Russell "Maroon" Shoatz
(1943 - ) is a former Black Panther and Black Liberation
Army member, currently serving two life sentences in Waynesburg, PA for
the 1970 murder of a police officer. Shoatz's supporters argue that he
is a political prisoner.
As a young man Shoatz was a community activist and co-founder
of the Black Unity Council, an organization that joined the Black
Panther Party (BPP) in 1969.
From August 1970 to January 1972, Shoatz was active
as an underground member of
the Black Liberation Army, an armed group that splintered from the BPP.
Life in prison
In 1972, Russell Shoatz was apprehended and convicted
of a 1970 attack on a Philadelphia police station in which a police
officer was killed. He escaped from a Huntington, PA prison in 1977 but
was recaptured a month later.
Relocated to Fairview, a maximum security institution
in Waymart, PA, in 1980 Shoatz again escaped after another prisoner
smuggled in a revolver and sub-machine gun. Three days later, a shoot
out with state authorities ended in his capture. Since 1991, Shoatz has
been on 23-hour lockdown.
In 2005, following a prison blood test, Shoatz was
diagnosed with prostate cancer. In May of that year, rap artist M1 of
Dead Prez helped raise money for Shoatz as part of the "Free the Hood"
Russell Shoatz's son, Russell Shoatz III, has worked
to bring international attention to his father's case and is active
within the Human Rights Coalition, Families and Communities United,
Black August and Griotis.
Supreme Court of Pennsylvania
COMMONWEALTH OF PENNSYLVANIA
RUSSELL SHOATZ, APPELLANT (TWO CASES)
November 24, 1976
Walter J. Collins, Jr., Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst.
Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div.,
James Garrett, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Nix and Manderino, JJ.
Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Pomeroy, J., took no part in the consideration or decision of this case.
[ 469 Pa. Page 550]
OPINION OF THE COURT
Appellant Russell Shoatz was convicted by a jury of murder of the
first degree, assault and battery with intent to murder, aggravated
robbery and conspiracy, all of which stemmed from a series of events
surrounding the August 29, 1970, shootings of two Philadelphia police
officers. Post-trial motions for new trial and in arrest of judgment
were denied by the court en banc and Shoatz was sentenced to life
This direct appeal followed.
[ 469 Pa. Page 551]
Initially, appellant raises several allegations of error by the
suppression court. First, he attacks the legality of his arrest and
search as violative of his rights under the Fourth Amendment. We
"Our responsibility upon review is to determine whether the record
supports the factual findings of the lower court and the legitimacy of
the inferences and legal conclusions drawn therefrom. Commonwealth v.
458 Pa. 240,
328 A.2d 517 (1974); Commonwealth v. Stafford,
451 Pa. 95, 101,
301 A.2d 600, 604 (1974). Furthermore, we are to
consider only the evidence of the prosecution's witnesses and that
portion of the testimony offered by the defendant which is
uncontradicted. See generally Commonwealth v. Goodwin,
460 Pa. 516,
333 A.2d 892 (1975); Commonwealth v. Bundy, supra."
Commonwealth v. Boone,
467 Pa. 168, 173,
354 A.2d 898, 900 (1975).
The Commonwealth's evidence established that on January 19, 1972, at
approximately 6:30 P.M., Officers Berry and King were in a radio patrol
wagon when an unknown male approached them and stated: "There's three .
. . dudes hanging around the dress shop across the street . . . I think
they're going to hold the place up or either burglarize the place,
because when they seen [sic] me they ran up the alley." The officers
went across the street and searched the alley but their search was
fruitless. As they came out onto the street a woman from the dress shop
in question stated that three men had been "hanging around" outside the
store and had entered the adjacent alley. The police informed her of
their search and assured her they would maintain surveillance of the
premises. The officers proceeded toward their patrol wagon at which
point three men, two of whom were carrying suitcases, appeared on the
[ 469 Pa. Page 552]
the entrance to the alley*fn2
whereupon Officer King said, "Hold it gentlemen, I'd like to speak to
The two males with the suitcases dropped them and all three ran down
the stairs and across the sidewalk to a car parked at the curb. With
guns drawn the police ordered the men to halt and they complied. The
three were then instructed to place their hands on the roof of the
vehicle. Officer Berry proceeded to frisk Carter while King retrieved
the suitcases. King opened the blue suitcase and discovered various
automatic weapons, hand guns, explosives and ammunition. The three were
placed under arrest. Additional help was summoned and a third officer
arrived who "frisked" Holder and retrieved a P-38 pistol and an
ammunition clip. The suspects were placed in a police vehicle and taken
to the police station.
The suppression court found sufficient basis for an investigative
stop and frisk by the officers. Moreover, the court concluded that the
arrests occurred only after the gun was taken from Mark Holder as a
result of this frisk, and the subsequent search of the suitcases was
permissible as incident to the lawful arrests. However, the notes of
testimony from the suppression hearing contradict these findings. The
officers' testimony clearly indicated that the revolver was not
recovered from Holder's waistband until after the officers had opened
the suitcases and discovered their contents. Therefore the seizure of
the gun could not have provided the legal basis for the search of the
suitcases. At post-trial motions, the court en banc upheld the legality
of the arrest on the theory that the suitcases were abandoned by the
suspects and the contraband recovered therefrom provided probable cause
for the arrests. We agree.
[ 469 Pa. Page 553]
The theory of abandonment is predicated upon the clear intent of an
individual to relinquish control of the property he possesses.
Abandonment is primarily a question of intent, and intent may be
inferred from words spoken, acts done, and other objective facts. United
States v. Cowan, 2d Cir. 1968, 396 F.2d 83, 87. All relevant
circumstances existing at the time of the alleged abandonment should be
considered. United States v. Manning, 5th Cir. 1971, 440 F.2d 1105,
1111. Police pursuit or the existence of a police investigation does not
of itself render abandonment involuntary. See Abel v. United States,
supra; United States v. Edwards, 5th Cir. 1971, 441 F.2d 749; Lurie v.
Oberhauser, 9th Cir. 1970, 431 F.2d 330. The issue is not abandonment in
the strict property-right sense, but whether the person prejudiced by
the search had voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question so that he could
no longer retain a reasonable expectation of privacy with regard to it
at the time of the search. United States v. Edwards, supra, 441 F.2d at
753; cf. Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.
Moreover, it is well settled that no one has standing to complain of
a search or seizure of property that he has voluntarily abandoned. Abel
v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960);
United States v. Colbert, supra.
This Commonwealth has adopted the theory of abandonment of property
only when it is shown that the seized evidence was not discarded as a
result of unlawful police coercion.
Although abandoned property may normally be obtained and used for
evidentiary purposes by the police, such property may not be utilized
where the abandonment is coerced by unlawful police action.
[ 469 Pa. Page 554]
As the Fifth Circuit noted in Fletcher v. Wainwright: "Several
courts have considered this situation and have uniformly held that the
initial illegality tainted the seizure of the evidence since the
throwing was the direct consequence of the illegal entry. In such a
situation it cannot be said that there was a 'voluntary abandonment' of
the evidence. The only courts that have allowed the seizure of evidence
that was thrown out the window have emphasized that 'no improper or
unlawful act was committed by any of the officers' prior to the evidence
being tossed out the window." 399 F.2d 62, 64 (5th Cir. 1968) (citations
omitted). See also Hobson v. United States, 226 F.2d 890, 894 (8th Cir.
1955). (Footnote omitted). Commonwealth v. Jeffries,
454 Pa. 320, 326,
311 A.2d 914, 918 (1973).
See also, Commonwealth v. Pollard,
450 Pa. 138,
299 A.2d 233 (1973). In the instant case, the
suspects dropped their suitcases and attempted to flee in an automobile.
This behavior indicated a clear intent to relinquish both control of the
luggage as well as any expectation of maintaining the privacy of its
contents. Thus, the only question which remains is the legitimacy of the
police conduct prior to the moment the bags were dropped.
A review of the record fully establishes that the officers acted in
a responsible and proper manner. They had been informed by two
independent sources about the suspicious behavior of three males in the
vicinity of a dress shop. These men had run into an adjacent alley when
observed by one of the informants. Shortly thereafter, the officers
observed three men carrying suitcases descending the steps of this same
alleyway. Under these circumstances, the police officers acted
appropriately in attempting to make a preliminary investigation as to
the identity and activity of these individuals:
"The Fourth Amendment does not require a policeman who lacks the
precise level of information necessary
[ 469 Pa. Page 555]
for probable cause to arrest to simply shrug his shoulders and
allow a crime to occur or a criminal to escape. On the contrary, Terry
recognizes that it may be the essence of good police work to adopt an
intermediate response. A brief stop of a suspicious individual, in order
to determine his identity or to maintain the status quo momentarily
while obtaining more information, may be most reasonable in light of the
facts known to the officer at the time." (Citations omitted) Adams v.
Williams, 407 U.S. 413, 145-46, 92 S.Ct. 1921, 1923; 32 L.Ed.2d 612
See also, Commonwealth v. Richards,
458 Pa. 455,
327 A.2d 63 (1975).
We therefore conclude that the police activity prior to the
abandonment of the suitcases was lawful. Accordingly, the search of the
suitcases was not violative of appellant's Fourth Amendment protections.
Appellant next contends that his oral statement made to police
approximately 26 hours after his arrest should have been suppressed
because it was the product of an unnecessary delay and thus violative of
Pennsylvania Rule of Criminal Procedure 118 (now 130) and our mandate in
Commonwealth v. Futch,
447 Pa. 389,
290 A.2d 417 (1971).
Appellant was arrested at 6:45 P.M. on January 19, 1972, for illegal
possession of weapons. At that time he identified himself as Augustus
Van Horn. He was taken to the district police station and then
transported to the Police Administration Building. Appellant received
his Miranda warnings at 10:00 P.M. and was questioned for the next 45
minutes. Immediately thereafter appellant was photographed and
fingerprinted whereupon his true identity was established. As a result,
the police questioning focused upon the Von Colln murder case, in which
appellant was a prime suspect.
[ 469 Pa. Page 556]
At 11:00 P.M. a homicide detective informed Shoatz that the police
were investigating the homicide and warned appellant of his
constitutional rights. Shoatz indicated his willingness to answer
questions without the assistance of counsel and spoke with police until
12:25 A.M. (the morning of January 20th). During this initial interview,
appellant stated that he was an organizer of the Black Unity Council, a
militant revolutionary organization located in West Philadelphia. The
aim of the group was to arm themselves against the police. It was
understood that each individual would act at the time and manner he
deemed appropriate. All the meetings turned to the subject of violence.
When questioned further Shoatz stated: "We meant to arm ourselves and to
get the police because they were part of everything that we were against."
Appellant then denied his participation in the shooting and claimed that
he was in a bar in West Philadelphia at the time in question. Interviews
continued over the next 20 hours. Throughout the course of the
investigation, Shoatz reiterated his personal political views about
alleged injustices by police but steadfastly denied the shooting. At
9:20 P.M., on January 20th appellant was asked directly whether he had
killed Von Colln. Shoatz thereupon responded "Fundamentally, I did", but
refused to elaborate any further. Appellant now contends that this
statement should have been suppressed.*fn3
We do not agree.
Conceding that the 26-hour delay was unnecessary, that alone does
not render the challenged response inadmissible.
[ 469 Pa. Page 557]
". . . [I]t is immaterial from a Futch doctrine standpoint that the
interrogation continued after the [initial interview] period. Since the
information obtained during the subsequent period was merely repetitious,
the appellant was not prejudiced. Commonwealth v. Davis,
460 Pa. 644,
334 A.2d 275 (1975); Commonwealth v. Rowe,
459 Pa. 163,
327 A.2d 358 (1974). In absence of prejudice to the
accused, there is no justification for the imposition of the
exclusionary rule of Futch." Commonwealth v. Boone,
467 Pa. 168, 177,
354 A.2d 898, 902 (1975). (Footnote omitted).
See also, Commonwealth v. Coley,
466 Pa. 53,
351 A.2d 617 (1976); Commonwealth v. Rogers,
463 Pa. 399,
344 A.2d 892 (1975); Commonwealth v. Palmer,
463 Pa. 26,
342 A.2d 387 (1975).
In substance the above-quoted cases reflect this Court's
unwillingness to utilize the doctrine of exclusion where the challenged
evidence resulting from the allegedly tainted police interrogation
supplies nothing further than that which has been established through
admittedly proper questioning. Reviewing appellant's response in context
with other statements elicited during the course of the interviews, it
is clear this comment merely reiterated his adherence to a revolutionary
philosophy which he had consistently maintained. Up to the point of the
challenged utterance, appellant's remarks could only have been
interpreted as an admission of a participation in the conspiratorial
design of the group to which he belonged. He consistently denied actual
participation throughout the questioning. Taken in context, the
statement "Fundamentally, I did" could only be construed as another way
of stating his participation in the conspiratorial design and thus did
not supply the prosecution with any further information it had not
The underlying premise of this argument of appellant is that the
statement could have been understood to
[ 469 Pa. Page 558]
have been an admission to the actual shooting. We do not believe
that such an interpretation could have reasonably been drawn from this
statement in the context in which it was made. Accordingly, it is our
view that the challenged utterance only reiterated that which had
already been stated and its admission into evidence did not further
prejudice appellant's position.
Appellant next assigns as error the failure of the suppression court
to suppress the pre-trial photographic identifications by Pasqualle
DiCamillo and Robert Grier. Upon review of the notes of testimony of the
suppression hearing, we believe the hearing court's rulings were proper.
DiCamillo testified that while driving north along the Cobbs Creek
parkway on the date and time of the shootings, he heard sounds like
firecrackers and saw a man fire a gun in the direction of a parked
police van. DiCamillo then observed a second individual run across the
street from the park and pass directly in front of his vehicle,
requiring DiCamillo to stop abruptly. Although it was dusk, the witness
testified the intersection was well lighted and afforded him a good
opportunity to observe this individual for several seconds.*fn4
DiCamillo reported the incident to police and gave them a brief
description of the men involved.
Grier stated that on August 29, 1970, he was stopped for a traffic
light one block north of the scene of the crime, when his truck was
commandeered at gun-point by a young male who ordered him to drive to
another section of the city. This episode consumed more than 30 minutes
during which Grier was able to carefully study the man's features. Later
that night, Grier spent several hours unsuccessfully leafing through
pages of police
[ 469 Pa. Page 559]
photographs in an attempt to identify the man. He was then shown
eight additional loose pictures of various members of the Black Unity
Council from which he immediately identified Shoatz.
On November 24, 1970, the police showed DiCamillo the same loose
photographs and he selected the photograph of appellant as the man who
ran in front of his car. At that time, DiCamillo stated that he could
not be absolutely sure of the identification unless he saw the
Appellant contends that the use of the eight photographs of members
of the Council was unduly suggestive because all the individuals
pictured did not possess sufficiently similar physical features.
Appellant has failed however to show that the differences in appearance
were in any way designed to suggest or did in fact suggest his
photograph to the viewers. To the contrary, since the police
investigation had indicated that the perpetrators of this crime were
members of the Black Unity Council, it is only reasonable that pictures
of the members of this group would be shown for this purpose. We
therefore find no merit in this contention. Cf. Simmons v. United States,
390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
Appellant also argues that the dissimilarity in appearance of the
lineup participants was unduly suggestive. After careful consideration
of both the composite description of all participants and a review of
the photographic color slides of the lineup itself, we do not agree. All
participants wore the same clothing and had similar hair styles. Shoatz
was neither the shortest nor the tallest of the group. While appellant
appeared to have a slightly stockier build than most, another individual
was heavier and the overall effect was diminished by the loose fitting
overalls they wore. Although only appellant had a full beard, one man
had a long mustache and another
[ 469 Pa. Page 560]
wore large sideburns which covered part of his cheeks. Moreover,
since neither DiCamillo or Grier remembered Shoatz as having a full
beard at the time they observed him, we do not believe that this aspect
of his appearance contributed to his identification.
Next, appellant argues that the identifications should have been
suppressed because counsel had not formally undertaken his
representation at the lineup. Under the specific facts of this case
however, we do not believe that Shoatz was deprived of his
constitutional safeguards during this proceeding. The underlying basis
for requiring counsel at the lineup was set forth by the United States
Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18
L.Ed.2d 1149 (1968):
Since it appears that there is grave potential for prejudice,
intentional or not, in the pretrial lineup, which may not be capable of
reconstruction at trial, and since presence of counsel itself can often
avert prejudice and assure a meaningful confrontation at trial, there
can be little doubt that for Wade the post-indictment lineup was a
critical stage of the prosecution at which he was "as much entitled to
said aid [of counsel] . . . as at the trial itself." Powell v. Alabama,
supra, 287 U.S. 45, 57, 53 S.Ct. 55, at 60, 77 L.Ed. 158, 164, 84 A.L.R.
Id. at 236-237, 87 S.Ct. at 1937 (footnote omitted).
This record establishes that two Public Defenders were present at
the lineup. While they did not officially represent Shoatz, they
nevertheless took an active part in the proceedings. These attorneys
received copies of previous descriptions made by witnesses and consulted
with appellant. When the original group of subjects appeared, the
attorneys voiced their objections and required the police to make
substitutions with individuals who more closely resembled appellant.
Additionally, these attorneys made notes during the lineup and were
[ 469 Pa. Page 561]
present when the victims made their identifications. (There is
no suggestion that the identifications were not made independently or
that there was any suggestive discussion by police with the witnesses
prior to the lineup). Moreover, both testified as defense witnesses at
the suppression hearing and gave their account of the proceedings.*fn5
Under these circumstances, we do not believe appellant's interests were
Accordingly, we find the determination of the suppression court was
Appellant contends that the introduction into evidence of certain
photographic color slides of the deceased was highly prejudicial and
inflammatory and requires the grant of a new trial. The question of
admissibility of such evidence is a matter within the sound discretion
of the trial court and only an abuse of that discretion will constitute
reversible error. Commonwealth v. Garrison,
459 Pa. 664, 666,
331 A.2d 186, 187 (1975); Commonwealth v.
459 Pa. 511,
329 A.2d 844 (1974). Upon review of the record and
the evidence in question, we are convinced the trial judge's ruling was
During the trial the Commonwealth sought to introduce approximately
26 photographic slides which they
[ 469 Pa. Page 562]
contended would aid the pathologist in describing the nature of
the wounds and the cause of death. Further, these slides helped to
establish the brutal and premeditated manner in which the deadly weapon
was used upon vital parts of the body from which the jury could infer
the requisite specific intent for murder of the first degree.
"'In the trial of criminal cases photographs of the victim and of
the scenes of the crime are admissible to aid the jury in their
understanding of the alleged crime, the kind of crime it was, exactly
what caused the victim's death and what, if any connection defendant had
with it . . .'" Commonwealth v. Petrakovitch,
459 Pa. at 522,
329 A.2d at 849.
In chambers, the trial judge ruled that 16 of the 20 slides to which
the defense objected were inadmissible due to their highly gruesome and
inflammatory nature. However, the remaining four slides which depicted
the points of entry and exit of the bullets were admitted. Careful
scrutiny of these slides indicates that practically all the blood had
been removed from the wounds and that none of the pictures exhibited
either the full body or facial view of the deceased. Moreover, these
slides were viewed by the jurors for a very brief period of time and
without undue emphasis. Compare, Commonwealth v. Scaramuzzino,
455 Pa. 378,
317 A.2d 225 (1975); Commonwealth v. Woods,
454 Pa. 250,
311 A.2d 582 (1973). Accordingly, we find that the
slides were neither repugnant nor gruesome and thus were not of the
inflammatory character that would outweigh their evidentiary value.
Commonwealth v. Gonzales,
463 Pa. 597, 603, 45 A.2d 691, 694 (1975).
Appellant urges that the admission into evidence at trial of the
items found in his possession and the possession of his companions at
the time of his arrest was error. As has been stated, at the time of his
[ 469 Pa. Page 563]
approximately one and one-half years after the incident,
appellant along with his companions were found to have possessed
numerous advanced military weapons and munitions. These items included
two of the United States Army's most advanced automatic rifles or
machine guns, the M-16, plastic explosives manufactured solely for
military use and other various military-type of ammunition. It is now
contended that this evidence was irrelevant and served only to inflame
and prejudice the jury since appellant was not being tried for the
possession of this property. In support of the decision to admit this
testimony, the court en banc stated:
"Inasmuch as the instruments and devices found on appellant
consisted of guns, ammunition and explosives, all of which corresponded
generically and some of which corresponded exactly to the type of
ammunition used in the homicide, it was relevant as a circumstance to
help identify appellant and to help to connect him with the crime of
which he was accused . . . ."
In considering the question of relevancy, we have recently had the
occasion to observe:
"Any analysis of the admissibility of a particular type of evidence
must start with a threshold inquiry as to its relevance and probative
value. Commonwealth v. Jones,
459 Pa. 62, 66,
327 A.2d 10, 13 (1974); Commonwealth v. McCusker,
448 Pa. 382, 388,
292 A.2d 286, 289 (1972). We have cited with
approval the test for relevance propounded by two leading evidentiary
authorities, Wigmore and McCormick, Commonwealth v. Jones, supra;
Commonwealth v. Lippert,
454 Pa. 381, 384,
311 A.2d 586, 587 (1973); Commonwealth v. McCusker,
supra. Wigmore defines relevance in terms of two axioms, 'None but facts
having rational probative value are admissible,' and, 'All facts having
rational probative value are admissible, unless some specific
[ 469 Pa. Page 564]
rule forbids.' I Wigmore, Evidence ?? 9-10 at 289-95 (3rd Ed.
1940). McCormick suggests the following for determining relevance, . . .
'[D]oes the evidence offered render the desired inference more probable
than it would be without the evidence? . . . Relevant evidence then, is
evidence that in some degree advances the inquiry, and thus has
probative value, and is prima facie admissible.' McCormick, Evidence ?
185 at 437-38 (See 2nd Ed. 1972)." Commonwealth v. Walzack,
468 Pa. 210,
360 A.2d 914 (1976).
We must thus determine the accuracy of the court en banc's appraisal
that the introduction of this testimony assisted in establishing a
circumstance "to help identify appellant and to help connect him with
the crime of which he was accused." The Commonwealth proceeded upon the
theory that appellant was an organizer of a militant revolutionary group
located in West Philadelphia called the Black Unity Council. One of the
avowed purposes of this organization was to arm themselves against the
local police and gain retribution for various acts which they believe
the police had perpetrated against the community. Moreover, the
Commonwealth sought to prove that the incident in question was in fact
committed by appellant and his organization through a carefully
orchestrated conspiratorial scheme, intended to be the first of several
such attacks upon the local police department.
The Commonwealth introduced evidence to show that appellant
immediately after the event went into hiding and during a portion of
that period stayed in the City of New York using various aliases. It was
also their contention that he was still attempting to elude the police
when he was apprehended and they offered the fact that an alias was
given by him at the time of his arrest to support this inference. It is
therefore their view that his possession or at least his association
[ 469 Pa. Page 565]
in possession of such sophisticated weaponry at the time of his
arrest, was indicative not only of his participation with the group at
the time of the arrest, but in addition it established the continuity of
his relationship from the time of the incident. When we consider the
inaccessibility to the average member of the public, the type of
weaponry found, and the unlikelihood of a newly formed association with
the group after the event, particularly during a time when appellant was
attempting to keep his whereabouts unknown to police officials, we must
conclude that the court below properly deduced that a jury could
reasonably infer that the possession of these weapons rendered the
Commonwealth's desired inference of appellant's participation in the
conspiratorial design more probable than it would have been without the
introduction of such testimony. Cf. United States v. Pentado, 463 F.2d
355 (5th Cir. 1972); People v. Miner, 22 Mich. App. 673, 177 N.W.2d 719
(1970). With regard to the argument of the interval of time that
dissipated any relationship that may have normally flowed from the
possession and the connection with the event, it must be remembered that
such a consideration is one for a jury to resolve in evaluating the
weight of the probative value of the offered evidence and not its
An even more compelling basis for finding the relevance of this
testimony is the fact that during appellant's interrogation, he
consistently maintained that he had disassociated himself from his
organization's plans that included violent retaliation upon the police.
He also asserted that his flight to New York was not associated with a
sense of guilt, but rather occasioned by his fear that he would be
unjustly set upon by the police because of his former associations with
the group. The possession of these weapons, approximately 18 months
after the events, shows that he was not a mere minion who had become
disenchanted and attempted to sever
[ 469 Pa. Page 566]
any former relationships but rather it is clearly indicative of
one who continued his close and integral association during the time
that he was able to allude the police. Since it is fundamental law that
a ruling of the trial court can be sustained even where a trial court
assigns an improper reason, this basis, i. e., the issue of credibility
on a vital subject would necessarily have justified the introduction of
this testimony. Commonwealth v. Baker,
466 Pa. 382, n.8,
353 A.2d 406, 411, n.8 (1976); Borough of
Wilkinsburg v. Sanitation Dept.,
463 Pa. 521, 523, n.2,
345 A.2d 641, 642, n.2 (1975); Commonwealth v.
460 Pa. 95, 101, n.5,
331 A.2d 435, 438, n.5 (1975). Finally, appellant
charges that the court's instruction to the jury were defective because
its summary of the evidence was unfavorable to his position. A review of
the record, however, demonstrates that this argument has not been
preserved for appellate review. No objections were made at trial to
these aspects of the jury charge and no request for instructions on
these points were made. Commonwealth v. Riley,
458 Pa. 390,
326 A.2d 384 (filed October 1974); Commonwealth v.
455 Pa. 93,
314 A.2d 304 (1974); Commonwealth v. Dancer,
452 Pa. 221,
305 A.2d 364 (1973). Although appellant concedes
the failure to properly raise these questions below, it is argued that
in spite of our decision in Commonwealth v. Clair,
458 Pa. 418,
326 A.2d 272 (1974), and Dilliplaine v. Lehigh
Valley Trust Company,
457 Pa. 255,
322 A.2d 114 (1974), the theory of basic and
fundamental error should be applied to this case since the trial
preceded those two decisions. First, there are numerous cases where we
have applied the Clair doctrine to trials that have preceded our
decision in Clair. Additionally, it is clear even under the theory of
basic and fundamental error, these complaints could not have been so
classified. Most of the objections are based on portions of the jury
charge which have been taken out of context and when
[ 469 Pa. Page 567]
read in context are clearly in accord with the evidence that had
been presented at trial.
Judgment of sentence affirmed.
ROBERTS, Justice (dissenting).
I dissent. The majority today rules that an incriminating statement
obtained after an unnecessary delay of at least 26 hours between arrest
and preliminary arraignment was admissible at trial. The majority
reaches its result by characterizing the challenged statement as a mere
reiteration of prior statements elicited from appellant during the
course of the police interrogation. It concludes that the statement did
not prejudice appellant and therefore need not have been suppressed
under Pa.R.Crim.P. 130 and Commonwealth v. Futch,
447 Pa. 389,
290 A.2d 417 (1972). I believe the challenged
statement, obtained after 26 hours of police detention, cannot fairly be
regarded as a mere reiteration of appellant's prior statements to the
police. Because this statement, elicited after an unnecessary delay,
substantially prejudiced appellant's position, it should have been
suppressed under Pa.R.Crim.P. 130 and Commonwealth v. Futch, supra.
On August 29, 1970, police sergeant Francis Von Colln was shot and
killed while sitting at his desk in a guard house in Philadelphia's Cobb
Creek Park. Although appellant immediately became a suspect, he could
not be located during the months that followed.
At about 6:45 p.m., on January 19, 1972, police officers
investigating a possible robbery stopped appellant and two others and
discovered that they were in possession of a number of weapons. The
police did not at this time recognize appellant as a suspect in the Von
[ 469 Pa. Page 568]
slaying. Appellant was arrested, apparently for a weapons
offense, and was transported to police headquarters.
Three hours later, a detective who had taken part in the
investigation of the Von Colln homicide identified appellant as a
suspect in that case. In the following 50 minutes, appellant was
informed of his constitutional rights, fingerprinted, and photographed.
Upon completion of those procedures, interrogation commenced.
During the first 26 hours of appellant's incarceration he denied any
involvement in the Von Colln slaying, although he did admit membership
in the Black Unity Council, an organization which the police suspected
had a role in the Von Colln killing. Appellant admitted that the Council
had discussed the use of violence against the police. Despite his
initial denial of complicity in the Von Colln slaying, the police
questioned appellant for 15 of the next 21 1/2 hours. At about 8:30
p.m., January 20, almost 26 hours after his arrest, he was asked "Did
you shoot and kill Sergeant Von Colln in the Park Guard Headquarters on
August 29, 1970?" Appellant replied, "Fundamentally I did." After making
this statement, appellant refused to elaborate. The police then summoned
appellant's parents by telephone and, after an additional hour of
interrogation, permitted appellant to talk with his parents. He was
arraigned some time after 11:00 p.m., January 20, at least 28 hours
after his arrest. Appellant contends that his statement at 8:30 p.m., on
January 20, should have been suppressed.
When a person is arrested, our rules of criminal procedure mandate
that he be taken without unnecessary delay before a judicial officer for
preliminary arraignment. Pa.R.Crim.P. 122 & 130. In Commonwealth v.
Futch, supra, we held that if evidence obtained during an unnecessary
delay has any reasonable relationship whatsoever to the delay, it is not
admissible at trial. We have employed a three-part test for determining
whether evidence is inadmissible under the Futch rule.
[ 469 Pa. Page 569]
"The delay must be unnecessary; evidence that is prejudicial must be
obtained; and the incriminating evidence must be reasonably related to
Commonwealth v. Williams,
455 Pa. 569, 572,
319 A.2d 419, 420 (1974).*fn1
Appellant has satisfied the first and third prongs of Commonwealth
v. Williams, supra. The Commonwealth has conceded that the delay in this
case was unnecessary. In addition, the incrimin ating statement was
undeniably a product of the unnecessary delay. From the time the police
recognized appellant as a suspect in the Von Colln slaying, appellant
was willing to discuss with them his membership in the Black Unity
Council and his relationships with other suspects, but he steadfastly
denied involvement in the slaying. Only after prolonged incommunicado
incarceration and interrogation did he make the incriminating statement.
The majority, however, asserts that appellant's statement that "fundamentally"
he killed Von Colln was not prejudicial. According to the majority,
appellant's statement "did not supply the prosecution with any further
information it had not already received" and thus "did not further
prejudice appellant's position." I cannot agree.
In his prior statements to the police, appellant admitted that he
was a member of an organization which discussed the use of violence
against the police, but claimed that he never participated in the actual
planning of such acts. His statement that "fundamentally" he killed Von
Colln went beyond his prior admission that he was a
[ 469 Pa. Page 570]
member of the Black Unity Council. It permitted the jury to
infer from appellant's own words that he had participated in some
fashion in the Von Colln homicide, whereas in his prior statements
appellant denied participation in that act or any other act of violence.
The majority errs in stating that appellant's statement "could only
be construed as another way of stating his participation in the
conspiratorial design." Appellant had not previously admitted
participation in a "conspiratorial design." He had only admitted that he
was a member of an organization. His statement that "fundamentally" he
killed Von Colln linked appellant specifically to the homicide and thus
was considerably more damaging than his mere admission of membership in
the Black Unity Council. Cf. Scales v. United States, 367 U.S. 203,
224-25, 81 S.Ct. 1469, 1484, 6 L.Ed.2d 782 (1961).
In this respect, the prejudicial impact of the challenged admission
was substantial. In its charge, the court gave the following instruction
on aiding and abetting.
"It is the Commonwealth's theory that the defendant aided and
abetted others in the willful, deliberate, and premeditated murder of
Sergeant Von Colln.
"One is an aider and abettor in the commission of any crime that he
has joined in its commission. If he was an active partner in the intent
which was the crime's basic element, the least degree of concert or
collusion between the parties to an illegal transaction makes the act of
one the act of all.
"The guilt or innocence of the abettor is not determined by the
quantum of his advice or encouragement. If it is rendered to induce
another to commit the crime and actually had this effect, no more is
The jury had to be satisfied beyond a reasonable doubt not just that
appellant was a member of the Black Unity
[ 469 Pa. Page 571]
Council, but also that he knew of the plan to kill Von Colln and had
in some way encouraged it. In his closing argument, the prosecutor used
appellant's admission to support his theory that appellant was a
conspirator in the Von Colln slaying. As used by the prosecution,
appellant's statement was not, as the majority asserts, a mere
reiteration of his prior admission that he was a member of the Black
Unity Council. Rather, the statement permitted the jury to infer from
appellant's own words what he had unequivocally denied in his earlier
statements to the police, i. e., that he had participated in the killing.
In the light of the court's charge and the prosecutor's closing argument,
appellant's statement that "fundamentally" he killed Von Colln might
have convinced the jury that even if appellant was not the man who fired
the fatal bullet, he had encouraged the crime, shared in the intent to
commit it and thus was guilty as an aider and abettor.
Appellant's admission was prejudicial and should have been excluded.
This Court has held that where a defendant initially denies his
involvement in a crime to the police and afterwards, following a period
of unnecessary delay between arrest and preliminary arraignment, admits
complicity, a nexus between the admission and delay is established
requiring suppression of the statement. See e. g., Commonwealth v.
457 Pa. 201,
321 A.2d 611 (1974); Commonwealth v. Tingle,
451 Pa. 241,
301 A.2d 701 (1973).*fn2
The trial court's failure to suppress the statement in this case
constituted reversible error.
I would reverse and remand for a new trial.
Shoatz also received consecutive sentences of 10-20 years for aggravated
robbery, 3 1/2 to 7 years for aggravated assault with intent to murder
and 1 to 2 years for conspiracy which were to run concurrently with the
life sentence for murder. On appeal, we assumed jurisdiction of the
murder conviction pursuant to Appellate Court Jurisdiction Act, Act of
July 31, 1970, P.L. 673, No. 223, art. II, ? 202(1), 17 P.S. ?
211.202(1). The non-homicide convictions were appealed to the Superior
Court and certified to this Court for consolidation and consideration.
Appellant was carrying a white suitcase and a blue bag was in the
possession of one Charles Carter. The third man, Mark Holder, was not
The record of the suppression hearing reflects that appellant's Futch
objection at that time was directed solely to the response, "Fundamentally,
I did", but not to the other information elicited during the course of
the interrogations. In his brief to this Court, appellant has implicitly
attempted to expand this objection to also embrace other damaging
admissions made during the questioning. We must reject this attempt to
place before us at this juncture that which was not properly preserved
for appellate review. Commonwealth v. Clair,
458 Pa. 418,
326 A.2d 272 (1974).
Although DiCamillo was unswerving in his testimony, appellant implies
that the limited opportunity for observation makes the identification
unreliable. This argument however affects the weight to be accorded the
testimony and not its admissibility. See Commonwealth v. Kloiber,
378 Pa. 412,
106 A.2d 820 (1954).
In analyzing the Wade requirement, it has been pertinently observed:
[W]e think the important question is
whether the representation provided the defendant at the lineup was
adequate (a) to safeguard the defendant in an identification process
attended with hazards of serious unfairness, to wit, the suggestive
manner with which such line-up confrontations can be conducted, and (b)
to preserve for the defendant the ability to effectively reconstruct at
trial the manner and mode of the lineup. In our view, if these purposes
are met then the requirements in Wade are satisfied, whether the
representation at the lineup be handled by the accused's own counsel or
substitute counsel. . . . . United States v. Sanders, 322 F.Supp. 947,
950 (E.D.Pa.1971). aff'd, 459 F.2d 86 (3rd Cir.), cert. denied, 409 U.S.
860, 93 S.Ct. 146, 34 L.Ed.2d 106 (1972).
We also note that the suppression court had the photographic slides of
the lineup to aid its determination.
A more general formulation of the Futch inquiry involves a single
determination whether a "nexus" exists between the unnecessary delay and
the challenged evidence. See e. g., Commonwealth v. Tingle,
451 Pa. 241,
301 A.2d 701 (1973). In this analysis, the
prejudicial nature of the challenged evidence must be shown in order to
establish the requisite nexus. See Commonwealth v. Palmer,
463 Pa. 26,
342 A.2d 387 (1975); Commonwealth v. Rowe,
459 Pa. 163,
327 A.2d 358 (1974).
The majority relies on cases which are inapposite to the situation
presented here. In those cases, the statements taken from the accused
after unnecessary delay were essentially a reiteration of prior
untainted admissions and thus did not further prejudice the accused.
Here, appellant's statement, taken after 26 hours of unnecessary delay,
differed substantially from his prior statements and seriously
prejudiced his position
Russell "Maroon" Shoatz