore affirm the 1958 judgment of sentence.

(1) Appellant first argues that he was unconstitutionally denied the right to counsel at his preliminary hearing in 1955. Although the United States Supreme Court held in 1970 that a preliminary hearing is a critical stage in a criminal proceeding, requiring the presence of counsel unless knowingly waived, Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387 (1970), that decision is not retroactive. Adams v. Illinois, 405 U.S. 278, 31 L. Ed. 2d 202 (1972). Commonwealth v. Thomas, 440 Pa. 213, 270 A. 2d 211 (1970); Commonwealth v. James, 440 Pa. 205, 269 A. 2d 898 (1970). We need not consider, therefore, whether appellant was in fact denied counsel at the preliminary hearing.

(2) Appellant next complains that he was prejudiced by the refusal of the trial court to allow defense counsel to cross-examine a Commonwealth witness as to whether the defendant had been advised of his constitutional rights before making Ms confession. The Commonwealth contended, and the trial court agreed, that in 1955, prior to the Supreme Court’s decisions in Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966), no such rights were known to exist. The practice in this jurisdiction, however, was to advise defendants at least of their rights to remain silent and that any statements made could be used against them. These warnings were not considered to be constitution[82]*82ally mandated, but desirable practice and a useful precaution if the Commonwealth were successfully to rebut a subsequent challenge to the confession as involuntary. Commonwealth v. Negri, 414 Pa. 21, 198 A. 2d 595 (1964); Commonwealth v. Dilsworth, 289 Pa. 498, 137 Atl. 683 (1927). As in the above two cases, so here, no contention has been made that the confession was in fact involuntary; thus a failure of the police officer to admonish the accused before taking his statement, if this in fact occurred, would not render the statement inadmissible. Commonwealth v. Negri, supra, at 30. The court did not err in not permitting the requested cross-examination.

(3) The third assignment of error is that the trial judge did not maintain a fair and impartial attitude in his conduct of the trial. In a trial spanning seven days and involving the testimony of over two dozen witnesses, it is only natural that a defendant should be dissatisfied with some of the court’s rulings. We have examined the trial transcript in its entirety, however, and cannot agree with appellant that the trial judge conducted the trial or exercised his discretion in a manner which was in any way hostile to appellant or prejudicial of his rights to a fair trial.

(4) Appellant’s next contention is that the trial judge improperly allowed the introduction of his tape-recorded confession after the same statement had already been introduced in written form. When properly identified as true and correct reproductions, and when the voices are properly identified, such tape recordings are admissible. Commonwealth v. Lopinson, 427 Pa. 284, 308, 234 A. 2d 552 (1967); Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A. 2d 464 (1955). Appellant argues, however, that the taped evidence here was merely cumulative and thus should have been excluded. Under all the circumstances of this case, we [83]*83do not find any abuse of discretion on the part of the trial judge in permitting the tape recording to be introduced.

(5) Conviction of murder in the first degree is challenged on the ground that, aside from appellant’s confession, there was insufficient evidence to support this degree of guilt. The law is well settled that “. . . an extrajudicial admission or confession of one accused of crime cannot be received in evidence unless and until the corpus delicti of the crime has first been established by independent proof, and that failure to comply with this prerequisite will exclude the admission or confession . . . [Wjhenever . . . the Commonwealth, in a homicide case, has established that the person for whose death the prosecution was instituted is in fact dead and that the death occurred under circumstances indicating that it was criminally caused by someone, the rule is satisfied and admissions or confessions may then always be received as proof of the identity of the guilty agent; Commonwealth v. Gardner, 282 Pa. 458, 463; Commonwealth v. Pugilese, 276 Pa. 235, 238.” Commonwealth v. Turza, 340 Pa. 128, 133-34, 16 A. 2d 401 (1940). See also Commonwealth v. Leslie, 424 Pa. 331, 227 A. 2d 900 (1967); Commonwealth v. Ross, 403 Pa. 358, 169 A. 2d 780 (1961), cert.

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Bluebook (online)
295 A.2d 272, 449 Pa. 76, 1972 Pa. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-leamer-pa-1972.