Commonwealth v. Williams
Commonwealth v. Williams
Opinion of the Court
Appellant contends that the Commonwealth failed to produce sufficient evidence to convict him of attempted murder,
From October 28-31, 1975, appellant was tried before a jury in the Montgomery County Court of Common Pleas on the aforementioned charges. The Commonwealth adduced the following facts at trial. Mr. Rigney, a 78 year old man, testified that on May 15, 1975, he drove his 1974 Plymouth Duster into a parking lot at 69th and Walnut Streets in Upper Darby, Delaware County. After parking his car, Mr. Rigney began to read his newspaper. Suddenly, a gun protruded through the window on his left, and another gun appeared through the front passenger window on his right. Two men jumped into the car from both sides, thus sandwiching the victim in between. The two men instructed the victim to remain motionless and to look straight ahead. One of the men said: “You white MF, you’re going to die, man.” After driving for about 30-45 minutes, they arrived at an isolated spot in the Strawberry Mansion section of Fair-
When he regained his senses, the victim discovered that he had fallen only 5 or 6 feet and had come to rest in a plateau area of the ravine. His hands were now free, and the white tape hung from his wrists. He removed the noose and attempted to move. However, nausea overcame him, and he lost consciousness again. Several hours later, he regained consciousness and crawled out of a ravine onto an adjacent road. A passerby found Mr. Rigney and called the police and an ambulance.
The passerby and the attending police officers testified that Mr. Rigney had been severely beaten; his face was swollen, deformed and black and blue. His forehead had a deep gash, and blood covered his face and neck. His hands were similarly cut, bloody, and discolored. Ticks infested exposed areas of his skin. The victim gasped and had extreme difficulty breathing. According to Mr. Rigney, he suffered permanent loss of hearing in one ear. Moreover, he testified that the assailants removed his 16 year old Timex wristwatch, his car, his keys, and his wallet with his vehicle registration card.
A police officer testified that on May 17, 1975, two days after the sordid attack, he spotted the victim’s car in an area
On October 31, 1975, the jury returned guilty verdicts on all charges. At appellant’s behest, his counsel made and argued oral post-verdict motions on the record at the conclusion of trial. See Pa.R.Crim.P. 1123(b); 19 P.S. Appendix. After denying the post-verdict motions, the lower court sentenced appellant to two consecutive 10-20 year terms of imprisonment on the kidnapping and attempted murder charges and one concurrent 10-20 year term of imprisonment on the robbery charge. This appeal followed.
Appellant first contends that the Commonwealth did not adduce sufficient evidence to prove beyond a reasonable doubt that he committed the crimes charged. In particular, appellant asserts that the only evidence linking him to the May 15,1975 events was his possession of property stolen from the victim. “In determining whether the evidence is
In the instant case, the Commonwealth presented sufficient circumstantial evidence to support the jury’s guilty verdicts. The police found appellant driving the victim’s car near the scene of the abduction within 48 hours of the crimes. When questioned, appellant proffered two false and contradictory accounts of his possession of the car. The police found the victim’s 16 year old Timex watch on appellant’s wrist; when questioned as to his possession of this item, appellant responded with a patent falsehood. The police also found the victim’s registration card in appellant’s wallet. A search of Mr. Rigney’s car disclosed several rolls of white adhesive tape of the same type used to bind Mr. Rigney’s hands and a gun. The police also found several of appellant’s personal possessions in the car. We believe that this evidence, when considered in its totality, sufficiently links appellant to the commission of the reprehensible crimes of May 15, 1975.
Appellant next alleges that the Commonwealth did not produce sufficient evidence of possession of an instru
Appellant next contends that the trial court committed reversible error in allowing a Commonwealth witness to testify that appellant elected to remain silent after his arrest. We agree and, therefore, grant appellant a new trial.
At trial, the Commonwealth called William P. O’Brien, an Upper Merion Township police officer who interrogated appellant on the night of his arrest and incarceration. Officer O’Brien testified that he advised appellant of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The prosecutor and Officer O’Brien then engaged in the following interchange.
“Q. What did you do having met Mr. Williams?
“A. I asked him for his personal identification, name, address, date of birth, inquired as to how he came into possession of a vehicle that he was operating, that of Mr. Rigney’s.
“A. He said that on the date prior to that, the 16th, he had found the car parked along a street with the keys in it and took it for a ride.
“Q. Then what happened?
“A. After that he elected to remain silent.”
The trial court denied defense counsel’s motion for a mistrial and also stated that: “I don’t think that anything would be served even by a cautionary instruction the way it was elicited.”
In Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826, 828 (1976), the following dialogue occurred at trial:
“[Q.] Did Greco ever say anything to you?
“[A.] We had several conversations. I advised him to— that he had the right to remain silent, and he didn’t actually make any statements other than general conversation.”
The lower court denied defendant’s request for a mistrial and did not give a cautionary instruction. The Supreme Court found this testimony an impermissible encroachment upon the defendant’s right not to incriminate himself and granted a new trial. The Court stated:
“The law is clear. It is reversible error to admit evidence of a defendant’s silence at the time of his arrest. Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). The prohibition of any reference to an accused’s silence reflects the court’s desire that an accused not be penalized for exercising his constitutional rights. Commonwealth v. Stafford, supra; Commonwealth v. Haideman, supra; Miranda v. Arizona, [supra ]. It is a recognition that most lay persons would view an assertion of the constitutional privilege as an admission of guilt. Commonwealth v. Haideman, 449 Pa. at 371, 296 A.2d at 767, citing Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968).” 465 Pa. at 403, 350 A.2d at 828. (Emphasis supplied). The Court concluded that: “An admission of guilt constitutes highly prejudicial
In Commonwealth v. Maloney, 469 Pa. 342, 365 A.2d 1237 (1976), our Supreme Court, in a plurality opinion per EAG-EN, J., held that reference to an accused’s silence at the time of his arrest could be harmless error provided that the trial court gave adequate cautionary instructions. In particular, the Court concluded that a cautionary instruction could cure an error abridging the defendant’s right to remain silent if, for example, the nature of the reference was indirect and was not exploited by the District Attorney.
In Commonwealth v. Hinds, 244 Pa.Super. 182, 366 A.2d 1252 (1976), our Court concluded that the trial court committed reversible error by admitting the testimony of a police officer that the defendant, charged with involuntary manslaughter, failure to stop at the scene of an accident, and failure to stop and render assistance, proffered the following statement after being warned of his Miranda rights: “ ‘I don’t want to say anything until I talk to my attorney, but I
Finally, in Commonwealth v. Mitchell, 246 Pa.Super. 132, 369 A.2d 846 (1977), our Court granted a new trial because the arresting police officer gave the following testimony:
“I then asked him about the burglary at Doctors Brady, Kegel and France Offices, and he denied any knowledge of the burglary.
“I then confronted him with the lug wrench [found at the scene of the burglary] and told him that this is how I broke the case, and he immediately made recognition of the lug wrench. He said, oh, that was ripped off, stolen from my apartment sometime in April or May, along with a stereo set. He said, I have a lot of Toyota tools in my apartment.
“I then advised him that I had contradictory information regarding his possession of the lug wrench, and then he said he had no more to say and would commit suicide.”
We stated that “[t]he right not to have one’s silence used against one does not depend upon whether the right is asserted at the beginning of interrogation or later on.” 246 Pa.Super 137, 369 A.2d at 848. We concluded that the testimony, in the absence of a cautionary instruction, could not be considered harmless error.
. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334; 18 Pa.C.S. §§ 901, 2501.
. The Crimes Code, supra; 18 Pa.C.S. § 2902.
. The Crimes Code, supra; 18 Pa.C.S. § 2901.
. The Crimes Code, supra; 18 Pa.C.S. § 2702.
. The Crimes Code, supra; 18 Pa.C.S. § 3701.
. The Crimes Code, supra; 18 Pa.C.S. § 2705.
. The Crimes Code, supra; 18 Pa.C.S. § 3921.
. The Crimes Code, supra; 18 Pa.C.S. § 907.
. The Crimes Code, supra; 18 Pa.C.S. § 908.
. The Crimes Code, supra; 18 Pa.C.S. § 903.
. Because of this disposition, we do not decide appellant’s challenge to the admissibility of the allegedly prejudicial physical evidence.
. Appellant does not contend that a gun is not a “prohibited offensive weapon” under 18 Pa.C.S. § 908. Nor does appellant argue that a gun is not an “instrument of crime” under 18 Pa.C.S. § 907. Appellant only asserts that he did not possess a gun in Montgomery County on May 15, 1975. Accordingly, we only decide this narrow issue.
. In the instant case, the Dissenting Opinion asserts that “[t]he public is not unaware of the accused’s right to remain silent and the duty of the Commonwealth to prove guilt beyond reasonable doubt. With this recently increased awareness, I find it more and more unlikely to suspect that prejudice arises when the exercise of the constitutional right is mentioned, particularly in an off-hand manner. I believe that the awareness of this right has been most generally disseminated through the media until we have now reached the juncture where slight, unrepeated mention of the accused’s remaining silent without contextual direct or inferential potential for prejudice, is no more harmful to the accused in the eyes of jurors than prosecution statements as to allegations of guilt.” At 451. However, by stating that most lay persons would view testimonial reference to a defendant’s silence after arrest as an admission of guilt, Commonwealth v. Greco, supra, directly refutes this analysis. Moreover, the Dissenting Opinion’s argument would completely eviscerate the constitutional protection afforded by the right to remain silent after arrest. Finally, even if we were to conclude that testimonial reference to a defendant’s silence would have minimal impact upon a jury cognizant of a defendant’s right to remain silent, the absence of affirmative justification for the testimony would warrant its prohibition. See Field, Assessing the Harmlessness of Federal Constitutional Error—A Process in Search of a Rationale, 125 U.Pa.L.Rev. 15, 20 (1976). (Discussing prosecutorial comment on a defendant’s failure to testify.)
. Hinds reaffirms our statement in Commonwealth v. Greco, 227 Pa.Super. 19, 23 (n. 4), 323 A.2d 132, 134 (n. 4), (1974), affirmed Commonwealth v. Greco, supra, that “[any] reference by the prosecution at trial to a defendants resumption of silence [after making a voluntary statement] would also be prejudicial.”
. Even assuming that a reference to an accused’s silence after arrest could be harmless error despite a trial court’s failure to give a cautionary instruction, we believe that the Dissenting Opinion palpably applies the wrong standard in assessing harmlessness in the instant case. The' Dissenting Opinion states: “Because it is very difficult for an appellate court from the printed record to have the same feeling for the events at trial as did the lower court judge, I should find error only when it is clear that the trial judge abused his discretion in denying the motion for a mistrial.” (at 451) (Emphasis supplied). However, in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court
Dissenting Opinion
dissenting:
Appeal is taken to our Court from judgments of sentence rendered on jury findings of guilt as to charges of criminal attempt to commit murder, possession of instrument of crime and use of prohibited offensive weapon, felonious restraint and false imprisonment, robbery, simple and aggravated assault, recklessly endangering another person, theft, kidnapping, and criminal conspiracy.
At eleven o’clock on the morning of May 15,1975, seventy-eight-year-old Frank Rigney drove his 1974 Plymouth Duster into a parking lot at 69th and Walnut Streets, directly across from Gimbels Department Store, in Philadelphia, Pennsylvania. He parked the car and began to look at the headlines of his newspaper. Suddenly, a gun was pointed at his head on his left, and another gun appeared through the front passenger window at his right. Two men jumped into the car from both sides, forcing Mr. Rigney between them in the front seat.
As they began to drive, Mr. Rigney was told not to move and to look straight ahead. One of the men said to him: ‘You white MF, you’re going to die, man.’ Mr. Rigney told them that he was seventy-eight years old; that they had his car; and he asked them to let him out. They refused and told him to shut up and look straight ahead. They drove to an isolated spot in the Strawberry Mansion section of Philadelphia, whereupon they stopped, ordered Mr. Rigney to get out of the car, picked him up and put him into the trunk of the car, and closed and locked the trunk.. Mr. Rigney testified that half to three-quarters of an hour had elapsed up to this time.
They proceeded to drive with Mr. Rigney in the trunk for another half to three-quarters of an hour. Their final destination was a very remote, wooded, secluded area of Upper Merion Township, Montgomery County, Pennsylvania, at the site of a ravine. The trunk of the car was opened and Mr. Rigney was pulled out. A third man had joined the other two somewhere along the way, and he told Mr. Rigney to put his hands behind his back. As Mr. Rigney backed away, he was struck in the stomach and fell to the ground. While he lay on the ground, his hands were tied behind his back with white adhesive tape. He was then pulled to his feet and a necktie that had been*449 made into a noose was slipped over his head and pulled tight. He was then led to the edge of the ravine and pushed. As he fell, Mr. Rigney lost consciousness. When he regained consciousness, Mr. Rigney discovered that he had fallen only about five or six feet down and had come to rest in a plateau area of the ravine. His hands were free and the tape was hanging from his wrists. He removed the noose from his neck and tried to move, at which time he became violently sick and then lost consciousness again. Several hours later, he regained consciousness and was able to climb slowly out of the ravine. When he could go no farther, he lay down on the road. Approximately twenty minutes later, a jogger found him and called the police and an ambulance.
Mr. Rigney had been beaten severely. According to the description of his condition given by the jogger who found him and by the policemen who arrived on the scene, his face was swollen, deformed, and black and blue from bruises. There was a very severe gash on his forehead, and his left eye was swollen closed. Dried blood covered his face and neck, and there were severe abrasions on his neck. His hands were cut and black and blue, and his ears were discolored black. His clothing was covered with dirt and debris and ticks had infested the exposed areas of his skin. He was gasping and had difficulty speaking. Ultimately, he suffered permanent loss of hearing in one ear. His sixteen-year-old Timex wristwatch, his keys, and his wallet with his vehicle registration card in it had all been taken.
Two days later, on May 17, 1975, the defendant, Gregory Williams, was spotted driving Mr. Rigney’s car in an area not far from where Mr. Rigney had been abducted. The defendant was stopped and when he could not produce a registration card for the car, he was arrested and taken into custody. Mr. Rigney’s watch and vehicle registration card were found on the defendant’s person. A search of the car revealed a gun, several rolls of white adhesive*450 tape, a letter addressed to defendant, and several books with defendant’s name on them.
Appellant now asserts four claims of trial error.
During direct examination at trial of Commonwealth witness William P. O’Brien, Upper Merion Township police officer who interrogated appellant on the night of his arrest and incarceration, the following occurred:
Q. [by Commonwealth Attorney]: What did you do having met Mr. Williams [the appellant, at his place of incarceration in the Philadelphia lock-up]?
A. [by witness O’Brien]: I asked him for his personal identification, name, address, date of birth, inquired as to how he came into possession of a vehicle that he was operating, that of Mr. Rigney’s.
Q. Did he tell you how he came in possession of it? A. He said that on the date prior to that, the 16th, he had found the car parked along a street with the keys in it and took it for a ride.
Q. Then what happened?
A. After that he elected to remain silent.
Thereupon defense counsel objected and requested a mistrial, arguing that the witness’ statement about the appellant’s remaining silent was unduly prejudicial. The motion was refused. Appellant now argues that such denial was error because “it is reversible error to admit evidence of a defendant’s silence at the time of his arrest”. Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826, 828 (1976). The Fifth Amendment forbids such commenting upon an accused’s silence, the fear being that jurors will accept such as an indication of guilt. Commonwealth v. Haldeman, 449 Pa. 367, 296 A.2d 765 (1972). In these cited cases, and others mentioned therein, the references to the defendant’s remaining silent are more than one in number and leave no doubt, by deduction or inference, that the accused during questioning would not discuss the crime. Therein arises the fear that jurors will suspect that the man “knew something he wasn’t telling.” However, in the instant case, after, identi
As a part of its case, the Commonwealth introduced into evidence four sticks, identified by an F.B.I. investigator who analyzed the items as pieces of a broomstick. As to only one piece he “concluded that those yarns [found thereon] could have originated from this shirt [which the victim was wearing].” Notes of testimony, p. 75. Appellant objects, arguing that the jury was thus permitted to infer that at least one of these items was used to beat the body of the victim. There is no basis for such inference, these items not being such as immediately to inflame the mind or cause one instantly to recoil as from a readily-identifiable instrument
One of the indictments was for possession of an instrument of crime. This was a handgun found in the possession of appellant when he was stopped in Philadelphia. However there was no direct testimony as to possession of any gun in Montgomery County—the victim when released from the trunk, tied, and abandoned in Montgomery County, did not testify to seeing this handgun, which he had observed when first abducted. Appellant argues that it was error for the lower court not to have sustained his demurrer or request for directed verdict on the basis that Montgomery County had no jurisdiction over this charge. Circumstantial evidence is sufficient for indictment and conviction. The circumstantial evidence here presented that this weapon accompanied appellant during the entire event, from Philadelphia, to Montgomery County, and back to Philadelphia, together with the law allowing that, “in order to obviate the difficulty of proof as to offenses committed during journeys from place to place, in any indictment for felony or misdemeanor committed on any . . . carriage whatever employed in any journey, it shall be sufficient to allege that such felony or misdemeanor was committed within any county or place through any part whereof such . carriage shall have passed in the course of the journey during which such felony or misdemeanor shall have been committed . . .make clear that Montgomery County had jurisdiction. Act of 1860, March 31, P.L. 427, § 49, 19 P.S. 525. See Commonwealth v. Hainds, 448 Pa. 67, 292 A.2d 337 (1972).
The evidence presented in the instant case, including the circumstances surrounding defendant’s possession of stolen property, are sufficient to support the verdicts of the jury. Defendant was found driving the victim’s car within approximately forty-eight hours of the crime, in an area not far from the scene of the abduction; he gave two false and conflicting stories of how he happened to have possession of the car; he was wearing the victim’s sixteen year-old Timex watch; he was carrying the victim’s vehicle registration card in his own wallet in his own pocket; a gun was found inside the car; and, several other items belonging to defendant were found inside the vehicle. Defendant’s assertion that there was nothing to indicate that a gun existed in Montgomery County is without merit. There was direct testimony that it was there at the scene of the abduction, and later, that the outline of it was observed in the pocket of one of the abductors. A gun was found in the victim’s car when defendant was picked up. It would be folly to imagine that the gun had not gone along with the men to Montgomery County on this entire nefarious venture, and that it did so was not an unreasonable inference for the jury to have drawn.
I would affirm.
. In violation of the “Crimes Code”, Act of 1972, Dec. 6, P.L. 1482, No. 334, 18 Pa.C.S. §§ 901, 907-908, 2902-2903, 3701, 2701-2702, 2705, 3921, 2901, and 903 respectively.
. On appeal, appellant argues that this possession indictment, while not within the jurisdiction of the trial court, moreover prejudiced appellant by its being part of the trial. This argument was not advanced during post-trial motions, and is waived for our purposes.
Reference
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- COMMONWEALTH of Pennsylvania v. Gregory WILLIAMS, Appellant
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