Com. v. Lewis

• Decision Date: 25 April 1977
• Citation: 472 Pa. 235,372 A.2d 399
• Parties: COMMONWEALTH of Pennsylvania v. Franklin Arthur LEWIS, Appellant.
• Court: Pennsylvania Supreme Court

Page 399

372 A.2d 399

472 Pa. 235

COMMONWEALTH of Pennsylvania v.Franklin Arthur LEWIS, Appellant.

Supreme Court of Pennsylvania.

Argued March 30, 1976.

Decided Feb. 28, 1977.

Reargument Denied April 25, 1977.

[472 Pa. 238] James P. Geoghegan, Norristown, for appellant.

William T. Nicholas, Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appellate Div., Bert M. Goodman, Asst. Dist. Atty., for appellee.

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

OPINION

JONES, Chief Justice.

Franklin Arthur Lewis, appellant, was charged with murder, voluntary manslaughter and involuntary manslaughter in the death of William Irving Braxton on June 5, 1974.He was convicted by a jury of voluntary manslaughter in November 1974.After his post-trial motions were denied, appellant was sentenced to a term of four to ten years imprisonment.This direct appeal was then filed.¹

Appellant's first asserted ground for relief is that the court below erred by denying his motion to suppress testimony concerning certain statements which he made while in police custody.There is no merit to this claim.First, appellant has waived any argument based upon our decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417(1972), because this was not asserted pre-trial as a grounds for suppression.Commonwealth v. May, 466 Pa. 524, 353 A.2d 815(1975);Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48(1975).Second, the court below concluded that these statements were not obtained in violation of any of appellant's rights and the record supports this conclusion.Appellant was given the Miranda warnings several times.There was no evidence of any physical coercion, threats or abuse.The total time of actual questioning was only 45 minutes.Where there is evidence to support the suppression court's findings, we will sustain his conclusions.Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886(1976);Commonwealth v. Crosby, 464 Pa. 337, 346 A.2d 768(1975).

Appellant's second argument is that the court erred in refusing a motion for a directed verdict on an offensive weapons charge following the opening address by the prosecutor.This argument is without merit because appellant suffered no prejudice.His demurrer to this count in the indictment was sustained at the close of the Commonwealth's evidence.Moreover, the court was not required to entertain such a motion at that point in the trial.SeeCommonwealth v. Heller, 147 Pa.Super. 68, 24 A.2d 460(1942).

The next argument presented involved the testimony of Dr. Robert Catherman, a coroner.It is argued that the Court commmitted error in allowing Dr. Catherman to state his opinion as to the of death.This opinion, it is urged, was inadmissible because it was an estimation based upon his observation that rigor mortis appeared to have set in by the time a picture of the body was taken at the scene.We find that there was no error.Dr. Catherman was qualified as an expert in forensic pathology and he gave the facts upon which he based his conclusion as to the time of death.We have previously allowed such testimony.Commonwealth v. Tenbroeck, 265 Pa. 251, 108 A. 635(1919);SeeCommonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861(1960);Commonwealth v. Sauders, 390 Pa. 379, 134 A.2d 890[472 Pa. 240](1957).Appellant's objections are not related to the admissibility of this opinion but only to its weight.The weight of this opinion, as with any expert's testimony, is for the jury.SeeDavis v. Southern Surety Co., 302 Pa. 21, 153 A. 119(1930).

The admission into evidence of appellant's shoe is also assigned as error.This is without merit.The shoe had evidentiary value considering the Commonwealth's theory of the case and there was nothing about it which could prejudice appellant.Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242(1974);Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856(1973).

We also find no merit in appellant's fifth assignment of error.Appellant there argues that the testimony of a police detective that other persons were eliminated as suspects should not have been permitted.However, appellant himself initiated this subject on cross-examination and this question on re-direct by the Commonwealth was necessary to dispel any unfair inferences arising from appellant's raising of this issue.

Next, appellant argues that the exclusion from evidence of the recordings of two telephone calls to the Lower Merion Township Police received about the time of the killing was error.The first call, received, at 2:07 o'clock a.m., was from a male and stated, 'I got one of them bastards.I am going to get the rest of them.'At 2:26 o'clock a.m. the second call came in with the speaker saying, 'I got one of them _ _.You will find his body in Ardmore.Good-by.'Appellant asserts that in this case where all the evidence was circumstantial, these calls could have aided the jury in its deliberation.The trial court excluded these recordings and transcripts thereof on grounds that they were hearsay.We hold that the court's action was proper.

These calls were undoubtedly hearsay, but such a conclusion does not end our consideration of this issue.

In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297(1973) the United States Supreme Court stated:

'Although perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay, exceptions tailored to allow the introduction of evidence which in fact is likely to be trustworthy have long existed.The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest.That testimony also was critical to Chambers' defense.In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.'

Id. at 302, 93 S.Ct. at 1049(emphasis added).However, we do not find Chambers to be persuasive.The hearsay evidence was admitted because the 'statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability.'Id. at 300, 93 S.Ct. at 1048.Moreover, in Chambers the declarant was available to be cross-examined by the prosecution.Id. at 301, 93 S.Ct. 1038.In Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344(1974), this Court, relying heavily upon Chambers, reversed where we were reluctant to determine the reliability of a statement against interest on the record before us.457 Pa. at 303, 324 A.2d at 347.

In the instant case, only two factors indicate that these tapes were reliable as to support an inference that someone other than appellant killed Braxton: (1) the calls were received about the time Braxton was killed; and (2) that Braxton's body was found in Ardmore.These facts could lead to the inference that the caller was indeed the killer.However, these facts and inferences do not rise to the level of the circumstances which assured reliability in Chambers.The United States Supreme Court pointed out that:

'First, each of McDonald's confessions was made spontaneously to a close acquaintance shortly after the murder had occurred.Second, each one was corroborated by some other evidence in the case--McDonald's sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon.The sheer number of independent confessions provided additional corroboration for each.Third, whatever may be the parameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unquestionably against interest.'

410 U.S. at 300--01, 93 S.Ct. at 1048.

Neither do we feel that these tapes would be admissible as declarations against penal interest, an exception in some jurisdictions to the hearsay rule.²Without reaching the issue of whether such an exception should be established in this Commonwealth, we find that these tapes could not qualify as any type of declaration against interests.The theory underlying such an exception is that 'a statement asserting a fact against one's interest is unlikely to be deliberately false or heedlessly incorrect. . . .'Feldman, Pennsylvania Trial Guide§ 7.56(1973).However, an anonymous statement subjects no one to any responsibility and, therefore, the key to the reliability--that someone could himself suffer by this statement--is absent.

The tapes, and A fortiori transcript thereof, were properly excluded.

Appellant's final argument is that the evidence was insufficient to support a verdict of guilty of voluntary manslaughter.We do not agree.

The principles which guide our determination of a sufficiency question were articulated by Justice Eagen in Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751(1970):

'It is true that circumstantial evidence, in itself, may be sufficient to establish the commission of a crime and the accused's connection therewith.Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85(1964).It is equally true that in evaluating the sufficiency of the evidence after a guilty verdict, all of the evidence, be it direct or circumstantial, must be read in a light most favorable to the Commonwealth, and the Commonwealth must be given the benefit of all reasonable inferences arising therefrom.Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552(1963).But before a conviction will be sustained, 'the facts and circumstances proved must be of such a character as to establish guilt beyond a reasonable doubt.'Commonwealth v. Garrett, 423 Pa. 8, 12, 222 A.2d 902, 905(1966).And, where a conviction is based...