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decided: July 1, 1974.


Appeals from judgments of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1971, Nos. 6647 and 6649, in case of Commonwealth of Pennsylvania v. Angelo Weeden and Major Reed.


John J. Dean, Assistant Defender, with him John R. Cook, Assistant Defender, and George H. Ross, Defender, for appellants.

R. L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Concurring and Dissenting Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this opinion.

Author: Manderino

[ 457 Pa. Page 438]

The appellants, Angelo Weeden and Major Reed, were convicted of murder in the first degree in a joint

[ 457 Pa. Page 439]

    trial by jury. Post-verdict motions were denied and the appellants were sentenced to life imprisonment. This appeal followed. Four issues which are raised by both appellants will be discussed in the first part of this opinion followed by a consideration of three other issues raised only by the appellant Weeden.

The prosecution's evidence established that the two appellants and a third man, Ronald Williams, shot and killed one James Montgomery, during a robbery of the victim's apartment in the City of Pittsburgh on August 21, 1971. The third man, Ronald Williams, was tried separately. See Commonwealth v. Williams, 454 Pa. 261, 311 A.2d 920 (1973).

The victim's wife, who resided at the apartment with the victim and their two children, testified that during the afternoon of August 21, 1971, two men, the appellants, came to the apartment to see her husband, but departed when told that he was not at home. Later that evening, the victim's wife, while resting in the bedroom, heard voices in the apartment. She went from the bedroom into the kitchen and saw the appellants in the company of a third man, Ronald Williams, standing in front of her husband who was bent over the kitchen table with his hands stretched out. Ronald Williams was holding a shotgun. She heard one of the appellants say "If he moves, blow his brains out." She testified that "all of a sudden the blast went off" and she immediately ran to the phone to call the police. She did not see what happened after the shooting and did not see the men leave the apartment. The police arrived shortly thereafter. The victim's body was found with his right pants pocket pulled out and loose change, mingled with blood, was found near the pocket. Marijuana was found in the victim's dresser in the apartment.

The victim's wife knew the appellant Weeden, since she had gone to high school with Weeden's sister and had previously seen him in the area. She identified the

[ 457 Pa. Page 440]

    appellant Reed from photographs, although she did not know his name. The next day, the appellant Weeden learned that he was wanted by the police and voluntarily turned himself in. One day later, the appellant Reed was arrested at the home of his fiancee. Pursuant to a search warrant, the fiancee's home was searched and a brown bag containing marijuana was found. This marijuana was later identified during the trial as belonging to the same lot as that found in the victim's apartment.

The appellants gave separate statements to the police in which they said that both their afternoon and evening trips to the victim's apartment were for the purpose of purchasing marijuana. They denied any robbery plan. They claimed that the shooting of the victim by Ronald Williams during the evening visit was unexpected. During the trial, appellant Reed testified but appellant Weeden did not. Reed again said that no robbery was planned and the shooting by the third man, Ronald Williams, was a suprise to him. Prior to trial, applications by both appellants to suppress evidence were denied. The trial court refused to suppress the statements given to the police by the appellants. Appellant Reed was permitted to challenge the use of the marijuana found in his fiancee's home as evidence, but relief was denied. Appellant Weeden, however, was denied the right to challenge the use of the marijuana as evidence. The trial court held that appellant Weeden had no standing to challenge that evidence.

The appellants first claim that they "did not knowingly and intelligently waive their rights when they gave a statement to the police, because they didn't understand the consequences of their act." The appellants admit that the Miranda warnings were read to them and understood by them. They contend, however, that the waiver of their constitutional rights was ineffective because they did not realize, and the police did not explain, that a participant in a robbery, during which a

[ 457 Pa. Page 441]

    killing occurs, may be guilty of murder, even though that participant did not personally kill the victim. The appellants contend that Miranda v. Arizona, 348 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), entitled the appellants to an explanation of the felony murder rule. We do not agree.

Before the appellants made any inculpatory statements to the police, they were told that they were being charged with the murder and the robbery of James Montgomery. Commonwealth v. McIntyre, 451 Pa. 42, 301 A.2d 832 (1973), also involved a defendant who had participated in a robbery during which one of the defendant's accomplices shot and killed a police officer. The claim was made that the police did not specifically refer to a murder during their interrogation and, thus, the defendant's confession was invalid. McIntyre rejected that claim and held that the defendant was adequately informed because the defendant knew that the police were investigating the death of a policeman in connection with a robbery. Commonwealth v. Boykin, 450 Pa. 25, 298 A.2d 258 (1972), held that a defendant who was told that a death was being investigated had been sufficiently informed about the crime and there was no need for more specificity concerning the legal charges of murder or manslaughter. "[A] defendant is sufficiently alerted to the possibility of involvement in a criminal homicide case if the defendant knows that the victim's death is under investigation." Commonwealth v. McIntyre, 451 Pa. 42, 48, 301 A.2d 832, 835 (1973). Appellant Weeden was 20 years old and had completed, with a "C" average, his junior year of high school. Appellant Reed was 19 years old and had finished one and a half years of college. They were both given the opportunity and did speak with their parents before statements were obtained from them; they had been informed of their constitutional right to silence, their constitutional right to have their attorney

[ 457 Pa. Page 442]

    present, and they were given the other warnings required by Miranda. They had been informed that they were charged with murder and robbery. Under these circumstances, we conclude that the appellants knowingly, intelligently and voluntarily waived their rights before they gave their statements to the police.

The second argument raised is that the trial court erred in allowing only twenty peremptory challenges to the defense, rather than twenty peremptory challenges to each appellant. The appellants rely on the Act of March 6, 1901, P. L. 16, § 1, as amended, 19 P.S. § 811, which states: "[I]n the trial of misdemeanors and felonies, . . . the Commonwealth and defendant shall each be entitled to twenty peremptory challenges . . . ." The above section, however, is limited by the Act of March 31, 1860, P. L. 427, § 40, 19 P.S. § 785, which states: "In all cases in which two or more persons are jointly indicted for any offense, it shall be in the discretion of the court to try them jointly or severally, except that in cases of felonious homicide, the parties charged shall have the right to demand separate trials; and in all cases of joint trials, the accused shall have the right to the same number of peremptory challenges to which either would be entitled if separately tried, and no more." (Emphasis added.) The appellants argue that section 40 of the Act of March 31, 1860, is not controlling because defendants charged with felonious homicide "have the right to demand separate trials." Act of March 31, 1860, P. L. 427, § 40, 19 P.S. § 785. Since they had the right to be tried separately, appellants argue that they should not lose the ...

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