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COMMONWEALTH PENNSYLVANIA v. EFRAIN FERNANDEZ (06/27/84)

submitted: June 27, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
EFRAIN FERNANDEZ, APPELLANT



No. 1860 Philadelphia 1982, Appeal from the Judgment of Sentence of June 11, 1982, by the Court of Common Pleas of Montgomery County, Criminal Division, No. 1879-81.

COUNSEL

Nino V. Tinari, Philadelphia, for appellant.

Stephen G. Heckman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Olszewski, Popovich and Cercone, JJ.

Author: Olszewski

[ 333 Pa. Super. Page 283]

Appellant was convicted by jury of two counts of second-degree murder, burglary, and criminal attempt-robbery on December 29, 1981. Following oral argument, post-verdict motions were denied. Appellant was sentenced to two concurrent terms of life imprisonment on the second-degree murder charges, ten to twenty years' imprisonment on the burglary charge and five to ten years' imprisonment on the criminal attempt-robbery charge. The burglary and criminal-attempt sentences were to run concurrently with each other but consecutively to the two life sentences.

On September 28, 1974, appellant, Robert Tome, Sigisfredo Ortiz, and a man named Santiago entered the residence and place of business of Doris and Jean Maiale, planning to steal a large amount of cash which they believed to be on the premises. While subduing the Maiale sisters, Tome shot them each in the head. Panicked and before even taking the money they came to steal, the would-be robbers fled to Philadelphia. Roberto Tome was tried and convicted of the murders and related crimes in 1975.*fn1 Sigisfredo Ortiz entered a plea of guilty to attempted robbery and testified for the Commonwealth at both the Tome and Fernandez trials. Santiago died before being brought to trial. Appellant, Fernandez, was apprehended by the police in Puerto Rico in 1981.

Five issues are raised in this appeal. First, appellant argues that his constitutional right to protection against self-incrimination and his presumption of innocence were abridged by the lower court's grant of a pretrial motion to have appellant shave his beard. The purpose of the order was to facilitate identification of appellant by a Commonwealth

[ 333 Pa. Super. Page 284]

    witness. We hold that the order did not violate appellant's constitutional rights.

Although this is an issue of first-impression for us,*fn2 there is a plethora of case law available from other jurisdictions.*fn3 At the outset, we recognize that Article I, Section 9 of the Pennsylvania Constitution, providing that an accused "cannot be compelled to give evidence against himself," does not expand the protection against self-incrimination afforded by the Fifth Amendment to the United States Constitution and made applicable to the states by virtue of the Fourteenth Amendment. Commonwealth v. Moss, 233 Pa. Super. 541, 334 A.2d 777 (1975). The Fifth Amendment has consistently been held to exclude only evidence which is testimonial in nature. United States v. Lamb, 575 F.2d 1310 (10th Cir.), cert. denied sub nom. Clary v. United States, 439 U.S. 854, 99 S.Ct. 165, 58 L.Ed.2d 160 (1978). Testimonial evidence is communicative evidence as distinguished from demonstrative or physical evidence. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (held, extraction of blood is demonstrative physical evidence). Justice Holmes recognized this distinction many years ago when he wrote that "the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910).*fn4

[ 333 Pa. Super. Page 285]

We recognize that compelling appellant to shave his beard represents an extra-ordinary intrusion of the Commonwealth's police power into the respect which it must accord to the dignity and integrity of its citizens.*fn5 Nevertheless, we are persuaded that the order served the interests of justice in obtaining demonstrative evidence of appellant's appearance, at the time of the murders, for the jury as finder of fact.*fn6 Appellant was not compelled to communicate protected knowledge by the order, nor does a careful barbering shock the conscience as a method of discovery "too close to the rack and screw."*fn7 We reject appellant's argument that the order reflected a predetermination of appellant's guilt.*fn8 Appellant contends that the order to shave implied the court's acceptance of the ...


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