Commonwealth v. Haynes
| Decision Date | 22 November 1976 |
| Citation | 369 A.2d 271,245 Pa.Super. 17 |
| Parties | COMMONWEALTH of Pennsylvania v. Roger HAYNES, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Dec. 30, 1975.
Arthur L. Gutkin, Philadelphia, for appellant.
Steven H. Goldblatt, Asst. Dist. Atty., and F. Emmett Fitzpatrick Dist. Atty., Philadelphia, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
VAN der VOORT, Judge.
Appeal is taken to our Court from judgment of sentence rendered after a jury trial and adjudication of guilt to indictments charging criminal conspiracy, kidnapping, aggravated assault, and possession of instruments of crime. [1] Post-trial motions were filed and denied, thus preserving questions raised for our review.
A short factual history of the case, the evidence being considered in a manner most favorable to the verdict winner, is as follows On the night of June 28, 1973, Clifford Walker was visiting a house occupied by Dianna Frank, her two children and one Roxanne Willock. He had been going there to buy drugs. Police suddenly appeared in front of this house. Walker and Roxanne ran out of the back door, climbed over a fence and went together to Walker's apartment two blocks away. They stayed in his apartment until the early hours of the morning of June 29, 1973, during which period of time they engaged in sexual relations. Walker escorted Roxanne home that morning and went to work. Around 5:00 p.m., that afternoon Walker returned to Dianna Frank's house to visit. He made his way into the kitchen. Roxanne locked the doors. Suddenly appellant, identifying himself as Roxanne's boyfriend, entered the kitchen and confronted Walker with the accusation that Walker had raped Roxanne. She confirmed the accusation. Walker admitted he had had an intimate affair with Roxanne but denied raping her. Nevertheless appellant began to mete out a night of horror. Appellant drew a knife on Walker, tied him about the legs and neck, and began to threaten death and castration. Boiling water was poured on Walker's naked body, then salt and pepper was shaken thereupon. Two neighbors were called over for the 'party', as it was described. This torture continued, interspersed with kicking all parts of Walker's body, repeated threats of death with knives and guns, and the jamming of a broomstick into Walker's rectum. Appellant and his cohorts placed Walker in a van and drove about for some hours, ending the trip on a bridge over Crum Creek in Swarthmore, Delaware County. Thereupon Walker was thrown into the water, and in the water he was sufficiently alert to duck under the surface until he believed his captors had driven away. He reached shore and received help at a near-by apartment complex. Walker was hospitalized for approximately two months.
Appellant's first allegation of error is that the lower court should have granted his request for dismissal pursuant to Pa.R.Crim.P. 1100. A hearing was held on this motion on October 29, 1974. A criminal complaint had been filed on July 2, 1973. Testimony from the hearing shows that appellant had fled and Philadelphia authorities sought appellant through the means of the F.B.I., and a fugitive flight warrant. Appellant was apprehended in Virginia on August 2, 1973, and returned to Delaware County and there lodged in jail on August 3, 1973. It thus is clear that appellant was unavailable for 31 days and nothing could proceed on the case in question during that time. The case of Commonwealth v. Lewis, 237 Pa.Super. 357, 352 A.2d 99 (1975), relied upon by appellant, is factually inapposite because therein the unavailability of the defendant did not affect the case there pending. The case clearly mandates that 'it is only those absences of the defendant or his attorney which caused a delay in the proceedings of the Case in question which can be excluded pursuant to Rule 1100(d).' (Emphasis theirs.) Lewis, ibid., 237 Pa.Super. at 360, 352 A.2d at 101. Such a period was properly found excludable. Instantly the 31 days from July 2, 1973 to August 3, 1973 are excluded from the 270 day period.
Testimony of the Philadelphia Detective in charge of the case shows that from August 3, 1973, to October 9, 1973, numerous phone calls to the Delaware County authorities satisfied him that appellant was seriously ill and hospitalized. During this period appellant had a kidney removed. This is a valid reason for one's unavailability and is properly excludable under Rule 1100(d). Sixty-seven more days are excluded because of appellant's unavailability. Thus a total of 98 days are excluded, and the operative date for the commencement of trial, under Rule 1100, is extended by that number of days, placing the date for required trial at July 5, 1974, well beyond the originally-applicable date of March 29, 1974, which is 270 days after the filing of the complaint. It is important to note that at the hearing on appellant's motion to dismiss, all parties agreed that the Commonwealth only had to prove an excludable period up to June 8, 1974, when appellant escaped from prison and again fled jurisdiction. The additional 98 days places the time available for commencement of trial well beyond June 8, 1974. Judge GREENBERG, following the hearing and based upon this 98-day exclusion as well as the additional period due to appellant's escape and subsequent return on September 10, 1974, denied relief and found that the last day for the beginning of trial was February 25, 1975. In view of the clear evidence proving the unavailability of appellant and the consequent automatic exclusion under Rule 1100(d) of 98 days, and the parties' agreement that no further time need be considered if the Commonwealth proved excluded time sufficient to bring the required hearing date up to June 8, 1974, there would be no error. Trial commenced on February 3, 1975, well within the properly-extended period.
Appellant complains of the opening statement of the attorney for the Commonwealth. The prosecutor, in describing the crime alleged, made the following comments:
They (the appellant and his cohorts) took his (Walker's) penis . . . and put it on the table and banged it with a bowling pin and then he took lighter fluid and set it on fire and put it out, he took boiling water and poured the boiling water on it.
They inserted an instrument into his anus and poured boiling water there.
These comments are attacked as a source of prejudice to the appellant's case before the jury because they were not proved. Appellant first raised the issue by a request for a mistrial after the Commonwealth rested. The Commonwealth in its statement of what it intends to prove may not go so far from the facts as it knows them, and can reasonably infer from them, so as to inflame the passions or sensibilities of the jurors against the defendant. Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973). While it is evident that Walker reluctantly described what had happened to him, wanted to exercise restraint in this embarassing situation, and the testimony had to be drawn from him by repeated questions, the testimony is clear that Walker denied the described abuses to his penis, and stated only that a broomstick had been inserted into his anus. We must conclude that the more descriptive offerings of the assistant district attorney were error. There is no way to conclude that they were able to be inferred from the testimony as presented. Of course it is difficult to outline a case before testimony is presented, but there is no indication in the instant record that the prosecutor was faced with a reluctant or intentionally silent witness. Our inquiry must go to whether these statements so aroused the feelings of the jurors, to the prejudice of appellant, as to constitute reversible error. Commonwealth v. Ross, 452 Pa. 500, 307 A.2d 898 (1973). We hold that they do not. Standing alone the unproven acts are inflammatory, but they must be considered in the atmosphere of a case where crimes actually proven are horribly gruesome. In the midst of descriptions of the most heinous and reprehensible treatment, the comments of the assistant district attorney if not entirely ignored by the jury would fade into insignificance and would not serve to inflame further the mind of a juror, beyond whatever state of mind the proven facts placed the juror. The error here is harmless beyond a reasonable doubt and does not require reversal.
Another issue claimed to be prejudicial to appellant during trial is the lower court's allowance of the use of pictures of Walker's (the victim's) body. Appellant challenges this exercise of judicial discretion, arguing that the pictures were unduly inflammatory. Where the crime is so heinous as here, pictures thereof are naturally going to have a gruesome appearance. 'Where pictures are gruesome and so may be thought to have an inflammatory effect on the...
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