Robert E. Campbell, Public Defender, Gary E. Hartman, Asst. Public Defender, Gettysburg, for appellant.
Oscar F. Spicer, Dist. Atty., Gettysburg, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts and Nix, JJ., concur in the result. Manderino, J., filed a dissenting opinion.
In a joint trial, Bruce Edward Powell and Keith Mason Knight were both convicted of two counts of murder of the first degree and two counts of conspiracy to commit murder. Powell and Knight were both sentenced to two consecutive terms of life imprisonment following the denial of post-verdict motions. These appeals from the judgments of sentence followed.
Both Knight and Powell assert four identical assignments of error as a basis for the granting of a new trial.*fn1 Powell asserts one additional assignment of error not argued by Knight. For the reasons stated herein, we affirm the judgments of sentence.
On April 16, 1974, Knight and Powell walked into the Frederick City Police Department in Maryland and informed an officer they had been involved in a double killing in Pennsylvania. Subsequently, Knight and Powell each made a statement to another officer describing the killings. Knight's statement admitted his own
participation and also implicated Powell. The latter's statement admitted his involvement and said Knight participated in the killings. These statements were offered as and admitted into evidence at the joint trial without modification, that is, each statement as admitted into evidence made reference to the declarant's coparticipant by name. Later, Knight and Powell made separate statements to the Pennsylvania State Police which incriminated the declarant and also his coparticipant. When testimony recounting these statements was introduced as evidence at trial, the testimony was modified at the court's direction so as to delete the name of the declarant's coparticipant and substitute the words "the other individual named."
Initially, we agree with the trial court's post-verdict assessment as to the effect of the modification of the latter testimony recounting the statements given to the State Police: ". . . no one could sit on the jury . . . and not understand that each defendant was referring to the other!" Thus, we shall treat all of the statements introduced into evidence as having directly incriminated both the declarant and his coparticipant.
Both Knight and Powell assert that even if the statements were properly introduced against the declarant,*fn2 since each statement incriminated both the declarant and his coparticipant, the introduction of the statements in a joint trial was a denial of their Sixth Amendment right
under the Federal Constitution to confront the witnesses against them as interpreted in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
Assuming the instant facts present a violation of Knight's and Powell's right to confront the witnesses against them, and thus the admission into evidence of the statements constituted error as to the declarant's coparticipant,*fn3 we believe that, under the circumstances of this case, the error was harmless beyond a reasonable doubt. Therefore, a new trial is not required on this basis.
In Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973), the Supreme Court of the United States stated:
"Upon an independent examination of the record, we agree . . . that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. . . . We reject the notion that a Bruton error can never be harmless." [Citations omitted. Emphasis added.]
What was said in Brown, supra, is equally applicable instantly. Both Knight's and Powell's statements were in substance and in specifics virtually identical in accounting in detail the killings, and each statement was admissible against the declarant. Supra n. 2. As such, the statements of each declarant in so far as it implicated the coparticipant was merely cumulative of what the coparticipant's statements related. Further, the Commonwealth's other evidence was uncontroverted as to events described in each of the statements.
Furthermore, as the trial court in its opinion following post-verdict motions noted, the Commonwealth's other evidence was overwhelming. The testimony of an on-the-scene
witness, Tony Williams, provided a detailed account of the events prior to and during the killings.*fn4 Finally, police testimony which was based on an investigation of the killings fully supported in both substance and detail Williams' account of the killings, as well as, Knight's and ...