Commonwealth v. Nagle
Commonwealth v. Nagle
Opinion of the Court
Appellant contends that the trial court abridged his constitutional right to confront and cross-examine his accusers when it permitted the jury to consider his non-testifying codefendant’s confession in determining appellant’s guilt. We agree and therefore, grant appellant a new trial.
On July 2, 1975, two men robbed a Sheetz Kwik store at Lexington Avenue and Fourth Street in Altoona, Blair County. On July 15, 1975, a single man robbed a Sheetz Kwik store at Union Avenue and Fifth Street in Altoona. The next day, an Altoona police officer arrested one Byron Musselman and charged him with robbing
On November 3, 5, and 6, 1975, appellant and Musselman (hereinafter co-defendant) were tried before a jury. At trial, a clerk who worked at the Sheetz Kwik store at Lexington Avenue and Fourth Street testified that at 2:50 a. m., on July 2, 1975, two men wearing black nylon stockings
A clerk who worked at the Sheetz Kwik store at Union Avenue and Fifth Street testified that a man wearing a blue shirt, blue jeans and a white painter’s hat entered the store in the early morning hours of July 15, 1975. The man left; shortly thereafter he returned and robbed the store. The clerk testified that he had identified the co-defendant as the robber at a photographic array arranged by the Altoona police on July 16, 1975. At trial, he also unhesitatingly identified the co-defendant as the robber. A friend of the clerk testified that he saw the co-defendant enter the Sheetz Kwik store on July 15, 1975, and subsequently leave. The friend then departed. This witness identified the co-defendant at a July 17 photographic array and at trial. A police officer confirmed that the clerk and his friend had made pre-trial identifications of the co-defendant.
The prosecutor then read into evidence, over objection, a confession of the co-defendant obtained by the police on July 18, 1975. Whenever the confession referred to appellant by name, the prosecutor deleted appellant’s name and substituted a blank, (hereinafter _). In his confession, the co-defendant asserted that_had made the decision to commit the July 2 robbery. _and he walked into the Sheetz Kwik store whereupon ,_pulled a gun out of his pocket and handed the co-defendant a butcher knife. The two men put black nylon stockings over their heads and walked up to the counter. _reassured the co-defendant that he knew what he was doing because he had previous criminal experience in different towns. _ then demanded that the clerk transfer the money in the cash register into a brown paper bag. At this juncture, the co-defendant declared that he was not going to do it and threw the butcher knife down on the counter. _
The prosecutor next read into evidence a statement that appellant made to the police on August 20, 1975. The prosecutor substituted_whenever appellant mentioned his co-defendant’s name. Appellant stated that on July 15, 1975, he drove_over to the Sheetz Kwik store at Fifth Street and Union Avenue, but he did not know that-intended to rob it. _ took appellant’s pistol without appellant’s knowledge or consent. _ went into the store. After_ran out of the store with money in his hand and ran up Fifth Street, appellant picked him up and drove away. Appellant stated that _ wore a white painter’s hat during the above events. When-offered
The lower court gave the following instructions during its charge to the jury: “They are both out-of-court statements and when they are made with the statement of one defendant implicating another, this constitutes a violation of the Sixth Amendment right to confrontation and, therefore, the out-of-court statement of [co-defendant] cannot be used insofar as [appellant] is concerned. [Appellant’s] out-of-court statement cannot be used insofar as [the co-defendant] is concerned. However, I also charge you that the confession or statement of a co-defendant read into evidence without mentioning the name of the other defendant does not constitute a violation of the Sixth Amendment right. In other words when the statement is read into evidence and the identity of the other party is not read in connection with any such statement, no violation of the Sixth Amendment right has been committed; and the statement may be used not to identify by name the defendant or other defendant involved, but you have the right under the law to consider the other factual statement or objective statement as they have been referred to to aid or assist you in determining whom if possible, if you’re able so to do and if the Commonwealth has established it beyond a reasonable doubt whom the other actor was that was involved in the litigation in question.” Subsequently, the court reiterated that the jury could not consider either statement against the maker’s
On November 6, 1975, the jury found appellant and his co-defendant guilty of all offenses charged, and on March 15, 1976, the lower court sentenced appellant to a 2-5 years’ term of imprisonment for the July 22 robbery and a consecutive 3-7 years’ term of imprisonment for conspiring to commit the July 15 robbery. The court also required appellant to make restitution to the Sheetz Kwik stores and to pay Blair County a total of $300 in fines. This appeal followed.
Appellant contends that the lower court infringed upon his constitutional right to confront and cross-examine his accusers because it permitted the jury to consider his non-testifying co-defendant’s confession in assessing appellant’s culpability. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the prosecutor introduced a non-testifying co-defendant’s confession into evidence. The confession inculpated the defendant-petitioner. The trial court instructed the jury that it could not consider the co-defendant’s statement as evidence against the defendant in any way. Nevertheless, the Supreme Court held that: “[Bjecause of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of the [co-defendant’s] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” 391 U.S. at 126, 88 S.Ct. at 1622. The Court expatiated on its holding “. . . [T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury
The Supreme Court in Bruton v. United States, supra, 391 U.S. at 133-34, 88 S.Ct. 1620, suggested that viable alternatives might exist which would allow the prosecution to introduce a co-defendant’s confession at a joint trial in order to prove the confessor’s guilt without simultaneously vitiating the non-confessor’s right of confrontation. In a footnote, supra at 133, note 10, 88 S.Ct. 1620, the Court noted that some courts favored the deletion of references to other defendants when practicable in joint trials while other commentators believed that redaction was an ineffective and prejudicial practice. In Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977), our Supreme Court sanctioned the practice of excising references to a defendant’s name when the confession of a non-testifying co-defendant is intro
First, the trial court’s charge made it quite clear that it was appellant’s name which had been deleted from his co-defendant’s confession. “They are both out-of-court statements and when they are made with the statement of one defendant implicating another, this constitutes a violation of the Sixth Amendment right to confrontation and, therefore, the out-of-court statement of [the co-defendant] cannot be used insofar as [appellant] is concerned. . However, I also charge you that the confession or statement of a co-defendant read into evidence without mentioning the name of the other defendant does not constitute a violation of the Sixth Amendment right.” This exposition of Sixth Amendment rights informed the jury that appellant could not complain because his name had been excised from the co-defendant’s confession. Even if redaction arguably pro
Second, the lower court erroneously instructed the jury that it could consider facts referred to in the co-defendant’s statement in determining “whom [sic] the other actor was that was involved in the litigation in question.” Such a charge eviscerates the protection afforded an accused by the Confrontation Clause and Bruton v. United States: it directs the jury to consider inadmissible hearsay
The facts of the case at bar illustrate the deleterious consequences of the trial court’s charge. If we temporarily ignore the co-defendant’s confession, there is no evidence
The trial court’s charge also poisoned the jury’s consideration of appellant’s culpability for conspiring to commit the July 15 robbery. In his statement, appellant asserted that he drove the co-defendant to the store and that the co-defendant removed a pistol from his car without appellant’s knowledge or consent. The co-defendant, however, averred that__drove him to the store, handed him a gun, and instructed him to rob the store. The trial court’s charge permitted the jury to make the crucial determination that someone did in fact hand the co-defendant appellant’s gun ; the jury was confronted with the inescapable inference that
Judgments of sentence vacated and new trials granted on both charges.
. The Crimes Code, Act of Dec. 6, 1972, P.L.1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 3701.
. The Crimes Code, supra; 18 Pa.C.S. § 903.
. The American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance, § 2.3 (1968), (promulgated before the Supreme Court articulated the rule of Bruton v. United States) would require that all references to a nonconfessing defendant must be effectively deleted. The commentary to § 2.3 notes that: “[T]here are, of course, instances in which such editing is not possible; the references to the co-defendant may be so frequent or so closely interrelated with references to the maker’s conduct that little would be left of the statement after editing, [citations omitted]
“. . . It is not enough to merely delete his name; if the statement indicates that another unnamed party is involved in the crime, the jury is nearly certain to draw the inference that the co-defendant is this party.”
A Pennsylvania Supreme Court subcommittee for Proposed Jury Instructions, has also worried over the fairness and effectiveness of the procedure of deleting references. “With the run-of-the-mill confession can all risk of prejudice to the non-confessing defendant be eliminated by any means short of amending the confession to make it appear that the defendant acted alone or with named persons other than the co-defendant.?” See Pa. Standard Jury Instructions, Criminal, Subcommittee Draft, § 3.12 at 51. See also Posey v. United States, 416 F.2d 545, (5th Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127.
. Because the object of the conspiracy had already been completed and the co-defendant had been taken into custody, his statements were not admissible under the co-conspirator exception to the hearsay rule. See Commonwealth v. Ransom, supra. See also Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972).
. The subcommittee draft on the use of a co-defendant’s confession at a joint trial, Pa. Standard Jury Instructions, supra, suggests that if the court does admit a confession with deletions that might cause the jury to speculate about the original text, the trial court should instruct the jury not to consider the statement in any way against the non-confessing defendant. See also Posey v. United States, supra, in which a Fifth Circuit panel emphasized the importance of deleting any facts in a confession which might tend to identify the non-confessing defendant as the person referred to as__See also ABA Project on Minimum Standards, supra.
. The prosecutor agreed with this summation of the facts. In response to appellant’s demurrer to the evidence, he stated, at sidebar: “Insofar as the robbery on July second, it is our position . The only testimony we have to substantiate his position is the fact that the record shows two things: One, the respective sizes of the parties is established by the victims involved; and the fact that the larger of the two had a red shirt and then in the statement of [co-defendant] he says his . the man that was with him (blank) has a red shirt on. Now he denies any statement, of course, he had anything to do with it and we haven’t got that in the record.
“I don’t think we can hold him for the robbery ... I don’t subscribe to the same position insofar as the conspiracy is concerned.
. After deliberating for a while, the jury asked the trial court if it could hear appellant’s statement once more. The court refused this request. This query indicates that the jury may have been in some doubt as to appellant’s complicity in both robberies and may have turned to the co-defendant’s confession for reassurance.
. Appellant’s co-defendant, Musselman, has filed a separate appeal (J. 1632/1976) in which he contends that the trial court erroneously allowed the jury to consider appellant — -Nagle’s statement in determining his guilt. We believe that the trial court’s error was harmless beyond a reasonable doubt vis-a-vis Musselman. Nagle’s statement did not connect Musselman in any way with the July 2, 1975 robbery. Therefore, the jury could not have relied on Nagle’s statement in convicting Musselman of this crime. As to the July 15, 1975 robbery, Nagle’s statement did implicate Musselman. However, the store clerk identified Musselman, without any hesitation, as the robber, and Musselman himself confessed to the crime. Musselman did not challenge the reliability or voluntariness of his confession before the jury. We believe that the jury would not have found the Commonwealth’s case significantly less persuasive had Nagle’s statement been excluded. Therefore, the judge’s charge with respect to Nagle’s statement was harmless error. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).
Dissenting Opinion
dissenting:
I respectfully dissent. Appellant appeals to our Court from convictions before a jury and judge of the crimes of robbery and criminal conspiracy. He assigns a number of reasons why he should have judgment arrested or a new
Viewing the evidence in the light most favorable to the Commonwealth as we must since it is the verdict winner, the following facts appear. There are two stores, in the City of Altoona, involved in this appeal. They are named Sheetz Kwik Shopper. One is located at Lexington Avenue and Fourth Street (Lexington Kwik), the other at Union Avenue and Fifth Avenue (Union Kwik). On July 2, 1975, two masked men, one armed with a gun, the other with a knife, at 2:50 A.M., robbed Lexington Kwik and fled in an automobile. On July 15, 1975, one man armed with a gun (which although shaped like an automatic was actually a starter pistol) at 12:43 A.M. robbed Union Kwik. He escaped in the automobile of John Edward Nagle who was waiting outside to pick him up. The loot was divided although Nagle claimed he returned his share to his accomplice.
On July 16, 1975, Byron D. Musselman was arrested and charged with robbery of the two stores. He made a confession in which he implicated Nagle. On August 20, 1975, Nagle gave himself up to the police. He was charged with robbery
Both defendants were tried together. Nagle was found guilty of robbery of Lexington Kwik and of criminal conspiracy in connection with the robbery of Union Kwik. He was sentenced to not less than three nor more than seven years on the conspiracy charge and two to five years on the robbery to run consecutively.
Appellant’s next argument maintains that the lower court erred in denying his demurrer to the evidence in the Lexington Kwik case. In the light of the evidence introduced at trial the demurrer was properly refused. I would not decide what the decision should be if a demurrer is made in the retrial.
Appellant next argues that the lower court erred in permitting the introduction into evidence of his waiver of rights. He maintains that the waiver had no relevancy to the proceedings and only served to prejudice his case. However, the lower court permitted the waiver to be introduced for the purpose of showing that the appellant’s statement which was also introduced was given voluntarily. In Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972), a case cited by the appellant, the Pennsylvania Supreme Court stated at 448 Pa. on page 388, 292 A.2d on page 289:
*148 Any analysis of the admissibility of a particular type of evidence must start with a threshold inquiry as to its relevance and probative value. A leading commentator has suggested the following desideratum for relevancy: “[D]oes the evidence offered render the desired inference more probable than it would be without the evidence? . Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.” McCormick, Evidence, § 152 at 318-19 (1954) (emphasis in original); (Wigmore, Evidence, §§ 9-10 at 289-95, 3rd ed. 1940).
Whether or not a statement made by a defendant is voluntary is essential to the admissibility of the statement into evidence. Therefore any evidence that would have a bearing on the issue of voluntariness is essential. I find the lower court did not err in permitting the appellant’s waiver of rights to be admitted for the purpose of showing that his statement to the police was voluntary.
Appellant also argues that the statement itself should not have been admitted into evidence. He maintains that the reading into evidence of his statement
Appellant also argues that the verdict was contrary to the law, and contrary to the evidence. As I stated above, the statement of the co-defendant was properly admitted as was the statement of the appellant. These statements along with the other evidence introduced by the Commonwealth were sufficient to sustain the verdicts and therefore the verdicts cannot be said to be contrary to the evidence.
The test of the sufficiency of the evidence — irrespective of whether it is direct or circumstantial, or both — is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969).
Finally, appellant argues that the sentences imposed for his involvement in the two robberies was excessive. In view of the way I would dispose of this case, calling for a retrial and for resentencing it is not necessary to consider the claim of excessive sentences.
I would reverse and remand for a new trial at No. 938 of 1975 of the court below. I would affirm at Number 937 of 1975 of the court below and provide that upon the conclusion of the proceedings in the court below at its Number 938 of 1975 the sentence at Number 937 of 1975 shall be vacated for resentencing by the court below.
. Act of Dec. 6, 1972, P.L. 1482 No. 334, 18 Pa.C.S. § 3701.
. Act of Dec. 6, 1972, P.L. 1482 No. 334, 18 Pa.C.S. § 903.
. Musselman was also found guilty on both charges of robbery.
. While Musselman’s confession tried to depict Nagle as the “leader” he nevertheless confessed to his own participation in the robberies.
. Cf. Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975). In Colon the court concluded that the facts contained in a declarant’s confession which exculpated a possible accomplice were not statements against interest and hence were inadmissible. However, the court stated that portion of the confession which contained facts contrary to the declarant’s penal interest fell within the exception to the hearsay rule and would have been admissible had it not been that it was deemed irrelevant to the Commonwealth’s case against the defendant. In the instant case, Musselman’s statement involved both himself and the appellant insofar as they acted in concert in committing the Union Kwik robbery. In other words their actions were directly related to each other, and therefore the statement implicated Musselman in two crimes, i. e., criminal conspiracy and robbery. Furthermore, Nagle’s statement corroborated nearly all of the facts related to that particular robbery contained in Musselman’s statement and thus added to its trustworthiness. On the basis of this distinction from the facts of Colon, it is not necessary to consider the problem of possible divisibility of the Musselman statement and it was properly admitted in its entirety as competent evidence.
. Appellant’s statement acknowledged the fact that he was with the co-defendant on July 15, 1975, when the Union Kwik was robbed. However, appellant maintained throughout his statement that he had no idea that the co-defendant was going to rob the store. He stated that the co-defendant obtained the starter’s pistol, which belonged to the appellant and which was used in the robbery, from under the front seat of his car. He further stated that he picked up the co-defendant in his car after he saw him come out of the store with money in his hand and start running down the street. He also stated that initially he took half the money obtained from the robbery but later gave it back to the co-defendant.
Reference
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- COMMONWEALTH of Pennsylvania v. John Edward NAGLE, Appellant
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