Arthur L. Gutkin, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Carolyn E. Temin, Philadelphia, for appellee.
Jones, C. J., and Eagen, Nix, O'Brien, Roberts, Pomeroy, and Manderino, JJ. Eagen and O'Brien, JJ., concur in the result. Roberts, J., filed a dissenting opinion. Pomeroy, J., filed a dissenting opinion. Manderino, J., dissents.
Appellant, Keith Baker was convicted a jury of murder of the second degree for the death of his wife. Motions for a new trial and in arrest of judgment were filed, argued and denied. After the imposition of a sentence of five to ten years imprisonment, an appeal was taken to this Court pursuant to the Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673, No. 223, Art. II, § 202(1); 17 P.S. § 211.202(1) (Supp.1975-1976).*fn1 We now affirm for the reasons that follow.
Police Officer Franklin was patrolling in the 7900 block of Fayette Street in Philadelphia during the early morning hours of February 20, 1973, when his attention was attracted to an unoccupied vehicle which was illegally parked. The officer attempted to ascertain the identity and whereabouts of the operator of the double-parked vehicle when he first noticed appellant and Mrs. Mary Hughes standing in the doorway of 7907 Fayette Street.*fn2 Appellant directed the officer to the victim who was lying on the floor inside the premises. The body of Mrs. Baker exhibited signs that she had recently sustained a severe beating. Mrs. Baker was taken by the police to the hospital where she was pronounced dead on arrival.
After further investigation, appellant was charged as the person responsible for his wife's death.
Appellant first charges a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See also Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Commonwealth v. Powell, 449 Pa. 126, 295 A.2d 295 (1972). Appellant asserts that the testimony of two of the arresting police officers was withheld during the suppression hearing. It is now claimed that the evidence would have bolstered his position that his state of intoxication was such that he was incapable of making a knowing and voluntary statement.*fn3 However, it is conceded that he became aware of the information possessed by these officers, on this subject, when they testified at trial. No effort was made at that time to assert a Brady violation or to seek another suppression hearing during which this testimony could be introduced.*fn4
Moreover, during argument on post trial motions, appellant did not assert a Brady claim. He was content to rest his argument on the ground that the additional evidence required a finding that the statements were involuntary.*fn5 Consequently, the court below was never
provided an opportunity to respond to this objection. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We, therefore, will not entertain this complaint raised for the first time in this appeal. Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972).
In a related argument appellant charges that under the totality of the circumstances the court below should have found the statements involuntary. Although couched in terms of the totality of the circumstances, appellant's primary basis for this contention is that his state of inebriation was such as to render him incapable of making a knowing and voluntary confession. A review of the suppression record unquestionably supports the suppression court's ruling that the statements were made voluntarily and knowingly. Moreover, the expanded record on this subject made at trial also dictates the same conclusion.*fn6
The second assignment of error charges that the jury panel was prejudiced by a remark allegedly made by a police officer. Appellant asserts that the prejudice was such that the only appropriate remedy would have been the dismissal of the entire panel. We do not agree.
On individual voir dire a prospective juror (who was not chosen to serve in this case) stated he overheard another prospective juror remark that a police officer in the courthouse had characterized Baker as being "particularly vicious". At a conference in chambers, the prosecutor advised the court that the remark could not have been made by any officer assigned to this case because at the time the statement was supposedly made these officers were not present in the courthouse. The court provided the defense with extra peremptory challenges and advised counsel that wide latitude would be permitted during the remainder of the voir dire to allow them to fully explore the issue. The court by its questions determined that those veniremen that had been selected up to that point had no knowledge of the comment. The Court also determined that the remaining members of the panel were also unaware of the alleged statement. The juror who had called the matter to the court's attention was excused for cause when he responded that the comment would influence his decision if selected. Additionally, out of an abundance of caution the court further instructed the jurors:
"Ladies and Gentlemen of the jury panel, one of the prospective jurors, while being questioned, indicated that he had heard another member of the panel state that he or she had overheard a police officer make a statement about the defendant in this present case. I would like to know if any of the prospective jurors present, including the jurors already selected, heard any officer make any statement or heard any reference by anyone else to any statement made by any officer regarding this defendant? All right, no members of
the panel having heard such a statement, I would further like to indicate that I am advised by the Assistant District Attorney that there are no officers or detectives in connection with this case present on this floor at the present time except the gentleman sitting to his right who has been with him the whole afternoon. There are other homicide cases being tried in this vicinity, so therefore any statement, if it were made, could not have applied to the defendant in this case."
We are satisfied that the prompt and prudent remedial measure taken by the trial judge insulated the appellant from any prejudice and eliminated the necessity for dismissing those jurors who had been selected as well as the remainder of the panel. Unquestionably, an accused is entitled to a trial by an impartial jury. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972). However, the possible prejudice of a remark need not necessarily require a declaration of a mistrial where the taint can be removed by an immediate response by the trial court.
The next assignment of error concerns the admission into evidence, over objection, of the testimony of Mrs. Haddie Lesley. Mrs. Lesley testified to a fight she witnessed between appellant and decedent approximately eight to ten months before the killing. We cannot accept the trial court's view that this single incident occurring eight to ten months before the incident in question, would justify the jury to conclude that it was reflective of the type of relationship that existed between the deceased and appellant on February 20, 1973.
While we do permit evidence of prior occurrences to establish malice, motive or intent, this is only so when the prior occurrence is sufficiently related to the offense for which the accused is then standing trial to
satisfy the normal tests of relevancy.*fn7 However, although we reject the reason assigned by the trial court we do believe that the testimony was properly admitted under this record.*fn8 In addition to the testimony of Mrs. Lesley, there was other evidence that a tumultuous relationship had existed between the parties for some period prior to the night in question. Included in this testimony was the evidence provided by the relatives of the deceased that she (deceased) had told them of marital difficulties. The deceased also indicated to her relatives that she had been frequently beaten by appellant. Further evidence of the disharmony was shown in a note left by the deceased for appellant. Therefore, the incident related by Mrs. ...