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COMMONWEALTH v. TALLEY (04/23/74)

decided: April 23, 1974.

COMMONWEALTH
v.
TALLEY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Schuylkill County, March T., 1968, No. 272, in case of Commonwealth of Pennsylvania v. Maurice M. Talley.

COUNSEL

George G. Lindsay, with him Stanley J. Burke, for appellant.

Richard B. Russell, District Attorney, with him Cyrus Palmer Dolbin, Assistant District Attorney, for Commonwealth, appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Nix. Mr. Justice Pomeroy joins in this opinion. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this dissent.

Author: O'brien

[ 456 Pa. Page 576]

Appellant, Maurice M. Talley, was tried by a judge and jury and found guilty of murder in the first degree. Post-trial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.

The facts surrounding this appeal are as follows: On January 19, 1968, the body of one Miss Patricia Sholley was discovered in Schuylkill County, along Route 895, by officers of the Pennsylvania State Police. The decedent had been missing since December 26, 1967, when she was last seen leaving the Reading Hospital, where she had been employed as a practical nurse. An investigation revealed that a man fitting the description of appellant had been employed at the same hospital and was seen the night the decedent disappeared. A search of appellant's residence, pursuant to a warrant, produced a bloodstained suit owned by appellant and a flashlight and nursing equipment that were identified as belonging to the decedent. Later two persons, who had been involved in an automobile accident with appellant on the night the decedent disappeared, notified police of this accident and gave the police the license number of the automobile appellant was driving. This number matched that of the decedent's automobile. Moreover, after the decedent's car was recovered, the police found fingerprints on the automobile that matched appellant's. Appellant was arrested, tried and convicted of murder in the first degree.*fn1

Appellant first alleges that the trial court erred in not granting a defense motion for a mistrial due to alleged prejudicial remarks made by the district attorney in his closing argument. The district attorney, in closing to the jury, after a discussion of all of the evidence against appellant, discussed the evidence that appellant

[ 456 Pa. Page 577]

    had given false information at the automobile accident which occurred shortly after the murder, stating: ". . . What is the importance of this accident? Well, it is two or three-fold really. One, the condition of his clothes between the time Farmer Ney and the people in the hospital saw him and now, all whitish substances on him. He is disheveled. He has his fly open. Ladies and gentlemen of the Jury, certainly when your fly is busted, isn't it natural for a man's shirt tail to stick out. Of course, the Zerbys particularly described this white substance on his coat and on his pants; and, of course, Mrs. Zerby, being a very efficient co-pilot as it were, she got the license number. She insisted he write his name and address down; but what did he write down? Did he write, James McCoy, because that was one of the names he used? No. Did he write, Maurice Talley? No. He wrote, James Roberson. Did he write his address down? No. He wrote 412 Church Street. Now, he used the same Street, but he got across the street, and there is no such address as was testified to. Did he write his telephone number down? Did he write his own telephone number down or the telephone number of [the decedent]? No, of course not. He wrote down the telephone of that poor little old lady who came in here. That's whose telephone number he wrote down. He just made it up right then and there. Why is this important? This man has just committed murder. He didn't want to be identified. That little scratch on the Zerbys car wasn't concerning him." If this statement was made before a review of the evidence against appellant, it may well have been error not to grant a mistrial. However, in Commonwealth v. Wilcox, 316 Pa. 129, 173 A. 653 (1934), we stated: "Complaint is made that the Commonwealth's officer said the defendant was guilty of the offenses charged against him. . . . The Commonwealth's attorney may always argue to the jury that the evidence establishes the guilt of the defendant,

[ 456 Pa. Page 578]

    and that certain facts in evidence are conclusive of such guilt." At page 139.

The district attorney did no more here than was allowed by Wilcox. He merely argued that appellant conducted himself in a surreptitious manner at the scene of an automobile accident because he had committed a murder. This was a reasonable inference based on the testimony that was given by the persons who were involved in the automobile accident with appellant. Moreover, the trial judge adequately protected against any possible prejudice that appellant could suffer as a result of the statement. He instructed the jurors as follows: "If you believe that any of the utterances they have made in their closing arguments express such an opinion, you will disregard such an opinion in considering the testimony in arriving at your verdict in this case. You are not bound by any opinion. . . ."

Appellant next alleges that the trial court committed error when it denied the defense's request for polygraph and narco-synthesis testing on appellant. We do not agree. The polygraph test, even if conducted, would be inadmissible and, therefore, of no value to appellant. See Commonwealth v. Brooks, 454 Pa. 75, 309 A.2d 732 (1973), and Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956). The narco-synthesis test would also be inadmissible. This type of test is designed to probe the patient's mind and secure information about the patient that he would not ...


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