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filed: April 15, 1983.


No. 1135 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Berks County, at Nos. 78116601-8 and 78116501-6-A.


Gary Spohn Fronheiser, Assistant Public Defender, Reading, for appellant.

Charles M. Guthrie, First Assistant District Attorney, Reading, for Commonwealth, appellee.

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Montemuro

[ 313 Pa. Super. Page 143]

Appellant, James Curtis Smith, was convicted in a jury trial of second degree murder,*fn1 rape,*fn2 indecent assault,*fn3 involuntary deviate sexual intercourse,*fn4 robbery,*fn5 theft,*fn6 and conspiracy.*fn7 Post-verdict motions were heard and denied and a sentence of life imprisonment imposed. A timely appeal was taken to this court.

The charges arose out of the brutal slaying of William Eich, Jr., an eighteen year old army private who was home in Reading on a three day pass from Aberdeen, Maryland.

[ 313 Pa. Super. Page 144]

On October 7, 1978, Eich arrived home in the afternoon. At approximately 5:00 P.M. he borrowed the family car, an orange 1972 Volkswagen square-back station wagon, and left "to go to the movies." He picked up two friends, Karim O'Connor and Ricky Curry. Eich also picked up one Darryl Carter.*fn8 They proceeded to the Maple Bar in Reading. Carter, being the only one of the four over twenty-one years of age, purchased two eight-packs of Miller beer and two six-packs of Old Milwaukee beer. Carter purchased the beer with a twenty dollar bill provided by Eich.

They went to a cemetery to drink the beer and smoke marijuana. Carter forced O'Connor and Curry to leave the car for an undisclosed reason while at the cemetery. They returned to the car and all four left the cemetery. O'Connor and Curry were dropped off at Carter's insistence between 9:00 and 9:15 P.M. Both boys testified that Carter hit or attempted to kick Eich while they were in the vehicle. O'Connor also testified that he had been punched by Carter.

Subsequently, Eich and Carter picked up the appellant who was hitchhiking on Carsonia Avenue in Reading. The appellant was acquainted with Carter but did not know Eich. According to the appellant's uncontradicted testimony he had been at his girlfriend's house all day. Upon leaving, about 7:00 P.M., he waited for a bus to take him to his apartment. It was a cold evening and appellant drank a pint of "Amaretto" and smoked three "bones," that is, marijuana cigarettes. The bus did not come so he went back to his girlfriend's where he remained for about forty-five minutes to an hour. He then left again and commenced hitchhiking until he was picked up by Carter and Eich. The appellant testified that they offered him more marijuana, which he initially declined but later might have accepted. He was also offered a beer or "[M]aybe more, three, I'm not sure," which he drank.

[ 313 Pa. Super. Page 145]

The three of them drove to a deserted location on a "powerline road" in Ruscombmanor Township. Sometime between the hours of 9:15 and 11:00 P.M., Eich was brutally beaten to death and sexually assaulted.*fn9

The appellant's version of the story is that, as a result of the combined effect of the amaretto, beer and marijuana, he was intoxicated and had fallen asleep in the back of the vehicle. He awoke briefly when he heard Eich and Carter arguing about a road. They went up the road and stopped. Carter asked the appellant for his belt "to bang up some crank." (to use as a tourniquet to aid in injecting speed). Eich and Carter left the car and the appellant handed them trash (bottles, cartons) and then went back to sleep. Appellant then testified that Carter came back shook the appellant awake and returned his belt, which was broken. The appellant noticed this and took the belt off and put it on the floor. Carter told the appellant that Eich was staying with friends and had lent the Volkswagen to Carter.

The Commonwealth disputes the appellant's version of the events. While offering no direct evidence of what happened, they attempt to demonstrate the appellant's participation through circumstantial evidence. They offered the testimony of a chemist that blood stains found on the vehicle were of the same blood type as William Eich's.*fn10 They offered testimony of the officers who discovered the

[ 313 Pa. Super. Page 146]

    body*fn11 regarding the positioning of the body some thirty feet off a path in a tangle of weeds, and the positioning of objects found proximate to the body including Darryl Carter's wristwatch, the appellant's belt "keeper", and two beer cartons and a beer bottle on which appellant's fingerprints were found. Additionally, one of the officers testified to scratches he received from the weeds on the backs of his hands. Similar scratches were observed on the appellant. The Commonwealth's theory was that the attack on Eich commenced inside the vehicle and was completed outside. The body was then dragged into the weeds, whereupon appellant and Carter fled.

The Commonwealth also relied a great deal on events subsequent to the criminal incident. Carter and appellant drove to Carter's mother's residence and then to Carter's own residence where they picked up clothing. He told appellant they were going to California, although the appellant stated that he thought they were merely going to drive around. They proceeded to the appellant's apartment where he picked up a jacket and a tape deck. While returning to the car, he saw Carter throwing something in the sewer.*fn12 They were seen by a gas station attendant, between 10:30 and 11:00 P.M., who was suspicious of their manner and thought they might have stolen the vehicle. They drove through the night, Carter driving,*fn13 the appellant sleeping. They turned around in "Illinois" and returned, picking up a hitchhiker, Frank L. Mays, outside of Cleveland.*fn14 Mays drove all the way back to Reading with

[ 313 Pa. Super. Page 147]

    them. Once in Reading, Carter met his brother in a gas station, took his belongings and departed. The appellant then sold the car to Mays for ten dollars and signed a receipt using the name, William Eich.*fn15 Mays drove the car to his home in New Jersey and then called William Eich, Sr.

Mr. Eich and a Police Officer Phillips picked up the vehicle and showed a photographic array of approximately fifteen pictures to Mays. Mays identified Carter and the appellant.

On October 12, 1978, the appellant was picked up for questioning by Chief Wells of the Lower Alscace Police Department and Trooper Goetz of the Pennsylvania State Police. They administered Miranda*fn16 warnings and asked if he had any information concerning Eich, who was then considered a missing person. He was also told that a murder investigation might result. They drove the appellant to his apartment and the appellant directed them to the sewer where they found the wallet and the belt. The appellant was taken to the State Police Barracks to make a statement about Carter disposing of the objects in the sewer. At this time Smith requested an attorney and a call was made to the Public Defender's Office. There was no attorney available at that time but the appellant was instructed not to say anything.

The parties dispute what occurred next. The appellant contends that in response to questioning he stated, "I can show you where the body is." The prosecution contends that the appellant merely blurted out the statement. After making the statement, the appellant took the police to several locations, including the "power-line road" (which he said did not look familiar), but they did not locate the body. Later that evening, pursuant to Darryl Carter's information,

[ 313 Pa. Super. Page 148]

    the mangled body of William Eich was found. Smith was immediately arrested and charged.

The Commonwealth also relied heavily on statements made by the appellant, in addition to those we have previously mentioned. While awaiting trial in prison, the appellant made a request to speak with his probation officer. Following a recount of the events of October 7, during which the appellant frequently broke into tears, the appellant stated, "I didn't know that I had, you know, Billy was dead. I thought Bill was still living." The prosecution also brought out two prior statements of the appellant, made before his arrest to his probation officer -- each giving a different version of the events of October 7.*fn17

The appellant raises several issues herein: That his Sixth Amendment right to counsel was violated due to different representation at the preliminary hearing and at trial; That the trial court erred in admitting prejudicial and inflammatory materials; That the trial court erred in allowing the testimony of an unqualified expert witness; That the trial court erred in denying appellant's motion to suppress; That the trial court erred in refusing to grant appellant's demurrer; and that the evidence was insufficient to sustain the verdict. We will address these claims seriatim.

Appellant contends he was denied effective representation by having different counsel at the preliminary hearing and at trial. In all, appellant was represented by three attorneys, each one a member of the Berk's County Public Defender's Office. One, Anthony B. Reardon, III, Esq., represented the appellant at the preliminary hearing and later petitioned the court to withdraw. Another, George C. Yatron, Esq., represented appellant briefly. Finally, appellant's

[ 313 Pa. Super. Page 149]

    present counsel, Gary S. Fronheiser, Esq., began his representation prior to trial and has continued through this appeal.

The appellant does not assert any specific prejudice has resulted from the fact of different representation. Instead he attempts to create an implication that such prejudice must necessarily result. We cannot subscribe to this view. In Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976), the Supreme Court held:

While we have held that an accused is guaranteed the right to counsel, Moore v. Jamieson, 451 Pa. 299, 307, 306 A.2d 283, 287 (1973), we have never required that the same counsel must represent the defendant at each stage of the proceedings. Absent any demonstrable prejudices because of the change in counsel, we cannot find that [the defendant's] right to the effective assistance of counsel [has] been violated.

Id., 467 Pa. at 286, 356 A.2d at 752. Therefore, we find that the appellant was not denied the effective ...

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