Commonwealth v. Wilson

OPINION OF THE COURT

EAGEN, Chief Justice.

Following his arrest in Delaware County for murder and related crimes, Floyd Wilson, Jr., incriminated himself in oral and written statements to the police. A pretrial motion to suppress evidence of these incriminations was denied after an evidentiary hearing. Subsequently, Wilson was brought to trial before a jury and was found guilty of murder of the first degree, attempted robbery, criminal conspiracy, and crimes committed with firearms. Post-verdict motions were denied, and a sentence of life imprisonment was imposed on the murder conviction. Additional prison sentences were imposed on the robbery and conspiracy convictions. An appeal from the life imprisonment sentence was filed directly in this Court. An appeal filed in the Superior Court from the other judgments of sentence was later certified here.

In his opening statement at trial, the assistant district attorney told the jury of Wilson’s incriminating statements following his arrest and quoted from the written statement.¹ However, the statements were not introduced into evidence or referred to again during the trial. Wilson contends the foregoing violated his constitutional right of confrontation (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)) and caused an unfair trial. Since we agree with the latter contention, we need not reach the Bruton issue.

If a confession is introduced into evidence at trial, the accused has the right to cross-examine those who verify it as to the circumstances and contents. He may also question its accuracy and even deny making it. Here, Wilson was denied the opportunity of making any inquiry as to the confession, its contents or circumstances even though the jury was effectively made aware that he had confessed and that he had “signed a written confession, signed it on each and every page of the confession, and his father signed the confession at the end.” Additionally, the jury was told by the assistant district attorney that Wilson had lied and tried to mislead the police as to the gun. All of this was without support in the record.

The most devastating evidence against one accused of crime is a confession or admission of guilt. This case is no exception. Even instructions such as were given here by the court to the jury cautioning that they should dismiss the statement from “your mind” and let it not “enter into your deliberations” could not erase the impact of having the jury know Wilson had confessed. Any person conversant with the mental process of a jury in determining the guilt or innocence of an accused would be hard put to honestly deny this.

The Commonwealth urges that the assistant district attorney was acting in good faith during his opening presentation to the jury and intended as of that moment to make evidentiary use of Wilson’s “confession,” but changed his mind as the trial progressed. Suffice it to say, the good faith of the prosecuting official does not lessen the prejudice suffered by Wilson.

Next, the Commonwealth, without specifically saying so, implies the issue has not been preserved for appellate review because Wilson’s counsel “indicated satisfaction” with the trial court’s cautionary instructions to dismiss the statement from “your mind.” Under the singular circumstances this record presents, we rule the issue is properly before us.

Wilson’s counsel made no objection during the opening statement and, in view of the court’s pretrial ruling permitting evidentiary use of Wilson’s in-custody statements, counsel’s silence at this point is understandable. Cf. Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973), and Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927).

At the close of the Commonwealth’s evidence, Wilson’s counsel asked to see the court outside the presence of the jury and, at a conference that followed, counsel voiced concern about the assistant district attorney’s opening statement that Wilson had given police a statement. The trial judge immediately assumed command, and advised counsel, “I have tried to handle the situation [by giving the cautionary instructions] as best as can be under the circumstances.” Defense counsel expressed satisfaction with the instructions insofar as they dealt with a reference to a “statement” Wilson gave to police, but then reiterated his objection if the assistant district attorney referred to a “confession” which, in fact, he did.² Further discussion occurred during which defense counsel expressed agreement with the court that a “confession” did exist; that the Commonwealth could have, but did not, introduce it; and, that some advantage to Wilson might result from the “confession” not having been put into evidence. But defense counsel did not express satisfaction with the instructions if the opening statement referred to a “confession.”

Fairly read, the record shows the court effectively overruled the objection insofar as it was based on a reference to a “confession.” Our view of the record is in accord with that of the trial court in that it discussed the merits of the issue extensively and gave no indication it considered the issue waived in its opinion denying post-verdict motions. Accordingly, we do not believe the issue is waived.

Finally, the trial court ruled the “passing reference” to the “confession” was harmless error. We are not so persuaded. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967).

Judgments reversed and new trial granted.

NIX, J., filed a dissenting opinion in which LARSEN, J., joins.

1 . In his opening statement, the assistant district attorney gave an extended definition and explanation of the criminal charges. He then minutely recited the circumstances of the attempted robbery and killing and described Wilson as one of the two armed participants. He then told of the seizure of a .32 caliber pistol from under a mattress in Wilson’s father’s bedroom and Wilson’s arrest and interrogation at police headquarters. The assistant district attorney then followed with this:

“Interrogation of Wilson started. He gave an oral statement and that will be produced for you. He later signed a written confession, signed it on each and every page of the confession, after speaking to his father at police headquarters, and his father signed the confession at the end. That confession — and you will hear the words of it — does not say that the pistol used in the death is in his father’s home. It says that it has been thrown away, discarded. What significance? Later that day sometime in the afternoon of the 26th after the written statement has now been taken, concluded, sometime in the morning after all of the formal proceedings involving Wilson have been completed, the bullet from Bob Sparks’ body is recovered. It had not gone through his body. It has been recovered and can be compared for ballistics purposes.

“Wilson is now informed of this fact by Detective John Lister of the Criminal Investigation Division of the District Attorney’s Office. And at this time he says, yes, that’s it. That’s the gun I used. I killed him.”

2 . The opening statement had not yet been transcribed.