Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1968, Nos. 1298 to 1300, inclusive, 1302 and 1304, in case of Commonwealth of Pennsylvania v. Leroy Luther Jones.
Richard H. Knox, with him John Patrick Walsh, and Reinl, Lockwood & Knox, for appellant.
Maxine J. Stotland, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Manderino concurs in the result.
Appellant was indicted for murder, voluntary manslaughter, involuntary manslaughter, conspiracy, two counts of aggravated robbery, carrying a concealed deadly weapon and burglary. In May of 1968, trial proceeded on all bills except involuntary manslaughter. At the conclusion of the testimony, a demurrer was sustained as to carrying a concealed deadly weapon. The jury returned verdicts of guilty of first degree murder, conspiracy, both counts of aggravated robbery, and burglary. After post-trial motions were denied by a court en banc, appellant was sentenced to life imprisonment on the murder charge and to concurrent terms of from ten to twenty years on the two aggravated robbery indictments; sentence was suspended on the conspiracy and burglary charges. This direct appeal followed.*fn1
The record reveals the following facts: Three eyewitnesses who knew the appellant from the neighborhood testified that on December 29, 1967, the appellant and two other men entered the back door of the Shalimar Bar in Philadelphia and engaged the bartender, one Louis Butler ("Parks"), in conversation. At some point, one of the three men left the bar, leaving appellant and the third man talking to "Parks". After about twenty minutes of conversation, the appellant suddenly pulled "Parks" forward by his shirt and shot him.
At that moment, a patron entered the bar. Appellant grabbed the patron by the arm, and, according to the testimony of Deborah White ripped a watch from the patron's wrist. Appellant then ordered everyone to move to the rear of the bar into the ladies room. Everyone remained in the ladies room for five or ten minutes, after which they returned to the barroom to find that the appellant and his companion had disappeared, and that the cash register drawer was open and empty. Eleven days later, on January 8, 1968, the appellant was arrested on a warrant at the home of his girl friend, Bertha Wilson.
The appellant raises numerous challenges to his convictions which we will consider seriatum.
The first issue concerns the propriety of the arraignment procedure. On April 24, 1968, appellant was arraigned without counsel and pled not guilty to charges of conspiracy, aggravated robbery (two counts), carrying a concealed deadly weapon, and burglary with intent to commit a felony. Counsel was appointed on June 10, 1968. On May 23, 1969, the appellant received a counseled arraignment in open court on the murder bill and pled not guilty. He argues that the April 24 arraignment on the non-homicide charges was fatally defective because he lacked counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. "It is central to [the principle
of right to counsel] that in addition to counsel's presence at trial, the accused is guaranteed that he will not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226 (1967). In keeping with that principle, our rules of criminal procedure provide that: "In all indictable cases, at the time of arraignment, if the defendant is without financial resources or otherwise unable to employ counsel, counsel shall be appointed by the court to represent him unless he intelligently and understandingly elects to proceed without counsel and signs a written waiver of counsel." Pa. R. Crim. P. 317(c). This rule insures that if the accused is still unrepresented by the time of arraignment, an attorney will be appointed quickly to avoid the possibility of an uncounseled guilty plea, confession, or confrontation of witnesses.
In the case at bar, the accused appeared at the arraignment without counsel, signed the pauper's oath (See Pa. R. Crim. P. 318A), and pled not guilty. Counsel was appointed shortly thereafter, before appellant's ability to conduct a defense had suffered any prejudice whatsoever. This case is, therefore, clearly distinguishable from cases where the accused was permitted to plead guilty without representation. See, e.g., White v. Maryland, 373 U.S. 59 (1963); Commonwealth v. Allen, 428 Pa. 401, 238 A.2d 770 (1968); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (1964). It is also distinguishable from cases where an uncounseled accused waived important rights or strategical opportunities. See, e.g., Coleman v. Alabama, 399 U.S. 1, 9 (1970) (right to counsel at preliminary hearing); Hamilton v. Alabama, 368 U.S. 52 (1961) (right to counsel at a proceeding where the right to
assert insanity defense and right to challenge array of ...