James E. O'Brien, Peter G. Loftus, Scranton, for appellant.
Paul R. Mazzoni, Dist. Atty., William J. Garvey, Ernest J. Gazda, Jr., Scranton, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion.
Appellant, Adam Andrew Topa, was tried before a jury and convicted of murder in the first degree. From his conviction he filed a motion for new trial delineating fifteen reasons in support thereof. The court en banc denied appellant's motion. On this appeal, appellant urges us to re-examine six issues which he believes warrant reversal and command a new trial. Five of these arguments relate to the use made by the Commonwealth of a tape recording of a telephone call received by the police from an individual who identified himself as "Roger Ferretti" and claimed to have committed the murder for which appellant was convicted.*fn1 Because we find that
the trial court erred in allowing expert testimony concerning spectrograph, or voiceprint, analysis of the recorded telephone call, we reverse the judgment of sentence and remand for a new trial.
This case begins on Sunday, October 22, 1972, at about 12:40 p. m. with the discovery, by two boys hiking through a remote area near St. Patrick's Cemetery in Blakely, Pennsylvania, of the body of a woman. One of the boys ran to his grandmother's house to alert his father who was a medical doctor. Upon their return, the doctor made a cursory examination of the body and determined that the person had expired. Shortly thereafter, several police officers arrived as did the coroner of Lackawanna County. The coroner identified the decedent as Mary Ellen Walsh.
The following is a summary of the evidence of the crime introduced at trial. It is presented in the light most favorable to the Commonwealth as verdict winner. See Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); Commonwealth v. Boyd, 461 Pa. 17,
A.2d 610 (1975); Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975):
(1) Four witnesses saw appellant with the victim on the evening before her body was found. Two of the witnesses described the victim's clothing and identified her coat in court. One of the witnesses identified appellant's jacket in court.
(2) The victim's body was discovered in an area which was accessible only by means of a rutty, lightly traveled road composed of mud, stone, rock and shale.
(3) On the day the victim's body was discovered, appellant was observed, by several policemen, driving past the crime scene. When he saw the officers he rapidly left the area.
(4) About a quarter of an hour later the Scranton police received a telephone call from "Roger Ferretti". This call was taped in the normal course of police operations. This caller claimed to be telephoning from a local VFW post, and also stated that he had just stabbed a woman in the cemetery. An expert testified that, on the basis of voiceprint comparison tests he had performed, appellant was the caller.
(5) Mr. Roger Ferretti testified that he did not make the call to the Scranton police, and further testified that at about 1:30 p. m. on the day the call was made, appellant was in the VFW post staring at him strangely. Ferretti stated that when he asked appellant why he was staring at him, appellant replied that he was mad at Ferretti.
(6) Approximately one hour after the call was made, appellant was seen by the state police in the VFW post with what was suspected to be a bloodstain on his jacket sleeve. He was taken into custody and interrogated.
(7) Blood on appellant's jacket sleeve was inconsistent with his own blood, but was consistent with the victim's blood.
(8) Wool fibers taken from the bloodstain on the jacket were identical with fibers taken from the victim's coat. An expert testified that the fibers were located in the stain in such a way that they could only have been deposited in the stain when the blood was still wet.
(9) Appellant was missing a button from his jacket. A button found near the body was identical to the remaining buttons on appellant's jacket.
(10) The victim's body revealed thirty-five stab wounds on the right side of her trunk, one of which punctured a main vein of the body. These ...