Commonwealth v. Webster

• Citation: Com. v. Webster, 353 A.2d 372, 466 Pa. 314 (Pa. 1976)
• Decision Date: 03 October 1975
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania v. Darryl WEBSTER, Appellant.

Page 372

353 A.2d 372

466 Pa. 314

COMMONWEALTH of Pennsylvania v. Darryl WEBSTER, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 4, 1974.

Decided Oct. 3, 1975.

Reargument Denied March 25, 1976.

John J. Dean, John H. Corbett, Jr., Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Robert L. Campbell, Asst. Dist. Attys., Pittsburgh, for appellee.

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

OPINION OF THE COURT

NIX, Justice.

This appeal arises as a result of appellant's conviction of murder in the second degree for his participation in the firebombing death of Mrs. Mary Amplo. On the evening of April 6, 1968, a firebomb was thrown through the living room window of the home of the victim, igniting her clothing and causing severe burns which ultimately resulted in her death two months later.

Before addressing the merits, we deem it appropriate to comment upon the procedure followed in this case. First, immediately after the jury announced its verdict, sentence was imposed. Thereupon the trial court advised appellant of his right to file post-trial motions and in event of the denial of these motions, he was advised of his right of appellate review. The Public Defender was appointed to represent him in these proceedings. This is clearly in violation of our present rules of criminal procedure. The Comment to Pennsylvania Rules of Criminal Procedure 1123, which was adopted June 8, 1973 (effective July 1973), states:

'Post-verdict motions must be decided before sentencing, because the appeal lies from the final Order of the trial court, which includes sentence. See Appellate Court Jurisdiction Act, 17 P.S. §§ 211.102(6), 211.202(1), and 211.302.'

See Pa.R.Crim.P. 1405, Comment, relating to the sentencing procedure which provides:

'The sentencing proceeding should not take place until all post-verdict motions have been disposed of, . . .' (This Rule was adopted July 23, 1973) (Effective date October, 1973). ¹

Recent decisions of this Court have stressed the importance of post-trial motions to the appellate process. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). We therefore take this opportunity to emphasize the need for trial courts to comply with our rules requiring the disposition of these motions before the imposition of sentence.

Subsequently, post-verdict motions were filed with the trial court. After being directed by the court en banc, to file a brief, appellant's counsel sent a letter to the trial judge in which he stated Inter alia:

'. . . after studying the Motion and Transcript of said case, it is my opinion there is no legal basis to the Appeal.

Alternately, filing a Brief in this matter said above would probably not convince the Court to reverse said conviction.' ²

Thereupon the court en banc entered an order striking the motions for a new trial and in arrest of judgment after finding that these motions had not been properly prosecuted and were therefore abandoned. No appeal was taken from this order. ³

On January 15, 1973, Webster filed a petition seeking post-conviction relief and, after a counselled evidentiary hearing, the court entered an order permitting a direct appeal to be entered as if timely filed but rejected the other bases for post-conviction relief. Although Webster alleged ten grounds in support of the prayer of the petition in addition to the alleged denial of his right to appeal in the proceedings below, he subsequently appealed the denial of releif to this Court raising only the issue of ineffective assistance of trial counsel. In an opinion decided May 22, 1974, this Court affirmed the ruling of the lower court as to this issue. Commonwealth v. Webster, 457 Pa. 101, 320 A.2d 115 (1974). The matter presently before us is a direct appeal pursuant to the ruling of the post-conviction hearing court. In this appeal, appellant has chosen to raise two of the issues formerly presented in his post-conviction petition.

Here again, the procedure followed in the court below is at variance with that suggested by this Court. We have stated that where a post-conviction court determines that a petitioner is entitled to a direct appeal, no decision should then be made on other bases alleged therein for post-conviction relief. See Commonwealth v. Bricker, 458 Pa. 367, 369, n. 2, 326 A.2d 279, 280 (1974). See also, Commonwealth v. Harris, 443 Pa. 279, 278 A.2d 159 (1971); Commonwealth v. Robinson, 442 Pa. 512, 276 A.2d 537 (1971). This procedure is preferable since it allows all of the complaints that may be raised to be disposed of in one action.

Further, the court directed that the appeal should be made directly to this Court pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp.1974--75). This procedure, however, omits a critical stage in the appeal process. As a result of the court's order, there was no opportunity for filing, arguing and disposing of motions in arrest of judgment and for a new trial by the trial court. The preferable procedure would have been to allow appellant the opportunity to file with the court below post-trial motions. However, in the interest of judicial economy, we will entertain this appeal at this time and treat the lower court's denial of these specific grounds in its order in the post-conviction hearing proceeding as if it was in effect a denial of post-trial motions.

The appellant raises the question as to whether the confession of a 16-year-old suspect should have been suppressed on the basis that he did not knowingly and intelligently waive his constitutional rights. The suppression court and the post-conviction hearing court concurred in the view that there was an effective waiver and thus concluded that the confession was properly admitted.

In reviewing the testimony, mindful of the principle that on review we will consider only the evidence of the prosecution's witness and so much of the evidence for the defense as, fairly read in the context of the entire record, remains uncontradicted, the court's findings will not be disturbed where it is supported. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972).

Officer Walton, a member of the homicide division of the Pittsburgh police department after receiving information that Darryl had witnessed the incident, went with a fellow officer to the home of appellant on November 20, 1968, at 11:40 A.M. Darryl was then age 16 and in the tenth grade in high school. Walton testified that he advised Darryl and his mother that they wished to question him about the incident as an informational witness and not as a suspect. After indicating to his mother his willingness to go with the officers, Darryl left the house alone in the company of the police officers, with his mother's consent.

The officers testified that upon their arrival at police headquarters, Webster was again advised that he was not under arrest, that he was not obligated to answer any questions and that he could consult with any attorney at any time. Walton also cautioned Darryl that if there was any chance of implicating himself, it would be to his best interest to refuse to answer any questions. Approximately after ten minutes, before appellant had made any incriminatory statements, another team of officers arrived and advised Walton that they had learned Darryl was, in fact, implicated in the firebombing. The interview was immediately stopped and Walton telephoned Darryl's mother to advise her of their intention to formally charge her son as an accomplice to the arson-murder. Mrs. Webster was permitted to speak with Darryl and after she had finished, advised Officer Walton she did not object to the police questioning him because 'the truth is going to come out one way or the other anyhow.' She indicated to the officer that it was up to Darryl to decide if he wished to be interviewed.

After the conversation with Mrs. Webster, Darryl was fully advised of his constitutional rights, informed of the nature of the charges that were going to be preferred against him and the probable consequences if he were to be found guilty. According to Walton's testimony, Darryl remarked that 'If the other boys are going to talk, I better get my side in also. Because they are not going to put everything on me.' Darryl then made a preliminary oral statement, followed by a formal statement which was transcribed by typewriter. The statement contained a detailed account of how Darryl and several other youths had obtained the raw materials for several primitive firebombs; how they had constructed the bombs; and how two of the youths had thrown the bombs at Mrs. Amplo's house. At the conclusion of the statement, Darryl corrected one minor factual detail, read the typewritten transcript aloud, initialed each page, and signed it at the end.

Darryl also testified at the suppression hearing and contended that he had fabricated the story because he was afraid that he would be beaten by the police if he did not implicate himself. Although he admitted that he had not been physically abused by the officers, he charged that he was in fact in fear because he had been given a 'dirty look' by Officer Walton while they were enroute to police headquarters and that Officer Walton told him 'When we get you to the station, you will speak up.' He stated that although Walton told him he (Walton) had spoken to his mother over the phone, Walton did not give him an opportunity to speak to her. While he claimed he was not given his warnings prior to his oral admissions, he did concede that he was so advised before the written statement was commenced.

Interestingly, Mrs. Webster was not called during the suppression hearing although she did testify at...