No. 118 E.D. Appeal Docket, 1983, Appeal from the Order of the Honorable William W. Vogel, dated November 10, 1983 denying Appellant's Motion to Suppress reinstating the Judgment of Sentence of June 23, 1980, in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 4148-78.
Vincent Couchara, Norristown, for appellant.
Ronald T. Williamson, Chief, Appeals Div., Joseph J. Hylan, Norristown, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a Concurring Opinion which Papadakos, J., joined. Nix, C.j., dissents.
On May 4, 1979 William Berkheimer, after a jury trial in the Court of Common Pleas of Montgomery County, Criminal Division, was found guilty of voluntary manslaughter, recklessly endangering another person, possession of an instrument of crime and violation of the uniform firearms act. This conviction arose in connection with the fatal shooting of one Glenn Scott in the parking lot of a bar in Pottstown, Pennsylvania on September 15, 1978. On June 23, 1980 the trial court imposed a sentence of five to fifteen years. On July 21, 1980 Berkheimer appealed to this Court from the judgment of sentence (Berkheimer I), raising eleven assignments of error. In Berkheimer I, we addressed two of these issues: we held that the evidence was sufficient to sustain the conviction, but vacated the judgment of sentence and remanded the case to the Court of Common Pleas for an evidentiary hearing on the question of whether one Thomas Brown -- a Commonwealth witness and Berkheimer's cellmate -- was a police agent at the time he
talked with Berkheimer and allegedly obtained incriminating admissions, to which Brown testified at trial. 501 Pa. 85, 460 A.2d 233. If Brown was a police agent within the meaning of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) his testimony must be suppressed and a new trial granted. In addition to the remand, we noted that nine additional issues raised in Berkheimer I, while unaddressed in that Opinion, would be preserved for review should another appeal result.
On August 24, 1983 the Court of Common Pleas of Montgomery County conducted an evidentiary hearing as directed by our Opinion in Berkheimer I. It determined that Brown was not a police agent at the time he received inculpatory admissions from Berkheimer and reinstated the judgment of sentence. This appeal, Berkheimer II, followed. Berkheimer now challenges not only the determination of the Court of Common Pleas on remand as to Brown's status as a police agent, but also raises anew the remaining issues presented but not addressed in Berkheimer I.
Inasmuch as the remand required the trial court to conduct a suppression hearing, we are governed by the following standard of review:
In reviewing a suppression court's determination in favor of the Commonwealth, this Court accepts "only the evidence of the prosecution's witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted." ...