Commonwealth v. Newmiller

409 A.2d 834, 487 Pa. 410, 1979 Pa. LEXIS 792

• Court: Supreme Court of Pennsylvania
• Decided: December 21, 1979
• Docket: 488
• Status: Published

Opinions

OPINION

O’BRIEN, Justice.

Appellant, Philip Newmiller, was convicted by a jury of murder of the first degree. Post-verdict motions were denied and he was sentenced to life imprisonment. This direct appeal followed.

Appellant’s conviction resulted from the homicide of Carl Ernst on October 10, 1972. At that time, appellant was the paramour of Donna Ernst, the victim’s wife. Appellant usually visited the Ernst residence- on nights when the victim was not at home. On the night of the slaying, the victim’s usual bowling night, the victim arrived home earlier than expected. A fight broke out between the victim and appellant and appellant stabbed the victim. The victim died as a result of the stab wounds.

Appellant first argues that his conviction for murder of the first degree was violative of the double jeopardy clause of both the United States Constitution and the Pennsylvania Constitution.

On February 4, 1974, appellant entered a plea of guilty to murder of the second degree, pursuant to a negotiated plea bargain with a recommended sentence of four to fourteen years. Following a hearing, the trial court accepted the plea and sentenced appellant pursuant to the negotiated plea. On December 16, 1974, appellant filed a petition pursuant to the Post-Conviction Hearing Act,¹ alleging, inter alia, that the plea was not voluntary. On May 16, 1975, the post-conviction court entered an order allowing appellant to withdraw his plea of guilty and vacating the judgment of sentence.

On September 16, 1975, the first day of appellant’s trial, he made an oral motion that murder of the first degree should not be submitted to the jury. He argued that the trial court’s acceptance of the guilty plea to murder of the second degree acted as an implied acquittal to the charge of murder of the first degree. The court denied appellant’s motion and eventually submitted the charge of murder of the first degree to the jury. On September 23, 1975, appellant was convicted of murder of the first degree.

I. DOUBLE JEOPARDY

Appellant argues that his conviction for murder of the first degree, following an overturned negotiated guilty plea to murder of the second degree, violates the provisions against double jeopardy contained in both the United States and Pennsylvania Constitutions. This court was presented with the same issue, on facts procedurally similar in Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979). This court was equally divided in Klobuchir. We believe the opinion in support of affirmance (by Justice Nix, joined by Justice O’Brien and Justice Larsen) presents the proper analysis and result, and we, therefore, rely upon that opinion. The opinion in support of affirmance in Klobuchir found no violation of double jeopardy under either the United States or Pennsylvania Constitutions, reasoning that in a negotiated guilty plea to murder of the third degree, the defendant was never placed in jeopardy for murder of the first degree. While the trial court could find that the offense in question rose to murder of the first degree, the court could not impose sentence on such a finding because the defendant would then be allowed to withdraw his plea of guilty. Pa.R.Crim.P. 319(b)(3). In such circumstances, the court has the power only to reject the proposed plea agreement. Believing the opinion in support of affirmance in Klobuchir to be persuasive, we find no violation of the double jeopardy clause of either the United States or Pennsylvania Constitutions.²

II. EFFECTIVE ASSISTANCE OF COUNSEL

Appellant next argues that he was denied effective assistance of counsel when his trial counsel failed to object to a portion of the court’s charge to the jury. The court charged the jury as follows:

“There has been some argument made to you, I think it is fair to say by both sides, as to the absence of certain witnesses or the failure to call available witnesses possessing some peculiar knowledge concerning facts essential to a given party’s case. The failure to call such a witness gives rise to an inference that the testimony of such uninterrogated witness would not sustain the contention of that party but this test or rule is not operative unless it appears to you that the absent witness had peculiar knowledge or means of knowledge rendering his testimony of importance to the party in the position to call him. Before invoking that rule, you must understand that which is, I assume, obvious, that being if a witness is equally accessible to both sides and there is no reason why one rather than the other should offer him, the rule, of course, does not apply.” (Emphasis added.)

Trial counsel failed to object to this portion of the charge and appellant now argues that this failure amounts to ineffective assistance of counsel. The facts are as follows.

On the night of the killing, Donna Ernst, the victim’s wife, was present in the house when the homicide occurred. When the police arrived at the Ernst home, Mrs. Ernst told police that her husband must have found an intruder in the house and that he must have been stabbed in the ensuing struggle. During their investigation, however, the police were informed that appellant was usually at the Ernst home on the victim’s bowling night. Mrs. Ernst originally denied that appellant was present. A search of the Ernst residence convinced police that Mrs. Ernst was lying, and she finally told police that appellant had stabbed the victim. As Mrs. Ernst had lied to police, who then knew (or at least strongly suspected) that she and the victim were having an affair, the police secured a material witness warrant for Mrs. Ernst.

Following the withdrawal of appellant’s guilty plea, trial was scheduled for September 16, 1975. Although Mrs. Ernst’s name appeared on the murder indictment as a possible witness, the Commonwealth made clear during the early stages of the trial that it did not intend to call her as a Commonwealth witness. The following exchange occurred between the court and defense counsel:

“MR. SEROTA: Preliminarily, first, yesterday, Mr. Heckler made a representation to the Court that it was not his intention to call Donna Ernst. Your Honor indicated at that time that all that was necessary was Mr. Heckler make this information known to me and that she be made equally accessible to me.

“THE COURT: No, I did not say that. I said she may now be considered equally accessible to you. If that is so, the jury is entitled to know if that witness is equally accessible to both parties, they do not have the right to draw any inference of the party that does not call her, if the testimony would be adverse to that party.

“MR. SEROTA: May I briefly point out to the Court, sir, that I have spoken to Mr. Heckler, I have spoken to Mr. Alfred Shea who represents Mrs. Ernst, and they indicated to me, sir, that if she testified in a certain manner that, in fact, she might well be liable for prosecution, sir. “THE COURT: This may be, but I am not going to allow a statement like that to appear on the record. If you wish to call her outside the presence of the jury and she invokes the Fifth Amendment, that is something else.

“MR. SEROTA: Most respectfully, what I am saying is, the Commonwealth has the right and capability to seek immunity for that witness, sir. The defense does not have that equal right. She is, therefore, not equally accessible to the defense, sir, on that basis. I ask that Your Honor reverse that previous ruling.

“THE COURT: I am not going to rule on anything in a vacuum. I do not know what you are saying is true. I know what you are saying to me you believe to be correct. I do not know she is going to invoke the Fifth Amendment.

“MR. SEROTA: What I am asking is that the Court direct the District Attorney to direct her—

“THE COURT: No, I will not so direct.”

During its case in chief, the Commonwealth, recognizing that Mrs. Ernst’s availability would be at issue, called a Mr. Vincent DePinzo, who would have testified that appellant and Mrs. Ernst were living together in the house next door to his. The court, however, disallowed the testimony as being prejudicial. The following exchange then occurred:

“THE COURT: ... I am not going to admit the testimony but I will make this statement on the record. It does show that Donna Ernst is available as a witness on behalf of the defendant and that she is more accessible or as much accessible to them as to the Commonwealth.

“THE COURT: If you are objecting to the offer of proof, we will sustain the objection.

“MR. SEROTA: I am, sir, absolutely.

“THE COURT: Therefore, if you would argue that to the jury, I will advise them to the contrary.

“MR. SEROTA: I can’t argue what?

“THE COURT: The absence of Donna Ernst in the Commonwealth’s case.

“MR. SEROTA: Sir, let me say this to you. . I’m not sure I understand this. Can we go off the record?

“THE COURT: No. I think we had better stay on the record.

“MR. SEROTA: I do intend to argue to the jury, at least, that the Commonwealth, whose burden it was, has not produced Donna Ernst.

“THE COURT: I will then tell the jury that the Commonwealth has no burden to produce her and tell them why.

“MR. SEROTA: Well, the law is that the Commonwealth does not have the duty to produce all eyewitnesses.

“THE COURT: Correct.

MR. SEROTA: But I do expect to say, ‘Look, now, if there is one word Phil Newmiller has said that isn’t true, why don’t they call Donna Ernst?’ I’m going to argue something to that effect.

“THE COURT: I am warning you that I am going to tell the jury, if you wish to do it.

“MR. SEROTA: Would you make it clear exactly what that is?

“THE COURT: I am going to tell them that Donna Ernst is equally accessible and available to the defense and that the Commonwealth has no duty to call any eyewitness that they do not believe to be credible, and that the record will reveal in this case that the Commonwealth stated that they did not intend to call her.

* * * * * *

“THE COURT: I would say — to go back to this thing about Donna Ernst — I am not certain what I would say to the jury. I do not want what I have said in connection with this on this record at this point to bind me as to what I would tell the jury, because I do not know what, if anything, defense counsel may argue to them, but I would certainly say to them that the Commonwealth has no duty to call a witness that is equally accessible to both sides.

“MR. SEROTA: Well, I already made my views earlier in the case on that, sir, and I would say I am going to take exception to the charge on that basis, of course.

“THE COURT: I would further make one more statement. I do not see how there is any basis in law for the Commonwealth to grant immunity to Donna Ernst.

“MR. SEROTA: Well, that may or may not be but I don’t think that is before the Court.

“THE COURT: Well, that is the argument that you made, so it is before the Court.” (Emphasis added.)

Appellant took the stand in his own behalf. He testified that he killed the victim, but did so in self-defense. During closing arguments, both the attorney for the Commonwealth and defense counsel argued that opposing counsel should have called Mrs. Ernst as a witness. Because of closing arguments, the trial court gave the previously quoted charge. Defense counsel failed to object and appellant now argues that this failure amounted to ineffective assistance of counsel.

In Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599 (1967), we stated:

“. . . [0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. . . .” (Emphasis in original.)

In order to find ineffectiveness on the part of trial counsel, we must find that no reasonable basis exists for counsel’s failure to object to the questioned portion of the charge.

In Commonwealth v. Bird, 240 Pa.Super. 587, 361 A.2d 737 (1976), the Superior Court was presented with an issue concerning the propriety of the following charge:

“Now, there is a question as to what weight if any, you should give to the fact that neither the Commonwealth nor the defendant called a potential witness, a Mr. Rich Ault. The law provides that the jury may infer that a potential witness would have given testimony unfavorable to a party who failed to call him, if it was natural and reasonable to expect the party to call him as a witness, and if there is no satisfactory explanation for why the party failed to do so. The defense contends that the Commonwealth should naturally and reasonably be expected to have called Rick Ault, and that the Commonwealth gave no satisfactory explanation for failing to do so. The Commonwealth contends that it would not be natural and reasonable to expect them, under the circumstances to call Rick Ault, and that, in any event, they did give a satisfactory explanation for why he was not here. These would be matters for you to consider. If you find that it would be natural and reasonable for a party to have called a witness, and that party failed to give a satisfactory explanation for failing to do it, then you may infer that the witness would have given testimony unfavorable to that party. The inference that a potential witness’ testimony would have been unfavorable to a party who would have called him, is an inference that you may draw, and not that you are required to draw. It is just the inference that the testimony would be unfavorable, not that he would have given particular testimony. The inference is not a substitute for proof of specific facts.” Id., 240 Pa.Super. at 590, 361 A.2d at 738-739. (Emphasis in original.)

As the Superior Court stated:

“The criteria required before an inference can be drawn from the failure of a party to produce a witness are well-established. ‘ “Where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him.” Wills v. Hardcastle, 19 Pa.Super. 525, 529 (1902); Green v. Brooks, 215 Pa. 492, 496, 64 A. 672 (1906); Hass v. Kasnot, 371 Pa. 580, 584, 585, 92 A.2d 171 (1952). The person not produced must be within the power of the party to produce. II Wigmore on Evidence, § 286.’ Commonwealth v. Trignani, 185 Pa.Super. 332, 340, 138 A.2d 215, 219, aff’d, 393 Pa. 140, 142 A.2d 160 (1958) (emphasis added). In Commonwealth v. Jones, 455 Pa. 488, 495, 817 A.2d 233, 237 (1974) our Supreme Court articulated the ‘missing witness’ inference rule as follows: ‘ “[WJhen a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. (Emphasis added.) See McCormick, Law of Evidence, 534 (1954). See also Bentivoglio v. Ralston, 447 Pa. 24, 288 A.2d 745 (1972), and Commonwealth v. Wright, 444 Pa. 536, 282 A.2d 323 (1971).” Commonwealth v. Moore, 453 Pa. 302, , 309 A.2d 569, 570 (1973).’ (Emphasis in Commonwealth v. Bird.)

“The instruction in the instant case permitted the jury to draw an inference against the appellant for the failure to call Ault to the stand. On the basis of the record before us to allow such an inference to be drawn was error. After a thorough review of the record, we are unable to find any evidence which establishes that Ault was ‘peculiarly within the knowledge and reach’ Bentivoglio v. Ralston, 447 Pa. 24, 29, 288 A.2d 745, 748 (1972) of the appellant such that the jury might be permitted to draw the inference that Ault’s testimony would have been unfavorable to the appellant. Absent such evidence the criterion articulated in Commonwealth v. Jones, supra, that the potential witness must be ‘available to only one of the parties’ has not been satisfied.” Commonwealth v. Bird, supra, 240 Pa.Super. at 591, 592, 361 A.2d at 739. (Footnote omitted.)

Further, in Bird, the Commonwealth argued that no error was committed in giving the charge because the witness was equally available to both parties. As the Superior Court stated:

“. . . to the extent Ault was ‘equally available’ to both parties, the law is clear that no inference may be drawn against either party. See Bentivoglio v. Ralston, supra, 447 Pa. at 29, 288 A.2d at 748. The evidence produced at trial simply does not establish the requisite foundation for permitting the jury to draw an inference against the appellant for the failure to call Ault as a witness.” Commonwealth v. Bird, supra, 240 Pa.Super. at 592, 361 A.2d at 740.

In the instant case, as in Bird, there was simply no evidence in this record that Mrs. Ernst was “peculiarly within the knowledge and reach” of either party. As counsel for both parties, in their summation, argued the issue of a missing witness to the jury, the trial court obviously felt compelled to explain the missing witness rule to the jury. As no evidence was presented to the jury that Mrs. Ernst was within either parties’ reach, the court should, as a matter of law, have instructed the jury to disregard counsels’ arguments and not apply the missing witness rule. Thus, by charging as it did, the court permitted the jury to speculate on whether or not to draw the adverse inference. As such that portion of the charge was erroneously given. We further can find no reasonable basis for trial counsel’s failure to object to the charge. As we believe appellant was denied effective assistance of trial counsel, he is entitled to a new trial.³

Judgment of sentence reversed and new trial ordered.

MANDERINO, J., did not participate in the decision of this case. EAGEN, C. J., files a concurring opinion. ROBERTS, J., files a concurring and dissenting opinion. NIX, J., files a concurring and dissenting opinion in which LARSEN, J., joins. LARSEN, J., files a separate concurring and dissenting opinion.

1 . Act of January 25, 1966, P.L. 1580, § 1, effective March 1, 1966, 19 P.S. § 1180-1, et seq.

2 . Appellant does not raise the issue of possible prosecutorial vindictiveness in trying him for murder of the first degree as a denial of due process. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Comment, The Constitutionality of Reindicting Successful Plea Bargain Appellants on the Original Higher Charges, 62 Calif.L.Rev. 258 (1974).

3 . Because of our disposition of this case, we need not reach the following issues raised by appellant:

“A. Appellant was denied effective assistance of counsel where trial counsel repeatedly brought to the attention of the jury by his leading questions the fact that appellant had stated a wish to remain silent and have counsel present while in the custody of the police, and prior to making the statement subsequently obtained.

“B. In its instructions to the jury regarding the elements of murder, it was error for the Court to repeatedly state that murder in the first degree was a ‘wilful, deliberate and premeditated killing’, ‘accompanied by specific intent to kill’; the Court further erred in instructing that murder in the second degree was a ‘wilful, deliberate and premeditated killing without specific intent’, and the failure of trial counsel to object to such errors in the instructions constituted denial of the right to effective assistance of counsel to defendant.

“D. It was error for the Court to deny appellant’s motions to suppress certain physical evidence and oral statements, allowing their introduction at trial, where the physical evidence was acquired, and appellant’s arrest the result of authority granted upon insufficient probable cause, and where appellant’s later oral statement was tainted by that prior illegality.”