OPINION OF THE COURT
Appellant was found guilty by a jury of murder in the first degree, assault and battery with intent to kill and conspiracy. Post-trial motions were denied and this appeal followed.
On August 29, 1970, at or about 8:30 p.m., Officers Harrington and Kenner of the Fairmount Park Police in Philadelphia were turning into the Cobbs Creek Guardhouse
At the scene of the shooting of Officer Harrington, police arrested Hugh Sinclair Williams, who, just before the arrest, dropped a bag containing a .32 revolver, fifteen cartridges, and a fragmentation grenade.
Pasquale DiCamillo, driving in the vicinity on the night of the crime, saw a police wagon parked with a man firing from behind a corner of the wagon and another man running into the street. Mr. DiCamillo later identified the person firing the shots as Russell Shoats and identified the other man as one of the Joyner brothers. Robert Grier testified that on the evening of the murder, he was driving in the vicinity and when he stopped to let police cars through, Russell Shoats, armed with a weapon, entered his car and forced him to drive out of the area. While Mr. Grier was driving, Shoats told him that if he told the police anything, he, Shoats, would get Grier's family. Later, Detective Edward Staume, armed with a search warrant went to 432 South 56th Street and arrested Alvin Joyner. A search of Joyner's
On the basis of information apparently given to them by Marie Williams, wife of Hugh Sinclair Williams, police concluded that the crime was the work of a gang known as "The Revolutionaries," which included her husband, Alvin Joyner, Robert Joyner, Richard Thomas, Russell Shoats, and appellant Frederick Burton. Appellant was arrested, and after a warrant was obtained, a search of his home disclosed a number of spent cartridges, a 9-millimeter shell, a fragmentation grenade similar to those found at the murder scene and a 24" by 20" drawing of a police sergeant on his knees with a black militant holding a gun to his head, with the caption, "This Now."
Appellant argues that the Commonwealth's evidence was insufficient to prove his guilt beyond a reasonable doubt, emphasizing that no witness saw him at the scene of the murder or at the shooting of Officer Harrington. We reject appellant's argument. As we said in Commonwealth v. Eiland, 450 Pa. 566, 570-571, 301 A.2d 651, 653 (1973):
To prove that appellant was a member of the "corrupt confederation" responsible for the killing of Officer Von Colln, the Commonwealth presented the testimony of Marie Williams, wife of Hugh Sinclair Williams, one of those apprehended at the scene of the crime. Mrs. Williams testified that her husband, appellant, Russell Shoats, Alvin Joyner, Robert Joyner and Richard Thomas had met in her home about once a week during the four months prior to the shooting of Officer Von Colln. At these meetings, the group, including appellant, discussed how they, in the words of Mrs. Williams, would "eliminate the `pigs'" in order to get police pressure off the blacks. She further testified that about a week before the murder of Officer Von Colln, the group, including appellant, discussed their plans to blow up a police
As already noted, Russell Shoats, Hugh Williams and Robert Joyner were identified as being at the scene of the murder of Officer Von Colln. In addition, as previously related, a search of appellant's home revealed spent cartridges, a 9-millimeter shell and a fragmentation grenade similar to those at the crime scene and the hand drawing depicting a policeman on his knees with a gun pointed at his head (Mrs. Williams identified a similar drawing found in her home and testified it was done either by her husband or by appellant). We believe that this combination of evidence was sufficient to prove that appellant was part of the conspiracy. See Commonwealth v. Joseph, 451 Pa. 440, 304 A.2d 163 (1973).
Appellant next complains of various acts committed by the district attorney, each of which, he contends, entitles him to a new trial.
First, he complains of the district attorney's summation to the jury. Mrs. Williams, the Commonwealth's main witness, had appeared at three preliminary hearings, involving appellant. At the first two, she invoked the Fifth Amendment on advice of counsel. At the third hearing, she was given immunity and she testified that she heard no plans on the part of appellant or his co-conspirators to blow up a police station. At trial, Mrs. Williams gave a different version, testifying that she heard appellant and his co-conspirators planning the bombing of a police station, shortly before Von Colln was murdered. At trial, she was cross-examined by defense counsel relative to the prior inconsistent version, but was questioned only briefly regarding a statement she gave police prior to appellant's preliminary hearing.
The district attorney, in his summation to the jury, argued that if the original statement given to the police were different than her trial testimony, the defense would have brought it to light. This argument was advanced
The defense objected to this line of argument and moved for a mistrial, which was denied. The judge then gave the following cautionary instruction:
We are of the opinion that any error that was caused by the district attorney's argument was cured by the trial judge's cautionary instruction.
Appellant next argues that the district attorney improperly displayed certain evidence to the jury and thus prejudiced his case. During defense counsel's cross-examination of Officer Gillin, the district attorney, in front of the jury, began to handle the weapons that were introduced as Commonwealth exhibits. These included a pistol, an ammunition clip and fragmentation grenade. Defense counsel objected and requested a sidebar at which the judge reprimanded the district attorney
Appellant next argues that the district attorney deprived him of his right to a public trial. He complains that on the fifth day of the seven-day trial, when Mrs. Williams was scheduled to testify, the district attorney requested court personnel to keep appellant's wife out of the courtroom, explaining that appellant's wife had threatened Mrs. Williams. The district attorney also ordered all members of the Black Panthers kept out of the trial while Mrs. Williams testified. Pursuant to this request, other members of appellant's family were also accidentally excluded. When this came to light, on the day following Mrs. Williams' testimony, appellant's counsel moved for a mistrial, which motion was denied. While it is true, as appellant argues, that the district attorney had no authority to exclude spectators, after the trial judge was made aware of the situation, he ratified the actions of the district attorney at least insofar as appellant's wife and members of the Black Panthers were concerned. This presumably was based upon the judge's determination that appellant's wife and the Black Panthers might cause the witness, Mrs. Williams, to change her testimony out of fear. See United States ex rel. Laws v. Yeager, 448 F.2d 74 (3rd Cir. 1971), Commonwealth v. Principatti, 260 Pa. 587, 104 A. 53 (1918). With regard to those members of appellant's family who had been excluded by mistake, we note that the situation was immediately corrected when it was brought to the attention of the court. Under the circumstances, we do not believe that appellant was denied the right to a public trial.
Appellant next argues that the trial court committed prejudicial error when it allowed to go out with
Appellant next alleges two errors in the trial court's instructions. First, he contends that the court failed to inform the jury that they could find appellant guilty of conspiracy, but find him not guilty of murder and assault and battery with intent to kill. In reading the trial judge's charge as a whole, however, we are convinced that the jury was made fully aware that appellant could be found guilty of conspiracy and yet acquitted of the substantive crimes contained in the other indictments. Cf. Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154 (1971).
Second, appellant argues that the trial court erred in not instructing the jury on voluntary manslaughter. However, appellant did not request the charge.
Finally, appellant argues that he was denied due process of law by the exclusion of black prospective jurors by the district attorney's use of his pre-emptory challenges. We do not agree. Appellant has failed to prove a prima facie case of racial discrimination in the instant case. While the district attorney used his pre-emptory challenges to exclude some black jurors, one was seated on the jury. Under these facts, appellant is not entitled to a retrial. See Commonwealth v. Darden, 441 Pa. 41, 271 A.2d 257 (1970).
Judgment of sentence affirmed.
NIX, J., filed a dissenting opinion in which ROBERTS, J., joined.
NIX, Justice (dissenting).
My dissent in this appeal arises from the belief that the trial judge committed error in his evidentiary rulings pertaining to a picture found among the appellant's possessions in his home.
Particularly in trials where the savagery of the crimes charged or malevolence exhibited in the method of their execution is likely to excite the emotions and render sober judgment difficult, the responsibility of the trial judge to be especially vigilant in his efforts to preserve an air of impartiality and objectivity is heightened. In such a situation the admission and accentuation of irrelevant, inflammatory and highly prejudicial testimony is at variance with the unbiased, objective, reflective judgment that forms the basic tenet of American jurisprudence. This is especially true in the case at bar where the evidence of guilt was far from overwhelming.
The exhibit which was admitted in this case and permitted to remain with the jury throughout their deliberations depicted a contemptuous disregard and hostility for duly constituted authority and rekindled the antagonism between the races. Coupling the subject matter of the poster, with the fact that appellant was on trial for charges that he was a member of a black revolutionary movement bent upon the irradication of all lawful authority within the community (allegedly to avenge all wrongs that have been visited upon blacks by whites), the highly inflammatory quality of the exhibit cannot seriously be questioned. For this reason also, its erroneous admission and submission to the jury when they retired for their deliberations cannot be passed over as
First, I find great difficulty in ascertaining the relevancy of the exhibit. Relevant evidence must in some degree advance the inquiry. See Commonwealth v. Scaramuzzino, 455 Pa. 378, 317 A.2d 225 (1974); Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970); Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734 (1968), cert. denied, 393 U.S. 1102, 89 S.Ct. 901, 21 L. Ed.2d 794 (1969); Commonwealth v. Eckhart, 430 Pa. 311, 242 A.2d 271 (1968); Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968). The question is whether a reasonable man might have his assessment of the probabilities of a material proposition enhanced by the piece of evidence sought to be admitted.
Reason forces me to reject the majority's unstated premise that the possession of a single book, poster, painting or other article reflects upon the philosophical predilection of the possessor. It would be absurd to suggest that possession of `Mein Kampf' indicates the owner's acceptance of Prussian superiority, or Milton's `Paradise Lost' as his explanation for the origin of evil in the world today. While it is true the possession of books, painting, article or other materials relating to a particular subject properly indicate a more than casual interest and even possibly an adherence to a given view, no such evidence was offered in the instant case.
Further, in Com. v. Woods, 454 Pa. 250, 254-255, 311 A.2d 582, 584 (1974), this Court observed:
Here the highly questionable probative value was far overshadowed by the resulting prejudice that was engendered against the appellant. Thus, even accepting the majority view of relevancy (which I do not) the admission of this poster was an abuse of discretion.
Finally, the error of admission was compounded beyond repair by the trial court's ruling permitting the exhibit
This reasoning has compelling force where, as here, the tangible possesses a highly inflammatory quality. Neither the court below nor the majority today has been able to articulate a single legitimate purpose that was served by the submission of this exhibit to the jury during their deliberations. Yet it cannot be questioned that it did serve as a constant and compelling invitation to the jurors to disregard objectivity and to give vent to their emotional responses.
I would for the reasons stated reverse the judgment of sentence and award a new trial.
ROBERTS, J., joins in this dissent.