Com. v. Cain

• Citation: 471 Pa. 140,369 A.2d 1234
• Parties: COMMONWEALTH of Pennsylvania v. Gerald R. CAIN, Appellant.
• Decision Date: 28 January 1977
• Court: United States State Supreme Court of Pennsylvania

Page 1234

369 A.2d 1234

471 Pa. 140

COMMONWEALTH of Pennsylvania v. Gerald R. CAIN, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 22, 1974.

Decided Jan. 28, 1977.

Eugene H. Clarke, Jr., Morris Paul Baran, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., William P. Boland, Philadelphia, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY and MANDERINO, JJ.

ORDER

PER CURIAM.

The Court being equally divided, the judgments of sentence are affirmed.

EAGEN, J., filed an opinion in support of affirmance in which JONES, C.J., and POMEROY, J., joined.

POMEROY, J., filed an opinion in support of affirmance.

ROBERTS, J., filed an opinion in support of reversal in which O'BRIEN and MANDERINO, JJ., joined.

MANDERINO, J., filed an opinion in support of reversal.

NIX, J., did not participate in the consideration or decision of this case.

OPINIONS IN SUPPORT OF AFFIRMANCE

EAGEN, Justice.

Gerald R. Cain was convicted by a jury in Philadelphia of murder of the first degree and the punishment was fixed at life imprisonment. Cain was also convicted of aggravated robbery, burglary and conspiracy. All charges emanated from the same episode. A motion for a new trial was argued before and denied by a three-judge court. ¹ A sentence of life imprisonment was imposed on the murder conviction. Prison sentences were also imposed on the three other convictions; however, it was directed that these sentences run concurrently with the life imprisonment sentence. This appeal followed.

While the sufficiency of the evidence to sustain the convictions is not now challenged, an examination of the record is persuasive that the trial evidence was more than ample to warrant the guilty verdicts. From the evidence the jury could find the following.

Glenn Edwards accompanied by Charles Green, a resident of Philadelphia, came to Philadelphia from Wilberforce, Ohio, where they were classmates in college at Central State University, for the purpose of buying a substantial quantity of marijuana to be taken back to Wilberforce. They, subsequently, registered as guests in the Marriott Hotel on City Line Avenue, and eventually came in contact with the appellant, Cain, who told them he could obtain marijuana for them to purchase. Cain had no intention of arranging for the purchase of the marijuana and entered into a plan with others to rob Edwards and Green. Initially, the plan was to rob the victims in their hotel room. However, the plan was changed and then called for luring Edwards to a vacant small apartment building at 5129 Irving Street in Philadelphia, under the pretext of consummating the marijuana sale, where he would be forcedly relieved of his money.

About midnight on May 23, 1971, Cain and Lynn Williams accompanied Edwards from the Marriott Hotel to the Irving Street address where they were met by Calvin Williams and one Daniel Clark. The group entered one of the apartments

in the vacant building and shortly thereafter Calvin Williams struggled with Edwards, and shot him in the head. The wound caused instant death. Calvin Williams then removed approximately $275.00 in cash from Edwards' clothing, after which the four felons fled the scene. Lynn Williams and Cain traveled together in the former's automobile. The four met later at the apartment of Lynn Williams with David Hunt, who had participated in the robbery plan, and divided the stolen money. Cain received $45.00 as his share. ² Cain maintains certain errors occurred in the trial proceedings which were so prejudicial that a new trial is necessary.

PART I

The first complaint concerns the refusal of the trial judge to permit the defense to introduce testimony of a psychiatrist, Dr. James Nelson. The circumstances are these.

Calvin Williams testified as a Commonwealth witness at Cain's trial. He told of being in Lynn Williams' apartment about 6 p.m. on May 23, 1971 and agreeing at the solicitation of David Hunt to participate in a robbery at the Marriott Hotel, and of the site of the robbery later being changed to an empty apartment building on Irving Street. He said when the intended victim of the robbery (Edwards) arrived at the apartment building on Irving Street, he was accompanied by Lynn Williams and by Cain, whom he (Calvin Williams) did not know and had not seen before. Williams said after the group entered an empty apartment on the first floor of the building, he grabbed and held Edwards because he thought he was carrying a gun and that when Edwards pulled away from his grasp, he shot him with a gun that had been given to him a short time before by Lynn Williams.

Calvin Williams also told of his stealing $275.00 from Edwards' clothing and of the subsequent meeting at Lynn Williams' apartment where the stolen money was divided. He said the group was disappointed that Edwards was not in possession of more money at the time of the robbery, and Cain suggested that they go to the Marriott Hotel and get the rest of the money Edwards was reported to have with him.

Calvin Williams also stated that at the time of the robbery and killing, he was 'high' from the use of methedrine and during that particular period he was accustomed to taking fourteen or fifteen bags of heroin daily.

Calvin Williams further testified that on July 9, 1971, he was taken into police custody and shortly thereafter made a statement to the police detailing the relevant events of May 23 and May 24. He also admitted taking a capsule and a half of LSD about one hour before being taken into custody. However, Williams testified that he was not under the influence of any drugs at the time of Cain's trial in March, 1972, ³ land he stated his recollection of what happened at the time of the robbery and killing was clear and his trial testimony was based solely on this recollection.

In an attempt to impeach Williams' credibility, Cain attempted to introduce the testimony of Dr. Nelson, who, it was then stated by Cain's counsel, would express the opinion that as a result of the ingestion of LSD a short period of time before he was taken into custody, Williams could not on An offer of proof must be judged exclusively by its specific contents and the party advancing the offer is bound by the purpose stated. Cf. 1 Wigmore, Evidence § 17 (3d ed. 1940). Instantly, the record establishes that when the testimony of Dr. Nelson was offered at trial, its purpose was not to challenge Williams' credibility by showing he lacked ability to accurately remember or testify at trial, but rather its purpose and only purpose, as then stated, was to challenge his ability to remember and narrate to the police on July 9, 1971. ⁵ It is also clear, from the record at Cain's trial, Williams was testifying solely from what he then remembered as to the circumstances and occurrences on the night of the crimes. Hence, the giving of the statement to the police about six weeks after the event was in no way related to his trial testimony. If the purpose of Dr. Nelson's testimony was to challenge Williams' credibility by showing that at the time of the event to which he testified his powers of observation and memory were impaired, so that as of the time of trial his recollection and account might be inaccurate (see Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976), and Commonwealth v. Dreibelbis, 217 Pa.Super. 257, 269 A.2d 387 (1970)) a far different problem would be present. However, this was not the stated purpose of Dr. Nelson's testimony and the only purpose, as evidenced by the offer, was to attack Williams' ability to give an accurate statement to the police on July 9, 1971. Under the circumstances, the Doctor's testimony was irrelevant.

July 9, 1971, the date he made the statement to the police, accurately remember what occurred in the early morning of May 24, 1971, when the robbery and killing took place. ⁴ An objection to this testimony was sustained. Under the particular circumstances, the ruling was correct.

Presently in this appeal Cain's counsel states Dr. Nelson would also have testified that an individual who was taking heroin at the time of the event in the quantity Williams admitted would not then possess 'the memory, perception and narrative ability' to ever accurately describe what occurred. ⁶ But this was not included in the offer of proof at trial and, as noted before, the ruling of the trial court must be evaluated by the contents of the offer at the time the offer was made.

PART II

Cain next maintains a Commonwealth trial witness was permitted to testify to facts which the district attorney knew to be false because of a police report in his Cain was arrested on May 26, 1971, and gave a statement to the police, wherein he mentioned that 'a white girl' called 'Debbie' was with Lynn Williams on the night of the robbery and killing. Cain also mentioned this person in his testimony at trial. Efforts by the prosecution authorities to locate 'Debbie' before Cain's trial began were unsuccessful, but while the trial was in progress she was located 'through the drug underworld.'

possession prior to trial. The factual background is this:

Debbie was called by the Commonwealth as a rebuttal witness and testified in relevant part as follows.

On the night of May 23, 1971, she was with her 'boy friend,' Lynn Williams, in his automobile when he drove to the Marriott Hotel 'to pick up some money.' After parking the vehicle outside the Marriott, Lynn Williams left for awhile and she waited in the vehicle. When Lynn returned he was accompanied by a man whom he introduced as 'his cousin Gerry.' ⁷ Lynn and 'Gerry' entered the Williams automobile and after a brief conversation both left the vehicle. The two returned shortly with three other men and all five entered the vehicle. The five then engaged in a conversation and talked about 'holding somebody up' in the Marriott Hotel. Debbie...