Nos. 199 and 221 January Term 1977, Appeals from Judgments of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at Nos. 2168-D May Term 1975
James P. McHugh, Chester, for appellant.
D. Michael Emuryan, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Nix, J., filed a dissenting opinion in which Larsen, J., joins.
Following his arrest in Delaware County for murder and related crimes, Floyd Wilson, Jr., incriminated himself in oral and written statements to the police. A pretrial motion to suppress evidence of these incriminations was denied after an evidentiary hearing. Subsequently, Wilson was brought to trial before a jury and was found guilty of
murder of the first degree, attempted robbery, criminal conspiracy, and crimes committed with firearms. Post-verdict motions were denied, and a sentence of life imprisonment was imposed on the murder conviction. Additional prison sentences were imposed on the robbery and conspiracy convictions. An appeal from the life imprisonment sentence was filed directly in this Court. An appeal filed in the Superior Court from the other judgments of sentence was later certified here.
In his opening statement at trial, the assistant district attorney told the jury of Wilson's incriminating statements following his arrest and quoted from the written statement.*fn1 However, the statements were not introduced into evidence or referred to again during the trial. Wilson contends the foregoing violated his constitutional right of confrontation (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)) and caused an unfair trial. Since we agree with the latter contention, we need not reach the Bruton issue.
If a confession is introduced into evidence at trial, the accused has the right to cross-examine those who verify it as to the circumstances and contents. He may also question its accuracy and even deny making it. Here, Wilson was denied the opportunity of making any inquiry as to the confession, its contents or circumstances even though the jury was effectively made aware that he had confessed and that he had "signed a written confession, signed it on each and every page of the confession, and his father signed the confession at the end." Additionally, the jury was told by the assistant district attorney that Wilson had lied and tried to mislead the police as to the gun. All of this was without support in the record.
The most devastating evidence against one accused of crime is a confession or admission of guilt. This case is no exception. Even instructions such as were given here by the court to the jury cautioning that they should dismiss the statement from "your mind" and let it not "enter into your deliberations" could not erase the impact of having the jury know Wilson had confessed. Any person conversant with the mental process of a jury in determining the guilt or innocence of an accused would be hard put to honestly deny this.
The Commonwealth urges that the assistant district attorney was acting in good faith during his opening presentation to the jury and intended as of that moment to make evidentiary use of Wilson's "confession," but changed his mind as the trial progressed. Suffice it to say, the good faith of the prosecuting official does not lessen the prejudice suffered by Wilson.
Next, the Commonwealth, without specifically saying so, implies the issue has not been preserved for appellate review because Wilson's counsel "indicated satisfaction" with the trial court's cautionary instructions to dismiss the statement from "your mind." Under the singular ...