Nolan N. Atkinson, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the consideration or decision of this case. Mr. Justice Pomeroy filed an opinion in support of affirmance in which Mr. Chief Justice Eagen and Mr. Justice O'Brien join. Mr. Justice Roberts filed an opinion in support of reversal in which Mr. Justice Nix and Mr. Justice Manderino join.
The Court being equally divided, the judgments of sentence are affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
Appellant Joseph Britt Wiggins was convicted by a jury of the offenses of robbery, burglary and murder of the first degree in connection with the death of Carol Benson. After the denial of his post-verdict motions, appellant was sentenced to life imprisonment on the murder
conviction and to concurrent sentences of ten to twenty years imprisonment on the robbery and burglary convictions. This direct appeal followed.*fn1
Several errors are advanced in support of reversal. One of these relates to an alleged violation of the guarantee against double jeopardy; two relate to the failure of the court of common pleas to suppress certain statements; and two relate to alleged errors at trial. Finding these assignments of error to be without merit, we will affirm the judgments of sentence.
In all cases of first degree murder this Court is required by statute to "determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist." Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187 (1964). It is well settled that "the test of sufficiency of evidence is whether, accepting as true all the evidence, together with all reasonable inferences 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. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974); Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975); Commonwealth v. Long, 460 Pa. 461, 463, 333 A.2d 865, 866 (1975). It is clear, moreover, that such evidence is to be considered in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Green, supra; Commonwealth v. Long, supra; Commonwealth v. Rife, 454 Pa. 506, 509, 312 A.2d 406 (1973); Commonwealth v. Rankin, 441 Pa. 401, 404, 272 A.2d 886 (1971).
See also Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825 (1975); Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975).
In this case the Commonwealth's evidence at trial consisted largely of two inculpatory statements obtained by police from appellant. In the first statement appellant stated that he "didn't mean to kill [the victim]." He stated that he climbed in a window of Carol Benson's home and threw something around her neck, and that Benson then fell back, hitting her head. The second statement was in more detail. In it Wiggins stated that he had climbed in the victim's bathroom window in order to get "some money or a TV;" that the victim awoke and began screaming; that a struggle ensued between Wiggins and Benson during which the victim was pushed to the floor; and that Wiggins then fled. A medical examiner for the Commonwealth testified that Carol Benson's death was caused by injuries to her head from a blunt instrument. Review of these facts, and the entire trial record, satisfies us that the evidence was sufficient to sustain the conviction of murder in the first degree.
Appellant first claims that his trial, which followed an earlier mistrial, caused him to be placed twice in jeopardy for the same offense in violation of the United States and Pennsylvania Constitutions.*fn2 We disagree.
Wiggins had originally been arrested for rape. Neither the first nor the second trial, however, involved the charge of rape. At the first trial, the Commonwealth called as a witness the arresting officer, a Detective Lynch, to testify as to appellant's initial admission of implication
in the murder. On request for an offer of proof, the trial court ruled the testimony admissible, with the understanding that there would be no testimony concerning offenses not the subject of the prosecution before the court.*fn3 The witness was asked: "And tell the jury exactly what you told the defendant at that time with respect to these warnings [of his constitutional rights]." Detective Lynch replied: "Told the defendant that he was under arrest for rape." Defense counsel immediately moved for a mistrial which was granted.
On this appeal Wiggins concedes that Detective Lynch's testimony causing the declaration of a mistrial was "not [given] pursuant to the instructions of the Assistant District Attorney," but argues that "the prosecution must be responsible for its witnesses." Appellant's Brief at 11. We are not persuaded, however, that the detective's testimony should be imputed to the Commonwealth.*fn4 Thus, this is not a case where retrial should be barred because of deliberate prosecutional misconduct designed to secure a more favorable opportunity to convict the accused. See Commonwealth v. Wright, 439 Pa. 198, 201, 266 A.2d 651, 653 (1970); Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967); Commonwealth v. Warfield, 424 Pa. 555, 227 A.2d 177 (1967); Commonwealth ex rel. Montgomery v. Myers, 422 Pa. 180, 220 A.2d 859 (1966).
Appellant next contends that inculpatory statements he made to the police should have been suppressed. Two arguments are advanced: first, Wiggins was neither advised that he was a murder suspect nor given Miranda warnings when the focus of the investigation shifted
from rape, for which he originally had been arrested and charged, to homicide; and second, the statements were obtained as a result of a period of unnecessary delay between arrest and preliminary arraignment.
For an understanding of appellant's claims it is necessary to recite in some detail the sequence of events in connection with his custody by the police. They are as follows: Wiggins was arrested at 5:45 a. m. on November 21, 1973 for rape and related offenses. He arrived at the South Detective Division in Philadelphia at 6:05 a. m., and at 6:30 a. m. was warned of his constitutional rights, which he waived. During preliminary questioning of appellant between 6:35 a. m. and 8:00 a. m., he made an incriminating oral statement in which he admitted involvement in ten rapes in the Tasker Area Housing Project. After a 45 minute break, appellant accompanied police to the Project Area where he pointed out the locations of the rapes to which he had earlier confessed. The taking of a formal statement began at 11:45 a. m. after Wiggins had been rewarned of his rights. After two hours Wiggins was allowed to rest and attend to his physical needs. The taking of the formal statement resumed at 2:30 p. m. and was completed at about 4:30 p. m.
At some point during the second half of the taking of the formal statement, the police became suspicious that appellant was involved in an unsolved murder, that of Carol Benson. This belief arose from the similarity between the method, as described by Wiggins, that he had used to attack the rape victims, and the manner in which the murder victim had been attacked. In addition, the rapes and the homicide occurred in the same general area. Their suspicions thus aroused, the police informed Wiggins at about 4:30 p. m. that he would be transferred to homicide ...