No. 24 March Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division at CC 7601268 A
Harry Stump, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Charles W. Johns, Kemal Alexander Mericli, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a dissenting opinion. Larsen, J., did not participate in the decision in this case.
Appellant, Clarence Miller, was convicted of murder of the first degree after a jury trial in Allegheny County and sentenced to a term of life imprisonment. This is a direct appeal from the judgment of sentence.
Reading the record in the light most favorable to the Commonwealth, it discloses the following:
The victim, George Wilhelm, first met Miller in 1974. Miller and two associates, Orlosky and Goldblum, developed an elaborate scheme to defraud Wilhelm under the pretense of acquiring government land for him. In all, Wilhelm was defrauded of over twenty-one thousand dollars ($21,000.00). Wilhelm contacted the Federal Bureau of Investigation when he discovered the fraud, but Miller and Goldblum persuaded him to disclaim the complaint. Subsequently, Goldblum decided to set fire to a restaurant he owned in order to collect the insurance money so that he could satisfy a federal income tax debt. He offered Wilhelm three thousand dollars ($3,000.00) to commit the arson. Wilhelm set the fire but never received the full amount promised. Later, Goldblum expressed concern to Miller regarding Wilhelm's demands for payment and threats to inform law enforcement authorities of the arson.
Miller and Goldblum met in Pittsburgh on February 8, 1976 and agreed to silence Wilhelm by stabbing him. Miller agreed to lure Wilhelm to the site of the stabbing for a sum of fifty dollars ($50.00). On February 9, 1976, the three men met in downtown Pittsburgh. Goldblum told Wilhelm he had his money and requested Wilhelm to drive him and Miller to the roof level of a parking garage or, ostensibly, to Goldblum's automobile. When Wilhelm stopped his vehicle in the garage, Goldblum hit him over the head with a wrench causing him to slump out of the car. Goldblum began stabbing Wilhelm with a blade of a grass shear. The stabbing continued as Wilhelm, trying to recover, crawled around the floor of the garage. When he managed to pull himself up against the side wall, Goldblum struck him, and Wilhelm fell over the wall to the roof of a walkway to an adjoining building. Miller and Goldblum fled the scene. Wilhelm was discovered lying on the roof crying for help and died shortly thereafter from internal bleeding caused by the multiple stab wounds. Before death, Wilhelm told the police: "Clarence Miller did this to me."
During the police investigation that followed, Miller was taken into custody, and he implicated Goldblum. Thereafter, he cooperated with the police and testified as a Commonwealth witness at Goldblum's trial. Goldblum was convicted of murder of the first degree.
Prior to his own trial, Miller filed a motion to dismiss the charges against him. He alleged his cooperation with the police and his testimony at Goldblum's trial were induced by actions and statements on the part of the police and the district attorney's office which gave Miller and his trial counsel the impression that the prosecuting authorities had concluded Miller was not criminally responsible for the stabbing of Wilhelm, and this "impression" caused trial counsel to render less than effective assistance to Miller's prejudice and, thereby, denied him due process. After an evidentiary hearing, the trial court denied the motion to dismiss. This ruling is the first assignment of error.
The relevant facts follow:
Miller was taken into police custody on March 10, 1976. On that day, he made two statements to the police. The first was exculpatory, but, in the second, he stated Goldblum stabbed Wilhelm and he helped lure Wilhelm to the site fully aware of Goldblum's intentions.
Thereafter, Miller was hospitalized and visited by an attorney friend, Vincent C. Murovich, Esquire, who eventually became Miller's trial counsel. During the hospital visit, Miller told Murovich, Goldblum was guilty of the attack on Wilhelm and he, himself, was innocent of any wrongdoing. He did not tell the attorney that he had made two statements to the police and/or that he had told the police that he had helped lure Wilhelm to the scene of the attack knowing Goldblum planned to stab him. After hearing Miller assert Goldblum was alone involved in the stabbing, Murovich agreed to be Miller's counsel if Miller took a lie detector test and it established his innocence.
The lie detector test was administered, and police officer Amity told Murovich, Miller "flunked it." Murovich asked another officer, Condemni: "Is he telling the truth? Did this really happen?" Condemni responded: "No, he passed it, but it was shaky in some areas." Murovich did not inquire what questions were asked nor did he seek to know what areas were shaky. The police officers did not inform Murovich of Miller's self-incriminations when he was first arrested nor the specific results of the lie detector test, and Murovich first learned of Miller's inculpatory statements to the police shortly before or during the Goldblum trial.*fn1
After the lie detector test was concluded and upon receiving the word that Miller had passed the test, under the circumstances outlined before, Murovich advised Miller to cooperate fully with the police.
Thereafter, Miller testified as a Commonwealth witness at the coroner's inquest at which both he and Goldblum were held for court on the murder charge. During his testimony at the inquest at the instance of an assistant district attorney, Miller refrained from giving any testimony concerning the motive for the Wilhelm attack.
Miller subsequently gave the police a third statement in which he said he helped lure Wilhelm to the garage so Goldblum could "beat him." After this statement, Miller was given another lie detector test focusing on his statement as to why Wilhelm was lured to the garage. After this test, Murovich was allegedly led to believe by an officer Freeman that Miller passed the test.
Specifically, Freeman told Murovich "he was 100 percent sure that [Miller] did not stab Wilhelm."*fn2 Murovich was aware of Officer Freeman's attempts to obtain bail for Miller in order for him to aid in the investigation. Miller gained bail and was again advised by Murovich to cooperate fully with the police.
Following the foregoing events and as the date for Goldblum's trial approached, Murovich, Miller, and assistant district attorney Dixon met and conferred on Miller's testimony at the trial. After about 15 minutes of discussion, Murovich prepared to leave saying: "You two seem to be getting along real well" and inquired: "Do you think you will be ...