No. 42 May Term, 1978, Appeal from Order of the Court of Common Pleas, Criminal Division, of York County, at No. 943 August Sessions 1974
Nathaniel W. Boyd, IV, Bruce C. Bankenstein, York, for appellant.
John C. Uhler, Dist. Atty., Floyd P. Jones, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Nix, J., filed an Opinion in Support of Affirmance in which Larsen and Flaherty, JJ., joined. O'Brien, J., filed an Opinion in Support of Remand in which Eagen, C. J., and Roberts, J., joined.
The Court being equally divided, the order of the Court of Common Pleas of York County is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
The result advocated by the Opinion in Support of Remand would strike a major blow to the efficient and orderly administration of criminal justice in this Commonwealth. Their view would force the Commonwealth to engage in endless retrials at considerable expense, simply because they misapply precedent and ignore the real impact of their decision. We cannot agree.
Jose Sanabria was convicted by a jury of second degree murder in the death of Elizabeth Bilger, an elderly York County woman, who was beaten to death with a tire iron during the course of the robbery of her home. This Court found sufficient evidence to sustain the conviction. Commonwealth v. Sanabria, 478 Pa. 22, 385 A.2d 1292 (1978). This Court also rejected Sanabria's contention that the trial court erred in permitting Michael Myers, a co-defendant, to invoke the fifth amendment privilege against self-incrimination. In so holding, we stated:
Michael Myers, a co-defendant of appellant, pled guilty to murder generally for his involvement in the slaying of Elizabeth Bilger. No degree of guilt hearing had yet been conducted and, therefore, judgment of sentence had not been imposed upon Myers. Appellant subpoenaed Myers
and sought the testimony of Myers to support his claim that he had no prior knowledge of the homicide. An in camera hearing was held at which time Myers indicated that he would invoke the Fifth Amendment's protection against self-incrimination. The Trial Court sustained this right. Appellant's argument is based on a theory that once Myers pled guilty, even though ...