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COMMONWEALTH PENNSYLVANIA v. GERALD R. CAIN (01/28/77)

decided: January 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD R. CAIN, APPELLANT



COUNSEL

Eugene H. Clarke, Jr., Morris Paul Baran, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., William P. Boland, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Eagen, J., filed an opinion in support of affirmance in which Jones, C. J., and Pomeroy, J., joined. Pomeroy, J., filed an opinion in support of affirmance. Roberts, J., filed an opinion in support of reversal in which O'Brien and Manderino, JJ., joined. Manderino, J., filed an opinion in support of reversal. Nix, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 471 Pa. Page 144]

ORDER

The Court being equally divided, the judgments of sentence are affirmed.

[ 471 Pa. Page 145]

OPINIONS IN SUPPORT OF AFFIRMANCE

EAGEN, Justice.

Gerald R. Cain was convicted by a jury in Philadelphia of murder of the first degree and the punishment was fixed at life imprisonment. Cain was also convicted of aggravated robbery, burglary and conspiracy. All charges emanated from the same episode. A motion for a new trial was argued before and denied by a three-judge court.*fn1 A sentence of life imprisonment was imposed on the murder conviction. Prison sentences were also imposed on the three other convictions; however, it was directed that these sentences run concurrently with the life imprisonment sentence. This appeal followed.

While the sufficiency of the evidence to sustain the convictions is not now challenged, an examination of the record is persuasive that the trial evidence was more than ample to warrant the guilty verdicts. From the evidence the jury could find the following.

Glenn Edwards accompanied by Charles Green, a resident of Philadelphia, came to Philadelphia from Wilberforce, Ohio, where they were classmates in college at Central State University, for the purpose of buying a substantial quantity of marijuana to be taken back to Wilberforce. They, subsequently, registered as guests in the Marriott Hotel on City Line Avenue, and eventually came in contact with the appellant, Cain, who told them he could obtain marijuana for them to purchase. Cain had no intention of arranging for the purchase of the marijuana and entered into a plan with others to rob Edwards and Green. Initially, the plan was to rob the victims in their hotel room. However, the plan was changed and then called for luring Edwards to a vacant small apartment building at 5129 Irving Street in Philadelphia,

[ 471 Pa. Page 146]

    under the pretext of consummating the marijuana sale, where he would be forcedly relieved of his money.

About midnight on May 23, 1971, Cain and Lynn Williams accompanied Edwards from the Marriott Hotel to the Irving Street address where they were met by Calvin Williams and one Daniel Clark. The group entered one of the apartments in the vacant building and shortly thereafter Calvin Williams struggled with Edwards, and shot him in the head. The wound caused instant death. Calvin Williams then removed approximately $275.00 in cash from Edwards' clothing, after which the four felons fled the scene. Lynn Williams and Cain traveled together in the former's automobile. The four met later at the apartment of Lynn Williams with David Hunt, who had participated in the robbery plan, and divided the stolen money. Cain received $45.00 as his share.*fn2 Cain maintains certain errors occurred in the trial proceedings which were so prejudicial that a new trial is necessary.

PART I

The first complaint concerns the refusal of the trial judge to permit the defense to introduce testimony of a psychiatrist, Dr. James Nelson. The circumstances are these.

Calvin Williams testified as a Commonwealth witness at Cain's trial. He told of being in Lynn Williams' apartment about 6 p. m. on May 23, 1971 and agreeing at the solicitation of David Hunt to participate in a robbery at the Marriott Hotel, and of the site of the robbery later being changed to an empty apartment building on Irving

[ 471 Pa. Page 147]

Street. He said when the intended victim of the robbery (Edwards) arrived at the apartment building on Irving Street, he was accompanied by Lynn Williams and by Cain, whom he (Calvin Williams) did not know and had not seen before. Williams said after the group entered an empty apartment on the first floor of the building, he grabbed and held Edwards because he thought he was carrying a gun and that when Edwards pulled away from his grasp, he shot him with a gun that had been given to him a short time before by Lynn Williams.

Calvin Williams also told of his stealing $275.00 from Edwards' clothing and of the subsequent meeting at Lynn Williams' apartment where the stolen money was divided. He said the group was disappointed that Edwards was not in possession of more money at the time of the robbery, and Cain suggested that they go to the Marriott Hotel and get the rest of the money Edwards was reported to have with him.

Calvin Williams also stated that at the time of the robbery and killing, he was "high" from the use of methedrine and during that particular period he was accustomed to taking fourteen or fifteen bags of heroin daily.

Calvin Williams further testified that on July 9, 1971, he was taken into police custody and shortly thereafter made a statement to the police detailing the relevant events of May 23 and May 24. He also admitted taking a capsule and a half of LSD about one hour before being taken into custody. However, Williams testified that he was not under the influence of any drugs at the time of Cain's trial in March, 1972,*fn3 and he stated his recollection of what happened at the time of the robbery and killing was clear and his trial testimony was based solely on this recollection.

[ 471 Pa. Page 148]

In an attempt to impeach Williams' credibility, Cain attempted to introduce the testimony of Dr. Nelson, who, it was then stated by Cain's counsel, would express the opinion that as a result of the ingestion of LSD a short period of time before he was taken into custody, Williams could not on July 9, 1971, the date he made the statement to the police, accurately remember what occurred in the early morning of May 24, 1971, when the robbery and killing took place.*fn4 An objection to this testimony was sustained. Under the particular circumstances, the ruling was correct.

An offer of proof must be judged exclusively by its specific contents and the party advancing the offer is bound by the purpose stated. Cf. 1 Wigmore, Evidence ยง 17 (3d ed. 1940). Instantly, the record establishes that when the testimony of Dr. Nelson was offered at trial, its purpose was not to challenge Williams' credibility by showing he lacked ability to accurately remember or testify at trial, but rather its purpose and only purpose, as then stated, was to challenge his ability to remember and narrate to the police on July 9, 1971.*fn5 It is also clear,

[ 471 Pa. Page 149]

    from the record at Cain's trial, Williams was testifying solely from what he then remembered as to the circumstances and occurrences on the night of the crimes. Hence, the giving of the statement to the police about six weeks after the event was in no way related to his trial testimony. If the purpose of Dr. Nelson's testimony was to challenge Williams' credibility by showing that at the time of the event to which he testified his powers of observation and memory were impaired, so that as of the time of trial his recollection and account might be inaccurate (see Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976), and Commonwealth v. Dreibelbis, 217 Pa. Super. 257, 269 A.2d 387 (1970)) a far different problem would be present. However, this was not the stated purpose of Dr. Nelson's testimony and the only purpose, as evidenced by the offer, was to attack Williams' ability to give an accurate statement to the police on July 9, 1971. Under the circumstances, the Doctor's testimony was irrelevant.

Presently in this appeal Cain's counsel states Dr. Nelson would also have testified that an individual who was taking heroin at the time of the event in the quantity Williams admitted would not then possess "the memory, perception and narrative ability" to ever accurately describe what occurred.*fn6 But this was not included in the offer of proof at trial and, as noted before, the ruling of the trial court must be evaluated by the contents of the offer at the time the offer was made.

PART II

Cain next maintains a Commonwealth trial witness was permitted to testify to facts which the district attorney

[ 471 Pa. Page 150]

    knew to be false because of a police report in his possession prior to trial. The factual background is this:

Cain was arrested on May 26, 1971, and gave a statement to the police, wherein he mentioned that "a white girl" called "Debbie" was with Lynn Williams on the night of the robbery and killing. Cain also mentioned this person in his testimony at trial. Efforts by the prosecution authorities to locate "Debbie" before Cain's trial began were unsuccessful, but while the trial was in progress she was located "through the drug underworld."

Debbie was called by the Commonwealth as a rebuttal witness and testified in relevant part as follows.

On the night of May 23, 1971, she was with her "boy friend," Lynn Williams, in his automobile when he drove to the Marriott Hotel "to pick up some money." After parking the vehicle outside the Marriott, Lynn Williams left for awhile and she waited in the vehicle. When Lynn returned he was accompanied by a man whom he introduced as "his cousin Gerry."*fn7 Lynn and "Gerry" entered the Williams' automobile and after a brief conversation both left the vehicle. The two returned shortly with three other men and all five entered the vehicle. The five then engaged in a conversation and talked about "holding somebody up" in the Marriott Hotel. Debbie was directed to accompany "Gerry" into the Marriott and proceed to a certain room (the room in which Edwards and Green were registered), to knock on the door and let "'Gerry' do the talking." During this conversation, Lynn Williams took a gun from the glove compartment and handed it to "Gerry" who placed it in his trousers. At this point, Debbie became frightened and asked Lynn Williams to take her home, but he refused. Debbie, Lynn Williams and "Gerry" then entered the Marriott and proceeded in the direction of the designated room, but Debbie managed to escape and flee from the

[ 471 Pa. Page 151]

    hotel through a side exit. According to her testimony, Debbie than ran down a street outside the hotel and encountered a policeman in a police car and:

"I told him I was scared and there was going to be some shooting. He told me to get in the car and tried to calm me down. I got in the car and he asked me what I meant by shooting. I said, some guys up there, they have a gun, and I was scared and afraid it might be me."

She said she and the policeman then entered the lobby of the Marriott Hotel where he called a cab for her after contacting one of Debbie's friends by phone who promised to pay the cab fare.

Following the completion of Cain's trial, Officer Dudrick (the policeman Debbie met and talked with at the Marriott Hotel) testified in a proceeding involving Lynn Williams.*fn8 At this proceeding, Dudrick, a member of the Lower Merion Police Department, produced a report he prepared and filed with the department after his encounter with Debbie. The incident was described in this manner.

"While on routine patrol, I observed a girl running south on Presidential Boulevard toward Monument Road.

"The victim stated she was going to a party at the Marriott Motor Lodge with Lynn Willens [sic], a boy friend of the victim. She went to a room and observed six men. The girl got excited and ran out of the Marriott.

"Miss Weintraub was confused and admitted to having a nervous disorder.

"Communications contacted Curtis Macmillan of 4933 Walnut Street, Phila. Mr. Macmillan stated he would reimburse the United Cab Co. for the victim's

[ 471 Pa. Page 152]

    transportation to his address. Victim was transported by United Cab Co."*fn9

Cain's counsel later received a copy of the Dudrick departmental report. Cain's counsel now maintain, as they did at the time of argument on the new trial motion: (1) Debbie's trial testimony was false and the district attorney knew it was false because of its inconsistency with Officer Dudrick's report;*fn10 (2) the district attorney was guilty of suppressing exculpatory evidence in not making a copy of the Dudrick report available at Cain's trial; (3) the district attorney was guilty of secreting evidence from the defense which could have been used in the cross-examination of Debbie to impeach her credibility.

The first contention can be dismissed without extended discussion. It is unquestionably true that the prosecution may not knowingly use false testimony to achieve a conviction. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). But there is nothing in the record to warrant the conclusion or assertion that Debbie's trial testimony was false or inconsistent with what she told Officer Dudrick. It is true that Debbie's trial testimony was more extensive than what she reportedly told Officer Dudrick, as evidenced by his departmental report, but it does not necessarily follow the two were inconsistent. Moreover, a close reading of the report indicates it was less than a comprehensive summary of the details of the incident and what Debbie said to the officer.

[ 471 Pa. Page 153]

We recognize that the prosecution may not knowingly or negligently suppress evidence which is exculpatory. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Further, when the reliability of a given witness is critical to a determination of guilt or innocence nondisclosure of evidence affecting credibility falls within the Brady rule. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and United States v. Keogh, 391 F.2d 138 (2d Cir. 1968). However, we are not convinced the situation instantly falls within the Brady proscriptions for the reasons that follow.

In addition to the fact that the police report contained no exculpatory information, it is significant to note that the report does not appear to be a statement by Miss Weintraub and could not be used as such to impeach her testimony. Although the general rule in Pennsylvania is that relevant pretrial statements of witnesses in possession of the Commonwealth must be made available to the accused upon request during the trial, Commonwealth v. Kontos, 442 Pa. 343, 276 A.2d 830 (1971), its application has not been expanded beyond the verbatim notes of a victim's statements made by an investigating officer. Commonwealth v. Morris, 444 Pa. 364, 281 A.2d 851 (1971). The distinction between a report that is a verbatim, signed, or adopted recordation of a witness' statement and an imprecise summary of what another understood him to say has been recognized in both federal and state cases. See, e. g., Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961); Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); State v. Houston, 209 N.W.2d 42 (Iowa 1973); Wright v. State, 501 P.2d 1360 (Alaska 1972); People v. Dennis, 47 Ill.2d 120, 265 N.E.2d 385 (1970); Ramer v. State, 40 Wis.2d 79, 161 N.W.2d 209 (1968). The rationale behind this distinction is that it is unfair to allow the defense to use statements to

[ 471 Pa. Page 154]

    impeach a witness which cannot fairly be said to be the witness' own rather than the product of the investigator's selection, interpretation, and recollection. In the instant case there is no evidence that Debbie signed or adopted the police report or that it was a verbatim recordation of a continuous narrative statement made by her.

We note this additionally. After Debbie was taken into custody, she gave a statement to the district attorney concerning the events of May 23, 1971, which comported with her trial testimony. A copy of this statement was given to Cain's counsel before Debbie was called to testify. Also, Cain's counsel were given the opportunity by the Commonwealth to interview Debbie before she testified. Finally, during Debbie's testimony in which the circumstances of her encounter with Officer Dudrick were explored at length, the luncheon recess intervened but there was no effort by Cain's counsel to subpoena Officer Dudrick or to ascertain if he had made a report (a public record) of the incident involved. Again, although the trial continued for several days after Debbie's testimony concluded, Cain's counsel made no attempt to interview Officer Dudrick or acquire a copy of the departmental report. As we pointed out in Commonwealth v. Carter, 427 Pa. 53, 54, 233 A.2d 284, 285 (1967), the prosecution need not advise the defense it has additional witnesses, ". . . if the defense is able or should have been able to procure the witness unaided."

PART III

Cain next complains the trial judge committed error in permitting testimony relating to oral admissions made to a polygraph operator. The first thing which must be made clear is the oral admissions did not come as a result of the test or were not made during the test, they were made before the actual test was administered, and before the polygraph apparatus was connected to the accused.

[ 471 Pa. Page 155]

The facts are as follows: The Commonwealth sought to introduce the testimony of Sergeant Gallagher, a Philadelphia police officer, who was a polygraph operator. Cain had made some oral inculpatory admissions to this officer during what is called the "pretest interview." This all took place before the test was administered and before Cain was connected to the machine. The officer was attempting to get some background information on the accused to determine if the test should be given and the format of the questions.

The defense objected to this officer testifying about anything said to him because he was a polygraph operator. The district attorney stipulated in an in camera hearing the officer would make no mention of the polygraph test on direct examination, and would say nothing on cross-examination unless directly asked if he gave a polygraph test. The district attorney stated the witness would only testify about the information gained in the time prior to the polygraph test. On direct the officer said nothing at all about the test, and there was nothing which gave rise to the inference a test was given; however, on cross-examination the defense explicitly asked the officer what kind of examination he gave the accused. Now Cain complains it was error to permit the officer to testify at all.

The rule in Pennsylvania is that reference to a lie detector test or the result thereof which raises inferences concerning the guilt or innocence of a defendant is inadmissible. See Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971); Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956); Commonwealth ex rel. Hunter v. Banmiller, 194 Pa. Super. 448, 169 A.2d 347 (1961); Commonwealth v. McKinley, 181 Pa. Super. 610, 123 A.2d 735 (1956). This rule was established to protect the defendant in a criminal trial and it is based on this Court's refusal to recognize the scientific accuracy or validity of such tests. However, the instant case does

[ 471 Pa. Page 156]

    not fall within the prohibition of this line of cases. Here Cain's counsel raised the fact the officer gained the inculpatory information while asking questions before the polygraph test. The Commonwealth had stipulated the officer would say nothing about the test, and under the instant facts there was no need to bring to the attention of the jury a polygraph test was administered, since the testimony of the officer did not involve the actual test. When the defendant himself brings forth the fact that a polygraph test was given, he cannot later be heard to complain the jury was made aware of the test, for the error, if any, rests squarely on his shoulders.*fn11 To hold otherwise would be to say a police officer who is a polygraph operator could not testify about any information gained when he is acting in the capacity of an officer involved in the general investigation of a crime.

PART IV

Cain's next complaint is that the trial court erred in refusing to charge the jury on voluntary manslaughter as requested by his counsel. Initially, we note that no evidence was presented at trial to support such a verdict and it is not argued such evidence was presented. Furthermore, Cain's trial was held in March of 1972, and thus, antedated this Court's ruling in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974) [Hereinafter Jones ] wherein, pursuant to our supervisory powers, we abolished the practice of allowing our trial courts complete discretion in determining whether to charge a jury on voluntary manslaughter, where no evidence existed to support such a verdict.*fn12 Subsequent to Jones, the United

[ 471 Pa. Page 157]

States Court of Appeals for the Third Circuit ruled that the practice abolished in Jones was violative of the due process clause of the Fourteenth Amendment to the United States Constitution.*fn13 United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974) [Hereinafter: Matthews.] As such, Cain's trial also antedated Matthews. Thus, the instant issue requires resolution of two important questions:

(1) Do federal constitutional considerations mandate the application of Matthews to cases on direct appeal where the trial antedated both Jones and Matthews ?*fn14

(2) If federal constitutional considerations do not mandate the application of Matthews to such cases, should we, pursuant to our supervisory powers, apply Matthews, in this context more precisely Jones, to such cases?

In order to properly resolve these questions discussion of the relevant body of case law is required and helpful because it reveals the rationale of Matthews and Jones and because it provides considerable scholarship in making the resolution. Discussion of the purpose and of the rationale of Matthews and Jones is, of course, essential to the resolution and the scholarship is helpful in that it provides guidance in making our resolution.

In determining the practice under Pennsylvania law prior to Jones was unconstitutional, the Third Circuit

[ 471 Pa. Page 158]

    reasoned that since a jury had the inherent power to return a voluntary manslaughter verdict on a murder indictment in Pennsylvania, the lack of standards for our trial courts to determine whether to charge the jury on voluntary manslaughter resulted in a fundamentally unfair practice because every accused was subject to the "'whim and caprice' of a given judge on a given day." Matthews, supra at 346, quoting from Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510 (1971) (Dissenting Opinion, Pomeroy, J.) As a result, the rule announced in Jones was determined to be constitutionally required. Matthews, supra.

In Matthews, supra at 347, Judges Aldisert, Rosenn, and Weis expressed the view that the ruling therein was not to be applied wholly retroactively, but that it was to be applied to cases on direct appeal in accordance with United States v. Zirpolo, 450 F.2d 424 (3d Cir. 1971) [Hereinafter: Zirpolo ].*fn15 Those judges stated:

"[the rule] should apply . . . to . . . cases in which a jury instruction for voluntary manslaughter was properly and timely requested and if trials have been completed, are on direct appeal in the Pennsylvania courts on this date."

Matthews, supra at 348-49. Subsequently, in United States ex rel. Cannon v. Johnson, 536 F.2d 1013 (3d Cir.1976) [Hereinafter: Cannon ], a panel decision, the panel unanimously stated that Matthews did not apply to cases still on direct appeal, but rather, applied only to cases in which the trial commenced subsequent to Matthews. The panel was composed of Judges Van Dusen, Kalodner, and Weis. Judge Weis filed a concurring opinion in which he explained that the reason for having changed his position with regard to cases on direct appeal

[ 471 Pa. Page 159]

    was the intervening decision in Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) [Hereinafter: Daniel ].*fn16 Cannon affirmed the decision of the United States District Court for the Eastern District of Pennsylvania, United States ex rel. Cannon v. Johnson, 396 F.Supp. 1362 (E.D.Pa.1975) [Hereinafter: Dist. Cannon ], as to retroactivity in collateral attacks and followed, in dictum,*fn17 the district court's suggestion that Matthews not be applied to cases on direct appeal as Matthews had suggested. The panel in Cannon also recognized that Zirpolo was in conflict with Daniel.

Thus, insofar as the Third Circuit Court has expressed itself: three judges would not apply Matthews to cases on direct appeal; two judges have expressed the view that they would, but expressed this view prior to Daniel ; and the remaining five judges have not expressed a view. Additionally, Judge Becker, with whom Judge Ditter joined, in Dist. Cannon strongly suggested Matthews should not be applied to cases on direct appeal and did so at a time when the only view expressed by the Third Circuit was that Matthews should be applied to cases on direct appeal.

Under such circumstances, we should not feel constrained to follow either view expressed by the judges of the Third Circuit, but if either view is to be given more

[ 471 Pa. Page 160]

    weight, it is the view of Cannon, that is, Matthews is not applicable to cases on direct appeal, because:

(1) it represents the Third Circuit Court's most recent expression on the subject;

(2) it represents a view which had the benefit of Daniel which is in conflict with Zirpolo ;

(3) although it is only a panel decision, Rule 35 of the Rules of Appellate Procedure, 28 U.S.C.A. Rule 35, provides a procedure whereby a majority of the Third Circuit could have sua sponte caused a rehearing by the court en banc had a majority thought the proceeding in Cannon involved a "question of exceptional importance" or had "consideration by the full court [been thought] necessary to secure or maintain uniformity of its decisions." 28 U.S.C.A. Rule 35. In light of Zirpolo being impliedly overruled by Cannon, it is difficult to imagine a more appropriate case requiring uniformity. Yet, no rehearing en banc was ordered; and,*fn18

(4) it presents a complete understanding of both the purpose to be served by charging the jury on voluntary manslaughter absent evidence to support such a

[ 471 Pa. Page 161]

    verdict and the considerations and ramifications of applying Matthews to direct appeals.*fn19

With this background in mind and affording appropriate weight to the views of the Third Circuit, we shall now discuss the two questions which we earlier indicated require resolution.

Since Matthews announced a new rule of criminal procedure, namely, it is constitutionally required that the charge of voluntary manslaughter be given in all trials on a murder indictment in Pennsylvania because no standards for the exercise of the trial court's discretion in determining whether to give the charge had been set forth by this Court, Matthews, supra at 347 n. 24; Cannon, supra at 1013; Dist. Cannon, supra at 1362, a proper determination of whether Matthews must be applied to cases tried prior to Jones, but for which the availability of appellate review has not been exhausted, requires a consideration of three factors:

"(a) the purpose to be served by the new standards;

"(b) the extent of the reliance by law enforcement authorities on the old standards; and

"(c) the effect on the administration of justice of a retroactive application of the new standards."

Matthews, supra at 347-8, quoting from Zirpolo, supra at 431-32; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) [Hereinafter: Linkletter ]. Moreover, as the Third Circuit has stated:

"[w]e must, however, stress the specific holding of Desist v. United States, 384 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248 (1969), that ' foremost ' consideration should be given 'to the purpose to be served by the new constitutional rule,' and the later holding

[ 471 Pa. Page 162]

    of Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971), that retroactivity should be accorded '[ w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truthfinding function and so raises serious questions about the accuracy of guilty verdicts in past trials. . . .'"

Cannon, supra at 1016. [Emphasis in original.] Furthermore, these same principles must be utilized whether a new constitutional rule and its retroactive application are being considered in the context of a collateral attack or of a case on direct appeal. Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973).

With regard to the purpose of the ruling, Matthews quite clearly sought the "elimination of unseemly arbitrariness from the judicial process."*fn20 The rule

"does not go to the jury's ability to determine the presence vel non of the elements of the crime but rather to the jury's ability to exercise its 'historically recognized mercy dispensing power.'"

Matthews, supra at 348, quoting Jones, supra at 149. Furthermore, the rule announced in Matthews rather than aiding the trial's "truth-finding function" actually impairs it because

"the effect . . . is to allow (all) juries to bring in manslaughter verdicts, regardless of the evidence, for reasons of sympathy or otherwise."

Dist. Cannon, supra at 1367. As such, the first factor of the Linkletter test and the "foremost" consideration set forth in Williams v. United States, supra, weigh heavily against application of the Matthews rule to cases on direct appeal.

[ 471 Pa. Page 163]

With regard to the reliance of law enforcement authorities on the old standard, the Commonwealth has undoubtedly relied heavily on the old rule in seeking to have our courts exercise their complete discretion in not charging on voluntary manslaughter absent evidence to support such a verdict. See Jones and Dist. Cannon which indicate ...


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