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COMMONWEALTH PENNSYLVANIA v. ROBERT MCCABE (09/18/85)

SUPERIOR COURT OF PENNSYLVANIA


filed: September 18, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ROBERT MCCABE, APPELLANT

Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Schuylkill County, No. 363-1983.

COUNSEL

Cyrus P. Dolbin, Pottsville, for appellant.

Kate Dreher, Assistant District Attorney, Pottsville, for Commonwealth, appellee.

Spaeth, President Judge, and Wieand and Geisz,*fn* JJ. Spaeth, President Judge, files a dissenting opinion.

Author: Wieand

[ 345 Pa. Super. Page 497]

Robert McCabe was tried before a jury on charges of robbery,*fn1 theft by receiving stolen property,*fn2 criminal conspiracy,*fn3 and hindering prosecution.*fn4 The jury acquitted him of theft and conspiracy, was unable to agree upon a verdict on the robbery charge, and found him guilty of hindering prosecution. The trial court subsequently found the evidence insufficient on the robbery charge and granted a post-trial motion for acquittal. The court refused post-verdict relief on the conviction for hindering prosecution and imposed a sentence of probation. On direct appeal, McCabe asks this Court to decide the following issues:

1. May a defendant be convicted of a crime where there is no independent proof of the commission of that crime, but only the Defendant's statement that he committed such a crime?

2. Even where there is no independent proof of the commission of a crime, may a defendant waive the protection

[ 345 Pa. Super. Page 498]

    of the corpus delicti rule, and be convicted upon his own testimony alone?

The information charged appellant with concealing or destroying relevant evidence in the nature of a note found at the scene of a robbery. The police learned of the existence of the note from appellant, who told them he had destroyed it. At trial, the Commonwealth was unable to produce independent evidence that the note existed. Because the Commonwealth was unable to prove the corpus delicti of this offense, the trial court sustained an objection to a testimonial reference to appellant's oral statement by Trooper Bordenaro, a witness for the prosecution. On cross-examination, the witness was asked whether appellant had made a statement in which he denied involvement in the crime,*fn5 and the witness agreed that he had. On redirect-examination, the witness was asked precisely what appellant had said. He was permitted to testify, over objection, that appellant's statement had included "that he found a note at the robbery scene addressed to Diego Robinson, that he put the note into his pocket and that he later destroyed it. The question and answer [were] permitted because defense counsel had 'opened the door' to the entire conversation between defendant and the officer by inquiring as to that part of the conversation which favored the defendant."*fn6

The law is clear that "where one party offers part of a conversation, the other is entitled to bring out the balance . . . ." Commonwealth v. Nelson, 294 Pa. 544, 546, 144 A. 542, 543 (1929). "If a defendant delves into what would be objectionable testimony on the part of the Commonwealth, the Commonwealth can probe further into the objectionable area." Commonwealth v. Gonce, 320 Pa. Super. 19, 37, 466 A.2d 1039, 1049 (1983), quoting Commonwealth v. McCloughan, 279 Pa. Super. 599, 604, 421 A.2d 361, 363 (1980); Commonwealth v. Stakley, 243 Pa. Super. 426, 430,

[ 345 Pa. Super. Page 499365]

A.2d 1298, 1300 (1976). In the instant case, moreover, the receipt of appellant's statement was harmless. Appellant took the stand in his own defense and testified to the same facts which he had related to Trooper Bordenaro on the night of the robbery. Appellant testified "that at the scene of the robbery he had picked up a piece of paper, put it into his pocket, that he had read the note which was addressed to Diego and had later told the State Police that he had gotten rid of the note -- had thrown it in the garbage." The decided cases are uniform in holding that error in receiving an extra-judicial statement of the defendant is rendered harmless if the defendant thereafter takes the stand in his own defense and reiterates or corroborates his statement. Commonwealth v. Saunders, 459 Pa. 677, 681, 331 A.2d 193, 194 (1975). Accord: Commonwealth v. Hart, 471 Pa. 271, 274, 370 A.2d 298, 300 (1977); Commonwealth v. Cummings, 466 Pa. 332, 335, 353 A.2d 381, 382 (1976); Commonwealth v. Rice, 271 Pa. Super. 425, 429-430, 413 A.2d 739, 741 (1979).

As a general rule, a naked extra-judicial confession of guilt by one accused of crime, uncorroborated by independent evidence establishing the corpus delicti, is not sufficient to warrant or support a conviction. 30 Am.Jur.2d Evidence § 1136. Pennsylvania decisions are in accord. Commonwealth v. Ware, 459 Pa. 334, 365-366, 329 A.2d 258, 274 (1974); Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368, 369 (1973); Commonwealth v. Lettrich, 346 Pa. 497, 498, 31 A.2d 155, 156 (1943). "The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed . . . ." Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940).

[ 345 Pa. Super. Page 500]

The rule that an extra-judicial confession does not warrant a conviction unless corroborated by independent evidence of a corpus delicti has no application to judicial admissions. 30 Am.Jur.2d Evidence § 1139. See also: State v. Schomaker, 303 N.W.2d 129 (Iowa 1981); Commonwealth Page 500} v. Granese, 37 Montg. 15 (Pa. 1920). Judicial admissions are deliberately made under oath during formal proceedings and are generally free from the inherent infirmity of verbal confessions made out of court. 30 Am.Jur.2d Evidence § 1139.

Appellant's in-court testimony was neither hasty nor unguarded. It was made after consulting with counsel, was made under oath during trial, and was exculpatory with respect to the more serious charges which had been brought against him. His testimony, which admitted the destruction of evidence, was sufficient, if believed, to warrant a finding that he had concealed and destroyed evidence.

The judgment of sentence is affirmed.

Disposition

The judgment of sentence is affirmed.

SPAETH, President Judge, dissenting:

I do not believe that the Commonwealth has carried its burden of establishing the corpus delicti by evidence independent of appellant's confession or admission. Accordingly, I should reverse the judgment of sentence.

The general rule that governs this case is well settled:

The corpus delicti may not be established by a confession or admission standing alone. It follows that a confession or admission alone cannot support a conviction. Putting it conversely, a confession or admission must be corroborated by independent evidence of the corpus delicti. The burden is on the prosecution to prove the corpus delicti. This may be accomplished by either direct or circumstantial evidence.

Wharton, 1 Criminal Law, § 28 at 144-50 (C.E. Torcia 14th ed. 1978) (footnotes omitted).

See also Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980) (". . . a criminal conviction may not stand merely on the out of court confession of one accused, and thus a case may not go to the fact finder where independent evidence does not suggest that a crime has

[ 345 Pa. Super. Page 501]

    occurred."); Commonwealth v. Moyer, 277 Pa. Super. 172, 175, 419 A.2d 717, 718 (1980) (collecting cases) ("Before the Commonwealth may introduce a defendant's confession, it must first establish by independent evidence that a crime in fact occurred.") (citations omitted); Commonwealth v. Shoff, 273 Pa. Super. 377, 379, 417 A.2d 698, 699 (1980). ("Before the Commonwealth can use a confession, it must first establish the corpus delicti of the crime confessed. The rule is intended to prevent a defendant from being convicted of a crime solely on the basis of his own statements, . . .") (citations omitted).

Appellant was convicted of the crime of hindering prosecution. See 18 Pa.C.S. § 5105.*fn1 The charge was based, according to the information, on appellant's act of "conceal[ing] or destroy[ing] evidence of a crime, namely: a note addressed to [a co-conspirator.]" R. at 2, para. 6. While there is no transcript of appellant's trial, the parties stipulated that the evidence upon which appellant was convicted consisted solely of Trooper Bordenaro's testimony, on redirect, that appellant told him that he had found and destroyed the note, and appellant's testimony, on cross-examination, that recounted "essentially . . . the same facts." R. at 13, incorporating Slip op. of tr. ct. at II, III; Slip op. of tr. ct. at 5. The record thus contains no independent evidence that the note existed, or that appellant concealed and destroyed it with the intent of hindering the prosecution of a crime. See Commonwealth v. May, 451 Pa. 31, 32, 301 A.2d 368, 369 (1973); Commonwealth v. Herman, 288 Pa. Super. 219, 230-31, 431 A.2d 1016, 1022 (1981) (proof of corpus delicti consists of independent evidence that a loss has occurred and that its cause was more likely to have been criminality

[ 345 Pa. Super. Page 502]

    than accident). I believe, therefore, that this case falls squarely within the rule cited above.

The majority reasons that Trooper Bordenaro's testimony on redirect was admissible because on cross-examination appellant's counsel had "opened the door" to admission of appellant's entire statement to the officer. At /--. The issue before us, however, is not resolved by a decision on the admissibility of the trooper's testimony. In Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974), the Supreme Court held that the corpus delicti rule is not addressed to the conditions under which a confession is admissible, although many cases frame the rule in such terms, but rather is "a formulation of the required proof to take the case to the trier of fact or to sustain a finding of guilt." Id., 459 Pa. at 366 n. 41, 329 A.2d at 274 n. 41 quoting McCormick Handbook of the Law of Evidence, § 158 at 347 (E. Cleary 2d ed. 1974). Thus, "reversible error is not committed when a confession is accepted before such corroborating evidence is produced if, before the evidence closes, independent proof of the corpus delicti is placed in the record." McCormick, Handbook on the Law of Evidence, § 145 at 366 (E. Cleary 3rd ed. 1984). See also Commonwealth v. Brusky, 219 Pa. Super. 54, 57, 280 A.2d 826, 828 (1971); Commonwealth v. Ferguson, 162 Pa. Super. 199, 202, 56 A.2d 360 (1948). The fact that Trooper Bordenaro's testimony may have been properly admitted, therefore, does not dispense with the requirement, not complied with here, that the Commonwealth introduce some independent evidence corroborating appellant's admission.

The only other evidence that the crime in fact occurred was appellant's reiteration of his statement to Trooper Bordenaro in response to questions put to him on cross-examination. The issue before us, therefore, is whether the Commonwealth may satisfy the corpus delicti rule through testimony it elicits from a defendant who decides to testify. This issue has not been considered by a Pennsylvania appellate court, and it is not easily resolved, for it falls squarely between two well-established principles, each of which

[ 345 Pa. Super. Page 503]

    would, if followed, compel a different result. On the one hand, it is clear, as the majority recognizes, that a defendant may not be convicted on the basis of his confession alone; there must be independent evidence establishing the corpus delicti. See, e.g., Commonwealth v. Ware, supra, 459 Pa. at 365-66, 329 A.2d at 274. On the other hand, it is equally clear that he may be convicted if he voluntarily and knowingly pleads guilty. See, e.g., Commonwealth v. Little, 455 Pa. 163, 165-66 n. 1, 314 A.2d 270, 271 n. 1; Commonwealth v. Lewis, 295 Pa. Super. 61, 65, 440 A.2d 1223, 1225 (1982).

The majority, instead of referring to a defendant's guilty plea, uses the term "judicial admission".*fn2 The majority then reasons that a defendant's inculpatory response to cross-examination is sufficiently similar to a guilty plea to enable us to sustain his conviction on the basis of his uncorroborated statement alone. I find this reasoning unpersuasive.

[ 345 Pa. Super. Page 504]

In the first place, the majority fails to note that before the court may accept a guilty plea it must satisfy itself that the crime in fact occurred. It does this by ascertaining whether a factual basis for the plea exists. See Pa.R.Crim.P. 319(a); Commonwealth v. Hines, 496 Pa. 555, 560, 437 A.2d 1180, 1182 (1981) (collecting cases); Commonwealth Page 504} v. Maddox, 450 Pa. 406, 300 A.2d 503 (1973). The court has considerable leeway in satisfying this requirement. For example, the Commonwealth may make an offer of proof, see, e.g., Commonwealth v. Manning, 263 Pa. Super. 430, 398 A.2d 212 (1979), or defense counsel may stipulate to the facts, see, e.g., Commonwealth v. Maddox, supra 450 Pa. at 411, 300 A.2d at 506. After the court determines that there is a factual basis for the plea, and before it accepts the plea, it must present the facts to the defendant and he must acknowledge that they are true. Failure either to ascertain the factual basis for the plea, see Commonwealth v. Hines, supra, Commonwealth v. Reno, 303 Pa. Super. 166, 449 A.2d 630 (1982); Commonwealth v. Stolle, 254 Pa. Super. 483, 386 A.2d 53 (1978), or to obtain an accused's acknowledgment, see Commonwealth v. Manning, supra, may invalidate the plea. The purpose of the factual basis requirement is that "[i]t assures that a defendant who seeks to plead guilty is in fact guilty . . . . [u]nless a factual basis is required, the risk of innocent persons being adjudicated guilty is enhanced." ABA Standards for Criminal Justice, § 14-1.6(a), comment. Thus, the requirement serves the same purpose served by the corpus delicti rule. See Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940) (Policy underlying corpus delicti rule is "the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of conviction where no crime has in fact been committed; . . .")

In addition, the majority's reasoning is unsupported by, or contrary to, such facts as are disclosed by the record. As I have said, no trial transcript has been provided to us. The opinion of the trial court, to which counsel have stipulated, see R. at 13, tells us neither the context in which appellant made his statements, the question or questions to which he responded, or what he said. So far as the record discloses the facts, however, it shows that the majority's

[ 345 Pa. Super. Page 505]

    analogy, or equation, of appellant's testimony with a guilty plea is faulty.*fn3

"[A] guilty plea is not only an admission of conduct but also is an admission of all the elements of a formal criminal charge, and constitutes the waiver of constitutionally-guaranteed rights[.]" Commonwealth v. Hines, supra 496 Pa. at 559, 437 A.2d at 1183. It is because the decision to plead guilty is so momentous, with such grave consequences, that the court must engage in the colloquy with the defendant. It is through the colloquy that the court guards against the possibility that it will accept a plea from an innocent defendant, or a plea that is hasty, unknowing, or involuntary. See Pa.R.Crim.P. 319(a) and comment. Also, it is through the colloquy that the court impresses the defendant with the "grave and solemn [nature of his] act," see Commonwealth v. Sanutti, 454 Pa. 344, 349, 312 A.2d 42, 44 (1973) citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and provides a "dignified procedure designed to impress the defendant with its fairness and concern for his rights." Hoffman, "Rule 11 and the Plea of

[ 345 Pa. Super. Page 506]

Guilty," 45 F.R.D. 149 (1967) quoted in Commonwealth v. Maddox, supra 450 Pa. at 409, 300 A.2d at 504-05. And even after the colloquy, we do not insist that the decision to plead guilty was irrevocable, for we provide that prior to sentencing, the court should "liberally allow[]" the defendant to withdraw his plea. See Commonwealth v. Forbes, 450 Pa. 185, 190, 299 A.2d 268, 271 (1973).

Appellant here enjoyed no such protection. It is true, as the majority notes, that appellant made his inculpatory statement while he was under oath and while he enjoyed the assistance of counsel.*fn4 Nevertheless, he made the statement, not as a deliberate and considered decision to plead guilty, but rather in response to a question put to him on cross-examination. A principal purpose of cross-examination is to test the credibility of a witness by "exploring [the] details and implications [of the witness's testimony], in the hope of disclosing inconsistencies or impossibilities; and, . . . to prove out of the mouth of the witness, impeaching facts known to the cross-examiner such as prior contradictory statements, bias and conviction of crime." McCormick, Handbook on Evidence, supra at 66. Practitioners are advised on techniques that will best serve this purpose. For example, to question a witness suspected of falsifying, one is advised to "jump quickly with rapid-fire questions from one point of the narrative to the other, without time or opportunity for a connected narrative: backward, forward, forward, backward from the middle to the beginning, etc." Ramage, "A Few Rules for the Cross-Examination of Witnesses," 91 Cent.L.J. 354 (1920), cited in id. at 67. As McCormick notes, while cross-examination is a "useful device," it "has its own hazards of producing errors[,]" for "[i]t is, in truth, quite doubtful whether it is not the honest, but weak or timid witness, rather than the rogue, who most

[ 345 Pa. Super. Page 507]

    often goes down under the fire of a cross-examination." Id. at 68-69.

I conclude, therefore, that appellant's testimony on cross-examination was not analogous to a guilty plea but to a confession. Since apart from the confession there was no evidence of the crime, appellant should not have been convicted.


*fn* The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.


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