Commonwealth v. Reeves

272 A.2d 197, 218 Pa. Super. 88, 1970 Pa. Super. LEXIS 1083

• Court: Superior Court of Pennsylvania
• Decided: December 10, 1970
• Docket: Appeal, 758
• Status: Published

Opinions

Opinion by

Wright, P. J.,

Charles L. Reeves was indicted by the Grand Jury in .Montgomery County on charges,.: inter: alia, of burglary and robbery. After a jury trial before Judge Tóothman, specially presiding, Reeves' was convicted and sentence was imposed. This appeal followed. The factual situation appears .in the following, excerpt from the opinion below:. . .. ...

“The facts in this case unfold a rather bizarre circumstance. On July 3, 1964, the defendant, identified by both the maid and her employer; Mrs! Irene' Gassel, a housewife, residing at 255 Baldwin Lane, Wynnewood, came to the door and asked for a glass of water, stating that he was Mrs. Gassel’s old gardener. The inaid gave him the water, he then left and' returned with two other men in about fifteen minutes, and slipped inside the house undetected. Charles Reeves, the maid testified, came upon her in the back in the laundry room, put something in her back, and took her up to the master bedroom, and another pulled á gtm on Mrs. Gassel. The two women and also Mrs. Gassel’s daughter, age six, were then tied and-gagged and the three men went about stripping the housé of its valuables, particularly jewelry, in the amount of approximately Ten Thousand ($10,000:00) Dollars. The defendant took the stand, denied any knowledge or participation in the crime, and claimed that his ‘involvement in this crime is through malice’. The defense also called a'police officer, who. testified that at the police-station, while investigating the crime, he had shown Mrs. Deloatch [the maid] and Mrs. Gassel a picture of the defendant which they recognized as being one of the three men who came into the house that day”.

Five contentions are advanced in appellant’s brief, the first of which is thus stated: “1. Was appellant unlawfully brought to trial by an information which was determined erroneous, and was his arrest for the crime unlawful and violative of the fundamental notions of due process”. The record discloses that the arrest procedure was in accordance with statutory authority. The magistrate had jurisdiction in any event: Commonwealth ex rel. DiDio v. Baldi, 176 Pa. Superior Ct. 119, 106 A. 2d 910. Moreover, appellant’s complaint may not be raised after indictment: Commonwealth ex rel. Gaurich v. Keenan, 181 Pa. Superior Ct. 619, 124 A. 2d 144.

Appellant’s second contention is thus stated: “2. Was the in-court room identification of appellant prejudicial and based on a prior overly suggestive photograph viewing of the appellant based on an alleged implication”. Although an accidental confrontation in the court house corridor may have occurred in the absence of counsel, Mrs. Gassel and her maid each made a positive in-court identification. No evidence was introduced by the Commonwealth regarding the prior photograph identification, and no objection was made. Cf. Commonwealth v. Payton, 431 Pa. 105, 244 A. 2d 644. The trial judge correctly determined that the in-court identification had an independent origin.

Appellant’s third contention is thus stated: “3. Was appellant twice placed in jeopardy by the declaration of a new trial and tried again, when the mistrial was the product of the Commonwealth’s failure to avail appellant alternate jurors and a voir dire”. Appellant was first tried October 17,1967. A new trial was granted on May 6, 1968. Appellant was again brought to trial October 23, 1968. One of the twelve jurors who had been selected for this trial did not appear because of a death in the family. Appellant did not wish to proceed with less than twelve jurors and specifically requested a mistrial. A new panel of jurors was picked promptly, and the trial proceeded on October 25, 1968. Appellant may not now complain. Cf. Commonwealth v. Melton, 406 Pa. 343, 178 A. 2d 728.

Appellant’s fourth contention is thus stated: “4. Was appellant deprived of the right to be tried by his peers and was he deprived of due process by the exclusion of Black Americans from his jury”. A challenge to the array must be made not later than five days before the first day of the week the case is listed for trial: Pa. R. Crim. P. 1104(b). Not only did appellant fail to comply with this rule, but also he did not raise the contention in the court below. Cf. Commonwealth v. Bozzi, 178 Pa. Superior Ct. 224, 116 A. 2d 290.

Appellant’s fifth contention is thus stated: “5. Was appellant deprived of effective assistance of counsel”. When such a contention is advanced, the task of the court encompasses both an independent review of the record and an examination of counsel’s stewardship in light of the available alternatives, and the burden of demonstrating a constitutional deprivation is on the defendant: Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A. 2d 349. Appellant asserts (1) that counsel failed to advise him that the absence of one of the twelve jurors “amounted to the inability of the Commonwealth to prosecute his case and would mean an acquittal”; (2) that counsel failed to object to the photographic and subsequent in-court identification; (3) that counsel failed “to insure a voir dire at his last trial”; and (4) “the systematic exclusion of Black Americans and his peers from the jury”. Rejecting each of these claims, we find, in the words of Mr. Justice Roberts, “that there existed a reasonable basis to support counsel’s chosen course”, and that appellant’s rights were fully protected.

In summary, we have made a painstaking examination of this voluminous original record. Each one of appellant’s contentions has been carefully considered. We find no merit in this appeal.

Judgment affirmed.