decided: November 20, 1974.
COMMONWEALTH OF PENNSYLVANIA
PAUL D. WARE, APPELLANT
J. Charles Short, Daniel M. Rendine, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief Appeals Div., Mark Sendrow, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty., for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Nix, J., did not participate in the consideration or decision of this case.
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OPINION OF THE COURT
Appellant Paul D. Ware was convicted by a jury of the 1963 murder of Miss Florence Grauley, age 83. After denial of appellant's post-trial motions, he was sentenced to life imprisonment. This appeal followed.*fn1 Appellant raises a variety of claims, all of which we find to be without merit. We affirm.
Appellant first contends that he has been denied a speedy trial in violation of the United States*fn2 and Pennsylvania*fn3 Constitutions. Resolution of this claim requires consideration of the long history of this case.
Ware was arrested on September 27, 1963. He confessed to the murder of Miss Grauley and other crimes on October 3 and was indicted by the grand jury on December 12. However he was declared incompetent to stand trial and was accordingly committed on January 8, 1964, to Farview State Hospital.
He was discharged from Farview on July 19, 1967, having been found competent. On April 16, 1968, appellant filed a motion to suppress his confession as obtained in violation of his constitutional rights. After a hearing, the court suppressed the confession on May 23, 1968, on
[ 459 Pa. Page 344]
the ground that Ware had not received Miranda*fn4 warnings.
The Commonwealth determined that, without his confession, it had insufficient evidence to proceed to trial. Consequently, it moved on December 12, 1968, for a nolle prosequi of the indictment, which was granted with the consent of appellant's counsel.
The decision of the United States Supreme Court in Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969), caused the Commonwealth to believe that Ware's confession might be admissible despite the absence of Miranda warnings. Accordingly, on August 11, 1969, it petitioned for removal of the nol pros order and vacation of the suppression order. Removal of the nol pros was granted, over the objection of appellant, on December 11, 1969, and the suppression order was vacated on June 19, 1970.
On June 25, 1970, a new suppression hearing was held, and appellant's motion to suppress was denied on November 13, 1970. Upon the joint petition of appellant and the Commonwealth, the court certified its order and we permitted an appeal. On December 20, 1971, we reversed the denial of the motion to suppress and held that appellant's confession was inadmissible. Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971). The Commonwealth petitioned the Supreme Court of the United States for a writ of certiorari, which was granted on March 20, 1972. Pennsylvania v. Ware, 405 U.S. 987, 92 S.Ct. 1254, 31 L.Ed.2d 453 (1972). However, on April 24, 1972, the writ of certiorari was vacated and the petition denied, "it appearing that the judgment below rests on an adequate state ground." Pennsylvania v. Ware, 406 U.S. 910, 92 S.Ct. 1606, 31 L.Ed.2d 821 (1972).
[ 459 Pa. Page 345]
Thereafter, on July 3, 1972, appellant filed an application for dismissal under Pa.R.Crim.P. 316, contending that he had been deprived of his right to a speedy trial. The application was denied on September 26, 1972. Trial finally began on June 21, 1973, 117 months after his arrest.
Though the right to a speedy trial is "one of the most basic rights preserved by our Constitution," Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967),*fn5 it is also "a more vague concept than other procedural rights. It is . . . impossible to determine with precision when the right has been denied." Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972).*fn6 Vagueness results at least in part from the incompatibility of haste with the procedural safeguards designed to effectuate other rights of the accused and to insure that he receives due process.
"[I]n large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself."
United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). Thus, it has long been recognized that
"The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances."
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mentally incompetent to participate in his defense.*fn8 This period of delay, necessary for the protection of appellant's right to a fair trial, is obviously justifiable.*fn9
The second longest period is the time consumed by pretrial proceedings, including motions and an interlocutory appeal, a total of 33 months. It was intimated by the court below that assessment of the delay resulting from pretrial proceedings requires a determination of the moving party and, if the defendant was the moving party, whether his action was taken to vindicate his constitutional rights. Barker v. Wingo, supra, teaches that the balancing test is not a mechanical process of parsing the pleadings.*fn10 We believe that a reasonable amount of time consumed by the disposition of motions and interlocutory appeals not made for purposes of delay, regardless of who is the moving party, is justifiable delay. See ABA Project on Standards for Criminal Justice, Standards Relating to Speedy Trial § 2.3(a) (Approved Draft, 1968); see also Blunt v. United States, 131 U.S.App.D.C. 306, 404 F.2d 1283, 1286 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L.Ed.2d 221 (1969).
[ 459 Pa. Page 348]
Another period of delay, 12 months, was caused by the nol pros sought by the Commonwealth. In the particular circumstances of this case, we do not think the delay unjustifiable. See ABA Project on Standards for Criminal Justice, Standards Relating to Speedy Trial § 2.3(f) (Approved Draft, 1968). Because appellant's counsel consented to the nol pros,*fn11 this is not a case of "the indefinite postponement of trial over the objection of the accused . . . ." Commonwealth v. Leaming, 442 Pa. 223, 227, 275 A.2d 43, 45 (1971); see Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, (1967); Commonwealth v. Gant, 213 Pa. Super. 427, 249 A.2d 845 (1968). Two other short periods of delay are clearly excusable. Two months is a reasonable time for action by the grand jury. One month, certainly a reasonable period, was consumed in proceedings for appellant's commitment to Farview.
Thus, 91 months have been accounted for. The remaining 26 months remain unexplained and unexcused. However, consideration of the other factors of the Barker test leads us to conclude that appellant's right to a speedy trial has not been violated.
First, there is nothing in the record indicating that appellant was prejudiced*fn12 in his defense by the delay. He has suffered the inherent prejudice of long pretrial incarceration.*fn13 But we are unable to conclude that he has suffered any impairment of his defense, which is the most serious type of prejudice
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"because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past."
Barker v. Wingo, supra, at 532, 92 S.Ct. at 2193.
There is here not the slightest hint that appellant's defense has been impaired by delay, no claims of dead, forgetful, or unavailable witnesses.*fn14 Thus, this case differs markedly from those where specific impairment of the defense was a factor leading to a conclusion that the right to a speedy trial has been violated: Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970) (deaths of two witnesses, unavailability of a witness, loss of police records); Commonwealth v. Williams, 457 Pa. 502, 507, 327 A.2d 15, 18 (1974) (loss of memory by a witness, death of a witness, and unavailability of two witnesses); Commonwealth v. Hamilton, 449 Pa. 297, 301, 297 A.2d 127, 129 (1972) (death of a witness); Commonwealth v. Clark, 443 Pa. 318, 331-332, 279 A.2d 41, 48-49 (1971) (defendant's loss of memory, unavailability of five witnesses, loss of physical evidence).
More importantly, the record demonstrates that appellant did not want a speedy trial. It is true that he objected to the removal of the nol pros on the ground that trial at that time would violate his speedy trial right and twice moved to dismiss on the same ground, in July, 1972, and at trial. However, he never demanded an immediate trial; see Barker v. Wingo, supra, at 535, 92 S.Ct. at 2194.*fn15 His counsel's consent to the Commonwealth's
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petition to nol pros contrasts sharply with the demands for a speedy trial made by the defendants in Klopfer v. North Carolina, supra; Commonwealth v. Leaming, supra; and Commonwealth v. Gant, supra. We conclude, as did the Supreme Court in Barker v. Wingo, supra, that
"we would be reluctant indeed to rule that a defendant was denied this constitutional right on a record that strongly indicates, as does this one, that the defendant did not want a speedy trial."
407 U.S. at 536, 92 S.Ct. at 2195.*fn16
In light of the absence of specific prejudice and appellant's failure to demand a speedy trial, we conclude that the balance of the relevant factors indicates appellant has not been denied his right to a speedy trial.
Appellant's next assignments of error relate to the issues of testimonial competency. At trial the Commonwealth relied primarily on admissions appellant made while he was an inmate at the Farview State Hospital. Three witnesses who had also been Farview inmates testified to hearing appellant's admissions. John Wesley Chase*fn17 and Clarence Marshall*fn18 testified that Ware admitted
[ 459 Pa. Page 351]
burglarizing the home of Miss Grauley and murdering her. Edward Whelan reported overhearing a conversation in which Ware stated that "he had a mission in life to eliminate or destroy elderly white persons."
Appellant's argument is two-fold. First, he contends that Chase, Marshall, and Whelan were mentally incompetent, and thus should not have been permitted to testify. Second, he contends he was mentally incompetent at the time he made the incriminating statements, which accordingly should not have been admitted into evidence. We disagree on both counts.
In general, the testimony of any person, regardless of his mental condition, is competent evidence unless it contributes nothing whatever because he is
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wholly untrustworthy.*fn19 Incompetency does not follow from the fact that the witness is insane or mentally ill.*fn20 "The question being whether the person is trustworthy as a witness, the law now asks whether in each case the derangement or defect is such as to make the person highly untrustworthy as a witness; it no longer excludes absolutely." 2 J. Wigmore, Law of Evidence § 492, at 584 (3d ed. 1940).
The mental competency of every witness is presumed; the burden of proof of incompetency rests on the party opposing the witness.*fn21 However,
"the fact that the witness is, at the time of testifying, or was shortly beforehand, a lawful inmate of an asylum for mental disease or defect, or an adjudged lunatic or defective, makes it necessary that his capacity should be examined into and an express finding appear."
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J. Wigmore, Evidence § 497, at 589 (3d ed. 1940); see District of Columbia's Appeal, 343 Pa. 65, 72, 21 A.2d 883, 887 (1941).
The standard of testimonial competency is carefully formulated to exclude factors extraneous to trustworthiness:
"The general rule is that a lunatic or a person affected with insanity is admissible as a witness if he has sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters which he has seen or heard in reference to the questions at issue . . . ."
Commonwealth v. Kosh, 305 Pa. 146, 156, 157 A. 479, 482 (1931).*fn22
The core of the competency test is ability to give "a correct account of the matters which he has seen or heard."*fn23 Capacity to give a correct account must be analyzed in terms of the constituent elements of testimonial trustworthiness, perception, memory, and communication;*fn24
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"[i]f the inquiry is to deal with the relation of the derangement or defect of each person to his actual trustworthiness, it seems clear that each of the three elements must be considered." Wigmore, supra, § 492, at 586. In short, the question must be, "[i]s his capacity to observe, remember, and recount, such that he can probably bring added knowledge of the facts?" McCormick's Handbook of the Law of Evidence § 62, at 140 (2d ed. E. Cleary 1972) (emphasis supplied).
The elements of memory and communication ordinarily are simply stated: the witness must have the mental capacity to recollect the events testified to, understand the questions, and communicate intelligible answers.*fn25 However, this Court has never directly faced the question whether testimonial competency requires minimum mental capacity at the time of the events testified to. We hold that it does.
Because ability to perceive is an element of testimonial trustworthiness and a competency inquiry is directed toward trustworthiness, it follows that capacity to perceive is an essential element of testimonial competency. There is no basis for crediting the testimony of a witness who was mentally incapable of correctly perceiving the event, for he is wholly untrustworthy.*fn26 We are
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thus in agreement with the reasoning of the California Supreme Court in People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974 (1957). Mr. Justice Traynor wrote for the court:
"It is apparent from the requirement that the witness have the ability to give a substantially accurate account of the event witnessed . . . that he must have had the ability to perceive the event with a substantial degree of accuracy. . . . It follows that if the proposed witness was suffering from some insane delusion or other mental defect that deprived him of the ability to perceive the event about which it is proposed that he testify, he is incompetent to testify about that event."
Id. at 420, 317 P.2d at 981.
We have previously reached the same conclusion with regard to the analogous situation of mental immaturity. In Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959), we held that a witness who was 4 years old at the time of the event and 7 years old at the time of trial was incompetent.
"[T]he issue is not to be determined merely because of the capacity of the witness at the time he is called to communicate his thoughts in terms of language. There must be (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is
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called to testify about and (3) a consciousness of the duty to speak the truth . . . .
"Carolyn's memory of the event and its details did not, indeed it could not, improve as time went on. The only thing that did improve was her capacity to communicate in terms of words. But that capacity is meaningless unless supported by the capacity to note the occurrence at the time it happened and the ability to remember it."
Id. at 620-621, 622, 156 A.2d at 310-311 (emphasis removed).
We therefore hold that testimonial competency requires mental capacity to perceive the event with a substantial degree of accuracy. "[A]n incapacity to observe intelligently at the time of the events to be observed would suffice to exclude the person." Wigmore, supra, § 493, at 586 (emphasis removed).
The degree of mental capacity required is impossible to formulate precisely, and accordingly the determination of competency rests in the sound discretion of the trial court.*fn27 One guideline for the exercise of discretion is that the degree of capacity required for testimonially competent perception, recollection, and narration is proportionate to the complexity of the event testified to.
"Simple tasks call for comparatively simple skills. A person called upon to make a simple identification and tell what he saw with a minimum of interpretation of the meaning of the events related requires little else than correct perception. If a person is asked to interpret a highly complex set of events whose understanding calls for acute facility in the difficult processes of logical reasoning, however, a higher degree
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of intelligence may be needed for both comprehending and communicating the information. More intelligence is required for a witness to testify to complex contract negotiations than to an automobile accident in which he was not a party or otherwise emotionally involved."
Weihofen, Testimonial Competence and Credibility, 34 Geo.Wash.L.Rev. 53, 58 (1965) (footnote omitted); see Rosche v. McCoy, supra, at 621, 623, 156 A.2d at 310, 311.
In this case, Chase, Marshall, and Whelan simply repeated statements Ware made to them or in their presence. Trustworthy testimony required little more than audition, simple recollection, and recital; a "minimum of interpretation"*fn28 and no "exercise of contemporaneous judgment"*fn29 were involved. Accordingly, the mental capacity required of them to meet the test of competency is minimal indeed.
The Commonwealth produced Dr. Bernard Willis, a psychiatrist and the clinical director of Farview State Hospital, who testified out of the presence of the jury. He was professionally familiar with the mental condition of Ware and the three witnesses from both personal observation and staff reports. His testimony (which was the only extrinsic evidence admitted on the subject of competency) dealt with all four.
John Chase was admitted to Farview on April 1, 1958, and remained there through the time of the trial. He suffered from chronic paranoid schizophrenia. Dr. Willis testified, however, that his mental illness was "compartmentalized," limited to delusions of a conspiracy against him by organized crime. Apart from these delusions,
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his mind operated normally.*fn30 Because on any matter related to Paul Ware "no aberration appears,"*fn31 Chase was "capable of giving a correct account of the matters which he has . . . heard in reference to the questions at issue,"*fn32 and thus a competent witness.*fn33
Edward Whelan was a Farview inmate from March 20, 1969, to November 28, 1971, while he was incompetent to stand trial for crimes of which he was accused. Dr. Willis testified that Whelan suffered from delusions
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about the assassination of President Kennedy. He added, however, that Whelan's delusions were limited to that area; otherwise, his mind functioned normally.*fn34 Because he, like Chase, entertained no delusions on any subject even remotely connected with Ware, there is no doubt that he was competent to testify to the admission made to him by Ware.*fn35
The evidence concerning Clarence Marshall does not indicate a compartmentalized illness. It is therefore necessary to determine his capacity to observe, remember, and narrate. Dr. Willis testified clearly and convincingly concerning Marshall's memory, communication,
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and sincerity;*fn36 those parts of the test are abundantly satisfied. Therefore, only his perceptive capacity requires further inquiry.
Marshall was a Farview inmate from November 14, 1960, to December 31, 1964. According to Dr. Willis, after Marshall had been sentenced at age 20 to a term of 30 to 80 years imprisonment,
"He became very moody, he became very depressed, he was filled with bitterness, he was filled with anger. He was just so charged with negative emotions that he just couldn't think straight and even began to have mild kinds of hallucinations. . . .
"He was overpowered, he was overwhelmed by his emotions."
Marshall was subject to auditory hallucinations. However, the possibility that he hallucinated the Ware admission was convincingly excluded by Willis' testimony:
"These were mild or primitive hallucinations, if you will, since they were simply sounds, they were not
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voices. They did not convey any message, they weren't well developed hallucinatory experiences. . . . But the important thing is not so much the quality of the sound, but it was not a voice, it didn't have information, it wasn't conveying a message, and it was not part of a delusional system . . . ."
We conclude that, in light of the minimal perceptive capacity required, Dr. Willis' affirmation that Marshall "is capable of giving correct accounts of matters which he has . . . heard" was a sufficient basis for the trial court to find that Marshall possessed the requisite perceptive capacity.
Accordingly, the trial court did not abuse its discretion by overruling appellant's objections to the competency of Chase, Whelan, and Marshall and permitting them to testify to appellant's admissions.
However, appellant also contends that it was error to permit testimony of his admissions for the additional reason that he was incompetent at the time he allegedly made them. We disagree.
Appellant relies on Commonwealth v. Mozzillo, 443 Pa. 171, 278 A.2d 874 (1971), in which the defendant was found incompetent to stand trial and was committed to an institution for mental defectives. When he was later tried, the prosecution produced a guard who testified to hearing Mozzillo make incriminating statements on numerous occasions. This Court reversed his conviction.
There we held, first, that the competency of hearsay declarants to make admissions "is governed by rules of testimonial capacity," namely, the Kosh test. 443 Pa. at 176, 278 A.2d at 877. We further held that, if an accused is institutionalized for incompetence to stand trial when he makes incriminating admissions, the presumption of competency is reversed and the Commonwealth
[ 459 Pa. Page 362]
has the burden of establishing that he was testimonially competent at the time the admissions were made.*fn37
Finally, we held that, in that case, the Commonwealth failed to meet its burden because the evidence presented was irrelevant to Mozzillo's competency at the time of his admissions.
"We do not think that [the Commonwealth's expert witness'] testimony can be relied upon to prove appellant's competency at the time of his admissions. [The expert's] examination took place more than two months after appellant made the last of his statements, and [the expert] admitted that he could only speculate as to appellant's mental condition at earlier times."
443 Pa. at 176-177, 278 A.2d at 877. Appellant contends that the Commonwealth failed to meet its burden here because its evidence did not establish his competency at the time of his admissions. We disagree.
Ware was institutionalized from January 8, 1964, to July 19, 1967, and from May 26, 1969, to August 3, 1969. The admissions were made to Chase on January 9, 1964; to Marshall sometime in the latter half of 1964; and to Whelan "in May or June, possibly July of 1969." There were seven formal staff psychiatric evaluations of
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Ware;*fn38 Dr. Willis participated in five of those*fn39 and reviewed all of them. In addition, he reviewed substantial information from staff members, including the head of the social services department, who was Ware's group therapist.
In contrast to Mozzillo, Willis' opinion was based on examinations of Ware either close in time to the admissions or both before and after the admissions. A full psychiatric evaluation was conducted 22 days after the statement to Chase. The statement to Marshall was both preceded and followed by psychiatric evaluations. The conversation overheard by Whelan occurred within less than one and a half months of an evaluation. We believe, in this case, the Mozzillo standard has been satisfied.
More importantly, in Mozzillo the expert "admitted that he could only speculate" as to the defendant's condition at the time he made damaging admissions. Here, Dr. Willis' expert opinion establishing Ware's testimonial competency covered the entire period of Ware's commitment and obviously included the relevant times he made incriminating statements:
"Q. . . . [D]uring the times, both periods, that Mr. Ware was at Farview, are you able to say whether or not if he were to make a statement to someone about something he did or heard or saw he would have sufficient memory and orientation and understanding to give an accurate account of what he was saying?
"A. I would expect that he would have adequate recall for his conversations generally.
"Q. And can you pinpoint that as to any time or at all times or whatever?
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"A. At all times that Mr. Ware was in Farview on his two admissions, in my opinion, he knew at all times what he was doing, the difference between right and wrong, truth or falsehood; that he had control over his behavior to the point where whatever he did he did basically and deliberately and with full knowledge.
"Q. . . . [C]an you state that at all times during those two periods he had the competency to be able to be a witness . . .?
"A. In my opinion, at all times this patient would be considered as a witness. . . . [T]here was a consistency of behavior that compels me to believe and leaves me with a very strong opinion that at no time during his stay at Farview was this man incapacitated insofar as his competency to be a witness is concerned."
Dr. Willis' testimony establishes that Ware had sufficient capacity to accurately recall and communicate.*fn40 The trial court therefore acted within its discretion in properly overruling appellant's objections and admitting the testimony of Chase, Marshall, and Whelan.
Appellant next argues that the trial court erred in permitting the jury to consider the testimony of Chase, Marshall, and Whelan reporting his extra-judicial admissions because the Commonwealth failed to establish the corpus delicti. We disagree.
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We have followed Professor Wigmore's analysis that a crime conceptually consists of three elements: "first, the occurrence of the specific kind of injury or loss . . .; secondly, somebody's criminality (in contrast, e. g., to accident) as the source of the loss, -- these two together involving the commission of a crime by somebody; and, thirdly, the accused's identity as the doer of this crime." 7 J. Wigmore, Evidence § 2072, at 401 (3d ed. 1940) (emphasis removed); see Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368, 369 (1973). Corpus delicti, meaning "body of the crime," consists of the first two elements. Commonwealth v. May, supra; Commonwealth v. Rhoads, 225 Pa. Super. 208, 213, 310 A.2d 406, 409 (1973). Specifically, "'[t]he corpus delicti [in a murder prosecution] consists of proof that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act.'" Commonwealth v. Milliken, 450 Pa. 310, 317, 300 A.2d 78, 82 (1973), quoting Commonwealth v. Frazier, 411 Pa. 195, 202, 191 A.2d 369, 373 (1963).
Appellant invokes the rule that a criminal conviction may not be based on the extra-judicial confession or admission of the defendant unless it is corroborated by independent evidence establishing the corpus delicti. See Commonwealth v. May, supra; Commonwealth v. Leamer, 449 Pa. 76, 295 A.2d 272 (1972); Commonwealth v. Palmer, 448 Pa. 282, 285, 292 A.2d 921, 922 (1972); R. Perkins, Criminal Law 98 (2d ed. 1969). This rule is rooted in a hesitancy to convict one of crime on the basis of his own statements only.
"The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed . . . ."
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(1967), "the prosecution has no duty to affirmatively exclude the possibility of accident or suicide in order to establish the corpus delicti." Commonwealth v. May, supra, at 33, 301 A.2d at 369-370.*fn43
In light of these principles, we conclude that appellant's contention that the Commonwealth failed to independently establish the second constituent of the corpus delicti so as to justify the consideration of his statements is without merit. The circumstances of the death of Miss Grauley clearly point to and are consistent with felonious homicide. The assistant county medical examiner testified that the injuries which caused death were "consistent with either a fall or a push or being thrown down a flight of 14 steps and coming to rest on a cement floor at the bottom."
In addition, the condition of the victim's home at the time of the discovery of her body indicated that a burglary had probably taken place. Witnesses testified that several rooms had been ransacked. Bureau drawers had been emptied onto the floor. Torn church offering envelopes were scattered on a table and the floor in the living room. Marks on the front door showed that it had probably been jimmied in a forced entry.
The nature of the fatal wounds and the state of the victim's home established that death probably resulted
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from homicide in the course of a burglary. Thus, the Commonwealth has "established . . . that the death occurred under circumstances indicating that it was criminally caused by someone . . . ." Commonwealth v. Turza, supra, at 134, 16 A.2d at 404 (emphasis removed). Accordingly, it was proper to permit consideration of appellant's admissions.
Appellant contends that he was denied a fair trial by the denial, without a hearing, of pretrial discovery of the identity of certain Commonwealth witnesses (Chase, Marshall, and Whelan). In earlier pretrial proceedings, appellant learned that the Commonwealth intended to present several witnesses to testify to incriminating admissions he had made. After informal requests for disclosure failed, appellant moved for the designation of names of the witnesses, which was denied by the calendar judge without a hearing. He now claims that he had a right to a hearing for the purpose of establishing his right to disclosure.
Pretrial discovery in criminal cases is governed by Pa.R.Crim.P. 310, which in pertinent part provides:
"All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances and compelling reasons."
The rule does not purport to grant defendant a hearing as of right in which to prove "exceptional circumstances and compelling reasons." In order to be entitled to a hearing, he must at least allege circumstances and
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reasons which, if established, would be exceptional and compelling.
Appellant's motion contained nothing of the sort. In his motion, counsel stated that disclosure was necessary for proper trial preparation and that failure to disclose might require a request for a continuance.*fn44 The benefit of discovery of opposing witnesses in preparation for trial is potentially present in every case and is not exceptional in this case. An averment that a continuance may later be requested hardly rises to the level of "compelling." Defense counsel in fact did not request a continuance when the Commonwealth presented the testimony of Chase, Marshall, and Whelan. Because the circumstances and reasons presented by appellant's motion were not exceptional or compelling, he was not entitled to a hearing or disclosure of the Commonwealth's witnesses.*fn45
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Appellant finally contends that he was unfairly surprised, and thus deprived of a fair trial, by the presentation of fingerprint evidence that the Commonwealth had concealed by means of misrepresentation. We conclude that the contention is without merit.
In 1968 at a hearing on the Commonwealth's request for a nolle prosequi, an assistant district attorney stated:
"[T]here is a partial [finger] print, which print in five points of the print are [sic] exactly the same as Ware but is woefully insignificant in terms of expert testimony. Five points is [sic] not enough . . . ."
At trial in 1973, the Commonwealth presented the testimony of Jacques Whaumbush, an experienced fingerprint expert. He testified that he examined the home of Miss Grauley several hours after the discovery of her body and recovered a latent fingerprint from a torn church envelope. On the basis of a comparison of at least nine significant points, he testified that there was "[p]ositively no doubt" that "the ink rolled impression and the latent impression [found in the victim's home] was [sic] made by one and the same finger, that is, the left middle finger of Mr. Paul Ware."
Appellant argues that he relied on the 1968 representation in concluding that the prosecution would not present fingerprint evidence and was therefore unfairly surprised by the Whaumbush testimony, entitling him to a new trial. We disagree.
Appellant does not contend that the 1968 statement was an intentional attempt to deceive him. The Commonwealth never asserted that it would not use the fingerprint as evidence against Ware, nor did it conceal or
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deny the existence of any relevant evidence.*fn46 The representation was merely an individual prosecutor's estimate of the probative significance of the recovered print. It was not unfair for the Commonwealth to re-evaluate its evidence; any argument to the contrary is meritless.
Judgment of sentence affirmed.