Com. v. Pearson

• Decision Date: 26 September 1967
• Citation: 233 A.2d 552,427 Pa. 45
• Parties: , 30 A.L.R.3d 121 COMMONWEALTH of Pennsylvania v. Oscar Ewing PEARSON, Appellant.
• Court: Pennsylvania Supreme Court

Page 552

233 A.2d 552

427 Pa. 45, 30 A.L.R.3d 121

COMMONWEALTH of Pennsylvania v. Oscar Ewing PEARSON, Appellant.

Supreme Court of Pennsylvania.

Sept. 26, 1967.

Jerold G. Klevit, Philadelphia, for appellant

James D. Crawford, Asst. Dist. Atty., Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Division, Richard A. Sprague, First Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This appeal presents to our Court for the first time a problem concerning the application of the new rule on constitutional harmless error announced by the Supreme Court of the United States in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Appellant, Oscar E. Pearson, was charged with aggravated robbery on eleven bills of indictment. After a jury trial in the Court of Quarter Sessions of Philadelphia County, verdicts of guilty were returned on all eleven bills; the trial judge imposed consecutive five to ten year sentences on eight of the eleven indictments, suspending sentence on the other three. On appeal these convictions were affirmed per curiam by the Superior Court, with Judges Jacobs and Hoffman dissenting.

Between November 5, 1963 and March 30, 1964, a series of eleven armed robberies were committed in the Philadelphia area. Of the actual perpetration of these crimes there can be no doubt. Nor was there any doubt that eight of them were committed by two men, one of whom was Gilbert Martell. At the time of appellant's trial, Martell had already pled guilty to, and been convicted of, these crimes. The crucial issue posed at trial was the identity of Martell's accomplice. Although the Commonwealth assembled an impressive array of eyewitnesses, all of whom testified that they were robbed by the appellant, Martell himself was unwilling to identify Pearson unequivocally until cross-examined, ¹ and even then could be forced to admit only that he had previously identified appellant's photograph. In order to buttress its case, the Commonwealth, over timely objection by defense counsel, introduced two wallets, allegedly taken from an apartment occupied by one T. B. Dixon. It was later shown that Dixon was in fact an alias, that Pearson was renting the apartment and that the wallets belonged to victims of the robberies.

An agent of the Federal Bureau of Investigation testified that the appellant was arrested at a racetrack in Laurel, Maryland, and that after his arrest, other agents went to Pearson's rooming house in Baltimore, searched his room without a warrant, and discovered the wallets. In Commonwealth v. Ellsworth, 421 Pa. 169, 218 A.2d 249 (1966), a similar search was held invalid on the theory that to be made without a warrant the search must have been incident to arrest, and that the procedure of arresting a defendant at point X, then searching his room at point Y, did not qualify as incident to the arrest. In light of Ellsworth, it is clear that the wallets should not have been admitted into evidence, a fact conceded by the Commonwealth on oral argument before this Court. Nevertheless it is now argued that the admission of the wallets did not prejudice appellant because of the substantial number of eyewitness identifications produced at trial, and that therefore the unconstitutional search resulted only in a harmless error. We do not agree.

In Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court of the United States recently announced the test for determining whether a violation of the federal Constitution can be harmless. Mr. Justice Black, writing for the Court, stated the new test as follows: '(We) hold * * * that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.' 386 U.S. at 24, 87 S.Ct. at 828. Moreover, the Chapman opinion makes it quite clear that in applying this test, the burden of proving that the error is harmless beyond a reasonable doubt rests with the prosecution.

Onto the bones of this somewhat cryptic 'beyond a reasonable doubt' test, Mr. Justice Black grafted the holding of Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). That case, at the time it was decided, was merely an application of Connecticut's harmless error rule and was not intended to announce a nationwide test. However, the Chapman opinion 'adhere(s) to the meaning of * * * Fahy,' and announces that '(t)here is little, if any, difference between our statement in Fahy * * * about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' 386 U.S. at 24, 87 S.Ct. at 828. Therefore, as we read Chapman and Fahy, in order to show that a constitutional defect is harmless error, the Commonwealth must now demonstrate, beyond a reasonable doubt, that there was no reasonable possibility that the evidence complained of might have contributed to the conviction. A careful study of the record in this appeal convinces us that the prosecution has not met this burden.

The Commonwealth argues strenuously that the error committed by the trial judge must be harmless because the rest of its case presented more than enough evidence to support a finding of guilt. This notion, that error is always harmless when it infects evidence which is merely cumulative, has been rejected not only by the Supreme Court, but by our own Superior Court as well. In Fahy, supra, at 86, 84 S.Ct. at 230, it was said: 'We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of.' And in Commonwealth v. Blose, 160 Pa.Super. 165, 170--171, 50 A.2d 742, 744--745 (1947), the court noted, quoting from Mr. Justice Rutledge's opinion in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946): "The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error." Of course, we realize that the Commonwealth's case may be so overwhelming as to make the error harmless even under Chapman; ² and in fact, had the wallets here been merely introduced Once, and not further commented upon, then the Commonwealth's harmless error argument might have had some merit. However, far from the mere Introduction of the wallets it becomes apparent from the record that the Commonwealth, as well as the trial judge in his charge to the jury, caused this illegally seized evidence to become the most crucial element of the prosecution's case. Indeed, it can be said that the wallets were flaunted by the assistant district attorney.

The Commonwealth's case, in the main, consisted of placing the eleven victims on the stand to recount the holdups in which they were robbed. At the close of each description, the witness then testifying was asked to identify the robber, whereupon he or she pointed to the appellant. Because the methods used by the holdup man, as well as his description, were practically the same in every case, ³...