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COMMONWEALTH v. SMITH (11/26/73)

decided: November 26, 1973.

COMMONWEALTH
v.
SMITH, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, Nos. 469 to 472, inclusive, in case of Commonwealth of Pennsylvania v. Orlandus Smith.

COUNSEL

William J. Brady, Jr., with him Jerry Brodsky, for appellant.

Maxine J. Stotland, Assistant District Attorney, with her James T. Ranney and Milton M. Stein, Assistant District Attorneys, 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.

Author: Nix

[ 454 Pa. Page 516]

Appellant was tried by a judge and jury on several charges growing out of the stabbing death of Dr. Oliver Wilson, and he was convicted of voluntary manslaughter, carrying a concealed deadly weapon, aggravated robbery, and burglary. Post-trial motions were denied, sentences were imposed on each conviction, and this appeal followed.*fn1

The Commonwealth produced evidence that on September 26, 1969 Dr. Wilson was assaulted and robbed by a man professing to be looking at an apartment which Dr. Wilson was offering for rent. After the assault, Dr. Wilson was able to drive to St. Joseph's Hospital where he underwent surgery. Following that

[ 454 Pa. Page 517]

    surgery, Dr. Wilson was conscious and lucid, but he eventually succumbed to the effect of the knife wounds on October 5, 1969.

In order to prove that appellant was the assailant, the Commonwealth produced Detective Lauer who interviewed the deceased after the incident. Detective Lauer testified that the deceased described his assailant as a Black male, age 35, 5'8" to 5'10", weighing 160-170 pounds with black unprocessed hair and a heavy mustache. Detective Lauer then returned to the scene of the incident where he found, among other things, a brown wallet containing appellant's photograph as well as numerous cards bearing appellant's name and signature. Appellant's objections center upon the following testimony of Detective Lauer: "As a result of finding the wallet at 2405 College Avenue, with the information contained therein, I got together a group of nine photographs and I informed the doctor that I had some photographs that I wished him to look at and I assisted the doctor in putting on his glasses so he could view these photographs. These were the same glasses that were taken from the hallway at 2405 College Avenue. He then took possession of the group of photographs. He took his time. He looked at each photograph and he went through this packet of photographs one time completely. He then started over again and when he came to the photograph of Orlandus Smith, he stated, 'This looks like the man.' He made a comment about the hairline which appeared in this photograph and he stated the hair was longer than it appeared in the photograph and it was not processed. He also stated the mustache appeared in the photograph lighter than it is now, and that he would have to see the man in person to be sure if that was the same man that had robbed him."

Appellant first objects to the admission of the deceased's tentative identification under the dying declaration exception to the hearsay rule. The reliability

[ 454 Pa. Page 518]

    of a dying declaration is provided not by an oath, nor by cross-examination; rather, its admissibility is based on the premise that no one "who is immediately going into the presence of his Maker will do so with a lie upon his lips." Lush, L. J., Regina v. Osman, 15 Cox C.C. 1, 3 (Eng. 1881). Consistent with that premise, we have stated that: ". . . before declarations of a deceased may be admitted as dying declarations, the evidence must, inter alia, justify the conclusion that at the time the statements were made, the declarant believed he was in fact dying, and also that death was imminent. In other words, the admissibility of such evidence depends primarily upon the state of the declarant's mind. Commonwealth v. Knable, 369 Pa. 171, 85 A.2d 114 (1952); Commonwealth v. Lockett, 291 Pa. 319, 139 A. 836 (1927); and Commonwealth v. DeLeo, 242 Pa. 510, 89 A. 584 (1914). However, the required sense of imminent death may be inferred from the existing circumstances including the nature of the wound and state of the declarant's illness. Commonwealth v. Edwards, 431 Pa. 44, 244 A.2d 683 (1968), and Commonwealth v. Plubell, 367 Pa. 452, 80 A.2d 825 (1951)." Commonwealth v. Speller, 445 Pa. 32, 34-35, 282 A.2d 26 (1971). The record in this case includes the following strong evidence that Dr. Wilson knew that his life was in serious danger at the time he made the challenged identification: (1) The deceased was a physician and could appreciate the gravity of the procedures resorted to by the attending physicians; (2) The deceased expressed ...


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