decided: January 28, 1977.
COMMONWEALTH OF PENNSYLVANIA
W. A. "TONY" BOYLE, APPELLANT
A. Charles Peruto, Burton A. Rose, Philadelphia, for appellant.
Richard A. Sprague, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Nix, J., filed a dissenting opinion, in which Mr. Chief Justice Jones joins.
[ 470 Pa. Page 347]
OPINION OF THE COURT
W. A. "Tony" Boyle was convicted of three counts of murder of the first degree by a jury in connection with the slayings of Joseph "Jock" Yablonski, his wife, Margaret, and his daughter, Charlotte. Post-verdict motions were denied and judgments of sentence imposed. This appeal followed.
Boyle asserts numerous assignments of error and, in doing so, seeks various forms of relief, including: 1) an
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arrest of judgment and discharge because the evidence is insufficient to support the verdicts; 2) a reversal of the judgments and quashing of the indictments because of the failure of the Commonwealth to afford him a preliminary hearing; and, 3) a new trial because of numerous errors during the course of the trial proceedings.*fn1
Boyle's contention that the evidence is insufficient to support the verdicts is devoid of merit. The test for determining the sufficiency of the evidence is whether accepting as true all the evidence, together with all reasonable inferences which may be drawn therefrom upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Brown, 467 Pa. 388, 357 A.2d 147 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973). The evidence here clearly meets this test.
Boyle concedes the Commonwealth established that a conspiracy was formed to kill Joseph Yablonski and that Yablonski, his wife, and daughter were slain in furtherance
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of that conspiracy.*fn2 But Boyle argues the evidence did not establish that he was a member of the conspiracy.
The evidence which showed that Boyle was a member of the conspiracy was both direct and circumstantial. The direct evidence consisted of the testimony of William Jenkins Turnblazer.
Turnblazer testified that he met with Boyle and Albert Edward Pass on June 23, 1969. He further testified that at the meeting Boyle gave orders to assassinate Joseph Yablonski. Specifically, Turnblazer testified that:
"He [Boyle] said, we are in a fight, we have got to kill Yablonski or take care of him,"
"Mr. Pass said that if nobody else would kill him, District 19 [of the United Mine Workers' Union] would,"
"[Boyle] said fine."
In evaluating the sufficiency of the evidence, Boyle would have us disregard this testimony because Turnblazer was shown to have given contradictory versions of the facts and circumstances related to the Yablonski slayings to police and in prior judicial proceedings. This we may not do. In passing upon a motion in arrest of judgment, all evidence in the record must be considered. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). We might also point out the jury was made aware of Turnblazer's prior inconsistent statements and was told they were made in an effort to cover up both his and Boyle's involvement in the conspiracy. Under the circumstances, the determination of whether to believe Turnblazer was for the jury and the fact that
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he may have previously testified or otherwise given contradictory versions to that to which he testified at trial is merely a circumstance which the jury would consider in making its determination of whether or not to credit his testimony. Commonwealth v. Snyder, 427 Pa. 83, 233 A.2d 530 (1967).
Boyle argues that the trial court erred in refusing to quash the bills of indictment because of a failure by the Commonwealth to provide him with a preliminary hearing. The facts relevant to this argument are as follows:
On September 5, 1973, a warrant for Boyle's arrest for the killing of the Yablonskis was issued by the Court of Common Pleas of Washington County. On September 6, 1973, Boyle was indicted by a federal grand jury in the Western District of Pennsylvania for violating the civil rights of the Yablonskis. On the same day, Boyle was arrested in Washington, D.C. by federal authorities in connection with the federal charges. Following a hearing before a United States magistrate in Washington, D.C., Boyle was released on $50,000 bond, and a hearing to determine whether he should be ordered removed to Pennsylvania to face the federal charges was scheduled for September 25, 1973. On September 24, 1973, Boyle was hospitalized after apparently having taken an overdose of barbiturates. Boyle remained hospitalized until December 19, 1973. The removal hearing was postponed until September 28, 1973, at which time the United States magistrate revoked Boyle's bond and ordered Boyle to undergo psychiatric examinations. Another hearing was held in Washington, D.C. before the United States magistrate on October 1, 1973, and on October 2, 1973, Boyle's bond was "temporarily suspended" because of Boyle's condition and because of the possibility of another suicide attempt. Further, federal officials were directed to guard Boyle; that is, Boyle was placed in protective custody.
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On November 28, 1973,*fn3 a federal district court judge for the Western District of Pennsylvania issued an order placing Boyle under federal protective custody until a further order issued from that court and setting trial on the federal charges for February 25, 1974. Boyle apparently agreed to voluntarily present himself in Pennsylvania for trial on the federal charges if the postponement until February 25, 1974 was granted. By doing so, Boyle apparently waived his right to a federal removal hearing. See 18 U.S.C.A. Rule 40, Fed.R.Crim.P. 40.*fn4
On November 29, 1973, Boyle's counsel in the federal proceedings was informed by telephone of the contents of a letter mailed that same day by the Commonwealth. The letter consisted of a "notice" to Boyle that the Commonwealth intended on December 3, 1973, at 10:00 a. m. to seek leave from the Court of Common Pleas in Washington County to present three bills of indictment to the grand jury and that if such leave were granted the bills would be presented on December 17, 1973.
On December 3, 1973, the Commonwealth presented its petition to the court, which represented that Boyle had been involved in the Yablonski killings; that a warrant for his arrest had issued on September 5, 1973; that the warrant could not be properly executed because Boyle had not been in the Commonwealth since
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September 5, 1973; that Boyle through defense counsel had refused to enter the Commonwealth; and, that Boyle was a fugitive from justice. Boyle was not represented at this hearing. The court thereupon issued an order authorizing presentment without a preliminary hearing on December 17, 1973. The bills were duly presented and indictments returned on the same day.*fn5
On December 19, 1973, Boyle began serving a federal sentence on unrelated charges in the District of Columbia prison. On December 20, 1973, a writ of habeas corpus ad prosequendum was issued by the Court of Common Pleas of Washington County. Following a hearing in Washington, D.C., Boyle, pursuant to a federal court order, was brought to Pennsylvania for arraignment on the murder indictments although he remained in federal custody.
On December 21, 1973, Boyle was arraigned in Washington County. Thereafter, in pre-trial motions, Boyle moved to quash the indictments on the ground that the order granting the leave to make a presentment and the indictments being returned without a preliminary hearing improperly and unnecessarily denied him his right to a preliminary hearing. The motion was denied by order of the Court of Common Pleas of Delaware County.*fn6 A direct appeal from that order was filed in this Court. The Commonwealth filed a motion to quash the appeal because it was from an interlocutory order. We granted the Commonwealth's motion on March 23, 1974.
In post-verdict motions, Boyle reasserted his position. The Court en banc of Delaware County rejected Boyle's contention that he was improperly and unnecessarily denied
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a preliminary hearing stating that leave to present the bills of indictment without a preliminary hearing was properly granted pursuant to Pa.R.Crim.P. 224 and alternatively that Boyle's failure to object to the Commonwealth's petition for leave to make the presentment without a preliminary hearing and his failure to object to the order allowing such between December 3 and December 17, 1973 foreclosed the raising of the issue thereafter.
Initially, we must determine whether the issue may now be raised. Assuming, without deciding, that under other circumstances an objection must be entered to a Commonwealth's petition filed pursuant to Pa.R.Crim.P. 224 prior to leave being granted and/or prior to presentment being made, under the circumstances of this case, we rule Boyle's pre-trial motion was timely, and thus the issue is properly preserved for review. The record does not establish that any attorney had filed a praecipe for appearance in any court of this Commonwealth prior to the presentment being made; nor does it establish that any attorney was authorized to accept notice for Boyle of any proceedings in a court of this Commonwealth. Further, Boyle was in federal custody at the time of "notice" and we cannot say as a matter of law that he was free to appear even if we assume the "notice" was sufficient. Accordingly, since the issue was raised at the earliest possible time, it must be considered timely. Thus, we shall proceed to the merits of the argument.
Pa.R.Crim.P. 224 provides:
"When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the defendant cannot be found in the Commonwealth or that the statute of limitations will run prior to the time when a preliminary hearing can be held or that a preliminary hearing cannot be held for other good cause, the court
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may grant leave to the attorney for the Commonwealth to present a bill of indictment to the grand jury without a preliminary hearing." [Emphasis added.]
Undoubtedly, the determination of whether to grant leave to present pursuant to Rule 224 is within the sound discretion of the court and its determination will not be disturbed on appeal absent an abuse of that discretion. Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971); Commonwealth v. Hoffman, 396 Pa. 491, 152 A.2d 726 (1959). In determining whether the court abused its discretion, we must confine our review to the facts and circumstances presented to the court, and the facts must present a situation which satisfies one of the three disjunctive conditions requisite to the court being empowered under the Rule to grant leave.
Instantly, the Commonwealth represented Boyle was not within the Commonwealth. Obviously, such a representation, if true, satisfies the condition that "the defendant cannot be found in the Commonwealth." Pa.R.Crim.P. 224. Furthermore, the veracity of the representation has never been challenged; to the contrary, it is conceded. Accordingly, we cannot say the court abused its discretion in granting leave.*fn7
Boyle cites Commonwealth v. Brabham, 225 Pa. Super. 331, 309 A.2d 824 (1973), in support of his position. In that case, our Superior Court ruled that, since the accused was imprisoned in a county in Pennsylvania and his presence in a second county where additional criminal charges were pending could have been effectuated through a statutorily provided procedure, "good cause" did not exist under Pa.R.Crim.P. 224 for the court to grant leave to indict without affording the accused
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a preliminary hearing. The instant case is distinguishable because Boyle was in custody in a jurisdiction other than Pennsylvania. The term "other" immediately preceding "good cause" in Rule 224 clearly indicates that if an accused cannot be found in Pennsylvania, this constitutes "good cause" under Rule 224.
Boyle argues that the condition, "cannot be found in the Commonwealth," refers only to "fugitives" and that that term, in effect, refers to persons whom the authorities of this Commonwealth either cannot locate or can locate but for which no statutory procedure exists to bring such persons into the Commonwealth. Suffice it to say, Pa.R.Crim.P. 224, in this context, is clear and free from ambiguity and does not address itself to a limited class, i. e. fugitives; rather, it speaks to a "defendant [who] cannot be found in the Commonwealth," and we will not disregard the letter of a rule in pursuit of its spirit in such a situation. Pa.R.Crim.P. 2; 1 Pa.C.S.A. § 1921(b).
Boyle maintains numerous trial errors mandate the granting of a new trial. Since we agree that a new trial is required because the trial court improperly refused to admit the offered testimony of Thomas Kane, an auditor for the federal government, and since the other asserted assignments of error do not present situations which will necessarily arise in a new trial, we need discuss only the court's refusal to allow Kane's testimony to be introduced at trial. The factual background in which the offer and ruling were made is essential to a proper understanding of how the ruling prejudiced the proceedings.
The Commonwealth's theory at trial was that Boyle was motivated to form the conspiracy to kill Yablonski because Yablonski had challenged him for the presidency of the United Mine Workers' Union and that, while the actual slayings took place after Boyle won the presidency, Boyle remained motivated because Yablonski did not concede the election, but rather challenged the validity of
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the election results and initiated plans to overturn the election. On the other hand, Boyle maintained the officials of District 19 formed the conspiracy and hired the killers without his knowledge. He urged that the officials of District 19 were motivated by a fear of having irregular financial transactions within District 19 revealed by Yablonski as he had threatened to do. In support of this defense, Boyle emphasized that even under the Commonwealth's evidence all of the conspirators, other than Boyle, were either officials of District 19 or persons brought into the conspiracy by officials of District 19. Also, under the Commonwealth's evidence, it was clear that Albert Edward Pass, Secretary-Treasurer of District 19 and William Turnblazer, President of District 19, were the leaders in carrying out the conspiracy.*fn8
Because the election for the presidency of the United Mine Workers' Union had resulted in Boyle winning and because the slaying took place subsequent to the election, the Commonwealth introduced evidence to show Boyle knew Yablonski intended to challenge the election results. The obvious purpose of this evidence was to establish a continuing or renewed motive on the part of Boyle to have the object of the conspiracy effectuated.
As part of his defense, Boyle sought to introduce the testimony of Thomas Kane, an auditor for the federal government, to show that an audit of District 19 for the year 1969 and other years had been made subsequent to the slayings and that the audit would reveal a motive on the part of the officials of District 19, independent of
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Boyle's motive, to kill Yablonski. Specifically, counsel stated:
"[Kane] did make an investigation with respect to District 19 and is in a position to testify as to the financial status of District 19 for the year 1969 and other years,  to show and reflect that loans were not unusual,*fn9 as testified to on direct examination,  to show the status of these accounts so that the Court can see and determine whether there was any reason to fear an investigation of this Union.
"The reason that I point that out to the Court is simply that Mr. Yablonski during the campaign had made allegations against District 19 and as to what they were doing. And I feel with that, in view of the testimony presented by these witnesses, we will be in a
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position to contradict and impeach Turnblazer and all the members of District 19 including Pass; that the real fear in this case was not an election or rerun by Tony Boyle, which has been suggested by Mr. Miller, but is the fear that the District No. 19 had of an investigation that had been threatened by Mr. Yablonski in his lifetime, and was testified to by others on various occasions. And accordingly, I feel that the financial status of the District 19, to have the jury see and determine whether these district officials had anything personally to fear of a threatened investigation by Mr. Yablonski, would be appropriate and relevant in this case.
"May I also point out, Judge, if I have not pointed out, that the question of knowledge, motive, reason and all of those things which motivated the people in the District No. 19, that a Defendant is entitled to present and produce testimony that bears upon that motive, that knowledge, those reasons, those purposes for which they acted. And if we are restricted, then we are not permitted to demonstrate that the people in District 19 had reason to fear Mr. Yablonski not only because of what he had stated in his campaign, but also what was done with respect to the audit, and what is disclosed, to let the members of the jury know whether these people had something to hide in connection with this particular case, because the testimony is that they did have something to hide.
"Yes. What Mr. Yablonski was going to do during his campaign with respect to District 19 in public certainly would have some bearing upon the reaction of the people in District 19, unconnected with Mr. Tony Boyle . . ."
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Basically, Boyle sought to show through the audit*fn10 that financial matters in District 19 were irregular*fn11 and that Yablonski had threatened to investigate District 19, in order to provide a basis from which the jury would conclude that the officials of District 19, namely Pass and Turnblazer, had a motive for the slayings which Boyle did not share.
It is well-established that proof of facts showing the commission of the crime by someone else is admissible. Commonwealth v. Loomis, 270 Pa. 254, 113 A. 428 (1921); Commonwealth v. Winegrad, supra. The Commonwealth had shown that Pass and Turnblazer committed the crimes involved herein and the only issue was whether Boyle was also involved in the commission of those crimes. In order to establish a basis from which to infer he was not, he clearly should have been allowed
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to show Pass and Turnblazer had a motive for killing Yablonski which he did not share because, although motive is not an essential element of the crime, it is always relevant and admissible. Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976). Thus, in order to show Pass and Turnblazer were the originators of the conspiracy so that the jury might infer he was not a party to the conspiracy, Boyle should have been allowed to show their motive for effectuating the slayings. The offer as stated would have shown the accounts of District 19 were irregular and when coupled with the remainder of the offer, that Yablonski had threatened to investigate District 19, the evidence if admitted would have shown Pass and Turnblazer had a motive of their own to formulate and carry out the conspiracy.
Moreover, the testimony was undoubtedly very important to the jury's consideration because in this case one of the officials, who may have had an independent motive, namely Turnblazer, provided crucial testimony connecting Boyle to the conspiracy. Furthermore, Turnblazer's credibility was one of the most important issues of fact for the jury to resolve; as noted before he was shown on cross-examination to have provided contradictory versions of the events on numerous prior occasions, and despite his admission of guilt to serious crimes, he had not yet been sentenced.
In sum, if Boyle could have shown what he proposed, the jury would have been faced with determining whether Turnblazer and Pass acted without Boyle's knowledge because they wished to keep the irregularities of District 19's finances unknown to others or whether they acted on Boyle's directions because of Boyle's fear of having the election overturned. Because of the court's ruling, the jury was unaware of any independent motive on the part of Pass and Turnblazer. The ruling thus denied Boyle his right to present relevant, material and competent
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evidence from which the jury might have inferred he was not involved in the Yablonski slayings.
Accordingly, the judgments of sentence are reversed and a new trial is ordered.
ROBERTS, Justice (concurring).
I join in the majority opinion insofar as it holds that appellant is entitled to a new trial because evidence he offered was improperly excluded by the trial court.
NIX, Justice (dissenting).
While I agree that it was error to prevent the defense from introducing the testimony of Thomas Kane, I do not believe that it reaches the magnitude to justify the reversal of the judgment of sentence. I therefore dissent.
Concededly, the introduction of evidence which, if believed, would provide an independent basis for hostility by the officers of District 19 directed towards the victim, Mr. Joseph Yablonski, might support the appellant's contention that this crime was conceived and carried out without his participation or knowledge. However, this testimony also is susceptible to the equally strong (or possibly even stronger) inference that the fear of disclosure of the mismanagement of the funds of the Local made the members thereof more susceptible to Boyle's urgings. It is quite probable that one who seeks an accomplice in a heinous deed such as this would look to another who shared the feeling of enmity towards the intended victim.
In my judgment the introduction of this testimony had at best a tenuous connection with the ultimate finding of
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guilt or innocence and was of such a nature that its impact was more likely to have been adverse to the appellant's position rather than helpful. The mere fact that two individuals' dislike for a third person stems from different motives in no way refutes the possibility that those individuals will act in concert in giving vent to this feeling. In such a posture the exclusion of this testimony, although improper, could hardly be considered reversible error.