Com. v. Boyle
| Decision Date | 24 February 1977 |
| Citation | 470 Pa. 343,368 A.2d 661 |
| Parties | COMMONWEALTH of Pennsylvania v. W. A. 'Tony' BOYLE, Appellant. |
| Court | Pennsylvania Supreme Court |
A. Charles Peruto, Burton A. Rose, Philadelphia, for appellant.
Richard A. Sprague, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
W. A. 'Tony' Boyle was convicted of three counts of murder of the first degree by a jury in connection with the slayings of Joseph 'Jock' Yablonski, his wife, Margaret, and his daughter, Charlotte. Post-verdict motions were denied and judgments of sentence imposed. This appeal followed.
Boyle asserts numerous assignments of error and, in doing so, seeks various forms of relief, including: 1) an arrest of judgment and discharge because the evidence is insufficient to support the verdicts; (2) a reversal of the judgments and quashing of the indictments because of the failure of the Commonwealth to afford him a preliminary hearing; and, 3) a new trial because of numerous errors during the course of the trial proceedings. 1
Boyle's contention that the evidence is insufficient to support the verdicts is devoid of merit. The test for determining the sufficiency of the evidence is whether accepting as true all the evidence, together with all reasonable inferences which may be drawn therefrom upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973). The evidence here clearly meets this test.
Boyle concedes the Commonwealth established that a conspiracy was formed to kill Joseph Yablonski and that Yablonski, his wife, and daughter were slain in furtherance of that conspiracy. 2 But Boyle argues the evidence did not establish that he was a member of the conspiracy.
The evidence which showed that Boyle was a member of the conspiracy was both direct and circumstantial. The direct evidence consisted of the testimony of William Jenkins Turnblazer.
Turnblazer testified that he met with Boyle and Albert Edward Pass on June 23, 1969. He further testified that at the meeting Boyle gave orders to assassinate Joseph Yablonski. Specifically, Turnblazer testified that:
'He (Boyle) said, we are in a fight, we have got to kill Yablonski or take care of him,'
and that:
'Mr. Pass said that if nobody else would kill him, District 19 (of the United Mine Workers' Union) would,'
and that:
'(Boyle) said fine.'
In evaluating the sufficiency of the evidence, Boyle would have us disregard this testimony because Turnblazer was shown to have given contradictory versions of the facts and circumstances related to the Yablonski slayings to police and in prior judicial proceedings. This we may not do. In passing upon a motion in arrest of judgment, all evidence in the record must be considered. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). We might also point out the jury was made aware of Turnblazer's prior inconsistent statements and was told they were made in an effort to cover up both his and Boyle's involvement in the conspiracy. Under the circumstances, the determination of whether to believe Turnblazer was for the jury and the fact that he may have previously testified or otherwise given contradictory versions to that to which he testified at trial is merely a circumstance which the jury would consider in making its determination of whether or not to credit his testimony. Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967).
Boyle argues that the trial court erred in refusing to quash the bills of indictment because of a failure by the Commonwealth to provide him with a preliminary hearing. The facts relevant to this argument are as follows:
On September 5, 1973, a warrant for Boyle's arrest for the killing of the Yablonskis was issued by the Court of Common Pleas of Washington County. On September 6, 1973, Boyle was indicted by a federal grand jury in the Western District of Pennsylvania for violating the civil rights of the Yablonskis. On the same day, Boyle was arrested in Washington, D.C. by federal authorities in connection with the federal charges. Following a hearing before a United States magistrate in Washington, D.C., Boyle was released on $50,000 bond, and a hearing to determine whether he should be ordered removed to Pennsylvania to face and federal charges was scheduled for September 25, 1973. On September 24, 1973, Boyle was hospitalized after apparently having taken an overdose of barbiturates. Boyle remained hospitalized until December 19, 1973. The removal hearing was postponed until September 28, 1973, at which time the United States magistrate revoked Boyle's bond and ordered Boyle to undergo psychiatric examinations. Another hearing was held in Washington, D.C. before the United States magistrate on October 1, 1973, and on October 2, 1973, Boyle's bond was 'temporarily suspended' because of Boyle's condition and because of the possibility of another suicide attempt. Further, federal officials were directed to guard Boyle; that is, Boyle was placed in protective custody.
On November 28, 1973, 3 a federal district court judge for the Western District of Pennsylvania issued an order placing Boyle under federal protective custody until a further order issued from that court and setting trial on the federal charges for February 25, 1974. Boyle apparently agreed to voluntarily present himself in Pennsylvania for trial on the federal charges if the postponement until February 25, 1974 was granted. By doing so, Boyle apparently waived his right to a federal removal hearing. See 18 U.S.C.A. Rule 40, Fed.R.Crim.P. 40. 4
On November 29, 1973, Boyle's counsel in the federal proceedings was informed by telephone of the contents of a letter mailed that same day by the Commonwealth. The letter consisted of a 'notice' to Boyle that the Commonwealth intended on December 3, 1973, at 10:00 a.m. to seek leave from the Court of Common Pleas in Washington County to present three bills of indictment to the grand jury and that if such leave were granted the bills would be presented on December 17, 1973.
On December 3, 1973, the Commonwealth presented its petition to the court, which represented that Boyle had been involved in the Yablonski killings; that a warrant for his arrest had issued on September 5, 1973; that the warrant could not be properly executed because Boyle had not been in the Commonwealth since September 5, 1973; that Boyle through defense counsel had refused to enter the Commonwealth; and, that Boyle was a fugitive from justice. Boyle was not represented at this hearing. The court thereupon issued an order authorizing presentment without a preliminary hearing on December 17, 1973. The bills were duly presented and indictments returned on the same day. 5
On December 19, 1973, Boyle began serving a federal sentence on unrelated charges in the District of Columbia prison. On December 20, 1973, a writ of habeas corpus ad prosequendum was issued by the Court of Common Pleas of Washington County. Following a hearing in Washington, D.C., Boyle, pursuant to a federal court order, was brought to Pennsylvania for arraignment on the murder indictments although he remained in federal custody.
On December 21, 1973, Boyle was arraigned in Washington County. Thereafter, in pre-trial motions, Boyle moved to quash the indictments on the ground that the order granting the leave to make a presentment and the indictments being returned without a preliminary hearing improperly and unnecessarily denied him his right to a preliminary hearing. The motion was denied by order of the Court of Common Pleas of Delaware County. 6 A direct appeal from that order was filed in this Court. The Commonwealth filed a motion to quash the appeal because it was from an interlocutory order. We granted the Commonwealth's motion on March 23, 1974.
In post-verdict motions, Boyle reasserted his position. The Court en banc of Delaware County rejected Boyle's contention that he was improperly and unnecessarily denied a preliminary hearing stating that leave to present the bills of indictment without a preliminary hearing was properly granted pursuant to Pa.R.Crim.P. 224 and alternatively that Boyle's failure to object to the Commonwealth's petition for leave to make the presentment without a preliminary hearing and his failure to object to the order allowing such between December 3 and December 17, 1973 forclosed the raising of the issue thereafter.
Initially, we must determine whether the issue may now be raised. Assuming, without deciding, that under other circumstances an objection must be entered to a Commonwealth's petition filed pursuant to Pa.R.Crim.P. 224 prior to leave being granted and/or prior to presentment being made, under the circumstances of this case, we rule Boyle's pre-trial motion was timely, and thus the issue is properly preserved for review. The record does not establish that any attorney had filed a praecipe for appearance in any court of this Commonwealth prior to the presentment being made; nor does it establish that any attorney was authorized to accept notice for Boyle of any proceedings in a court of this Commonwealth. Further, Boyle was in federal custody at the time of 'notice' and we cannot say as a matter of law that he was free to appear even if we assume the 'notice' was sufficient. Accordingly, since the issue was raised at the earliest possible time, it must be considered timely. Thus, we shall proceed to the merits of the argument.
Pa.R.Crim.P. 224 provides:
'When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant Be...
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