J. Peirce Anderson, Norristown, for appellant.
Milton O. Moss, Dist. Atty., William T. Nicholas, 1st Asst. Dist. Atty., Bernard A. Moore, Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., concurs in the result. Manderino and Roberts, JJ., filed dissenting opinions.
On November 30, 1973, the appellant, Herman Miller Davenport, was convicted by a jury of murder in the first degree, robbery, conspiracy to commit murder and conspiracy to commit robbery. After the denial of post trial motions, a sentence of life imprisonment was imposed on the murder conviction. An additional sentence of seven to fifteen years imprisonment was imposed on the robbery conviction. Sentences on the conspiracy charges were suspended. This one appeal from the judgments of sentence followed.*fn1
A number of trial errors are asserted on this appeal. We find none meritorious and will, therefore, affirm the judgments.
Initially, it is asserted that the trial court erred in overruling a demurrer to the evidence, and denying a
motion for a directed verdict made by the defense at the completion of the Commonwealth's case.
In ruling upon a demurrer the standard to be applied is whether the evidence of record and the inferences reasonably drawn therefrom are sufficient to warrant the jury in finding the defendant guilty, beyond a reasonable doubt, of the crimes charged. Commonwealth v. Carroll, 443 Pa. 518, 278 A.2d 898 (1971); Commonwealth v. Zeringo, 214 Pa. Super. 300, 257 A.2d 692 (1969). While the burden of proof is upon the Commonwealth, it is well-settled that the Commonwealth may sustain this burden wholly through circumstantial evidence. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972). The Commonwealth's evidence established the following:
At approximately 1:45 a.m. on January 14, 1970, Milton Hawkins, the victim, was asleep in his home located at 5932 North 19t h Street, Philadelphia, when he received a visit from Davenport. Following a brief conversation, Hawkins went upstairs, dressed and left the house in the company of Davenport. The two men entered a red Mustang with a white racing stripe, driven by a black male. At 8:00 a.m. the same morning, Hawkins' lifeless body was found lying in the roadway of Gribbel Road, near Royal Avenue, in the Wyncote section of Cheltenham Township, Montgomery County. Death occurred between 2:30 and 4:30 a.m. The victim had suffered a violent assault during which he sustained approximately forty-five stab wounds. Articles of the victim's clothing and two knives were found near the scene. The left rear pocket of the victim's trousers was ripped off. No wallet was found on his person. Police investigators were able to identify the body as that of Hawkins by the inscription on a ring found on one of his fingers.
Blood stained the snow surrounding the corpse. There was a large quantity of blood under the victim's head. This was later determined to be of blood type B. Trousers
subsequently seized from Davenport's apartment at the time of his arrest contained traces of blood type B. Testing of Davenport's blood revealed it to be type A.
On the evening of January 8, 1970, approximately five days before the killing, Hawkins and one David Byrd were drinking at the Babydoll Bar located at 21st and Kimble Streets in Philadelphia. Davenport and one William Clifford Bartlett entered the bar and engaged in a conversation with the victim. In the course of the conversation, the victim said to Bartlett in the presence of Davenport, "I have the five bills". On January 12, 1970, approximately one day before his death, Hawkins was visited at his residence by David Byrd. Hawkins threw a roll of bills onto the drainboard of the sink and asked Byrd to count the money. The roll of bills amounted to approximately five hundred and forty dollars. On January 19, 1970, five days after the death of Hawkins, a wallet was removed from a sewer at 21st and Spencer Streets in Philadelphia. The wallet contained no money, but contained photographs, papers and identification which indicated the wallet belonged to the victim. Mrs. Hawkins, however, found no money in the house after her husband's body was recovered. The sewer inlet at 21st and Spencer Streets is located within a few blocks of Davenport's residence, the residence of the victim and the Babydoll Bar. William Clifford Bartlett, a black male, was at the time registered as the owner of a red Mustang with a white racing stripe, similar to the one Hawkins and Davenport drove off in shortly before the victim met his death. Davenport had been employed from May of 1968 until June of 1969 by the Sanitation Department of Cheltenham Township. The truck to which he had regularly been assigned collected trash in the Wyncote section, including the area of Gribbel Road and Royal Avenue.
While none of the foregoing facts, together with the reasonable inferences to be drawn therefrom, would be
sufficient to establish guilt when considered individually, their collective strength is sufficient to warrant a jury in finding Davenport guilty, beyond a reasonable doubt, of the crimes charged.
Davenport next raises several claims challenging the validity of the seizure of a second blood sample, and the subsequent introduction into evidence at trial of his blood type.
On January 20, 1970, following Davenport's arrest, the Montgomery County coroner at the behest of police officials extracted a blood sample from him to type and compare with that of the victim. No prior judicial authorization was obtained for this seizure. At a hearing on a motion to suppress, the district attorney presented a search warrant application to the court for a second blood sampling. Defense counsel, although admitting that probable cause existed and the results of a second opposed the application as untimely. This blood test would be identical to the first, suppression court found it unnecessary to rule upon the application, and upheld the legality of the initial seizure on the grounds that Davenport had consented thereto. The evidence of the blood test was introduced into evidence at trial. On appeal to this Court, we reversed Davenport's conviction and remanded the case for a new trial. Mr. Justice Pomeroy filed an opinion in support of the reversal order stating, inter alia, evidence of the blood was not properly admitted at trial, because the record failed to demonstrate that Davenport had knowingly and intelligently waived his Fourth Amendment rights in submitting to the extraction. Mr. Justice Eagen and Mr. Justice O'Brien joined in the Pomeroy opinion. Mr. Justice Roberts, Mr. Justice Nix and Mr. Justice Manderino did not join in the opinion, but did join in the Court's order. Mr. Chief Justice Jones noted a dissent. See Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973).
Prior to Davenport's second trial, the Commonwealth presented to the trial court a second application for a search warrant, termed a "petition to require a blood sample". The court, after hearing argument, granted the application. A second blood sample was then taken. A subsequent motion to suppress this evidence was denied, and the results of this blood test were introduced into evidence at Davenport's second trial in November 1973.
Davenport's first claim pertaining to the second blood sample is that the Commonwealth in presenting its case to the grand jury prior to his first trial in effect certified that it had concluded its investigation upon which the presentment was based, and accordingly should be precluded from continuing its investigation by securing a second blood sample. No authority is cited for this claim, and we are not persuaded thereby. In theory, the function of a grand jury in our system of criminal justice is to ascertain whether the Commonwealth's evidence makes out a prima facie case. See Commonwealth v. Webster, 462 Pa. 125, 337 A.2d 914 (1975). The Commonwealth by its presentment to the grand jury indicates its belief that there is sufficient evidence to justify bringing a defendant to trial on the charges ...