decided: July 8, 1982.
COMMONWEALTH OF PENNSYLVANIA
W. A. "TONY" BOYLE, APPELLANT
January Term, 1979 - No. 451, Appeal from Judgments of Sentence of the Court of Common Pleas of Delaware County, March Sessions, 1974 Nos. 1, 2 and 3. imposed October 11, 1979.
Clarence D. Bell, Jr., Barry W. Van Rensler, Media, for appellant.
Richard A. Sprague, Sp. Prosecutor, Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Hutchinson, J., filed a concurring opinion. Flaherty, J., filed a dissenting opinion in which Roberts and Larsen, JJ., joined.
[ 498 Pa. Page 489]
This is a direct appeal from a conviction on three charges of murder of the first degree as a result of the death of Joseph, Margaret, and Charlotte Yablonski.*fn1 At trial the Commonwealth offered evidence to establish that Mr. Boyle, appellant, instigated and participated in a conspiracy to kill Joseph Yablonski, who was attempting to wrest control from Boyle of the United Mine Workers' Union (UMW). As a result of this conspiracy, the jury found that Joseph Yablonski, his wife and his daughter were killed in January 1970.*fn2 Appellant sets forth a myriad of challenges to this most recent conviction. Many of them are totally without merit and do not require explication.*fn3 We will address only the more substantial questions raised.
[ 498 Pa. Page 490]
Appellant argues that the trial judge, who also presided at the first trial, by refusing a motion of recusal committed reversible error requiring a new trial. Recusal is required whenever there is substantial doubt as to a jurist's ability to preside impartially.*fn4 Commonwealth v. Knighton, 490 Pa. 16, 415 A.2d 9 (1980); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973). See Code of Judicial Conduct Canon 3C(1)(a) ("Disqualification"); ABA Project on Standards for Criminal Justice, Standards Relating to: The Function of the Trial Judge § 1.7 ("circumstances requiring recusation") (Approved Draft, 1972).
The mere participation by the presiding judge in an earlier stage of the proceeding neither suggests the existence of actual impropriety nor provides a basis for a finding of the appearance of impropriety. U.S. v. Lowrey, 77 F.Supp. 301 (E.D.Pa. 1948) affirmed 172 F.2d 226 (1949). See, Commonwealth v. Green, 464 Pa. 557, 347 A.2d 682 (1975); Commonwealth v. Snyder, 443 Pa. 433, 275 A.2d 312 (1971); Commonwealth v. Smith, 274 Pa. Super. 280, 418 A.2d 406 (1980); Commonwealth v. Lee, 262 Pa. Super. 280, 396 A.2d 755 (1978). Moreover, appellant fails to identify any specific event or incident during the earlier proceeding which would reasonably give rise to a question of the court's objectivity.*fn5
[ 498 Pa. Page 491]
Appellant seeks to support his position by arguing that the charged bias can be demonstrated by the rulings of the challenged jurist at the second trial. He contends the record reflects this pattern of bias and that he is entitled to the award of a new trial presided over by a different judge. Commonwealth v. Goodman, supra, 454 Pa. at 360, 311 A.2d at 653-654.
The fact that the presiding judge's rulings in the former trial were similar to his rulings in the retrial does not, standing alone, establish a pattern of conduct which would compel a finding of bias or partiality.*fn6 If the rulings at the second trial constituted a fair exercise of discretion, the fact that the trial judge had previously ruled in a similar manner under similar circumstances is to be expected.
Appellant cites as illustrative of the prejudice of the court the ruling relating to Mr. Boyle's daughter's admission pro hac vice and the exclusion of the accused at side bar and in-chambers conferences. These rulings were clearly correct and in no way suggested a prejudice by the court against the appellant.*fn7 The other alleged erroneous rulings to demonstrate
[ 498 Pa. Page 492]
the court's prejudice against the appellant are equally without merit. Not only did these rulings reflect a proper exercise of discretion, there was nothing to suggest a bias or unfairness to the defense. To the contrary, the record is replete with instances where the court displayed an extraordinary effort to protect the rights of appellant.
Appellant also charges that the trial court erred in allowing to be read to the jury the entire transcript of the sentencing of Turnblazer, a co-conspirator. First, the allegation is factually incorrect. The lower court deleted at defense counsel's request that portion of the transcript that contained Turnblazer's confession. Even more significant, it was the defense that first referred to portions of the transcript of Turnblazer's sentencing in an effort to destroy Turnblazer's credibility as a witness for the Commonwealth.
Turnblazer, the then president of District 19, was a key Commonwealth witness in that it was his testimony which provided the link between Boyle and the murders. On cross examination the defense attempted to attack Turnblazer's credibility by showing that he had received favorable consideration from the Commonwealth for his testimony against Boyle. The defense referred to portions of the transcript of Turnblazer's sentencing to establish that an agent of the FBI and the Special Prosecutor had deliberately misinformed the sentencing court of the extent of Turnblazer's cooperation in the prosecution of Mr. Boyle.*fn8 Although this evidence was objected to by the Commonwealth as hearsay, the trial court permitted a number of questions in this vein
[ 498 Pa. Page 493]
to establish the defense theory that the witness had received favorable treatment.
On redirect, the prosecution requested permission to introduce the entire transcript to the jury. As previously noted, the portion of the transcript containing Turnblazer's confession was deleted. An objection to a reference of Boyle's first trial and conviction in the transcript was overruled.
The Commonwealth maintained that the fact of Mr. Boyle's first trial and conviction was information necessary for the jury to properly assess the appellant's charge that the Commonwealth displayed favoritism in its treatment of Mr. Turnblazer. The Commonwealth's explanation for seeking leniency for Turnblazer in the federal proceedings resulted from Turnblazer's cooperation during the first trial of Mr. Boyle. They contend that Turnblazer's testimony at that trial in large measure brought about the conviction of Boyle. This, of course, was in response to the defense's contention that the Commonwealth's favorable treatment of Turnblazer was designed to influence his testimony at the second trial. Mr. Turnblazer's sentencing in the federal matter occurred after the completion of the first trial and before the commencement of the second trial.
Ordinarily, the fact of an earlier trial resulting in a conviction would have no relevance in a retrial. Here, however, the tactic taken by the defense in attacking Turnblazer's credibility made that information relevant, as supplying the reason for the Commonwealth position at the sentencing of Turnblazer. The prosecution's case rested heavily upon the jury's acceptance of the testimony offered by the witness Turnblazer. The defense on cross examination had attempted to establish that the comparatively lenient treatment accorded to Turnblazer was the result of collusion by the Special Prosecutor and the FBI to elicit damaging testimony against Mr. Boyle at the second trial. The reference to the first trial and conviction and Mr. Turnblazer's role in bringing about that result was obviously relevant in permitting the jury to consider whether the sentence imposed was appropriate in light of Turnblazer's
[ 498 Pa. Page 494]
After the introduction of these statements, the Commonwealth proceeded to establish that they were untruthful. It is argued that Mr. Boyle did not testify in his second trial and therefore evidence impeaching his credibility as a witness was not relevant. Cf. Commonwealth v. Scoleri, 432 Pa. 571, 248 A.2d 295 (1968); Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 225 A.2d 236 (1967); Commonwealth ex rel. Marino v. Myers, 419 Pa. 448, 214 A.2d 491 (1965); Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961). It is also contended that these prior statements did not constitute admissions and therefore should not have been offered as substantive evidence.
The factual setting from which this objection arises is as follows: Exhibit 68, in the instant trial, was a copy of what purported to be the minutes of an Executive Board meeting of the UMW held in January 1970. These minutes stated that Pass, a co-defendant, had informed the Board of the formation of the Research and Information Committee (R & I Committee) at the 1968 Denver Convention of the organization.*fn10 It was the theory of the Commonwealth's case that the placing of this statement in the minutes was part of the design to conceal the transfer of the money used to pay the assassins who killed the Yablonski family members. In attempting to disassociate himself from any connection with this plot to murder, Boyle testified at his first trial that he had no involvement in the preparation of the copy of the minutes (Ex. 68) which Pass delivered to Turnblazer. At the second trial, the Commonwealth read to the jury the testimony of Boyle, from the earlier proceeding, denying touching these papers.*fn11 Thereafter, a fingerprint expert testified that Boyle's fingerprint had been found on this exhibit.
[ 498 Pa. Page 496]
The prosecution also introduced that portion of the record from the first trial wherein Boyle had denied sitting with Turnblazer during a 1972 airplane trip. It was claimed by the Commonwealth that during this trip Boyle and Turnblazer had discussed aspects of the conspiracy. The Commonwealth called, at the second trial, a witness who testified that Boyle had in fact sat beside Turnblazer during that flight.
Additionally, the Commonwealth also introduced during the second trial Boyle's testimony before the 1972 grand jury his testimony at the trial of co-conspirator Prater and testimony at his first trial to show that on each occasion he had given a different explanation of the formation of the R & I Committee.
Appellant is correct in stating that since he did not testify in the second trial, his credibility as a witness was not in issue and therefore there was no basis for the allowance of evidence to demonstrate his unreliability as a witness. Cf. Commonwealth v. Scoleri, supra; Commonwealth ex rel. Sprangle v. Maroney, supra; Commonwealth ex rel. Marino v. Meyers, supra; Commonwealth v. Butler, supra. It is also clear that the purpose for introducing this evidence was to establish Boyle's untruthfulness, since the facts that appellant had handled Exhibit 68 and sat next to Turnblazer, during the 1972 airflight, could have been established by direct evidence, without reference to Boyle's statements on those subjects. Moreover, even where impeachment evidence is properly admitted, it may not be used as substantive evidence. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875
[ 498 Pa. Page 497]
(1976); Commonwealth v. Tucker, 452 Pa. 584, 307 A.2d 245 (1973); Commonwealth v. DePasquale, 424 Pa. 500, 230 A.2d 449 (1967).
Nevertheless, we cannot accept appellant's ultimate conclusion that the admission of this testimony was error. The justification for the admission of this testimony was not for the purpose of improperly commenting upon his silence at the second trial nor as impeachment of his credibility as a witness, but rather as substantive evidence of his guilt. This jurisdiction has long recognized the evidentiary principle that the making of false or contradictory or conflicting statements by the accused are admissible "since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory of guilt." Commonwealth v. Bolish, 381 Pa. 500, 525, 113 A.2d 464, 476 (1955). Accord Commonwealth v. Cristina, 481 Pa. 44, 391 A.2d 1037 (1978) cert. denied 440 U.S. 925, 99 S.Ct. 1255, 59 L.Ed.2d 479 (1979); Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963); Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960); Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733 (1953); Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743 (1953); Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389 (1941); Commonwealth v. Jones, 297 Pa. 326, 146 A. 905 (1929). Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161 (1923).
The fact that Boyle exercised his right of silence during the second trial did not insulate him from the consequences of his earlier testimony. It has long been recognized that testimony from an earlier trial may be introduced in the prosecution's case against a defendant regardless of whether that defendant takes the stand or not in the second proceeding. Commonwealth v. Doughty, 139 Pa. 383, 21 A. 288 (1891); Commonwealth v. House, 6 Pa. Super.Ct. 92, 93 (1897). See also, Harrison v. U.S., 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); Walder v. U.S., 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1953); Edmonds v. U.S., 273 F.2d 108
[ 498 Pa. Page 498]
(D.C.Cir., 1959); Ayres v. U.S., 193 F.2d 739 (5th Cir., 1952); Smith v. Slayton, 369 F.Supp. 1213, (D.C.Va., 1973); U.S. v. Grunewald, 164 F.Supp. 644 (S.D.N.Y., 1958).
It is generally held, unless a statute directs otherwise, that a defendant in a criminal case who takes the stand in his own behalf and testifies without asserting his privilege against self-incrimination thereby waives the privilege as to the testimony given so that it may be used against him in a subsequent trial of the same case.*fn3a The fact that the defendant does not take the stand at the second trial does not prevent the use of his testimony given at the former trial, if it would otherwise be admissible. Heller v. United States, 7 Cir., 57 F.2d 627, certiorari denied 1932, 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298; State v. Simmons, 1908, 78 Kan. 852, 98 P. 277; State v. McPherson, 1915, 77 Or. 151, 149 P. 1021; State v. King, 1917, 102 Kan. 155, 169 P. 557; Scherpig v. State, 1929, 112 Tex.Cr.R. 61, 13 S.W.2d 872.
Edmonds v. United States, 273 F.2d 108, 112-13 (D.C.Cir., 1959).
This principle has long been recognized in this jurisdiction. Commonwealth v. House, 6 Pa. Superior Ct. 92 (1897). In House the Superior Court stated:
The general proposition that the testimony of a defendant cannot be used against him on a second trial of the same indictment, if he elects not to go upon the witness stand, is not strongly urged in the present case, and is not well founded upon principle or authority. He cannot be compelled to give evidence against himself, but if he gives it voluntarily he cannot object to having it used against him. His constitutional privilege, as far as that testimony is concerned, is waived, and cannot be reclaimed in any subsequent trial of the same indictment. As was said in Com. v. Doughty, 139 Pa. 383 [21 A. 228] his admissions or declarations would be evidence against him; and if so why not his testimony under oath?
Id. at 104.
[ 498 Pa. Page 499]
Moreover, the testimony taken from the first trial and introduced at the second trial was "otherwise admissible" as a voluntary admission. Although the responses of Mr. Boyle standing alone may appear neutral, when coupled with the evidence of their falsity those statements assist in proving his consciousness of guilt and efforts to avert suspicion. This evidence of the earlier false statements had independent probative value and was properly submitted to the jury to be considered as proof of a consciousness of guilt.
As a corollary argument appellant contends the trial judge refused to permit defense counsel to read into the record applicable balancing portions of the records in the prior proceedings to explain or rebut the portions introduced by the Commonwealth. This argument sets forth the bald assertion that the segments introduced distorted the prior testimony without any attempt to specify those portions of the record that would have clarified or changed the meaning of the evidence introduced. We have read these portions of the prior testimony in context and find no indication of a distortion or unfairness. Hence we conclude that this claim is also without merit.*fn12
Accordingly, the Judgments of Sentence are affirmed.
HUTCHINSON, Justice, concurring.
Because I believe appellant was fairly tried and convicted by a jury which had before it more than sufficient proper evidence to determine his guilt, I concur in affirming that conviction.
However, I am constrained to comment on one issue appellant raises. At his second trial, which resulted in the conviction now before us, appellant exercised his constitutional right not to testify. Nevertheless, the prosecution was allowed to read into evidence portions of his testimony at the first trial. Those portions were contrary to other direct evidence of the Commonwealth and were admitted for the purpose of establishing appellant lied to conceal his involvement, from which deliberate concealment the jury could infer consciousness of guilt. The admission of this prior testimony was based on long standing clear authority in the decisions of this court cited by Justice Nix. Opinion of the Court, ante at 255. The dissent correctly points out that such circumstantial evidence of guilt is weak. In this respect it is analogous to evidence of flight to avoid prosecution. Considering the whole record, I do not believe its admission warrants a reversal of this conviction. Nevertheless, the use of such prior testimony to establish guilt must be closely scrutinized and its admission is not to be lightly condoned, lest we permit a jury to assume the very point in issue, the truth of the Commonwealth's contradictory evidence. I believe trial judges would be well advised to
[ 498 Pa. Page 503]
consider this factor in future cases in deciding whether or not to exercise their discretion in favor of admissibility. Thus, the trial judge should first determine there is other strong evidence of guilt, See Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782 (1964) (flight as evidence of consciousness of guilt may form the basis in connection with other proof from which guilt may be inferred), and that the Commonwealth's evidence contrary to defendant's prior testimony clearly and convincingly shows that prior testimony to be false.
FLAHERTY, Justice, dissenting.
I dissent. Notwithstanding authority in this jurisdiction in support of the principle that evidence of an accused's false statements to police or other authorities is, generally, admissible
[ 498 Pa. Page 500]
as circumstantial evidence of the accused's guilty conscience and, thus, of guilty conduct, it was error to admit such evidence in the instant case.
Several times during presentation of the Commonwealth's case, the prosecutor read into evidence excerpts from appellant's testimony in his prior trial, since appellant elected not to testify in the trial now in question. After introducing appellant's prior testimony, the Commonwealth presented evidence that the prior testimony contained misstatements of fact. Specifically, the challenged evidence consisted of the following:
1. Appellant's prior testimony that he did not recall giving co-conspirator Pass minutes of the UMWA Executive Board meeting of January 22, 1970 and that he did not remember having the minutes prepared for delivery to Pass, evidence which was followed immediately by testimony of prosecution witnesses indicating that the FBI obtained from Turnblazer a copy of the minutes of that meeting bearing appellant's fingerprint;
2. Appellant's testimony at his prior trial that he sat with Ed Carey, UMWA general counsel, on a flight to Pittsburgh to testify before a Grand Jury. Commonwealth witness Suzanne Richards, appellant's executive assistant during the period 1969-1972, subsequently testified appellant sat instead with accused co-conspirator Turnblazer on the flight. Turnblazer had already testified he was seated with appellant and that, during the flight, appellant stated, in reference to UMWA Research & Information (hereinafter "R & I") committeemen, "It looks like some of the boys are talking, and when we finish with this grand jury get back to the district and try to keep a lid on it"; and
3. Appellant's testimony to the Pittsburgh Grand Jury, at co-conspirator Prater's trial, and at his own prior trial, that the R & I Committee was organized pursuant to an agreement among appellant, Pass, and Turnblazer made at a convention in 1968. In contrast, two Commonwealth witnesses, co-conspirators Pass and Turnblazer, testified that the R & I Committee was invented in 1969 to finance the
[ 498 Pa. Page 501]
Yablonski murder. (The Commonwealth's theory is that money was "kicked back" by the committeemen to Pass for the purpose of financing the murder, and that this financing scheme was authorized by appellant.)
The relevance and, hence, admissibility of appellant's prior testimony that he did not recall giving Pass the minutes of the UMWA Executive Board meeting is questionable even on the Commonwealth's theory of admissibility, for there is a substantial difference between the situation where a witness affirmatively states his recollection of an event and one where, as here, the witness states he has no recollection. Further, testimony indicating appellant forwarded minutes of the meeting to Pass does not significantly undercut appellant's statement he had no recollection of furnishing the minutes to Pass. Hence, this instance of the Commonwealth's attempt to establish appellant's consciousness of guilt is to be questioned.
Appellant's prior testimony, introduced by the Commonwealth for the purpose of being contradicted by its other evidence, provided circumstantial evidence of guilt of the weakest kind -- evidence which was also perfectly consistent with innocence. See, Commonwealth v. New, 354 Pa. 188, 205-206, 47 A.2d 450, 460-461 (1946) and cases cited therein. The cumulative effect of the prosecution's repeated attempts to stigmatize appellant as a dishonest and, hence, "bad" man may have influenced the jury to return a verdict of guilt. Deceit, however, does not a murderer make; and the danger of conviction based upon a defendant's deceitful character is particularly acute in a case such as this where the evidence of guilt consists solely of the testimony of co-conspirators, testimony which is looked upon with disfavor because it emanates from a corrupt and polluted source. See, Commonwealth v. Sisak, 436 Pa. 262, 265, 259 A.2d 428, 430 (1969).
The trial court's exclusion of additional prior testimony, offered by appellant, to explain his apparent "falsehoods", enhanced the opportunity for prejudice. It would have been unfair for the Commonwealth to have discredited appellant
[ 498 Pa. Page 502]
at his first trial by use of prior inconsistent statements without having provided appellant an opportunity to explain those previous statements. Where, as here, appellant has not been given the opportunity to explain prior statements, fairness forecloses introduction of the discrediting evidence. See, Commonwealth v. House, 6 Pa. Super. 92 (1897).
A careful review of the evidence in this case indicates that the evidence of appellant's "falsehoods" was prejudicial to the defense. I would, therefore, grant a new trial.