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COMMONWEALTH v. RAYMOND (10/09/63)

October 9, 1963

COMMONWEALTH
v.
RAYMOND, APPELLANT.



Appeal, No. 363, Jan. T., 1962, from judgment of Court of Oyer and Terminer of Philadelphia County, Dec. T., 1960, No. 341, in case of Commonwealth of Pennsylvania v. Albert Edward Raymond. Judgment affirmed.

COUNSEL

Cecil B. Moore, for appellant.

Richard A. Sprague, Assistant District Attorney, with him William H. Wolf, Jr., Stanley M. Shingles and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Eagen

[ 412 Pa. Page 197]

OPINION BY MR. JUSTICE EAGEN

The defendant, Albert Edward Raymond, after trial was convicted by a jury of murder in the first degree. The punishment was fixed at death. Following dismissal of motions for a new trial and in arrest of judgment, sentence was imposed in accordance with the jury's verdict. This appeal followed.

Despite the fact that the motion in arrest of judgment was not pressed on appeal, we have carefully examined the record as required by the Act of February 15, 1870, P.L. 15, 19 P.S. ยง 1187, and find that the evidence is more than ample to sustain the conviction. All of the ingredients of murder in the first degree were established beyond a reasonable doubt. Our discussion herein, therefore, will be restricted to the alleged trial errors, which the defendant urges require a new trial.

The factual history may be summarized as follows:

William Powell, an officer of the Philadelphia Police Department, while in plain clothes met Raymond, the defendant, in the early morning hours of November 19, 1960, in a bar near 9th and Vine Streets in the City of Philadelphia. The two left together and proceeded to a house at 449 Marshall Street looking for two known prostitutes. Upon entering the dimly lit

[ 412 Pa. Page 198]

    hallway of the house, a fight occurred between Powell and Raymond, during which Powell was shot and fatally wounded. His body was dragged a few minutes later by Raymond and two companions to Powell's automobile located a block away and dumped into the back seat, where it was found by the police later the same morning. The autopsy disclosed the existence of numerous injuries, including a broken jaw and a fractured skull. Death was caused by a bullet wound, the missile entering the body through the left rear portion of the neck.

The defendant was almost immediately the subject of a widespread police search. It continued unsuccessfully for eleven days. During this time, the defendant was in hiding in another section of the city. On November 30, 1960, he telephoned the office of a local newspaper and arranged to surrender to the police.

At trial, the Commonwealth contended that on the occasion involved, Powell was investigating vice violations, and that Raymond, unaware of this, lured him from the bar to the Marshall Street address for the purpose of robbing him.

The defendant testified that while he was walking along the street, Powell, whom he did not know, drove up in a car, accosted him and asked to be "fixed up"; that in consideration "for a couple of dollars" he accompanied Powell to the Marshall Street address looking for two girls; that he tole Powell the girls were not home; that Powell, who appeared to have been drinking, became provoked and abusive, punched him, pulled a gun and threatened to shoot him; an altercation followed and in an effort to protect himself he grabbed Powell's hands by the wrists and was attempting to push the gun away from himself, when it was accidentally discharged. He also denied any plan to rob Poweel or that such had occurred.

In order to sustain its contention that the defendant schemed to rob Powell, the Commonwealth during

[ 412 Pa. Page 199]

    its case in chief offered the testimony of one Osyp Sudomlak. He stated that on November 12, 1960, exactly one week before the Powell killing, he met the defendant in a bar at 7th and Spring Garden Streets in Philadelphia and, under the pretext of obtaining a girl for immoral purposes, had been lured by Raymond to the same house at the Marshall Street address, where he had been assaulted and robbed. This testimony was corroborated by a female, who acted in concert with Raymond on this occasion.

It is argued that this evidence of an independent crime was inadmissible. We cannot agree. It was relevant for the proffered purpose. It has long been established that proof of the commission of a crime of the same nature, not too distant in time, may be admitted to show plan, scheme, motive and design: Commonwealth v. Wendt, 258 Pa. 325, 102 A. 27 (1917); Commonwealth v. Weiss, 284 Pa. 105, 130 A. 403 (1925); Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955); Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). The circumstances surrounding the Sudomlak assault and robbery and the present case were so very close in nature and time as to bring the situation within the rule. This is particularly true herein in view of the defendant's statement that he accompanied Powell to the Marshall Street address for purposes other than robbery.

To further establish the defendant's connection with the Sudomlak robbery, the Commonwealth offered the testimony of a police officer, Joseph Hunt, who was assigned to try to apprehend the defendant. He related that in company with other officers, he visited the home of one Mary Shockley, a cousin of the defendant, on November 19, 1960, at about four o'clock p.m., looking for the defendant. It had been established earlier by the testimony of Miss Shockley that the defendant had stayed on occasions at her home and slept

[ 412 Pa. Page 200]

    in a certain bedroom, and that he had done so on Thursday night, November 17, 1960. Hunt testified that he searched this bedroom in the presence of Miss Shockley, and found in a bureau drawer a wallet containing social security and other personal cards of Sudomlak, which had forcibly been taken from him during the robbery on November 12th. It is asserted that this search was made without a warrant, that it was illegal, and that any evidence relating thereto should have been excluded under the doctrine of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961).

Mapp ruled that all evidence obtained by search and seizure in violation of the United States Constitution is inadmissible in a state court. The search and seizure in this case, as well as the trial and verdict, preceded Mapp.*fn1 Regardless, Mapp is of serious import. The law to be applied on direct appeal, under the circumstances presented, is that in existence as of the date of appellate decision. See, Commonwealth ex rel. Wilson v. Rundle, 412 Pa. 109, 194 A.2d 143 (1963); People v. Loria, 10 N.Y.2d 368, 179 N.E.2d 478 (1961); People v. O'Neill, 11 N.Y.2d 148 (1962); State v. Smith, 37 N.J. 481, 181 A.2d 761 (1962); Commonwealth v. Spofford, 343 Mass. 703, 180 N.E.2d 673 (1962); and, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. ...


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