Com. v. Marino
Decision Date | 27 June 1969 |
Citation | 435 Pa. 245,255 A.2d 911 |
Parties | COMMONWEALTH of Pennsylvania v. Francis MARINO, Appellant, Arthur Ashkenase, and Salvatore Rispo, Jr. |
Court | Pennsylvania Supreme Court |
B. Nathaniel Richter, Richter, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., James D. Crawford, Asst. Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Philadelphia, for appellee.
Before BELL, C.J. and JONES, COHEN, EAGEN O'BRIEN, ROBERTS and POMEROY, JJ.
Francis Marino, Arthur Ashkenase and Salvatore Rispo, Jr., were found guilty in Philadelphia of the crimes of blackmail and conspiracy following a joint trial before the Honorable Edmund B. Spaeth, Jr., sitting without a jury. Post trial motions were denied and judgments of sentence were imposed. On appeal, the Superior Court unanimously affirmed the convictions and judgments entered against Ashkenase and Rispo. In the case of Marino, the Superior Court likewise affirmed, but Judge Watkins filed a dissenting opinion in which Judge Hoffman joined. See 213 Pa.Super. 88, 245 A.2d 868 (1968). Petitions for allowance to appeal from the order of the Superior Court were filed in this Court on behalf of all of the defendants, but only that of Marino was granted. We concluded to review the Marino conviction because of our concern that the use at trial of certain evidence identifying him as one of those involved in the crimes was violative of due process of law. However, after a careful study of the record and pertinent decisions, we now affirm.
The facts established by the record, as set forth in Judge Montgomery's opinion for the Superior Court, are as follows:
'Between July, 1965 and November, 1966 defendant Ashkenase loaned to Morris B. Singer, who operated a haberdashery store in Bucks County, Pennsylvania, various sums of money totaling $4,150. By November, 1966 Singer had repaid $1,650 leaving a balance of $2,500 plus interest. Nevertheless, in November, 1966 Ashkenase demanded $8,800 claiming that was the amount still owing to him.
"On Tuesday, November 8, 1966, defendants Ashkenase and Rispo went to Singer's place of business in Fairless Hills, Bucks County, Pennslyvania. Singer testified that he was informed by Rispo that 'Ashkenase was paid off,' and that he now owed Rispo 'and his people the sum of $10,000.' Rispo threatened to kill Singer and Singer's wife if the 'debt' were not paid immediately.
"Rispo told Singer to dial a Philadelphia telephone number, saying that 'a girl will probably answer 'The Teamsters" and telling him to 'ask for the 'Big Man ". " That evening the 'Big Man' telephoned Singer at his home, informing him that he had better have $4,500.00 by Friday morning. (As will appear, the 'Big Man' was defendant Marino.) After this call, Singer went to the Philadelphia Disstrict Attorney's Office, where he told Sgt. McLellan the whole story.
'Detective McLaughlin and Detective Lynch entered the restaurant before Singer. Detective Lynch saw defendant Rispo seated alone in the rear of the room. Moments later he saw defendant Marino go over to Rispo's table, engage in a few words of conversation, and then go to the counter and order breakfast. Detective Lynch knew Marino was from Teamsters Local 107.
The issue which disturbs us concerns the admissibility at trial of the testimony concerning Singer's identification of Marino as the person who threatened him over the phone, such identification occurring after Singer heard Marino's voice in the police station following Marino's arrest. Marino asserts that this evidence should have been excluded because it was obtained under circumstances which violated his constitutional rights in several respects. He contends: (1) that the police procedure of subjecting him to an audition of his voice for identification purposes without his consent and in the absence of counsel violated his rights under the 5th and 6th Amendments; (2) that his arrest without a warrant was illegal because it was not based on probable cause, and the subsequent occurrences were the product of and tainted by the initial illegality; and (3) that the identification procedure was conducted with such fundamental unfairness that it deprived him of due process of law.
Contention No. 1, supra, can be disposed of without difficulty. While the 5th Amendment, as implemented by the 14th Amendment, protects the right of an individual 'from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature' (Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)), that amendment offers no protection against compulsory submission to speak for identification purposes. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. State of California, supra; United States ex rel. Johnson v. Rundle, 280 F.Supp. 453 (E.D.Pa.1968). See also Commonwealth v. Gordon, 431 Pa. 512, 246 A.2d 325 (1968). Likewise, while United States v. Wade, supra, ruled that the 6th Amendment right to counsel applies to lineup procedures (assuming arguendo that the situation here presented falls into this category), the ruling in Wade is not retroactive and controls only in 'those cases and all future cases which involve confrontations for identification purposes conducted in the absence of counsel' after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and United States v. Lipowitz, 401 F.2d 591 (3rd Cir. 1968). 2 Since the identification and confrontation here involved preceded Wade, the ruling therein does not control here, and the absence of counsel for Marino at the time he was identified by Singer did not of itself render the testimony inadmissible.
The next question is whether or not the arrest of Marino was illegal. We conclude that it was not.
A police arrest without a warrant is constitutionally...
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