No. 80-1-183, Cross appeals from the Order of the Superior Court of Pennsylvania at Nos. 25 and 26 Special Transfer Docket entered on May 23, 1980, affirming Judgments of Sentence imposed in the Court of Common Pleas of the Fifth Judicial District Criminal Division at Nos. CC7601267, CC7604826, and CC7604830 on October 3, 1977 and reversing Judgment of Sentence similarly entered at CC7603198 on October 3, 1977 and remanding for new trial.
Charles F. Scarlata, Scarlata & DeRiso, Pittsburgh, Rodney F. Page, Howard V. Sinclair, Joseph E. Sandler, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Pittsburgh, for cross-appellant.
O'Brien, C. J., and Roberts, Nix, Flaherty, McDermott and Hutchinson, JJ. Nix, J., concurs in the result. Larsen, J., did not participate in the consideration or decision in this case.
On August 30, 1977, Charles J. "Zeke" Goldblum, was convicted by a jury of murder of the first degree, conspiracy to commit theft by deception, solicitation to commit arson, and arson. Post-trial motions were denied and judgments of sentence were imposed in which Goldblum was sentenced to life imprisonment for the murder conviction and consecutive sentences on the other convictions. The Superior Court, at Special Transfer Docket Nos. 25 and 26, before Judges Van der Voort, Lavelle, and Mr. Justice Larsen (who did not participate in the decision), affirmed all convictions except the conviction on the conspiracy charge, which they reversed, granting a new trial on the conspiracy count, 287 Pa. Super. 544, 427 A.2d 258. Goldblum now challenges the
affirmance of the convictions for murder, solicitation to commit arson, and arson, and the Commonwealth cross-appeals the Superior Court's reversal of the conspiracy conviction. For the reasons that follow, we affirm all convictions, and reverse the Superior Court's reversal of the conspiracy conviction.
A brief summary of the pertinent facts of the case is: Goldblum and Clarence Miller conspired to defraud George Wilhelm by selling him land in North Carolina owned by the United States Government. The fraud was made plausible by the facts that Miller and Wilhelm were friends and Wilhelm believed that Miller had political connections which might make such a sale of government land possible. Wilhelm paid the conspirators twenty thousand dollars in cash for this land, but later discovered that he had been defrauded and told the FBI that a fraud had been perpetrated by a person posing as the aide of United States Senator Schweiker of Pennsylvania. Goldblum and Miller persuaded Wilhelm to withdraw the statement he made to the FBI, telling Wilhelm to claim that his complaint was a political ruse, and promised to return the money paid for the land in North Carolina. Wilhelm and Miller thereafter submitted an affidavit to the FBI claiming that Wilhelm's complaint was a ruse. The money to repay Wilhelm, however, was not readily available, and in order to raise money, Wilhelm agreed with Goldblum to participate in a scheme to defraud an insurance company which insured a restaurant owned by Goldblum. The plan was for Wilhelm to set fire to Goldblum's restaurant, for which he was to be paid $3,500.00 in addition to the money taken from him on the land scheme. Subsequently, the restaurant was totally destroyed by fire. However, Goldblum paid Wilhelm only $100.00 of the money owed, and Miller told Goldblum that Wilhelm was threatening to go to the authorities if he was not paid. Goldblum then arranged for Miller to bring Wilhelm to a restaurant in downtown Pittsburgh, where Goldblum told Wilhelm that if Wilhelm would drive them to the roof of the Seventh Street parking garage, Wilhelm would get his money. When they
arrived on the roof of the parking garage, Goldblum struck Wilhelm on the head with a wrench, and then stabbed him repeatedly. When police found Wilhelm bleeding to death, he told them, "Clarence . . . Clarence Miller did this to me." As a result of this statement, Miller was arrested and he in turn implicated Goldblum.
I. After-Discovered Evidence.
Goldblum requests a new trial based on a claim of after-discovered evidence which Goldblum argues renders his co-defendant Miller, the Commonwealth's chief witness, testimonially incompetent. Prior to his trial, Goldblum requested the trial court require Miller's submission to an impartial psychiatric examination on the theory Miller's personality and mental condition were relevant to the jury's determination of credibility. The trial court denied this request. Subsequently, in his own trial, Miller presented Dr. Van Cara, a clinical psychologist, and Dr. Merikangas, a psychiatrist, in support of Miller's claim that his confession was involuntary. These witnesses supplied evidence that as a youth Miller had suffered organic brain damage resulting in below average intelligence and ability to recall which manifest themselves in confabulation, involuntary supplementation of gaps in memory by fabrication which the relater believes to be the truth. It is this evidence on which Goldblum bases his claim of after-discovered evidence. After taking his direct appeal Goldblum twice petitioned this Court to remand for an evidentiary hearing to explore the question of Miller's competence to testify. This Court, while retaining jurisdiction, granted Goldblum's petition on January 19, 1981.
Relying on Commonwealth v. Garcia, 478 Pa. 406, 426, 387 A.2d 46, 56 (1978) (two Justices joining in the opinion and two Justices concurring in the result), the Commonwealth argues Drs. Merikangas and Van Cara were incompetent witnesses on remand on the theory their testimony concerned confidential communications between a psychologist (and, by extension, a psychiatrist) and client and,
thus, were privileged. The legislature has provided a privilege for confidential communications between a client and psychologist: "The confidential relations and communication between a psychologist and his client are on the same basis as those provided by law between an attorney and client . . . ." Act of March 23, 1972, P.L. 136, No. 52, § 13, 63 P.S. § 1213, since repealed, but substantially reenacted in the Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5944. Between an attorney and client the privilege is confined to confidential communications, and does not exist as to those communications which "to subserve the interests of the client [were] publicly disclosed by direction of the client himself, on the trial of his cause." Levers v. Van Buskirk, 4 Pa. 309 (1846). See also, Kramer v. Kister, 187 Pa. 227, 232, 40 A. 1008 (1898). Instantly, the testimony complained of concerned communications made by Miller for the very purpose of future disclosure by these witnesses at Miller's own trial. The communications were not made in confidence, that is, Miller had no expectation they would be kept in confidence; and much of this testimony had already been publicized at Miller's trial. In short, the communications were not privileged and there is no merit to the Commonwealth's claim.
A determination of testimonial competency rests in the sound discretion of the lower court. Commonwealth v. Ware, 459 Pa. 334, 356, 329 A.2d 258, 269 (1974). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will as shown by the evidence or the record, discretion is abused." Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, at 103 (1982). The burden of proving incompetency rests on the party opposing the witness, Commonwealth v. Ware, supra. The lower court found Goldblum failed to meet his burden of proving Miller's incompetency. There has been no abuse of discretion in this case.
In order to be testimonially competent, a witness must have the ability to (1) perceive the event with a substantial degree of accuracy, (2) remember it and (3) communicate about it intelligibly (4) mindful of his duty to tell the truth under oath. Testimony produced at the evidentiary hearing supports the conclusions Miller is able to perceive events and his ability to frame and express answers to questions falls in the low normal range. The charge Miller confabulates bears directly on conditions (3) and (4); however, the doctors were unable to agree about the effects of confabulation. Dr. Merikangas' testimony that confabulation is "made for the moment" and, therefore, "repeating exactly the same story on all subsequent examinations would be inconsistent with confabulation" contradicted Dr. Van Cara. Dr. Merikangas' testimony that Miller "lacks very much consciousness of the duty to speak the truth" contradicts Dr. Van Cara's testimony that Miller was aware of his duty to speak the truth. Both doctors agree that at any given time Miller could be capable of consciously lying, unconsciously lying (confabulating) or telling the truth. These conclusions were based on their professional judgments, but neither expert could say with any certainty whether Miller actually told an untruth at any specific time.
Due to the dearth of records to substantiate Dr. Merikangas' testimony regarding confabulation and the fact that these experts contradicted their own prior testimony at Miller's trial as well as each other's testimony during the hearing, Goldblum was unable to convince the lower court that Miller was incompetent. There is nothing in the record to suggest the lower court acted arbitrarily in rejecting Goldblum's theory, and in concluding the doctors' testimony impugns Miller's credibility only.
After-discovered evidence will not form a basis for a new trial if it merely impeaches the credibility of a witness. Commonwealth v. Giacobbe, 341 Pa. 187, 197-98, 19 A.2d 71, 76 (1941). Thus, Goldblum's claim of after-discovered evidence cannot form the basis for a new trial.
II. Sufficiency of the Evidence.
Goldblum asserts the evidence is insufficient to support the convictions. As we have often stated, the test of sufficiency of evidence in a criminal case is whether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, it is sufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Cristina, 481 Pa. 44, 49, 391 A.2d 1307, 1309 (1978).
In this case Miller testified that he saw Goldblum kill Wilhelm. This direct evidence was corroborated by other evidence linking Goldblum to the land fraud scheme; evidence establishing an association with Wilhelm months in advance of the killing (consistent with involvement with the land fraud scheme and contrary to Goldblum's contention that he met Wilhelm only the day before the killing); evidence from Goldblum himself that no insurance proceeds were collected on the burned building and restaurant (consistent with his not having paid Wilhelm); and, finally, evidence that after ...