Commonwealth v. McCabe
Commonwealth v. McCabe
Opinion of the Court
Robert McCabe was tried before a jury on charges of robbery,
1. May a defendant be convicted of a crime where there is no independent proof of the commission of that crime, but only the Defendant’s statement that he committed such a crime?
2. Even where there is no independent proof of the commission of a crime, may a defendant waive the protec*498 tion of the corpus delicti rule, and be convicted upon his own testimony alone?
The information charged appellant with concealing or destroying relevant evidence in the nature of a note found at the scene of a robbery. The police learned of the existence of the note from appellant, who told them he had destroyed it. At trial, the Commonwealth was unable to produce independent evidence that the note existed. Because the Commonwealth was unable to prove the corpus delicti of this offense, the trial court sustained an objection to a testimonial reference to appellant’s oral statement by Trooper Bordenaro, a witness for the prosecution. On cross-examination, the witness was asked whether appellant had made a statement in which he denied involvement in the crime,
The law is clear that “where one party offers part of a conversation, the other is entitled to bring out the balance____” Commonwealth v. Nelson, 294 Pa. 544, 546, 144 A. 542, 543 (1929). “If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area.” Commonwealth v. Gonce, 320 Pa.Super. 19, 37, 466 A.2d 1039, 1049 (1983), quoting Commonwealth v. McCloughan, 279 Pa.Super. 599, 604, 421 A.2d 361, 363 (1980); Commonwealth v. Stakley, 243 Pa.Super.
As a general rule, a naked extrajudicial confession of guilt by one accused of crime, uncorroborated by independent evidence establishing the corpus delicti, is not sufficient to warrant or support a conviction. 30 Am.Jur.2d Evidence § 1136. Pennsylvania decisions are in accord. Commonwealth v. Ware, 459 Pa. 334, 365-366, 329 A.2d 258, 274 (1974); Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368, 369 (1973); Commonwealth v. Lettrich, 346 Pa. 497, 498, 31 A.2d 155, 156 (1943). “The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed____” Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940).
The rule that an extrajudicial confession does not warrant a conviction unless corroborated by independent evidence of a corpus delicti has no application to judicial admissions. 30 Am.Jur.2d Evidence § 1139. See also: State v. Schomaker, 303 N.W.2d 129 (Iowa 1981); Com
Appellant’s in-court testimony was neither hasty nor unguarded. It was made after consulting with counsel, was made under oath during trial, and was exculpatory with respect to the more serious charges which had been brought against him. His testimony, which admitted the destruction of evidence, was sufficient, if believed, to warrant a finding that he had concealed and destroyed evidence.
The judgment of sentence is affirmed.
. 18 Pa.C.S. § 3701.
. 18 Pa.C.S. § 3925.
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 5105.
. Presumably, this reference by defense counsel was to the crime of robbery.
. These facts are taken from a stipulation entered by counsel for both parties in lieu of a transcribed copy of the notes of testimony.
Dissenting Opinion
dissenting:
I do not believe that the Commonwealth has carried its burden of establishing the corpus delicti by evidence independent of appellant’s confession or admission. Accordingly, I should reverse the judgment of sentence.
The general rule that governs this case is well settled:. The corpus delicti may not be established by a confession or admission standing alone. It follows that a confession or admission alone cannot support a conviction. Putting it conversely, a confession or admission must be corroborated by independent evidence of the corpus delicti. The burden is on the prosecution to prove the corpus delicti. This may be accomplished by either direct or circumstantial evidence.
Wharton, 1 Criminal Law, § 28 at 144-50 (C.E. Torcía 14th ed. 1978) (footnotes omitted).
See also Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980) (“... a criminal conviction may not stand merely on the out of court confession of one accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has
Appellant was convicted of the crime of hindering prosecution. See 18 Pa.C.S. § 5105.
*501 § 5105. Hindering apprehension or prosecution
(a) Offense defined.—A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
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(3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;
The only other evidence that the crime in fact occurred was appellant’s reiteration of his statement to Trooper Bordenaro in response to questions put to him on cross-examination. The issue before us, therefore, is whether the Commonwealth may satisfy the corpus delicti rule through testimony it elicits from a defendant who decides to testify. This issue has not been considered by a Pennsylvania appellate court, and it is not easily resolved, for it falls squarely between two well-established principles, each of which
The majority, instead of referring to a defendant’s guilty plea, uses the term “judicial admission”
In the first place, the majority fails to note that before the court may accept a guilty plea it must satisfy itself that the crime in fact occurred. It does this by ascertaining whether a factual basis for the plea exists. See Pa.R. Crim.P. 319(a); Commonwealth v. Hines, 496 Pa. 555, 560, 437 A.2d 1180, 1182 (1981) (collecting cases); Common
In addition, the majority’s reasoning is unsupported by, or contrary to, such facts as are disclosed by the record. As I have said, no trial transcript has been provided to us. The opinion of the trial court, to which counsel have stipulated, see R. at 13, tells us neither the context in which appellant made his statements, the question or questions to which he responded, or what he said. So far as the record discloses the facts, however, it shows that the majority’s
“[A] guilty plea is not only an admission of conduct but also is an admission of all the elements of a formal criminal charge, and constitutes the waiver of constitutionally-guaranteed rights[.]” Commonwealth v. Hines, supra 496 Pa. at 559, 437 A.2d at 1183. It is because the decision to plead guilty is so momentous, with such grave consequences, that the court must engage in the colloquy with the defendant. It is through the colloquy that the court guards against the possibility that it will accept a plea from an innocent defendant, or a plea that is hasty, unknowing, or involuntary. See Pa.R.Crim.P. 319(a) and comment. Also, it is through the colloquy that the court impresses the defendant with the “grave and solemn [nature of his] act,” see Commonwealth v. Sanutti, 454 Pa. 344, 349, 312 A.2d 42, 44 (1973) citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and provides a “dignified procedure designed to impress the defendant with its fairness and concern for his rights.” Hoffman, “Rule 11 and the Plea of
Appellant here enjoyed no such protection. It is true, as the majority notes, that appellant made his inculpatory statement while he was under oath and while he enjoyed the assistance of counsel.
I conclude, therefore, that appellant's testimony on cross-examination was not analogous to a guilty plea but to a confession. Since apart from the confession there was no evidence of the crime, appellant should not have been convicted.
The judgment of sentence should be reversed and appellant discharged.
. Section 5105 of the Crimes Code, 18 Pa.C.S. § 5105 provides in part:
. The authority cited by the majority in support of the proposition that a “judicial admission” may, without more, serve to satisfy the corpus delicti requirement makes clear that the term refers to a guilty plea. 30 AmJur. 2d Evidence § 1139 states:
§ 1139.—Judicial confessions.
The rule that a confession does not warrant a conviction unless corroborated is generally held applicable to extrajudicial confessions only, and not, in the absence of statutes to the contrary, to judicial confessions. Some jurisdictions have recognized this rule by legislative enactment. The reason for this distinction is said to be that judicial confessions are deliberately made and, being reduced to writing, subscribed by the prisoner, and certified by a magistrate, or consisting of a solemn plea made at the bar of the court and entered of record, are precisely identified and free from the inherent infirmity of all mere verbal confessions made out of court, resting in the memory of witnesses, and depending for their value upon the fidelity and accuracy of their repetition.
(footnotes omitted).
. The only appellate authority cited by the majority in support of its view is State v. Schomaker, 303 N.W.2d 129 (Iowa 1981). In that case the defendant was first tried for robbery. His defense was alibi. On direct examination he testified that at the time of the robbery he was in another town, selling drugs. After he was acquitted of the robbery, he was charged with delivering a controlled substance. He was convicted on this charge, the only evidence, apparently, being his testimony at the robbery trial. On appeal, the issue before the Iowa Supreme Court was the construction of Iowa R.Crim.P. 20(4), which provides:
Confession of defendant. The confession of the defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the defendant committed the offense. Cited in State v. Shomaker, supra at 130.
The court noted that the case turned on what the legislature intended by using the term "open court.” It concluded that the legislature had intended the term to be read broadly to "encompass! ] any court where a defendant is protected against compulsion, coercion, or other improper persuasion”, and that in the case before it, the defendant’s confession was made in such a court, for his statement was a deliberate, counselled decision to establish his alibi defense and "was made under questioning by his own lawyer.” Id. at 132. Here, however, we have no such statute; the facts of the case, as far as we can know them, do not suggest a deliberate and counselled strategy decision by appellant to make a confession; and the questions were not put to appellant by his own counsel.
. Majority at 500. The opinion states that appellant’s statement was made "after consulting with counsel." I take this to mean that appellant's decision to take the stand in his own defense was made after consultation with counsel. There is no indication in the record that appellant’s response to the Commonwealth’s questions was made after consulting with counsel, or that counsel knew or could have known the questions the Commonwealth intended to ask.
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Robert McCABE, Appellant
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- 8 cases
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