No. 535 January Term, 1978, No. 105 January Term, 1979, Appeal From Judgment Of Sentence Dated November 28, 1978, By The Court of Common Pleas, Trial Section, Criminal Division, Philadelphia County, May Session, 1972, Nos. 2080, 2081, 2084
Isadore A. Shrager (Court-appointed), Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Eric Henson, Asst. Dist. Atty., for appellee.
Larsen, Justice. Nix, J., concurred in the result.
In 1972, Maxie DuBose was shot and killed during a robbery at the Jamaica Inn in Philadelphia. In his first trial before a jury for his participation in the robbery and shooting, appellant Andre Shaw was convicted of murder of the first degree, aggravated robbery and burglary. On direct appeal, this Court reversed appellant's judgments of sentence and awarded him a new trial, holding that appellant's arrest was illegal and that the lower court had erred in admitting certain physical evidence which was obtained through the exploitation of that illegal arrest. Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d 496 (1978). Prior to retrial, the lower court suppressed appellant's confession because it was found to be the product of his illegal arrest. In his second trial before a jury, appellant was convicted of murder of the second degree and aggravated robbery, and was sentenced to two consecutive terms of imprisonment of ten to twenty years each. This direct appeal followed.
At appellant's second trial, the Commonwealth called Nathaniel Miller to testify concerning the robbery and shooting at the Jamaica Inn. Miller, a/k/a Abu-Ibn Hanifah Bey, was arrested and charged along with appellant for his participation in the robbery and shooting, and his separate trial resulted in convictions for murder of the second degree, aggravated robbery and burglary. On appeal, this Court reversed the judgments of sentence and ordered a new trial on the grounds that Miller's confession was the product of unnecessary pre-arraignment delay and was admitted into evidence in violation of Rule 118 (now Rule 130), Pa.R.Crim.P. and this Court's decision in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Commonwealth v. Abu-Ibn Hanifah Bey, 462 Pa. 533, 341 A.2d 907 (1975). The Commonwealth subsequently nolle prossed the charges against Miller and advised him by letter that he would never be reprosecuted.
Prior to and during the course of Miller's testimony at appellant's second trial, the prosecutor presented Miller with his signed written confession for the purpose of refreshing Miller's memory. Although Miller looked at his confession at least five times during his testimony and each time stated that the confession had refreshed his memory, he was still "unable" to recall whether he and appellant were accompanied by a third man at the Jamaica Inn; where appellant went once inside the bar; whether appellant accompanied him when he left the bar just before the robbery; whether appellant was with him when he reentered the bar just before the robbery; what happened inside the bar during the robbery; who had the shotgun; who fired the shot that killed Mr. DuBose; and who accompanied him when he left the bar after the robbery and shooting. The answers to all these questions were contained in Miller's confession. When asked where he was at the time of his arrest, Miller's initial response was that the answer was in his confession. Finally, when the trial judge sought to ascertain whether Miller had an independent recollection of the incident, Miller's answer to two more inquiries was to the effect that he had already
testified to everything he could remember, and three further responses were to the effect that he could only offer additional information by actually reading from his confession.
At this point, the Commonwealth requested permission to read Miller's confession into evidence. Following extended argument in chambers, the court granted this request, holding that Miller's confession was admissible as a prior inconsistent statement and that it could be considered as substantive evidence under the reasoning of Mr. Justice Roberts' dissent in Commonwealth v. Gee, ...