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COMMONWEALTH v. SULLIVAN (01/09/70)

decided: January 9, 1970.

COMMONWEALTH
v.
SULLIVAN, APPELLANT



Appeal from judgment of Court of Oyer and Terminer and Quarter Sessions of Philadelphia County, Oct. T., 1964, No. 753, in case of Commonwealth v. Beatrice Sullivan.

COUNSEL

Julian E. Goldberg, for appellant.

James D. Crawford, Assistant District Attorney, with him Taras M. Wochok, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Mr. Justice Cohen and Mr. Justice Eagen dissent. Concurring Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts.

Author: Jones

[ 436 Pa. Page 452]

Beatrice Sullivan [appellant] was convicted of murder in the first degree arising from the killing of her supposed husband, Dock Sumpter. The Commonwealth's theory was that appellant conspired with her paramour, Willie Payne, who admitted firing the fatal shot, to murder Sumpter. The trial court denied a motion for a new trial, appellant was sentenced to life imprisonment, and from that judgment of sentence the instant appeal was taken.

At trial, Payne testified that appellant had become friendly with him approximately three months before the murder. Some time later appellant asked Payne to kill Sumpter in exchange for which Payne would receive one half of a $10,000 life insurance policy on Sumpter's life. Finally, on the day before the murder, appellant gave Payne money to buy a gun and accompanied him to a pawn shop where he purchased a rifle.

The last discussion concerning the plot occurred on the night of the actual murder. Payne testified that appellant had called him on the telephone and asked him whether he intended to go through with the murder. The testimony as to the substance of that conversation was properly admitted on the basis of Payne's voice identification of the appellant, Mrs. Sullivan. Burton v. Pacific Mutual Life Insurance Company, 368 Pa. 613, 84 A.2d 310 (1951); Commonwealth v. Del Giorno, 303 Pa. 509, 154 A. 786 (1931). Unknown to either party, Payne's mother (Mrs. Maxwell) picked up the extension phone on the second floor and overheard

[ 436 Pa. Page 453]

    the conversation. She was allowed to testify, over the vigorous objection of appellant's counsel, as to what she heard. The lower court overruled this objection on the ground that it was unnecessary for Mrs. Maxwell to identify the caller as appellant because her son had already made a positive identification. On cross-examination, she further testified that she recognized the voice as belonging to a Mrs. Sullivan, who had called a few times before asking for Payne. Although several other witnesses corroborated portions of Payne's story, Payne and his mother were the only witnesses who testified as to the actual conspiracy.

Appellant's principal objection concerns the testimony of Mrs. Maxwell. Appellant argues that Mrs. Maxwell should not have been permitted to testify as to what she overheard because she could not adequately identify the voice of the party to whom her son, Payne, was speaking. However, our primary question is not whether Mrs. Maxwell's identification was adequate, but rather whether any further identification was required after the voice had been positively identified by Payne.

This is a question of first impression in this Court. Under our case law, before one of two parties to a telephone conversation may testify as to the substance of that conversation, the proper identification of the other party to the conversation must be established. Smithers v. Light, 305 Pa. 141, 157 A. 489 (1931).

Absent such identification, the testimony would be inadmissible. On the other hand, "there is no rule of evidence which requires that every witness to a conversation shall himself identify the participants in it, identification by others being considered sufficient." 22A C.J.S. Criminal Law ยง 644, at 516 (1961) (emphasis added). The rule stated in Smithers v. Light is ...


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