Commonwealth v. Jones

• Decision Date: 02 July 1973
• Citation: 452 Pa. 569,308 A.2d 598
• Parties: COMMONWEALTH of Pennsylvania v. Leroy Luther JONES, Appellant.
• Court: Pennsylvania Supreme Court

308 A.2d 598

452 Pa. 569

COMMONWEALTH of Pennsylvania v. Leroy Luther JONES, Appellant.

Supreme Court of Pennsylvania.

July 2, 1973.

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Richard H. Knox, John Patrick Walsh, Philadelphia for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Chief, Appeals Div., Philadelphia, for appellee.

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

OPINION OF THE COURT

NIX, Justice.

Appellant was indicted for murder, voluntary manslaughter, involuntary manslaughter, conspiracy, two counts of aggravated robbery carrying a concealed deadly weapon and burglary. In May of 1968, trial proceeded on all bills except involuntary manslaughter. At the conclusion of the testimony, a demurrer was sustained as to carrying a concealed deadly weapon. The jury returned verdicts of guilty of first degree murder, conspiracy, both counts of aggravated robbery, and burglary. After post-trial motions were denied by a court en banc, appellant was sentenced to life imprisonment on the murder charge and to concurrent terms of from ten to twenty years on the two aggravated robbery indictments; sentence was suspended on the conspiracy and burglary charges. This direct appeal followed. ^[1]

The record reveals the following facts: Three eyewitnesses who knew the appellant from the neighborhood testified that on December 29, 1967, the appellant and two other men entered the back door of the Shalimar Bar in Philadelphia and engaged the bartender, one Louis Butler ('Parks'), in conversation. At some point, one of the three men left the bar, leaving appellant and the third man talking to 'Parks'. After about twenty minutes of conversation, the appellant suddenly pulled 'Parks' forward by his shirt and shot him.

At that moment, a patron entered the bar. Appellant grabbed the patron by the arm, and, according to the testimony of Deborah White ripped a watch from the patron's wrist. Appellant then ordered everyone to move to the rear of the bar into the ladies room. Everyone remained in the ladies room for five or ten minutes, after which they returned to the barroom to find that the appellant and his companion had disappeared, and that the cash register drawer was open and empty. Eleven days later, on January 8, 1968, the appellant was arrested on a warrant at the home of his girlfriend, Bertha Wilson.

The appellant raises numerous challenges to his convictions which we will consider seriatum.

The first issue concerns the propriety of the arraignment procedure. On April 24, 1968, appellant was arraigned without counsel and pled not guilty to charges of conspiracy, aggravated robbery (two counts), carrying a concealed deadly weapon, and burglary with the intent to commit a felony. Counsel was appointed on June 10, 1968. On May 23, 1969, the appellant received a counseled arraignment in open court on the murder bill and pled not guilty. He argues that the April 24 arraignment on the non-homicide charges was fatally defective because he lacked counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

'It is central to (the principle of right to counsel) that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial.'

United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967). In keeping with that principle, our rules of criminal procedure provide that:

'In all indictable cases, at the time of arraignment, if the defendant is without financial resources or otherwise unable to employ counsel, counsel shall be appointed by the court to represent him unless he intelligently and understandingly elects to proceed without counsel and signs a written waiver of counsel.'

Pa.R.Crim.P. 317(c), 19 P.S. Appendix. This rule insures that if the accused is still unrepresented by the time of arraignment, an attorney will be appointed quickly to avoid the possibility of an uncounseled guilty plea, confession, or confrontation of witnesses.

In the case at bar, the accused appeared at the arraignment without counsel, signed the pauper's oath (See Pa.R.Crim.P. 318A), and pled not guilty. Counsel was appointed shortly thereafter, before appellant's ability to conduct a defense had suffered any prejudice whatsoever. This case is, therefore, clearly distinguishable from cases where the accused was permitted to plead guilty without representation. See, e.g., White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Commonwealth v. Allen, 428 Pa. 401, 238 A.2d 770 (1967); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). It is also distinguishable from cases where an uncounseled accused waived important rights or strategical opportunities. See, e.g., Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (right to counsel at preliminary hearing); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (right to counsel at a proceeding where the right to assert insanity defense and right to challenge array of grand jury may be waived).

In contrast to the procedures in Coleman and Hamilton,

'the purpose and necessity of arraignment (in Pennsylvania) is to fix the identity of the accused, to inform him of the nature of the charges against him and to give him the opportunity of informing the court of his plea thereto.'

Commonwealth v. Phelan, 427 Pa. 265, 272, 234 A.2d 540, 545 (1967). Here, both the accused and his attorney were well aware of all of the charges at issue and the entry of the plea of not guilty at a time that he was not represented in no way adversely affect his defense. Had he been represented at that time it is obvious that the same plea would have been entered. We, therefore, fail to find any deprivation of due process occurring during that proceeding. Commonwealth v. Phelan, supra. Cf., Commonwealth v. Paskings, 447 Pa. 350, 290 A.2d 82 (1972); Commonwealth v. Banks, 447 Pa. 356, 285 A.2d 506 (1972); Commonwealth v. Jennings, 446 Pa. 294, 285 A.2d 143 (1971).

Despite the existence of one valid arraignment, the appellant urges that a second arraignment on the non-homicide charges was required in open court. Pa.R.Crim.P. 317(a) ^[2] requires such a procedure in capital cases, ^[3] and it is uncontested that appellant was so arraigned on the murder bill. ^[4] In cases other than capital, arraignment is left to local court rules or practice. Rule 317(e). ^[5] The appellant relies upon Rule 317(b adopted by the Board of Judges of Philadelphia County:

'In all cases where the defendant or his attorney has been summoned at least ten days before . . . trial, arraignment May take place on the day of the trial.' (Emphasis supplied).

That rule is clearly discretionary. In this case, where the appellant had aready received one valid arraignment, and where at the time of the arraignment in the murder bill counsel raised no request for a second arraignment on the non-homicide charges, the trial judge acted within his discretion in not requiring the defendant to be rearraigned on the non-homicide charges.

The appellant further asserts that the jury was confused by the introduction into the case of charges that were not part of the May 23, in-court arraignment. We disagree. The reading of technical charges from an indictment does little to aid the jury's understanding of the case. The arraignment is not designed to frame the legal issues for the jury. Rather, it is the judge's charge at the conclusion of the evidence that fulfills that function. Often, as was the case here, a charge will be withdrawn from the jury's consideration after the Commonwealth has presented its case. We will not assume, therefore, that the jury was confused based solely on an allegation that all charges were not read in their presence prior to trial.

To support the argument that confusion occurred, appellant points to the fact that juror number one when first questioned during the poll of the jury announced her verdict as guilty of murder. She immediately amended her statement to designate the verdict as murder in the first degree. To attempt to support a conclusion that the entire jury was confused because of the failure to arraign the appellant before them on the non-homicide charges from this obvious inadvertence on the part of one juror is absurd. Appellant also urges that the jury's attempt to render a verdict on the voluntary manslaughter bill after the first degree murder verdict had already been recorded is further evidence of its confusion. The record reveals no such attempt on the part of the jury. It shows only a dialogue between the Court and defense counsel as to whether that verdict should be announced and recorded. Again, we see no evidence of confusion on the part of the jury.

Finally appellant cites the fact that the jury returned requesting supplemental instructions on conspiracy and aggravated robbery as evidence of its confusion. Such requests are specifically authorized by Pa.R.Crim.P. 1119(c), ^[6] and we find nothing in the questions asked indicating confusion.

The appellant also contends that, in giving these supplemental instructions the trial judge erroneously directed a verdict of guilty of first degree murder. The record reveals the following colloquy:

'THE COURT: You can do what you believe the facts indicate. I give you the law, the law is simply this relating to the conspiracy, if you believe from the testimony that the defendant was acting in...