Com. v. Aljoe

• Decision Date: 04 January 1966
• Citation: 216 A.2d 50,420 Pa. 198
• Parties: , 16 A.L.R.3d 1126 COMMONWEALTH of Pennsylvania v. Kenneth ALJOE, Appellant.
• Court: Pennsylvania Supreme Court

Page 50

216 A.2d 50

420 Pa. 198, 16 A.L.R.3d 1126

COMMONWEALTH of Pennsylvania v. Kenneth ALJOE, Appellant.

Supreme Court of Pennsylvania.

Jan. 4, 1966.

Joseph J. Lee, Carl Belin, Jr., Clearfield, for appellant.

John K. Reilly, Jr., Clearfield, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

BELL, Chief Justice.

This is an appeal from a conviction of murder in the first degree. The jury fixed the penalty at death.

Defendant was convicted of the brutal and senseless slaying of Eugene Conway, a twelve-year-old neighbor, whom he killed on September 7, 1963, with two shots from a .30 calibre rifle. The victim was almost completely decapitated. Several hours after the killing, defendant was arrested and taken to the State Police Barracks where he was questioned. He was provided with fresh clothing and asked to remove the clothing he wore that day. Defendant complied. Tests were performed on the stains found on his trousers. These tests indicated the presence of traces of human brain tissue. After a petition to suppress this evidence was denied by the trial Court, the evidence was used against defendant at his trial.

During the trial the District Attorney voluntarily reported that it had come to his attention that one of the jurors had been convicted of the crime of embezzlement in 1923--over 40 years before. Defendant's motion for the withdrawal of a juror was denied by the trial Court.

After the jury had rendered a verdict of guilty of murder in the first degree, the District Attorney argued on the issue of penalty as follows:

'Your choice will be, as the Judge will instruct you, between life imprisonment and death. Life imprisonment does not mean that he will be in jail for the rest of his natural life. One day he will become eligible for parole; and if the Parole Board grants him parole, can you be sure that this will not happen again? Can you be sure that what time he spends in jail will sufficiently deter him from this--from committing this all over again?'

During the course of the jury's deliberations on the question of penalty, the jury submitted to the Court the following questions:

'If a verdict of life imprisonment should be returned: How many years imprisonment will this mean? How soon can he expect to ask for a parole? Or in how many years will he be eligible for parole?' To which the Court replied:

'Jurors: Unfortunately, the Court is not in position to supply the answers to the above questions. It would be improper to do so.'

Defendant alleges the following error: (1) Denial of the petition to suppress the above mentioned evidence; (2) Denial of the motion to withdraw a juror; and (3) Prejudicial error (a) in permitting the District Attorney to discuss parole, (b) in the refusal of the trial Judge to answer the jury's questions concerning parole, (c) in merely stating that it would be improper for him to answer the questions, and (d) in not explaining why it would be improper.

Self-Incrimination

Defendant contends that he was compelled to testify against himself when the Commonwealth was allowed to examine his trousers and prove the presence of brain tissue thereon. This contention alleges that such conduct violates (1) the Fourth Amendment of the Constitution of the United States, which provides that persons and their effects shall be secure from unreasonable searches and seizures and (2) the Fifth Amendment which provides that no person shall be compelled in any criminal case to be a witness against himself or be deprived of life or property without due process of law.

Defendant's trousers were taken (without objection) and examined for the purpose of identifying him with the slaying of Conway. Such a procedure or practice is similar to seizing any articles, instruments, fruits and other evidence of crime and similar to the Commonwealth's right to fingerprint an accused or compel him to stand in a police lineup. Such procedures and practices and tests may result in freeing an innocent man accused of crime, or may be part of a chain of facts and circumstances which help identify a person accused of a crime or connect a suspect or an accused with the crime of which he has been suspected or has been accused. The law is well settled that such actions, practices and procedures do not violate any constitutional right. Commonwealth v. Gockley, 411 Pa. 437, 446, 447, 192 A.2d 693; Commonwealth ex rel. Policastro v. Keister, 289 Pa. 225, 229, 137 A. 223; Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595; Commonwealth v. Cockfield, 411 Pa. 71, 190 A.2d 898; Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304; Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897; Commonwealth v. Musto, 348 Pa. 300, 35 A.2d 307; Commonwealth v. Tunstall, 178 Pa.Super. 359, 115 A.2d 914; Commonwealth v. Adams, 174 Pa.Super. 504, 102 A.2d 202; Commonwealth v. San Juan, 129 Pa.Super. 179, 195 A. 433; Johnson v. Commonwealth, 115 Pa. 369, 9 A. 78. Compare also Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; Rigney et al. v. Hendrick et al., U. S. Ct. of Appeals (Third Circuit), 355 F.2d 410.

In Holt v. United States, 218 U.S. pp. 252-253, 31 S.Ct. p. 6 supra, the Court, speaking through Mr. Justice Holmes, said: '* * * the prohibition of compelling a man * * * to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.'

Defendant does not allege that his arrest was other than valid and lawful. A search and seizure incident to a valid and lawful arrest is not unreasonable and violates no constitutional guarantees. In such circumstances, officers '* * * when making a lawful arrest with or without a search warrant [may] discover and seize any evidence, articles or fruits of crime found upon the prisoner or upon the premises under his control at the time of his lawful arrest * * *.' Commonwealth v. Gockley, 411 Pa., supra, page 447, 192 A.2d page 698.

In Commonwealth v. Kravitz, 400 Pa., page 219, 161 A.2d page 871, supra, the Court said: 'The purpose of the constitutional provision is to prohibit the compulsory oral examination of the prisoner * * *--to prevent his being required to incriminate himself by speech or the equivalent of speech: Commonwealth v. Valeroso, 273 Pa. 213, 219, 220, 116 A. 828, 830.'

Prior and subsequent decisions have likewise interpreted and limited the constitutional immunity from self-incrimination to speech, or the equivalent of speech, as former Chief Justice STERN so clearly said in Commonwealth v. Musto, supra. For example, in Commonwealth v. Fletcher, 387 Pa. 602, 128 A.2d 897, the District Attorney was permittedto call the jury's attention to defendant's peculiar manner of walking, even though defendant had not taken the witness stand. ¹ In Commonwealth v. Statti, 166 Pa.Super. 577, 73 A.2d 688, the Court held that 'certainly one lawfully arrested may not refuse to submit to finger printing, nor to a search of his person. So also the constitutional privilege does not allow a defendant to refuse a witness the opportunity of seeing him and hearing his voice, for the purpose of identification. Cf. Johnson v. Commonwealth, 115 Pa. 369, 395, 9 A. 78. The privilege did not prevent the Commonwealth from requiring some of the defendants to stand in the presence of the jury, as they were identified by a witness in Commonwealth v. Safis et al., 122 Pa.Super. 333, 186 A. 177.'

In Commonwealth ex rel. Policastro v. Keister, 289 Pa. p. 229-230, 137 A. p. 225, supra, the Court said: 'It is well settled that an officer making an arrest upon a criminal charge may also take into his possession the instruments of the crime and such other articles as may reasonably be of use as evidence upon the trial. The officer not only has the lawful power to do so, but would be blameworthy if he failed in this respect. The maintenance of public order and the protection of society by efficient prosecution of public offenders require such action. Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L.R.A. (N.S.) 253. Where a person stands charged with crime and instruments are, or devices were, found upon his person or in his possession which was a part of the means by which he accomplished the offense, those instruments, devices or tokens are legitimate evidence for the state, and may be taken from him and used for that purpose. State v. Edwards, 51 W.Va. 220, 41 S.E. 429, 59 L.R.A. 465.'

This contention of the defendant is devoid of merit.

Denial of The Motion to Withdraw a Juror

Although the Acts of Assembly relating to the qualifications of jurors in Counties of the First, ² Second ³ and Third ⁴ Classes provide that persons who have been previously convicted of felonies or crimes involving moral turpitude may not serve on a jury, no such provision or prohibition appears in any Act relating to any other County. Appellanths trial took place in Clearfield County, a County of the Sixth Class. In such a County, the applicable statute requires only that the jurors be '* * * sober, intelligent and judicious persons. * * *' ⁵

It is clear that the presence on a jury in Clearfield County of a man who had been convicted of a misdemeanor viz. embezzlement does not violate any statutory or decisional law of this Commonwealth, ⁶ and cannot be successfully raised after a jury has been sworn except in those cases where a defendant has been intentionally misled or deceived by the juror or by the opposite party. Cf. Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434, Certiorari denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 85; United States ex rel. Fletcher v. Cavell, 287 F.2d 792 (Third Circuit 1961); Commonwealth v. Curry, 287 Pa. 553, 135 A....