No 448 January Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal, of Bucks County, at No. 2472 of 1972
Edward A. Stutman, Philadelphia, for appellant.
David W. Heckler, Deputy Dist. Atty., Stephen B. Harris, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., did not participate in the decision of this case. Eagen, C. J., files a concurring opinion. Roberts, J., files a concurring and dissenting opinion. Nix, J., files a concurring and dissenting opinion in which Larsen, J., joins. Larsen, J., files a separate concurring and dissenting opinion.
Appellant, Philip Newmiller, was convicted by a jury of murder of the first degree. Post-verdict motions were denied and he was sentenced to life imprisonment. This direct appeal followed.
Appellant's conviction resulted from the homicide of Carl Ernst on October 10, 1972. At that time, appellant was the paramour of Donna Ernst, the victim's wife. Appellant usually visited the Ernst residence on nights when the victim was not at home. On the night of the slaying, the victim's usual bowling night, the victim arrived home earlier than expected. A fight broke out between the victim and appellant and appellant stabbed the victim. The victim died as a result of the stab wounds.
Appellant first argues that his conviction for murder of the first degree was violative of the double jeopardy clause of both the United States Constitution and the Pennsylvania Constitution.
On February 4, 1974, appellant entered a plea of guilty to murder of the second degree, pursuant to a negotiated plea bargain with a recommended sentence of four to fourteen years. Following a hearing, the trial court accepted the plea and sentenced appellant pursuant to the negotiated plea. On December 16, 1974, appellant filed a petition pursuant to the Post-Conviction Hearing Act,*fn1 alleging, inter alia, that the plea was not voluntary. On May 16, 1975, the post-conviction court entered an order allowing appellant to withdraw his plea of guilty and vacating the judgment of sentence.
On September 16, 1975, the first day of appellant's trial, he made an oral motion that murder of the first degree should not be submitted to the jury. He argued that the trial court's acceptance of the guilty plea to murder of the second degree acted as an implied acquittal to the charge of
murder of the first degree. The court denied appellant's motion and eventually submitted the charge of murder of the first degree to the jury. On September 23, 1975, appellant was convicted of murder of the first degree.
Appellant argues that his conviction for murder of the first degree, following an overturned negotiated guilty plea to murder of the second degree, violates the provisions against double jeopardy contained in both the United States and Pennsylvania Constitutions. This court was presented with the same issue, on facts procedurally similar in Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979). This court was equally divided in Klobuchir. We believe the opinion in support of affirmance (by Justice Nix, joined by Justice O'Brien and Justice Larsen) presents the proper analysis and result, and we, therefore, rely upon that opinion. The opinion in support of affirmance in Klobuchir found no violation of double jeopardy under either the United States or Pennsylvania Constitutions, reasoning that in a negotiated guilty plea to murder of the third degree, the defendant was never placed in jeopardy for murder of the first degree. While the trial court could find that the offense in question rose to murder of the first degree, the court could not impose sentence on such a finding because the defendant would then be allowed to withdraw his plea of guilty. Pa.R. Crim.P. 319(b)(3). In such circumstances, the court has the power only to reject the proposed plea agreement. Believing the opinion in support of affirmance in Klobuchir to be persuasive, we find no violation of the double jeopardy clause of either the United States or Pennsylvania Constitutions.*fn2
II. EFFECTIVE ASSISTANCE OF COUNSEL
Appellant next argues that he was denied effective assistance of counsel when his trial counsel failed to object to a portion of the court's charge to the jury. The court charged the jury as follows:
"There has been some argument made to you, I think it is fair to say by both sides, as to the absence of certain witnesses or the failure to call available witnesses possessing some peculiar knowledge concerning facts essential to a given party's case. The failure to call such a witness gives rise to an inference that the testimony of such uninterrogated witness would not sustain the contention of that party but this test or rule is not operative unless it appears to you that the absent witness had peculiar knowledge or means of knowledge rendering his testimony of importance to the party in the position to call him. Before invoking that rule, you must understand that which is, I assume, obvious, that being if a witness is equally accessible to both sides and there is no reason why one rather than the other should offer him, the rule, of course, does not apply." (Emphasis added.)
Trial counsel failed to object to this portion of the charge and appellant now argues that this failure amounts to ineffective assistance of counsel. The facts are as follows.
On the night of the killing, Donna Ernst, the victim's wife, was present in the house when the homicide occurred. When the police arrived at the Ernst home, Mrs. Ernst told police that her husband must have found an intruder in the house and that he must have been stabbed in the ensuing struggle. During their investigation, however, the police were informed that appellant was usually at the Ernst home on the victim's bowling night. Mrs. Ernst originally denied that appellant was present. A search of the Ernst residence convinced police that Mrs. Ernst was lying, and she finally told police that appellant had stabbed the victim. As Mrs. Ernst had lied to police, who then knew (or at least strongly suspected) that she and the victim were having an affair, the police secured a material witness warrant for Mrs. Ernst.
Following the withdrawal of appellant's guilty plea, trial was scheduled for September 16, 1975. Although Mrs. Ernst's name appeared on the murder indictment as a possible witness, the Commonwealth made clear during the early stages of the trial that it did not intend to call her as a Commonwealth witness. The following exchange occurred between the court and defense counsel:
"MR. SEROTA: Preliminarily, first, yesterday, Mr. Heckler made a representation to the Court that it was not his intention to call Donna Ernst. Your Honor indicated at that time that all that was necessary was Mr. Heckler make this information known to me and that she be made equally accessible to me.
"THE COURT: No, I did not say that. I said she may now be considered equally accessible to you. If that is so, the jury is entitled to know if that witness is equally accessible to both parties, they do not have the right to draw any inference of the party that does not call her, if the testimony would be adverse to that party.
"MR. SEROTA: May I briefly point out to the Court, sir, that I have spoken to Mr. Heckler, I have spoken to Mr. Alfred Shea who represents Mrs. Ernst, and they indicated to me, sir, that if she testified in a certain manner that, in fact, she might well be liable for prosecution, sir.
"THE COURT: This may be, but I am not going to allow a statement like that to appear on the record. If you wish to call her outside the presence of the jury and she invokes the Fifth Amendment, that is something else.
"MR. SEROTA: Most respectfully, what I am saying is, the Commonwealth has the right and capability to seek immunity for that witness, sir. The defense does not have that equal right. She is, therefore, not equally accessible to the defense, sir, on that basis. I ask that Your Honor reverse that previous ruling.
"THE COURT: I am not going to rule on anything in a vacuum. I do not know what you are saying is true. I know what you are saying to me you believe to be correct. I do not know she is going to invoke the Fifth Amendment.
"MR. SEROTA: What I am asking is that the Court direct the District ...