Com. v. Raymond

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore BELL; EAGEN; COHEN; MUSMANNO
Citation412 Pa. 194,194 A.2d 150
PartiesCOMMONWEALTH of Pennsylvania v. Albert Edward RAYMOND, Appellant.
Decision Date09 October 1963

Page 150

194 A.2d 150
412 Pa. 194
COMMONWEALTH of Pennsylvania
v.
Albert Edward RAYMOND, Appellant.
Supreme Court of Pennsylvania.
Oct. 9, 1963.

[412 Pa. 197]

Page 151

Cecil B. Moore, Philadelphia, for appellant.

Arlen Specter, William H. Wolf, Jr., Asst. Dist. Attys., F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.

[412 Pa. 196] Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

[412 Pa. 197] EAGEN, Justice.

The defendant, Albert Edward Raymond, after trial was convicted by a jury of murder in the first degree. The punishment was fixed at death. Following dismissal of motions for a new trial and in arrest of judgment, sentence was imposed in accordance with the jury's verdict. This appeal followed.

Despite the fact that the motion in arrest of judgment was not pressed on appeal, we have carefully examined the record as required by the Act of February 15, 1870, P.L. 15, 19 P.S. § 1187, and find that the evidence is more than ample to sustain the conviction. All of the ingredients of

Page 152

murder in the first degree were established beyond a reasonable doubt. Our discussion herein, therefore, will be restricted to the alleged trial errors, which the defendant urges require a new trial.

The factual history must be summarized as follows:

William Powell, an officer of the Philadelphia Police Department, while in plain clothes met Raymond, the defendant, in the early morning hours of November 19, 1960, in a bar near 9th and Vine Streets in the City of Philadelphia. The two left together and proceeded to a house at 449 Marshall Street looking for two known prostitutes. Upon entering the dimly lit [412 Pa. 198] hallway of the house, a fight occurred between Powell and Raymond, during which Powell was shot and fatally wounded. His body was dragged a few minutes later by Raymond and two companions to Powell's automobile located a block away and dumped into the back seat, where it was found by the police later the same morning. The autopsy disclosed the existence of numerous injuries, including a broken jaw and a fractured skull. Death was caused by a bullet wound, the missile entering the body through the left rear portion of the neck.

The defendant was almost immediately the subject of a widespread police search. It continued unsuccessfully for eleven days. During this time, the defendant was in hiding in another section of the city. On November 30, 1960, he telephoned the office of a local newspaper and arranged to surrender to the police.

At trial, the Commonwealth contended that on the occasion involved, Powell was investigating vice violations, and that Raymond, unaware of this, lured him from the bar to the Marshall Street address for the purpose of robbing him.

The defendant testified that while he was walking along the street, Powell, whom he did not know, drove up in a car, accosted him and asked to be 'fixed up'; that in consideration 'for a couple of dollars' he accompanied Powell to the Marshall Street address looking for two girls; that he told Powell the girls were not home; that Powell, who appeared to have been drinking, became provoked and abusive, punched him, pulled a gun and threatened to shoot him; an altercation followed and in an effort to protect himself he grabbed Powell's hands by the wrists and was attempting to push the gun away from himself, when it was accidentally discharged. He also denied any plan to rob Powell or that such had occurred.

In order to sustain its contention that the defendant schemed to rob Powell, the Commonwealth during [412 Pa. 199] its case in chief offered the testimony of one Osyp Sudomlak. He stated that on November 12, 1960, exactly one week before the Powell killing, he met the defendant in a bar at Spring and Garden Streets in Philadelphia and, under the pretext of obtaining a girl for immoral purposes, had been lured by Raymond to the same house at the Marshall Street address, where he had been assaulted and robbed. This testimony was corroborated by a female, who acted in concert with Raymond on this occasion.

It is argued that this evidence of an independent crime was inadmissible. We cannot agree. It was relevant for the proffered purpose. It has long been established that proof of the commission of a crime of the same nature, not too distant in time, may be admitted to show plan, scheme, motive and design: Commonwealth v. Wendt, 258 Pa. 325, 102 A. 27 (1917); Commonwealth v. Weiss, 284 Pa. 105, 130 A. 403 (1925); Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). The circumstances surrounding the Sudomlak assault and robbery and the present case were so very close in nature and time as to bring the situation within the rule. This is particularly true herein in view of the defendant's statement that he accompanied Powell to the Marshall Street address for purposes other than robbery.

Page 153

To further establish the defendant's connection with the Sudomlak robbery, the Commonwealth offered the testimony of a police officer, Joseph Hunt, who was assigned to try to apprehend the defendant. He related that in company with other officers, he visited the home of one Mary Shockley, a cousin of the defendant, on November 19, 1960, at about four o'clock p. m., looking for the defendant. It had been established earlier by the testimony of Miss Shockley that the defendant had stayed on occasions at her home and slept [412 Pa. 200] in a certain bedroom, and that he had done so on Thursday night, November 17, 1960. Hunt testified that he searched this bedroom in the presence of Miss Shockley, and found in a bureau drawer a wallet containing social security and other personal cards of Sodlomak, which had forcibly been taken from him during the robbery on November 12th. It is asserted that this search was made without a warrant, that it was illegal, and that any evidence relating thereto should have been excluded under the doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Mapp ruled that all evidence obtained by search and seizure in violation of the United States Constitution is inadmissible in a state court. The search and seizure in this case, as well as the trial and verdict, preceded Mapp. 1 Regardless, Mapp is of serious import. The law to be applied on direct appeal, under the circumstances presented, is that in existence as of the date of appellate decision. See, Commonwealth ex rel. Wilson v. Rundle, Pa., 194 A.2d 143 (1963); People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478 (1961); People v. O'Neill, 11 N.Y.2d 148, 227 N.Y.S.2d 416, 182 N.E.2d 95 (1962); State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962); Commonwealth v. Spafford, 343 Mass. 703, 180 N.E.2d 673 (1962); and, 'The Retroactive Effect of Overruling Constitutional Decisions: Mapp v. Ohio', 110 U. of Pa.L.R. 650 (1962). However, we do not agree that the present record justifies the conclusion that the defendant can complain of the search or that the evidence was illegally seized.

The owner and person in possession of the premises searched was a cousin of the defendant. The latter did not reside therein. He did not rent the room involved[412 Pa. 201] or have any authority over it, except when the he was there. At the time of search none of his clothing or other property was there. As of that time, he had for all practical purposes 'vacated' it and 'abandoned' the evidence seized. His regular residence was in his mother's house at another address. According to the testimony of Miss Shockley, as well as his own, he merely slept there occasionally and never more than one night at a time. The room was used at other times by Miss Shockley's daughter. This room, therefore, was not a place where he can claim the constitutional immunity from search and seizure: Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

It may appear at first blush that Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), rule to the contrary. Both are distinguishable.

In Jones, the defendant was present in the apartment searched at the time thereof and his presence therein was with the permission of the owner. At the relevant time, he was in possession.

In Jeffers, the police entered a hotel room without a warrant and without permission. The room was regularly occupied and paid for by two women, who had given a key to the defendant and authority to use it at will, which he did often for various reasons. For all practical purposes, he, too,

Page 154

was in possession thereof at the time of search. This is not the present case. $In view of the above conclusion, it is unnecessary for us to reach the question of whether or not Miss Shockley permitted the search, and if so its impact on the defendant's standing to complain.

However, other salient circumstances, albeit unnecessary to the decision should be noted.

The record does not show that the search involved was made without a search warrant. This allegation appears in counsel's brief. Further, the testimony relating[412 Pa. 202] to the search and the evidence revealed thereby were admitted in evidence without objection on the ground now asserted.

It appears from an examination of the record that after Hunt testified without any objection to the search, finding of the wallet and identifying the enclosed cards, counsel belatedly said, 'May it please the court, the objection we made in chambers will apply here?' To which the court replied, 'Yes, that is right.' A further examination of the record as to the objection referred to as made in chambers discloses that, this was entered to the testimony of the witness, Miss Shockley, and stated only that the Commonwealth had no right to introduce any evidence relating to the commission...

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96 practice notes
  • Com. v. Bartolomucci
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 6, 1976
    ...242 456 Pa. 394, 398, 319 A.2d 669 (1974) (Eagen, J.); Commonwealth v. Budd, 443 Pa. 193, 278 A.2d 879 (1971); Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963). We have applied this same rule in civil cases. See, e.g., Altman v. Ryan, 435 Pa. 401, 406--407, 257 A.2d 583, 585 (1969)......
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 27, 1967
    ...have standing to contest the legality of a search upon it. The circumstances are more closely similar to those in Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150, where the Supreme Court of Pennsylvania denied the standing of a defendant to question the legality of a search of a bedroom ......
  • Com. v. Sullivan
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 28, 1977
    ...required to be fairly or temperately stated, clearly leaving the jury free to reach its independent conclusion. Commonwealth v. Raymond, 412 Pa. 194, 208, 194 A.2d 150, 157 (1963); [472 Pa. 167] Commonwealth v. Watts, 358 Pa. 92, 97, 56 A.2d 81, 83 We believe this test was satisfied. After ......
  • Com. v. Gordon
    • United States
    • Superior Court of Pennsylvania
    • June 30, 1987
    ...Pa. 394, 398, 319 A.2d A.2d 669, 672 (1974); Commonwealth v. Budd, 443 Pa. 193, 195, 278 A.2d 879, 880 (1971); Commonwealth v. Raymond, 412 Pa. 194, 202-203, 194 A.2d 150, 154 (1963) [, cert. denied, 377 U.S. 999, 84 S.Ct. 1930, 12 L.Ed.2d 1049 (1964) ]. Commonwealth v. Williams, 476 Pa. 55......
  • Request a trial to view additional results
96 cases
  • Com. v. Bartolomucci
    • United States
    • United States State Supreme Court of Pennsylvania
    • July 6, 1976
    ...242 456 Pa. 394, 398, 319 A.2d 669 (1974) (Eagen, J.); Commonwealth v. Budd, 443 Pa. 193, 278 A.2d 879 (1971); Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963). We have applied this same rule in civil cases. See, e.g., Altman v. Ryan, 435 Pa. 401, 406--407, 257 A.2d 583, 585 (1969)......
  • Com. v. Campbell
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 27, 1967
    ...have standing to contest the legality of a search upon it. The circumstances are more closely similar to those in Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150, where the Supreme Court of Pennsylvania denied the standing of a defendant to question the legality of a search of a bedroom ......
  • Com. v. Sullivan
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 28, 1977
    ...required to be fairly or temperately stated, clearly leaving the jury free to reach its independent conclusion. Commonwealth v. Raymond, 412 Pa. 194, 208, 194 A.2d 150, 157 (1963); [472 Pa. 167] Commonwealth v. Watts, 358 Pa. 92, 97, 56 A.2d 81, 83 We believe this test was satisfied. After ......
  • Com. v. Gordon
    • United States
    • Superior Court of Pennsylvania
    • June 30, 1987
    ...Pa. 394, 398, 319 A.2d A.2d 669, 672 (1974); Commonwealth v. Budd, 443 Pa. 193, 195, 278 A.2d 879, 880 (1971); Commonwealth v. Raymond, 412 Pa. 194, 202-203, 194 A.2d 150, 154 (1963) [, cert. denied, 377 U.S. 999, 84 S.Ct. 1930, 12 L.Ed.2d 1049 (1964) ]. Commonwealth v. Williams, 476 Pa. 55......
  • Request a trial to view additional results

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