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submitted: August 3, 1987.


Appeal from the Judgment of Sentence of February 6, 1986, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1234 December 1974.


Gerald A. Stein, Philadelphia, for appellant.

John J. Burfete, Jr., Norristown, for Com., appellee.

Cirillo, President Judge, and Hoffman and Hester, JJ. Hoffman, J., concurs and dissents with an opinion.

Author: Hester

[ 370 Pa. Super. Page 5]

On June 27, 1985, a jury convicted Jeffrey Carr, appellant, of first degree murder and possessing an instrument of crime. On February 6, 1986, post-trial motions were denied, and the trial court imposed a sentence of life imprisonment on the first degree murder conviction. We reject appellant's sixteen allegations of trial error, and affirm.

The evidence establishes that on November 23, 1974, appellant shot his fifteen-year-old victim, Calvin Dantzler, in the head. That evening, Calvin was at a neighbor's apartment playing cards with the neighbor's three children and several friends. Appellant, then seventeen, and a friend wanted to join the gathering. Calvin refused, and the two had a fist fight in the hallway. Calvin was the victor. A short while later, appellant returned to the apartment complex, commonly referred to as the "projects," and shouted at Calvin, taunting him into another fist fight, which Calvin also won.

Appellant then returned to his apartment, found his pistol, sought out Calvin and shot at him twice. Calvin died of one gunshot wound to the head.

Appellant's June 27, 1985 trial was the second trial of this matter. The first issue we address requires review of the complete history of appellant's court proceedings as well as the law relating to adolescent confessions.

When appellant was arrested for Calvin's murder in the early hours of November 24, 1974, he confessed to the killing. After being advised of his Miranda rights, appellant told police about the two fist fights he had with Calvin. He also said that he then "went and got [his] piece and . . . went back to the projects." N.T., 6/25/85, at 250. He next admitted that he sought out Calvin, but said he only shot the victim after he saw him reach for a gun. No weapon was found on or near the victim's body.

Following denial of a suppression motion, this confession was admitted at appellant's first trial, which commenced on May 1, 1975. He was convicted of first degree murder,

[ 370 Pa. Super. Page 6]

    conspiracy and possession of an instrument of crime. On October 7, 1975, post-trial motions were filed and denied.

On July 17, 1975, the Pennsylvania Supreme Court ruled that an accused under eighteen may not effectively waive his constitutional rights against self-incrimination and to counsel unless provided an opportunity to consult with an adult who is interested in his welfare and who has been advised of the youth's Miranda rights. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). McCutchen's per se exclusionary rule replaced prior law, which analyzed the voluntariness of a juvenile's confession under a totality of the circumstances standard, with weight given to age. This per se exclusionary rule came to be known as the "interested adult" or McCutchen rule.

Appellant's prior appellate counsel raised the McCutchen issue, and the supreme court, in Commonwealth v. Carr, 471 Pa. 86, 369 A.2d 1207 (1977), acknowledged that appellant's incriminating statement should not have been introduced in the 1975 trial since he had not consulted with an informed and interested adult before surrendering his constitutional rights. However, the claim had not been raised in the 1975 post-trial proceedings, and the court determined that it had been waived.

Appellant then filed a petition for post conviction relief, alleging the ineffectiveness of trial counsel for failing to raise the interested adult rule in post-trial motions as well as the ineffectiveness of appellate counsel for failing to raise trial counsel's ineffectiveness for not raising the issue. On August 26, 1983, we granted appellant a new trial on that basis. Commonwealth v. Carr, 320 Pa. Super. 1, 466 A.2d 1030 (1983).

The Commonwealth, following denial of en banc reargument on November 8, 1983, appealed the 1983 decision. That appeal was quashed on January 22, 1985. Commonwealth v. Carr, 506 Pa. 566, 486 A.2d 1328 (1985).

[ 370 Pa. Super. Page 7]

In the meantime, on April 17, 1984, McCutchen was overruled, and the supreme court readopted the rule in effect when appellant's confession was taken. Commonwealth Page 7} v. Williams, 504 Pa. 511, 475 A.2d 1283 (1984). The Williams court determined that a per se exclusionary rule was "overly protective and unreasonably paternalistic," and provided "means for juvenile offenders to secure suppression of confessions in fact given in a knowing, intelligent and voluntary manner." Id., 504 Pa. at 520, 475 A.2d at 1287, quoting Commonwealth v. Christmas, 502 Pa. 218, 223, 465 A.2d 989, 992 (1983). The court in Williams stated that juveniles could be adequately protected against the disadvantages of immaturity in a manner more accommodating to the interests of society and justice. The new test for determining the voluntariness of a juvenile's confession was announced as follows:

The requirements of due process are satisfied, and the protection against the use of involuntary confessions which law and reason demand is met by application of the totality of circumstances analysis to all questions involving the waiver of rights and the voluntariness of confessions made by juveniles. All of the attending facts and circumstances must be considered and weighed in determining whether a juvenile's confession was knowingly and freely given. Among those factors are the juvenile's youth, experience, comprehension, and the presence or absence of an interested adult.

Id., 504 Pa. at 521, 475 A.2d at 1283.

On February 11, 1985, the supreme court returned appellant's record to the trial court for retrial. At appellant's second suppression hearing, the trial court decided to determine the voluntariness of appellant's confession under "available" law at that time, which was Williams. N.T., 6/17/85, at 6. Following the suppression hearing, the trial court determined that the confession was admissible under the Williams standard.

Appellant's second allegation of trial error, which is the first issue we address, is that the trial court erred in determining the voluntariness of his confession under the Williams standard. Appellant argues that McCutchen should have been applied.

[ 370 Pa. Super. Page 8]

The most recent supreme court decision on application of new constitutional standards is found in Commonwealth v. Simons, 514 Pa. 10, 522 A.2d 537 (1987). At issue was the constitutional right against double jeopardy in the context of prosecutorial misconduct. In that context, as in the area of juvenile confessions, the standard of reviewing whether prosecutorial misconduct prohibited retrial on double jeopardy grounds had been changing in a manner unfavorable to criminal defendants.

In Simons, the defendant had been convicted of robbery in 1975. He successfully obtained a new trial in 1980 on the basis that the prosecutor had concealed from the jury the terms of a plea agreement between the Commonwealth and a prosecution witness. Simons then moved to dismiss the charges against him, arguing that retrial would violate his double jeopardy rights. The trial court denied the motion, and we affirmed.

At issue was whether the conduct of the prosecutor in the 1975 trial was mere error, or whether it was overreaching, triggering the double jeopardy clause. The standard for determining whether overreaching was present had been subject to different standards of review from 1977 to the time of the Simons decision. In Simons, the Pennsylvania Supreme Court overruled a 1982 standard for analyzing prosecutorial overreaching. Even though it was announcing a new standard less favorable to criminal defendants, it applied that standard to the case before it. In doing so, the court stated:

Because this case presently is on appeal, [the new] standard of review applies immediately. The Appellant's right not to be held in double jeopardy, in any event, is not being damaged by this decision because we are describing anew only the present applicable standard of review and the circumstances which will cause double jeopardy to attach but not changing the right itself. The Appellant is getting the benefit of what our ...

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