Commonwealth v. Ashburn
Commonwealth v. Ashburn
Opinion of the Court
OPINION OF THE COURT
A Philadelphia County jury found James Jarrett Ash-burn guilty of murder in the second degree. Post-verdict motions were denied, and Ashburn was sentenced to life imprisonment under the habitual offender statute.
Acting on information supplied by a person who shared a hotel room with Ashburn, police investigators went to the hotel room, where they discovered blood on the mattress, rug, and wall behind the bed; a pair of bloodstained trousers; and bloodstained bed clothing in a heap on the floor of the closet. Further investigation resulted in the discovery of the body of one George Santagada on a landing of one of the hotel’s fire towers. Santagada had been shot once in the neck. Arrested a few hours later, Ashburn made a series of inculpatory statements in which he admitted shooting Santagada.
Ashburn’s account of the incident, as contained in his statements, was as follows: He and Santagada had gone to Ashburn’s hotel room late the previous night after dining with friends; Ashburn produced a pistol to show to Santagada, who then brought up the subject of Russian roulette; at that point Ashburn loaded one chamber of the pistol, pointed it at Santagada, who was sitting on
Ashburn’s incriminating statements were introduced in evidence at trial as part of the Commonwealth’s case. He contends that one of these statements, made eighteen hours after his arrival at the Police Administration Building, was obtained during a period of unnecessary delay prior to his arraignment, and thus was inadmissi-. ble under the exclusionary rule announced in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). In its opinion disposing of appellant’s post-verdict motions, the trial court gave two reasons for rejecting this contention. First, the court deemed the statement admissible because it had “no reasonable relationship” to the delay prior to arraignment.
We need not pass on the first reason advanced by the trial court, for we agree with it that the admission of the statement if it was indeed error, was harmless. The challenged statement is identical in all material respects to an earlier statement obtained from Ash-burn immediately upon his arrival at the Police Administration Building, which also was introduced in evidence at trial. The admissibility of this earlier statement is not challenged. Compare Commonwealth v. Blagman, Pa., 326 A.2d 296, 299 (1974); Commonwealth v. Townsell, 457 Pa. 249, 320 A.2d 111 (1974); Commonwealth v. Padgett, 428 Pa. 229, 236-238, 237 A.2d 209 (1968). Appellant alleges prejudice from his assertion in his later statement that he did not know how to play Russian rou
We turn next to appellant’s contention that the decision of the Supreme Court of the United States in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), entitles him to a new trial. Ashburn was indicted on a charge of murder in the first degree, which at that time carried a possible penalty of death, the choice of punishment being left to the discretion of the jury.
The motion was properly denied. Furman worked no change in the constitutional standards governing the selection of jurors. Of course, as we recognized in Commonwealth v. Bradley, 449 Pa. 19, 23-24, 295 A. 2d 842 (1972), the effect of Furman in Pennsylvania
Appellant alleges, additionally, that the prosecuting attorney’s “continuous and numerous leading and immaterial questions” and the court’s “numerous” directions to the jury to disregard testimony deprived him of a fair trial.
Lastly, appellant contends that the court’s discussion of Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445, supra, in its charge to the jury was tantamount to a direction to return a verdict of guilty of murder in the second degree. There is no merit to this contention.
The Malone case bears certain striking factual similarities to the case at bar. Malone and Long, two adolescents on friendly terms with each other, procured a five chamber pistol and one cartridge, and decided to play “Russian poker”. Malone then placed the muzzle of the pistol against Long’s body and pulled the trigger three times, fatally discharging the pistol on the third pull.
“The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty percent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long’s body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others.” 354 Pa. at 188,47 A.2d at 449.
It was Ashburn’s counsel who first broached the subject of the Malone case to the jury. Seizing on the passage quoted above, he argued that the odds that Ash-burn’s second pull of the trigger would result in Santagada’s death were significantly less than three in five. In making this argument, counsel suggested that this Court in Malone had defined murder in the second degree as any act at least sixty per cent certain to result in the death of another.
This was a misstatement of the law which the court was duty-bound to correct.
Judgment of sentence affirmed.
. Act of June 24, 1939, P.L. 872, No. 375, as amended by the Act of June 3, 1971, P.L. 15, No. 6, § 1, 18 P.S. § 5108; repealed by the Act of December 6, 1972, P.L. 1482, No. 334, § 5, effective June 6, 1973.
. See Commonwealth v. Futch, supra, 447 Pa. at 394, 290 A.2d 417. Commonwealth v. Rowe, 459 Pa. 163, 327 A.2d 358, 361-362 (1974).
. Act of June 24, 1939, P.L. 872, No. 375, § 701, as amended by the Act of December 1, 1959, P.L. 1621, No. 594, § 1; 18 P.S. § 4701; repeal by the Act of December 6, 1972, P.L. 1482, No. 334, § 5, effective June 6,1973. See 18 Pa. S. § 1102.
. Following Witherspoon v. Illinois, supra, and its companion case, Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), this Court has frequently upheld the constitutionality of juries selected in the manner that was employed in the case at bar. Commonwealth v. Hudson, 455 Pa. 117, 121-122, 314 A.2d 231, 234 (1974); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971); Commonwealth v. Roach, 444 Pa. 368, 282 A.2d 382 (1971).
. Brief for Appellant at 6.
. We do not suggest that defense counsel deliberately misstated the law. Faced with overwhelming evidence of Ashburn’s guilt, counsel conducted his client’s defense with vigor and imagination. His misleading remarks may well have been an inadvertent product of the heat of argument. Nevertheless, it bears emphasizing that the task of instructing the jury on the law belongs not to counsel, but to the trial judge. In Commonwealth v. Renzo, 216 Pa. 147, 148, 65 A. 30 (1906), we noted that reading excerpts from court opinions during the closing arguments of counsel “is not a desirable practice. It leads to counter extracts by the other side and tends to confuse the minds of the jury. They are much more likely to get clear ideas of the law if they receive it altogether from the judge.” The practice of paraphrasing portions of appellate court opinions out of context is equally likely to confuse the jury, and invites the sort of corrective instruction complained of here.
Concurring Opinion
(concurring).
The disposition of appellant’s claim that his formal statement was the product of unnecessary delay between his arrest and arraignment
Because I agree that appellant’s other contentions are also without merit, I concur in the result.
Pa.R.Crim.P. 130; Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Hancock, 455 Pa. 583, 317 A.2d 588 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973); Commonwealth v. Jones, 449 Pa. 619, 294 A.2d 889 (1972); see Geiger Appeal, 454 Pa. 51, 309 A.2d 559 (1973); Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. James Jarrett ASHBURN A/K/A James Jarrett Ashburn, Jr., Appellant
- Cited By
- 11 cases
- Status
- Published