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COMMONWEALTH PENNSYLVANIA v. BERNARD SPARROW (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNARD SPARROW, A/K/A BERNARD JOHNSON, APPELLANT (TWO CASES)



COUNSEL

James J. DeMarco, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined. Nix, J., filed a dissenting opinion, in which Roberts, J., joined.

Author: Pomeroy

[ 471 Pa. Page 494]

OPINION OF THE COURT

Following a trial before a jury, appellant was convicted of murder in the first degree and aggravated robbery. He filed timely motions for a new trial and in arrest of judgment which were denied by the court en banc. He was subsequently sentenced to life imprisonment for murder and to a consecutive term of from ten to twenty years imprisonment for robbery. This appeal followed.*fn1 Appellant presents a number of assignments of error, none of which, we have concluded, merits reversal. Accordingly, we will affirm.

The evidence presented at trial, viewed in a light most favorable to the Commonwealth as verdict winner, established the following facts. In the late afternoon of October 15, 1971 one Keith Moore obtained a silver-barrelled .32 caliber pistol from a friend. Shortly thereafter Moore learned from his brother and two others that Bernard Sparrow, the defendant, was looking for him. The four men then left Moore's house and began walking,

[ 471 Pa. Page 495]

Moore taking the gun with him in a paper bag. One member of the group, Erie Boyd, left the others for a short while and returned with two bullets. He thereupon asked for and was given the gun, which he placed in his trousers.

Soon the group was augmented by two other persons, Kenneth Wallace and Jerome Bryant. Bryant informed the others: "We're rumbling white boys at 16th and Morris." He asked if any of the others had a weapon, whereupon the pistol was given to Bryant by Boyd, and loaded. Later Wallace asked for the weapon and Bryant complied. As the group reached the corner of Dickinson and Mole Streets in Philadelphia they were joined by the defendant, who demanded the pistol from Wallace and was given it. Sparrow was then heard to boast: "I'm going to get me a homicide." He made it clear that the object of his remark would be a white person.

Sparrow, Bryant and Wallace, separated from the other members of the group, then proceeded along Mole Street. Sparrow carried the gun underneath his coat and expressed his intention to rob someone. As they were walking, an automobile being driven along Mole Street stopped and a white male alighted. This person, later identified as Joseph Jaworski, opened the car's trunk and began removing some pies. Wallace walked past Mr. Jaworski, but Bryant and Sparrow approached him from opposite directions, the appellant from the sidewalk side and Bryant from the street side. Sparrow waved the gun in Jaworski's face, saying, "You don't think this gun is real, do you?" When Jaworski rejoined that he did believe the gun was real, the defendant ordered, "Give me your money." Jaworski told the defendant he didn't have any money and began calling for help. As he was shouting, the defendant fired the pistol once, killing Mr. Jaworski instantly. Sparrow was subsequently arrested, tried and convicted as detailed above.

[ 471 Pa. Page 496]

At trial, the appellant testified in his own behalf, giving an account of his actions at the time of the shooting which differed from that which he had given to the police during interrogation following his arrest. On cross-examination the prosecuting attorney confronted Sparrow with his testimony at a pre-trial suppression hearing that his statements to the police were true. It is now contended that this use of the suppression record violated Pa.R.Cr.P. 323(g), 19 P.S. (1975 pamphlet).*fn2 We considered and rejected this argument in Commonwealth v. Ravenell, 448 Pa. 162, 292 A.2d 365 (1972), wherein we observed: "[W]henever a defendant's credibility is an issue it is in 'the interests of justice' to show that he had testified in a completely contrary manner at an earlier hearing in the same case. To decide otherwise would be tantamount to the condoning of perjury." 448 Pa. at 174, 292 A.2d at 371. See also Commonwealth v. Good, 461 Pa. 546, 552-553, 337 A.2d 288, 291 (1975). There was here no misuse of suppression testimony.

The statements made to the police were themselves also used by the prosecution to impeach Sparrow on cross-examination at trial. Error is assigned to such use on the ground that, although the suppression court had held the statements to be voluntary, they were obtained in violation of appellant's constitutional rights, and therefore could not be used for any purpose.*fn3 See Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975).

[ 471 Pa. Page 497]

The main thrust of this argument is that the confession was involuntary because (among other reasons) of denial of access to appellant's lawyer during the police interrogation.*fn4 The suppression court heard all of the evidence relating to the circumstances under which the statements were obtained, including conflicting testimony on the question whether the defendant had requested and been denied an opportunity to consult with an attorney. The court found that the statements were voluntary and that none of appellant's constitutional rights had been denied him. Under these circumstances, as we have held, "[t]he findings of the trier of fact, supported by the record, may not be disturbed. Commonwealth v. Karchella, 449 Pa. 270, 273, 296 A.2d 732, 733 (1972); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33,

[ 471 Pa. Page 49839]

(1972)." Commonwealth v. Johnson, 457 Pa. 554, 557-58, 327 A.2d 632, 634 (1974).*fn5

[ 471 Pa. Page 499]

Appellant also objects to the latitude allowed the district attorney in the cross-examination of Sparrow's sister, Joan Sparrow. Before trial, Joan made certain threatening remarks to a prosecution witness. After she had testified on behalf of her brother, she was asked by the district attorney if she had made such threats, and whether she had been warned by the district attorney that it was illegal to threaten a witness. The trial court overruled objections to these questions and Joan Sparrow then answered affirmatively. "[T]he scope or limitation of cross-examination is largely within the discretion of the trial court, and its action will not be reversed in the absence of an abuse of such discretion. Commonwealth v. Woods, 366 Pa. 618, 79 A.2d 408 (1951)." Commonwealth v. Cheatham, 429 Pa. 198, 203-04, 239 A.2d 293 (1968); see also Commonwealth v. Page 500} Petrakovich, 459 Pa. 511, 523, 329 A.2d 844, 859 (1974). We find no abuse of discretion here. As this Court said long ago in the case of Commonwealth v. Farrell, 187 Pa. 408, 41 A. 382 (1898): "Whatever tends to show the interest or feeling of a witness in a cause is competent by way of cross-examination." 187 Pa. at 423, 41 A. at 384. See also Commonwealth v. Coades, 454 Pa. 448, 452, 311 A.2d 896 (1973); Commonwealth v. Cheatham, supra; Lenahan v. Pittston Coal Mining Co., 221 Pa. 626, 70 A. 884 (1908); Commonwealth v. Emmett, 74 Pa. Super. 86 (1920). Questioning concerning the witness' alleged threats was obviously designed to bring out the strength of Joan's "feeling" towards her brother; the fact that she made them was a significant factor to be considered by the jury in passing upon her credibility.*fn6

We consider next appellant's argument that the trial court unduly restricted the scope of the voir dire examination and improperly denied several challenges for cause. For the most part, the questions defense counsel was not permitted to ask fell into two categories: first, questions through which counsel sought to ascertain the attitude of veniremen toward the defendant, including why they felt they were not prejudiced against him; second, questions seeking to explore prospective jurors' reactions to the possible failure of the defendant to take the stand or present any evidence on his behalf. Both types of inquiry are foreclosed by our decision in Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). As to the first category of questions, we there said, "The only legitimate inquiry in this area was

[ 471 Pa. Page 501]

    whether or not the juror had formed a fixed opinion in the case as to the accused's guilt or innocence." 427 Pa. at 298, 234 A.2d at 561 (emphasis added). Concerning the second type of questions, we said in Lopinson that such questions are "wholly unwarranted and properly excluded." Id.

As to the challenges for cause which are now claimed to have been improperly denied, we must bear in mind "that the scope of the voir dire examination rests in the sound discretion of the trial judge and his decisions, even in a challenge for cause, will not be reversed in the absence of palpable error." Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A.2d 467, 471 (1953); Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). Applying this rule, we find that no abuse of discretion occurred. In each case the record shows that none of the prospective jurors so challenged was possessed of any animus towards the appellant, or entertained a fixed opinion as to his guilt or was for any other reason subject to disqualification for cause.

Finally, in addition to the alleged trial errors we have discussed, Sparrow urges reversal of his robbery conviction (or at least vacation of the sentence for robbery) on the ground that his Fifth Amendment guarantee against double jeopardy was violated when he was sentenced on both the murder and the robbery convictions.*fn7 His theory is that the offense of robbery

[ 471 Pa. Page 502]

    merged into the offense of robbery-murder, and so disappeared as a separate crime for which he could be sentenced.

There was ample evidence in the case (such, for example, as Sparrow's announced purpose, "I'm going to get me a homicide") from which the jury could find that the slaying of Joseph Jaworski was wilful, deliberate and premediated. Were that the basis of the verdict of murder in the first degree, there would be no room for the double jeopardy argument. But the jurors were charged that they could also return that verdict if they determined that the killing occurred during the commission of a robbery. Since there is no way of knowing on which theory the jury proceeded, we must consider appellant's contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable. We conclude that the argument is without merit.

[ 471 Pa. Page 503]

Our decisions on the doctrine of merger are not altogether harmonious. In general, however, the rule has been limited to situations where the offenses involved were in effect merely degrees of the same principal crime and the same facts proved both. The focus has been on the conduct of the defendant; if there is essentially but one criminal act, there can be but one punishment.*fn8 An obvious example is that of an attempt to commit an offense, and the completed offense; the former merges into the latter. See also Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 142 A. 317 (felonious assault with intent to maim and disfigure, merges into felonious assault with intent to murder); Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1941) (assault and battery with intent to commit rape and aggravated assault and battery merge into rape); Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973) (assault and battery in resisting arrest merges into assault and battery). These cases bear out the formulation of the doctrine in Russo, supra, that "where the distinct crimes set forth [in an indictment] grow out of the same transaction, differing only in degree, only one penalty can be imposed after conviction". 293 Pa. at 324, 142 A. at 318.

The test for merger was restated in Commonwealth ex rel. Moszcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) as follows:

"The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two ...


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