Commonwealth v. Saunders , 459 Pa. 677 ( 1975 )

OPINION OF THE COURT

POMEROY, Justice.

Carolyn Saunders was convicted of murder in the second degree following a trial without a jury. Post-trial motions were denied and she was sentenced to two and one-half to ten years imprisonment at the State Correctional Institution at Muncy. This direct appeal followed. Miss Saunders has challenged the admissibility of an inculpatory statement which she gave the police and which was introduced intoaevidence, over objection, at trial; she also asserts that the sentence imposed was illegal. We affirm.

Briefly stated, the evidence adduced at trial established that on the morning of Sunday, June 24, 1973, shortly before 9:00 A.M., one Gladys Mae Pearson, also known as “Gypsy”, went to the apartment of one Earl Archie in order to buy narcotics. Present with Archie in the apartment were the appellant and one Veronica Tucker. Because Gypsy did not have enough money to pay for the narcotics, Archie refused to sell to her. An argument ensued and Gypsy departed.

On the street outside the apartment Gypsy encountered a friend, Fred Jones, and the two stood talking on the sidewalk directly beneath the windows of Archie’s apartment, which was on the second floor at the front of the building. Jones then began arguing with Archie and the two women who were standing at the windows of the apartment. As the argument continued, Jones drew a pistol and fired.¹ After exchanging a few more angry words with the trio in the window, Gypsy and Jones then crossed the street and entered Jones’s automobile. Just as Jones started his car, he was struck by a shotgun blast fired from the apartment window. Jones subsequently died from the wound.

Shortly after the shooting, appellant and Miss Tucker were seen fleeing the apartment building. That evening, at approximately 10:20 P.M., Carolyn Saunders was arrested and charged with Jones’ murder.- Upon being interrogated at the police administration building, she initially denied being the shooter. She later was given a polygraph test and after being told that she had failed it she gave the statement which was introduced at trial. This occurred between 6:15 and 6:45 o’clock on the morning following her arrest. In the statement appellant admitted firing the fatal shot but claimed that she was merely trying to hit the side of the car when she fired, and that the striking of Jones was accidental.

Appellant contends that this statement was improperly admitted into evidence because it was obtained during an “unnecessary delay” between the time of her arrest and her arraignment in violation of Pa.R.Cr.P. 118 (now Rule 130, 19 P.S. Appendix, and was the product of the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Whether or not this is a tenable proposition in light of all the circumstances disclosed by the record, appellant is precluded from asserting it as error.

Carolyn Saunders herself took the stand at trial and gave almost verbatim the same version of the episode as that contained in the statement which was introduced into evidence. We have held a number of times that such corroborative testimony by a defendant disentitles him from claiming that an error in admitting a statement constitutes ground for reversal. Commonwealth v. Greene, 456 Pa. 195, 198, 317 A.2d 268 (1974); Commonwealth v. Collins, 436 Pa. 114, 121-122, 259 A.2d 160, 164 (1969); Commonwealth ex rel. Edowski v. Maroney, 423 Pa. 229, 223 A.2d 749, 752 (1966); Commonwealth ex rel. Adderley v. Myers, 418 Pa. 366, 211 A.2d 481 (1965). See also, Commonwealth v. Witherspoon, 442 Pa. 597, 277 A.2d 827 (1971); Commonwealth v. Diaz, 438 Pa. 356, 264 A.2d 592 (1970); Commonwealth v. Padgett, 428 Pa. 229, 237 A.2d 209 (1968). Furthermore, appellant freely admitted in her testimony that the statement was accurate and that she did not disagree with anything contained in it.

Appellant contends that she should not be foreclosed because had the statement been excluded, she would not have adopted the trial strategy that she did, namely, to admit the shooting as a scare device but to deny any intention to hit the decedent. In Commonwealth v. Greene, 456 Pa. 195, 317 A.2d 268 (1974), we rejected a similar argument in a comparable situation: “At the conclusion of the Commonwealth’s evidence, appellant took the stand and repeated the substance of her inculpatory admissions in an effort to establish that the stabbing was in self-defense. It cannot be argued seriously that her out-of-court confession determined her choice of defenses since the Commonwealth produced two eye-witnesses to the altercation between Greene and Brock.” 456 Pa. at 198-199, 317 A.2d at 270 (alternative ground of decision). We further observed, in a footnote, that “ [u]nder the circumstances, pleading self-defense was the most promising course available to appellant.” Id. at 199, 317 A.2d at 270, n. 2. Similar considerations obtained in the present case.² In the face of the Commonwealth’s overwhelming evidence, appellant’s “most promising course” was that which she pursued: an attempt to negate the intent element by her own testimony. As it was, the trial court was sufficiently impressed with her testimony concerning the absence of intent that it determined that the case rose only to murder in the second degree.

The other assignment of error relates to appellant’s sentence. She points out, correctly, that the sentence of not less than two and one-half years and not more than ten years in the State Correctional Institution at Muncy was not in accordance with thq terms of the new Muncy Act,³ which proscribes the imposition of minimum sentences for women. The trial judge in her opinion below took note of this fact, but explained that she imposed a minimum sentence because of her conclusion that the no-minimum provision of the act was unconstitutional as violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Equality of Rights Amendment to the Pennsylvania Constitution, Pa.Const., Art. I, Sec. 27, P.S. In so holding, the trial judge but anticipated the recent decision of this Court which struck down that portion of the New Muncy Act as unconstitutional. Commonwealth v. Butler, Pa., 328 A.2d 851 [filed October 16, 1974]. It follows, accordingly, that the imposition of a minimum sentence on appellant was correct.

Judgment of sentence affirmed.

MANDERINO, J., did not participate in the consideration or decision of this case. NIX, J., filed a dissenting opinion, in which ROBERTS, J., joined.

1 . The evidence was conflicting as to whether he fired one or two shots and whether he fired at the windows or up in the air. In any case, no one was hit.

2 . Appellant’s testimony was amply confirmed by that of Gladys Mae Pearson (Gypsy) identifying Miss Saunders as the shooter and by testimony of two other persons, Helen Felder and Tina Kinard, as to non-custodial oral admissions made to them by the appellant. Additionally, a statement of Veronica Tucker, introduced into evidence by the appellant, confirmed both the details of Miss Saunders’ statement and her trial testimony.

3 . Act of July 16, 1968, P.L. 349, No. 171, § 1, 61 P.S. § 566.