Commonwealth v. Norman

415 A.2d 898, 272 Pa. Super. 300, 1979 Pa. Super. LEXIS 3284
CourtSuperior Court of Pennsylvania
DecidedDecember 5, 1979
Docket1296
StatusPublished
Cited by15 cases

This text of 415 A.2d 898 (Commonwealth v. Norman) is published on Counsel Stack Legal Research, covering Superior 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. Norman, 415 A.2d 898, 272 Pa. Super. 300, 1979 Pa. Super. LEXIS 3284 (Pa. Ct. App. 1979).

Opinion

HESTER, Judge:

Appellant Charles Eugene Norman was convicted in a jury trial with two accomplices in the Court of Common Pleas of Fayette County of robbery, theft, conspiracy, and recklessly endangering another person. 1 Posttrial motions were argued and denied and a sentence of four to eight years imprisonment was imposed. On this direct appeal, appellant posits several issues for our consideration, all of which we find to be without merit.

Facts adduced at trial revealed the following scenario. On the evening of May 18, 1977, Evelyn Hess and her daughter Joyce Halbrook were working in Nickman’s Store on Route 40 near Uniontown, Pennsylvania. A heavy rainstorm and leaky roof forced them to continually mop the floor and to scatter buckets at strategic points throughout the store to catch the drips. At approximately 7:30 p.m. two young men entered the premises, one of who approached *303 Miss Halbrook and asked to be shown a shag rug. She ushered the man, later identified as co-defendant John Ulery, to the rear of the store, where he suddenly produced a revolver and ordered the two employees into a back room. He then directed Miss Halbrook to assist the other young man, later identified as co-defendant William Lewis, in removing the money from the cash register. After receiving the cash in a brown bag, Lewis grabbed an AM-FM radio from the shelf, whereupon the two men fled out the door. In all, approximately fifteen to twenty minutes had elapsed.

At about this time, Trooper Joel Lander of the State Police was on routine patrol on Route 40 approaching Nick-man’s when he passed a black Mercury travelling in the opposite direction. As the car was in a run-down condition, the trooper quickly glanced at the inspection sticker and simultaneously observed the driver, whom he later identified as Ulery. He then responded to the armed robbery call at Nickman’s and, upon interviewing the complainants and receiving their descriptions of the perpetrators, decided that the driver of the Mercury was one of the robbers. He radioed a description of the automobile and driver to his station.

Later that evening, the Mercury was stopped by police in Adah, Luzerne Township, with Ulery as the only occupant. A search of the vehicle produced a radio, identified by Joyce Halbrook as that taken in the robbery, as well as a .32 caliber revolver. Upon questioning by State Trooper Edward Dunkard, and after being advised of his constitutional rights, Ulery admitted he had planned the robbery with Lewis and appellant Norman and that they had later split the money. Appellant was arrested the next day and also questioned by Trooper Dunkard. In his confession, appellant stated that Ulery had needed money on the evening of May 18; that he had accompanied Ulery into Nickman’s; that Ulery had the revolver and did all the talking; that he (appellant) had left the store and waited outside for Ulery, and that he had later received proceeds from the hold-up. Lewis gave no statement to the police upon his arrest.

*304 Before trial, the Commonwealth moved to try all three suspects jointly, which motion was granted over defense objection. The extrajudicial statements of Ulery and Norman were redacted to omit all references to anyone other than the declarant, in accord with Bruton v. U. S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

All three of the accused took the stand in his own defense. Ulery admitted to being at Nickman’s on the evening in question in the company of appellant and Lewis, but stated he only bought a stereo and shopped for a rug. He denied telling Trooper Dunkard he had robbed the store. Appellant testified he accompanied Ulery into Nickman’s that night but noticed nothing unusual transpiring. He looked at clothing briefly and then waited with Lewis in the car for Ulery to come out. He could not remember whether or not he told Trooper Dunkard that Ulery had used a gun on a Nickman’s employee.

Appellant first contends that the redaction of co-defendant Ulery’s statement at trial was not sufficient to prevent prejudice to appellant. Specifically, Trooper Dunkard told the jury that Ulery admitted to planning the robbery with “two other subjects” and to later splitting up the money with these “subjects.” Appellant argues that even though he was not named as being one of the “subjects”, the jury could draw no other conclusion than that he must be one since he was seated in court with Ulery charged with the same crimes. Preliminarily, we note that the court was quite correct in excising from Ulery’s confession all named references to appellant since a co-defendant’s confession, which inculpates the instant defendant, cannot be used as evidence against the defendant. Bruton, supra; Commonwealth v. Witherspoon, 481 Pa. 321, 392 A.2d 1313 (1978); Commonwealth v. Johnson, 227 Pa.Super. 96, 323 A.2d 813 (1974). As an appropriate method of protecting a defendant’s right to confront adverse witnesses, the Supreme Court has approved the practice of redaction, in which all testimonial references to persons other than the declarant are deleted. Commonwealth v. Johnson, 474 Pa. *305 410, 378 A.2d 859 (1977); cf. Bruton, supra, 391 U.S. at p. 134, fn. 10, 88 S.Ct. at p. 1626 fn. 10; Commonwealth v. Guess, 266 Pa.Super. 359, 404 A.2d 1330 (1979). We have also recognized, however, that redaction is not always effective in relieving prejudice to the accused and that other remedies may be required. See, e.g., Commonwealth v. Young, 263 Pa.Super. 333, 397 A.2d 1234 (1979); Commonwealth v. Nagle, 253 Pa.Super. 133, 384 A.2d 1264 (1978). Appellant contends this is such a case. Whatever the merits of his position, it is clear that any alleged Bruton error was cured when Ulery took the stand in his own defense. The cases are clear that “The Confrontation Clause is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.” Nelson v. O’Neil, 402 U.S. 622, 626, 91 S.Ct. 1723, 1726, 29 L.Ed.2d 222 (1971); Commonwealth v. Howard, 231 Pa.Super. 353, 331 A.2d 845 (1974); Commonwealth v. Hirsch, 225 Pa.Super. 494, 311 A.2d 679 (1973). This is so even if the declarant denies that he made the statement and claims that its substance is false. Nelson, supra, 402 U.S. at 627, 91 S.Ct. at 1726; Commonwealth v. Harvey, 263 Pa.Super. 121, 397 A.2d 430 (1979). Thus, appellant instantly was not denied his right to confront his accuser since Ulery took the stand and was available for full and effective cross-examination by appellant’s attorney. 2

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Bluebook (online)
415 A.2d 898, 272 Pa. Super. 300, 1979 Pa. Super. LEXIS 3284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-norman-pasuperct-1979.