Commonwealth v. Berkheimer , 505 Pa. 506 ( 1984 )

OPINION OF THE COURT

FLAHERTY, Justice.

On May 4, 1979 William Berkheimer, after a jury trial in the Court of Common Pleas of Montgomery County, Criminal Division, was found guilty of voluntary manslaughter, recklessly endangering another person, possession of an instrument of crime and violation of the uniform firearms act. This conviction arose in connection with the fatal shooting of one Glenn Scott in the parking lot of a bar in Pottstown, Pennsylvania on September 15, 1978. On June 23, 1980 the trial court imposed a sentence of five to fifteen years. On July 21, 1980 Berkheimer appealed to this Court from the judgment of sentence (Berkheimer I), raising eleven assignments of error. In Berkheimer I, we addressed two of these issues: we held that the evidence was sufficient to sustain the conviction, but vacated the judgment of sentence and remanded the case to the Court of Common Pleas for an evidentiary hearing on the question of whether one Thomas Brown — a Commonwealth witness and Berkheimer’s cellmate — was a police agent at the time he talked with Berkheimer and allegedly obtained incriminating admissions, to which Brown testified at trial. 501 Pa. 85, 460 A.2d 233. If Brown was a police agent within the meaning of United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) his testimony must be suppressed and a new trial granted. In addition to the remand, we noted that nine additional issues raised in Berkheimer I, while unaddressed in that Opinion, would be preserved for review should another appeal result.

On August 24, 1983 the Court of Common Pleas of Montgomery County conducted an evidentiary hearing as directed by our Opinion in Berkheimer I. It determined that Brown was not a police agent at the time he received inculpatory admissions from Berkheimer and reinstated the judgment of sentence. This appeal, Berkheimer II, followed. Berkheimer now challenges not only the determination of the Court of Common Pleas on remand as to Brown’s status as a police agent, but also raises anew the remaining issues presented but not addressed in Berkheimer I.

Inasmuch as the remand required the trial court to conduct a suppression hearing, we are governed by the following standard of review:

In reviewing a suppression court’s determination in favor of the Commonwealth, this Court accepts “only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as fairly read in the context of the record as a whole remains uncontradicted.” Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977).

Commonwealth v. Canady, 500 Pa. 624, 627-8, 459 A.2d 715, 716 (1982). In Commonwealth v. Johnson, we added:

If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error.

467 Pa. 146, 152, 354 A.2d 886, 889 (1976). On remand, the trial court heard testimony from four police officers, the assistant district attorney in charge of the first trial, Brown, Berkheimer, and Mr. Couchara, Berkheimer’s counsel. The Commonwealth’s evidence was and the trial court found as fact that Brown’s aid was not solicited by the police or the district attorney, that no promises were made to Brown, and that he received no benefit in return for his testimony. Furthermore, although defense counsel testified that Brown told him that Brown’s aid was solicited by the police, the court found as fact that Brown’s statement to defense counsel was a fabrication. We are constrained, under the applicable standard of review, to affirm the trial court’s determination.

In addition, we have reviewed each of the remaining nine assignments of error,^* and find them without sufficient merit to warrant reversal. Accordingly, judgment of sentence is affirmed.

HUTCHINSON, J., filed a Concurring Opinion which PAPADAKOS, J., joined. NIX, C.J., dissents.

* The nine issues reviewed are (1) the trial court erred in not admitting the testimony of a defense witness as to prior inconsistent statements of Mr. Brown; (2) it was error to admit into evidence the .22 calibre ammunition found in appellant’s home; (3) all evidence obtained as a result of searches conducted pursuant to warrants should have been suppressed because the affidavits in support of the warrants contained misstatements of material fact; (4) it was error to admit hearsay evidence of Mr. Herrlinger, a Commonwealth witness; (5) the pathologist should not have been permitted to testify as to a conclusion of homicide when his testimony was in part based on hearsay information supplied by the police; (6) it was error to allow the wife of the decedent to testify because she was not sequestered as were other witnesses pursuant to a sequestration order; (7) a juror should have been struck when it was discovered that the juror’s wife sat next to decedent’s wife and/or relatives during trial; (8) the sentence was improper because the court failed to place various sentencing alternatives on the record as provided by the sentencing code; (9) the sentence of the court was unduly harsh.