Com. v. Cornish
| Decision Date | 28 February 1977 |
| Parties | COMMONWEALTH of Pennsylvania v. Clarence CORNISH, Appellant (two cases). |
| Court | Pennsylvania Supreme Court |
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
In a nonjury trial, Clarence Cornish was convicted of criminal conspiracy, robbery, and murder of the second degree. Concurrent sentences of life imprisonment, eight to sixteen years imprisonment, and five to ten years imprisonment were imposed. Post-verdict motions were denied and these appeals followed. 1 The appeals were later submitted to this Court without oral argument.
On March 17, 1976, we filed a per curiam opinion affirming the judgments of sentence. 2 Cornish then petitioned for oral argument claiming that the issues we said had not been presented to the trial court via post-verdict motions were, in fact, orally presented to the post-verdict motion court, and thus preserved for review under Commonwealth v. Bailey, supra. In Bailey, we held that issues not included in the written post-verdict motions would still be considered preserved for review if they were presented orally to the post-verdict motion court and entertained by that court prior to the announcement of our decision in Commonwealth v. Blair, supra. The Commonwealth, despite having previously asserted the issues were not preserved for review, filed an answer to Cornish's petition for oral argument stating it had no objection to the petition. Since the record was devoid of any indication that the issues had, in fact, been orally presented to the post-verdict motion court and since the opinion of the court disposing of the post-verdict motions indicated only the sufficiency of the evidence and legality of the life imprisonment sentence were raised in post-verdict motions, we entered an order remanding the record to the court of original jurisdiction to determine in an evidentiary hearing or other proceeding whether the issues disposed of by this Court as not preserved for review were, in fact, presented orally to the post-verdict motion court. That court filed a memorandum opinion which indicates that the issues were orally presented. Accordingly, we shall now consider the merits of those issues, without the need of oral argument.
Cornish maintains that the statutory death penalty provision in18 Pa.C.S.A. § 1102(a) is unconstitutional and that, as a result, the life imprisonment sentence imposed on him pursuant to 18 Pa.C.S.A. § 1102(b) is illegal. Our previous order adequately disposed of this argument. See n. 1, supra. 3 Furthermore, to the extent Cornish's argument can be understood as challenging the legality of 18 Pa.C.S.A. § 1102(b) without reference to 18 Pa.C.S.A. § 1102(a) because it disallows judicial discretion in sentencing by providing for a mandatory sentence of life imprisonment in all cases of murder of the second degree, the contention is devoid of merit. 4
At trial two eyewitnesses identified Cornish as one of those who participated in the crimes. Cornish urges admission of this testimony was error because no pretrial line-up identification proceeding occurred. In effect, Cornish would have us rule that an eyewitness should not be permitted to identify the accused at trial unless such identification has been made prior to trial in a line-up proceeding. The absence of such pretrial identification may go to the weight to be given the in-court identification testimony but does not render it inadmissible.
Cornish also maintains the eyewitness in-court identification testimony was tainted and erroneously admitted because he was brought into the court by the sheriff in handcuffs in the presence of these witnesses before they testified. We find nothing in the record to support any such facts. Neither do we find anything in the record to indicate the eyewitness testimony was objected to at trial for this reason. Cf. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
Next Cornish complains the trial court erred in permitting the testimony of the victim's wife. This is the background:
On the day before trial, the Commonwealth sought a stipulation as to the testimony of the wife of the victim of the murder, Mary McDermott, because at that time the district attorney believed the victim's wife would be unavailable to testify because she was emotionally upset. The stipulation was agreed to by counsel and Cornish. In essence, the stipulation stated Mary McDermott, if called, would testify that she identified her husband's body subsequent to the time of the crimes.
On the day of trial, but prior to the introduction of any evidence, the following occurred in open court:
Defense counsel:
The Commonwealth:
The court: 'Yes, certainly.'
The Commonwealth: 'I spoke to Mrs. McDermott last Monday of this week, a very emotional upset woman, and I told her if it were a jury trial I would definitely want her to come in. However, since counsel agreed to waive her testimony, I called Mrs. McDermott last night, anticipating that she would not want to come in because of her emotional state, because she was very upset.
'Mrs. McDermott, last night when I spoke to her on the phone, said she had spoken to her brother--a retired judge from New York--and he advised her that he felt she had a duty to testify, and, also he suggested if something were to happen during the case, she would never forgive herself, because she might have played some sort of part, and she also went to her doctor yesterday, and her doctor said that despite her hypertension, she could come in and testify. And I left it up to her, and she said, 'I would like to come in, I feel I have a duty.'
The court:
When Mary McDermott was called to testify, defense counsel renewed his objection and the objection was overruled. She then took the stand and testified. Her testimony which covers a mere two pages of the notes of testimony, established that she saw her husband during the morning of May 3, 1974, the day of the robbery and murder, and that she later identified his body. There is nothing in the content of the testimony to indicate that Mary McDermott displayed any emotion whatsoever while testifying. Moreover, counsel did not place in the record any statement as to her demeanor or the like either during or after she testified. Furthermore, the trial was conducted before a judge, sitting without a jury. Under the circumstances we find no error. 5
Cornish next maintains that evidentiary use of an incriminating statement he made to the police should not have been permitted because it was not voluntary. Specifically, Cornish argues the confession was involuntary because 1) it was given while he was under the influence of narcotics and suffering from withdrawal, and 2) it was given as a result of a promise by police to make efforts to mitigate punishment. Following a pretrial hearing on Cornish's motion to suppress the statement, the suppression court determined the statement was voluntarily given and thus admissible.
It is well-established that on review from a finding of voluntariness, we must consider the Commonwealth's evidence and so much evidence presented by an accused as remains uncontradicted. Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). So viewed, the evidence established the following:
Cornish was arrested at approximately 10:00 a.m. on May 13, 1974 in Atlantic City, New Jersey and taken by police of that city to the police station. The Atlantic City police then notified the Philadelphia police department of the arrest and, as a result, Detectives Johnson and McMillan departed Philadelphia for Atlantic City where they first came into contact with Cornish at 12:45 p.m. the same day. Cornish had been held in a cell but was taken to a room containing some four or five desks when the Philadelphia detectives arrived. When he was brought into the room, the Atlantic City police handcuffed Cornish to a chair and left the room which was then occupied by Cornish and the two Philadelphia detectives.
Detective Johnson told Cornish he had been charged with the homicide of Thomas McDermott which...
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