Com. v. Bishop

• Citation: 489 Pa. 96,413 A.2d 1031
• Parties: COMMONWEALTH of Pennsylvania v. Robert BISHOP, Appellant.
• Decision Date: 24 April 1980
• Court: United States State Supreme Court of Pennsylvania

Page 1031

413 A.2d 1031

489 Pa. 96

COMMONWEALTH of Pennsylvania v. Robert BISHOP, Appellant.

Supreme Court of Pennsylvania.

Submitted Jan. 24, 1980.

Decided April 24, 1980.

[489 Pa. 98] Gerald A. Stein, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Victor Fortuno, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN and FLAHERTY, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

Appellant was convicted by a jury of murder of the first degree for the shooting death of Valerio Montezuma which occurred on May 3, 1974. Post trial motions were denied and a sentence of life imprisonment was imposed. This appeal followed. ¹

Appellant has advanced six assignments of error. We have determined that none of the errors alleged requires the granting of a new trial and we affirm the judgment of sentence.

The Commonwealth's evidence established that on May 3, 1974, three young men entered Valerio Montezuma's grocery store, demanded money and ordered Mrs. Montezuma to come out from the rear of the store. When Mrs. Montezuma saw the men, she stepped in front of her husband, but he pushed her away, and thereafter one of the three men shot Mr. Montezuma twice, killing him. The post-mortem examination disclosed that the cause of death was gunshot wounds, one to the face and one to the chest.

Meanwhile, plainclothes police officers were patrolling the area and heard the shots. They saw two men run from the store and down the street. One of the officers left the car and pursued the men down the street. During the chase, one of the men turned and fired twice at the police officer. The police officer, in turn, fired five times at the fleeing gunman. The officer was unsure of whether he hit the gunman, but positively identified the appellant at trial as the gunman.

Although the gunman escaped, a homicide detective with the Philadelphia Police Department testified that he received anonymous information that the appellant had fled to Indianapolis, where he was staying with his brother. The detective requested Indianapolis police to arrest the appellant at his brother's address. On May 7, 1974 Indianapolis police arrested appellant at the home of his brother. When arrested, he had a bandaged left wrist. The Indianapolis police advised appellant of his Miranda rights, but did not take a statement or question him.

Philadelphia homicide detectives then flew to Indianapolis and took appellant into custody. They testified that appellant was not threatened, coerced or abused while in their custody, and upon arriving at police headquarters in Philadelphia, the appellant was again given his Miranda warnings, after which he voluntarily, intelligently and knowingly waived his rights and made a statement.

Appellant's inculpatory statement indicated that he and three other men planned to rob the Montezumas' store. Appellant entered the store armed with a handgun in the company of the other two men, demanded money from Mr. Montezuma, then shot Mr. Montezuma when Mr. Montezuma came toward him. Appellant and the others then ran from the store and, when he saw that he was being chased, fired at the person chasing him. As he ran, appellant was wounded in the left hand, was treated by his mother, and subsequently went to his brother's home in Indianapolis.

In his first assignment of error, appellant asserts that he is entitled to a new trial because of the admission of hearsay evidence that appellant had a gunshot wound of the hand and that he was a participant in the crime. He contends further that the court's subsequent instruction to the jury that such evidence was inadmissible and that it should not be considered in the formulation of a verdict, was ineffective. We agree that the evidence was inadmissible and that the trial court's instructions to the jury may have been ineffective to protect appellant's Sixth Amendment right to confront the witnesses whose statements were used against him (see Mr. Justice Jackson's concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed.2d 790, 799 (1948)); however, we do not agree that the admission of such evidence requires a new trial.

In Commonwealth v. Story this Court stated:

Where a trial error violates the federal constitution, this Court, at a minimum, must employ the federal harmless error rule. See Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826-27, 17 L.Ed.2d 705 (1967). A federal constitutional error cannot be found harmless unless an appellate court is convinced beyond a reasonable doubt that the error was harmless.

Id. 476 Pa. 391, 405, 383 A.2d 155, 162 (1978).

We went on in Story to observe that "(a)n error, which, viewed by itself, is not minimal, may nonetheless be harmless if properly admitted evidence is substantially similar to the erroneously admitted evidence." 476 Pa. at 411, 383 A.2d at 165. In this case, the erroneously admitted evidence was substantially similar to properly admitted evidence that appellant was shot in the hand and that he was a participant in the crime. A police officer testified that appellant was the person who he saw run from the store where the shooting occurred and that he shot at appellant, possibly wounding him. Further, there was evidence that appellant was arrested four days after the shooting and that he had an injured hand. Finally, appellant's own statement given to police indicated that he was a principal participant in the crime and that he sustained a gunshot wound to his left hand while fleeing the scene of the crime. Admission of the hearsay evidence, in this instance, therefore, while it was error, was harmless error.

Appellant's next assignment of error is that the district attorney in his closing argument improperly referred to hearsay testimony to prove that appellant had fled and had suffered a gunshot wound. The district attorney stated that a detective on the Philadelphia police force had "received information from the family". NT 11-30-77 at 98. The district attorney also restated the contents of a teletype message that the Philadelphia police department sent to the Indianapolis police department, requesting that the Indianapolis police attempt to locate appellant, who was thought to be at a certain address in Indianapolis and was thought to have a gunshot wound of the left hand. Id.

The Commonwealth argues that testimony to the effect that it received information from the family was not hearsay and that the statement about the teletype message was offered not for the truth of the fact asserted, but to respond to defense counsel's intimation that the Commonwealth wrongfully conspired to convict the defendant. The Commonwealth also argues that the content of the teletype message (the address at which defendant might be found, and the fact that he had sustained a gunshot wound to his left hand) was independently established at trial.

Wigmore on Evidence states that counsel's closing statement should consist of a restatement of evidence: "Any representation of fact . . . which is made by (counsel) in the argument must . . . be based solely upon those matters of fact of which evidence has already been introduced. . . ." VI § 1806 (Chadbourn rev. 1976). The record, independent of hearsay, establishes that there was communication between the police and appellant's family, that a communique was sent from the Philadelphia police department to the Indianapolis police department requesting the Indianapolis police to arrest appellant, that appellant was arrested at the address given in the communique, and that appellant had a gunshot wound in his left hand. All of the matters mentioned by the district attorney in his closing argument were independently established by competent testimony. Therefore, appellant's contention that the prosecutor's closing was improper is without foundation. See also Commonwealth v. Graham, 467 Pa. 417, 421, 358 A.2d 56, 58 (1976).

In his third assignment of error, appellant argues that the introduction of evidence that appellant was given Miranda warnings by the Indianapolis police was prejudicial in that it falsely conveyed to the jury that appellant had a statement to make. Appellant did not make any statement to Indianapolis police and the prosecutor did not ask the Indianapolis detective anything about a verbal interchange with the appellant which may have occurred subsequent to his giving the Miranda warnings. However, appellant did make a statement to Philadelphia police after he had been extradited to Pennsylvania.

The Commonwealth's position is that the Indianapolis warning was introduced to corroborate testimony that the statement ultimately given by appellant was voluntary. Appellant was warned more than once prior to the giving of his statement. Appellant argues, however, that if the Indianapolis warnings were used to corroborate the voluntariness of the Philadelphia statement, those warnings should have been the subject of appellant's suppression hearing prior to his first trial. Appellant argues that it was the Commonwealth's obligation to produce the Indianapolis detective at the suppression hearing "to subject him to an examination on the voluntariness of this particular waiver. . . ." NT 11-29-77 at 37.

It may be that if appellant had never made a statement to police, the admission into evidence of the Indianapolis Miranda warnings would have been an improper comment on appellant's constitutional right to remain silent. However, appellant did give a statement to Philadelphia police. Therefore, the Indianapolis warnings were properly admitted for the purpose of establishing that the statement was voluntary and was given only after proper and repeated warnings.

Appellant's argument that if the Indianapolis warnings were used to corroborate the voluntariness of the Philadelphia statement, they should have been the subject of appellant's suppression hearing prior to trial,...