Com. v. Evans

• Court: United States State Supreme Court of Pennsylvania
• Citation: 413 A.2d 1025,489 Pa. 85
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Harry EVANS, Appellant.
• Decision Date: 24 April 1980

Page 1025

413 A.2d 1025 489 Pa. 85 COMMONWEALTH of Pennsylvania, Appellee,
v.
Harry EVANS, Appellant. Supreme Court of Pennsylvania. Submitted Jan. 24, 1980.
Decided April 24, 1980.

Page 1026

[489 Pa. 88] Joel W. Todd, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Nancy Wasser, Asst. Dist. Atty., for appellee.

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

[489 Pa. 89] OPINION

EAGEN, Chief Justice.

Appellant, Harry Evans, was convicted by jury of murder of the second degree, robbery, and criminal conspiracy. Post-verdict motions were denied, and Evans was then sentenced to life imprisonment on the murder conviction and to concurrent prison terms on the other convictions. A direct appeal to this Court from the judgment of sentence on the murder conviction followed. A simultaneous appeal to the Superior Court from judgments of sentence on the non-homicide charges was certified to this Court. We consolidated the appeals.

Evans asserts four assignments of error.

First, he maintains his conviction was obtained in violation of his rights under Pa.R.Crim.P. 1100 (hereinafter: Rule 1100) which requires a defendant be brought to trial within 180 days of the filing of the criminal complaint. The complaint in this case was filed on September 9, 1976, and the Rule 1100 period would have ended on March 8, 1977. However, on January 21, 1977, after an on-the-record colloquy during which Evans was fully advised of his right to a trial within 180 days, he signed an agreement waiving commencement of trial until April 20, 1977. This waiver was executed because Evans' counsel was not available for trial until after March 15, 1977 due to a health problem. ¹ Notwithstanding the written waiver, on March 17, Evans filed a pro se motion to dismiss for violation of Rule 1100. This was denied on April 11; jury selection began the same day; and, the taking of testimony commenced on April 14.

Evans contends the Rule 1100 waiver he executed on January 21, 1977 was not knowing and intelligent because he did not understand his right to a speedy trial and the effect of the waiver. He further claims his pro se motion to [489 Pa. 90] dismiss of March 17 constituted a revocation of his written waiver. We disagree with both contentions.

Evans' signed agreement and the on-the-record colloquy, which preceded his signing, establish, prima facie, that his Rule 1100 waiver was informed and voluntary. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976). Cf. Commonwealth v. Waldman, 484 Pa. 217, 398 A.2d 1022 (1979). Although Evans contends he did not understand his speedy trial rights and the effect of a waiver, these matters were thoroughly discussed during the colloquy, and Evans' responses indicate his comprehension. Furthermore, since Evans' waiver of his Rule 1100 rights was valid, it could not, under the circumstances, be revoked two months later by a petition to dismiss. ²

Next, Evans urges he was unfairly prejudiced when a prosecution witness purportedly referred to him as a "murderer." On cross-examination, in response to defense counsel's question: "Did you have a warrant?", Detective Barlow stated: "We were looking for a murderer, sir. We didn't need a warrant." ³ Evans claims this was a direct reference to him as a murderer and was so inflammatory as to warrant the granting of a mistrial. Although his trial counsel did not object, move for a mistrial, or raise the issue in post-verdict motions,

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Evans now claims trial counsel was ineffective for not doing so. ⁴

[489 Pa. 91] When confronted with a claim of ineffectiveness of counsel, this Court utilizes a two-step analysis. We must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. ⁵ If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client's interests. ⁶ Commonwealth v. Sherard, supra; Commonwealth v. Hubbard, supra.

Applying the first part of this test, we conclude Evans' claim of unfair prejudice by the remark in question is without merit.

Reference to a defendant as a "murderer" may, in some cases, result in unfair prejudice necessitating curative instructions or the granting of a mistrial. Here, the nature of the statement and the context in which it was made completely convince us no such prejudice resulted. Cf. Commonwealth v. Hubbard, supra; Commonwealth v. Riley, 459 Pa. 42, 326 A.2d 400 (1974). The remark was not made as a condemnation of Evans or as an opinion on his guilt, but as part of an explanation of why a warrant was not legally necessary for his arrest. Furthermore, it was already apparent from the voir dire, the opening statements, and the evidence previously produced that Evans had been sought for and charged with a murder. Cf. Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1973). In this light, we could not reasonably say the remark in question prejudiced Evans. Thus, trial counsel was not ineffective for failing to bring that issue to the attention of the trial court. See note 6, supra.

Evans' third complaint is that the trial court erred in admitting testimony concerning the statements of an alleged [489 Pa. 92] co-conspirator which implicated him in the crimes charged. He argues this testimony was hearsay and did not qualify under the statements of a co-conspirator exception to the hearsay rule since the statements were made after the conspiracy had terminated.

The statements in question were made by a co-conspirator, Darrow McBee, to Christopher Adams about one week after the murder and before any arrests ensued. At that time, McBee gave Adams the murder weapon to keep for him.

As we have often stated:

"The declarations or acts of one conspirator made to third parties in the absence of his co-conspirator are admissible in evidence against both provided that such declarations or acts were made during the conspiracy and in furtherance of the common design."

Commonwealth v. Porter, 449 Pa. 153, 161, 295 A.2d 311, 314 (1972); Commonwealth v. Ellsworth, 409 Pa. 505, 509, 187 A.2d 640, 642 (1963).

In Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167 (1976), this Court specifically addressed the question of whether attempts by a co-conspirator to conceal evidence after the commission of a crime come within the scope of the conspiracy to commit the crime. Therein we adopted the following passage from United States v. Hickey, 360 F.2d 127, 141 (7th Cir. 1966) cert. denied, 385 U.S. 928, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966), which interpreted the decision of the United States Supreme Court in Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957):

"The duration of a conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement entered into by its members. Generally, the conspiracy ends when its principal

Page 1029

objective is accomplished because no agreement to retain secrecy after the achievement of the unlawful end can be shown or implied by mere 'acts of covering up.' Thus in Grunewald v. United States, supra, 353 U.S. at 402, 77 S.Ct. at 972, the Supreme Court stated, 'Acts of covering up, even though done in the context of a mutually understood need...