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Commonwealth v. Massey

Superior Court of Pennsylvania
Dec 10, 1970
272 A.2d 269 (Pa. Super. Ct. 1970)

Summary

In Massey, we said that Bruton did not apply to the case where a codefendant did not implicate the appellant: "The court, however, in Bruton, indicated that viable alternatives existed to the procedure of admitting the confession with reference to the defendant's Sixth Amendment right.... The ABA Standard, Joinder and Severance, Section 2.3(a) lists a viable alternative as the admission of the statement after all reference to the non-confessor had been deleted."

Summary of this case from Commonwealth v. Geho

Opinion

September 15, 1970.

December 10, 1970.

Criminal Law — Constitutional law — Evidence — Right to confront witnesses — Codefendant testifying on his own behalf — Testimony not inculpating defendants — Refusal of cross-examination of codefendant — Counsel for defendant — Preliminary hearing — Coleman v. Alabama, 391 U.S. 1 .

1. In this case, in which it appeared that a codefendant, testifying on his own behalf, denied commission of the offenses with which he and the other defendants were charged, and did not inculpate the other defendants; that the trial court refused to permit the defendants to cross-examine the codefendant, suggesting that they call him as a witness, but this was not done; and that the evidence in the case was overwhelming and clearly supported the verdict; it was Held that defendants' contention that their rights under the Sixth Amendment to the federal Constitution were violated was without merit.

2. Defendants' contention, that it was constitutional error not to have permitted defendants to secure or to have furnished counsel at a preliminary hearing, relying on Coleman v. Alabama, was Held to be without merit, since Coleman was decided after the decision in the instant appeals.

Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.

Appeals, Nos. 1216 to 1219, inclusive, Oct. T., 1970, from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1969, Nos. 1887 to 1891, inclusive, in cases of Commonwealth of Pennsylvania v. Leonard Massey; Same v. Zarlie Wyatt. Judgments of sentence affirmed.

Indictments charging defendants with aggravated robbery and prison breach. Before ROSENBERG, J.

Verdicts of guilty and judgments of sentence entered thereon. Defendants appealed.

David Kanner, with him Harold Freudenheim, and Kanner, Stein, Feinberg Barol, for appellants. Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.


Argued: September 15, 1970.


These are appeals from the judgments of sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia, after conviction of the defendant-appellants of aggravated robbery and prison breach.

On September 14, 1969, the appellants and four other prisoners engaged in an attempt to escape from the Philadelphia Detention Center. The prisoners made serious assaults on correction officers Irving Reddick and Joseph Ryan. Reddick identified Wyatt and Watson as his assailants; Ryan identified Monroe as one of his assailants. Reddick was hospitalized for sixteen (16) days and lost fourteen (14) days of work because of a kidney injury. Ryan lost three (3) days because of his injuries. During the attack on Reddick, the defendant Wyatt took a set of keys from his possession.

A defendant, Earl Hansen, testified that, he, the appellants and the other defendants planned to escape by assaulting the guards and taking an elevator to the first floor. He identified the appellants as two of the planners and perpetrators of these crimes. Hansen firmly denied that any promises of leniency has been given him in regard to the charge against him. Other witnesses corroborated the Commonwealth's testimony as to the participation of the appellants.

The defendant, Monroe, testified on his own behalf. He denied participating in an escape; in fact, his testimony contains no mention of an escape effort by anyone. He denied attacking any of the guards. He did not inculpate co-appellants in either an escape effort, a robbery or an assault on the detention officers. The court refused to permit the appellants to cross-examine Monroe, but it was suggested that they call him as a witness. This was not done.

It is clear that Monroe was not called as a witness for the Commonwealth and equally clear that he did not testify against the appellants. Their contention that their rights under the Sixth Amendment were violated is without merit.

The appellants rely on Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), which held that a confession added weight to the government's case in a form not subject to cross-examination, so violating Bruton's Sixth Amendment right of confrontation and held that this cannot be avoided by a jury instruction by the Court to disregard the confession as to Bruton. The court, however, in Bruton, indicated that viable alternatives existed to the procedure of admitting the confession with reference to the defendant's Sixth Amendment right. Bruton v. United States, 391 U.S. 123 (1968), at page 134. The ABA Standard, Joinder and Severance, Section 2.3(a) lists a viable alternative as the admission of the statement after all reference to the non confessor had been deleted.

If a codefendant's confession, not inculpating the defendant, can be introduced in a joint trial thereby precluding cross-examination by the defendant, certainly a codefendant's exculpatory statement can be admitted and not subject to cross-examination. United States v. Blassick, 422 F.2d 652 (7th Cir. 1970).

The evidence in this case was overwhelming and clearly supports the verdicts. As Mr. Justice DOUGLAS said in Harrington v. California, 395 U.S. 250, 23 L.Ed. 284, 89 S. Ct. 1726 (1969): ". . . although the use of confessions by codefendants who did not testify amounted to a denial of the petitioner's constitutional right of confrontation, the evidence supplied through such confessions was merely cumulative, and the other evidence against the petitioner was so overwhelming that the court could conclude beyond a reasonable doubt that the denial of the petitioner's constitutional rights constituted harmless error." In the instant case, Monroe in no way inculpated appellants and cross-examination could not possibly have led to an acquittal. As the court below said: "His (Monroe's) testimony was in no way adverse to the defendant, Massey. If counsel for (Massey) wished to develop affirmative testimony through (Monroe) he could have called (Monroe) as his witness, which we suggested to him."

The defendants also contend that it was error to refuse to permit the cross-examination of a codefendant who had testified for the Commonwealth. Counsel for the defendant was given wide latitude by the court for cross-examination of the codefendant Hansen who became a witness for the Commonwealth. Hansen was repeatedly asked about promises of leniency and he firmly denied that any promises, threats or deals were made. This complaint is without merit.

As the court below said: "This case was vigorously defended by the attorneys for the defendants. All the Commonwealth's witnesses were vigorously cross-examined but remained steadfast and unshaken in their testimony."

Finally, the defendants contended that it was constitutional error not to permit the defendant to secure or have furnished counsel at a preliminary hearing. The appellants rely on Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970). However, Coleman v. Alabama was decided after the decision in the instant appeals and we have held that Coleman v. Alabama need not be given retroactive effect. Commonwealth v. Brown, 217 Pa. Super. 190, 269 A.2d 383 (1970).


Judgments of sentence are affirmed.


Summaries of

Commonwealth v. Massey

Superior Court of Pennsylvania
Dec 10, 1970
272 A.2d 269 (Pa. Super. Ct. 1970)

In Massey, we said that Bruton did not apply to the case where a codefendant did not implicate the appellant: "The court, however, in Bruton, indicated that viable alternatives existed to the procedure of admitting the confession with reference to the defendant's Sixth Amendment right.... The ABA Standard, Joinder and Severance, Section 2.3(a) lists a viable alternative as the admission of the statement after all reference to the non-confessor had been deleted."

Summary of this case from Commonwealth v. Geho
Case details for

Commonwealth v. Massey

Case Details

Full title:Commonwealth v. Massey, Appellant

Court:Superior Court of Pennsylvania

Date published: Dec 10, 1970

Citations

272 A.2d 269 (Pa. Super. Ct. 1970)
272 A.2d 269

Citing Cases

Commonwealth v. Geho

This Court affirmed that language in Bruton recognizing that a codefendant's confession not inculpating the…