*1 action, from that this construction; Court now affirms I must dissent. register my a trust to create
Mr. Little have intended may but, estate residuary charitable of his entire purposes him fails the language employed by in my opinion, in- that such intent. Nor do feel demonstrate such life the personal tent can be frоm a review of gleaned upon the decedent affections of expressed strongly. relied most of this Court have majority at of this The conclusion arrived majority it be- accomplish fifteen to rewrites what paragraph Mr. Little intended. Absent language lieves op- of such an I stand еxpressive clearly intent, will into fifteen what paragraph posed incorporating have intended. Mr. Little may Appellant. Commonwealth v. Rucker, *2 November Argued Before C. J., Jones, Jones, Bok JJ. Bell, Mtjsmanno, Cohen, Eagen, Benjamin Lipschitz, Donolow, Mm R. Louis -with. appellant. Attorney, Specter, with Assistant District Arlen Williams, Robert W. William E. J'r. and him Wolf, Attorneys, Paul M. Ohalfin, Assistant District Jr., Attorney, and E. Victor District First Assistant appel- Attorney, for Commonwealth, District Blanc, lee. Mb. March 1961:
Opinion Justice Bell, p.m., approximately 9 On December at open cel one forced Melton* with Carl dwelling grocery store and lar door and entered the *3 which his Rose wife, of Samuel Schloss and Schloss, Philadel located at 311 North Franklin Street, was principal objective phia. was to rob Their age. years Melton of who were each 65 Sehlosses, grabbed mercilessly Mm brutally beat and Schloss and pieces large on his a hatchet head with and various spattered pipe floor, of brass blood was —the ceiling. into even the walls and Defendant went ground, another Mrs. to the room, knocked Schloss stamped beat several times on her face with Ms heel, into her unconsciousness and stabbed her in sev then parts boning body long of her a eral with knife, body. he left in her died from these knife wounds. She say it Without further detail will suffice to it one of most unnec was brutal, vicious, merciless, killings essary inhuman was and committed. ever perpetration only robbery, committed in the not of a * seрarately tried murder Melton was and was convicted of degree penalty in the first with of death. Rucker turns in took brutally beating insensibility. Miraculously Schloss into sur- he vived. premeditated it a
but also deliberate and was willful, register fled. They cash murder. then rifled tbe night Melton An hour later that defendant and tbe from were arrested tbe street short distance arms Sc'hloss home. There were blood stains on tbe clothing caught of both men with were (robbery). tbe “fruits tbe Defendant crime” only signed voluntary also but detailed confession police. billing did re-enacted tbe for tbe Defendant able, testify very in bis dеfense. After own charge by the-jury tbe Court defendant of convicted degree penalty first murder with of death: Defendant filed 25 reasons for a trial, new urges only appeal. four them on this one The-first process it is that is a violation of due introduce prior guilty, to a verdict of evidence of a defendant’s prior pen purpose, affecting for convictions tbe tbe alty. expressly question ad We have decided this versely to defendants. The murder tbe was committed, judgment of tbe verdict was tbe rendered, prior sentence was entered tbe Act of December split verdict 1959—tbe Act—and will that statute applied retroactively: Commonwealth v. Scoleri, 2d 215. Defendant’s second contention error that was pur to introduce evidence of convictions tbe pose affecting showing tbe without tbe sen *4 imposed tences which were on such convictions. support proposition To defendant cites Common wealth v. 250 Pa. Minnich, 95 A. is 565. That .case 363, distinguishable. question admissi of tbe involved bility upon principal of tbe record of a conviction of a accessory. jury’s tbe trial of an Tbe held Court that tbe principal’s verdict in tbe ease was be inadmissible (a) cause due a motion for new trial bad disposed not been tbe trial Court the conviction principal yet approved had been the trial 266 sen- nor entered been had and judgment could defendant (b) thereon imposed
tence first there was unless an accessory be convicted as judgment the jury the principal by conviction of thereon. entered the pur for held that has more recently
This Court
ad
conviction is
of a
evidence
pose
fixing penalty,
suspended,
sentence was
though
missible even
defendant
made by
and oral statements
that written
in connection
him
of admissions by
records
well
are admissible: Commonwealth
other crimes
with
2d
Commonwealth
353;
65 A.
267 only verdict of a ord there must be not conviction, judgment imposition guilt of a alsо complete misapprehension This indicates a sentence. purpose jury receive which the is to infor by defendant mation other committed offenses intelligently namely, they be able should trial, ought penalty, to fix the and, end, upon they are know What manner of man whom pro bеing impose asked to criminal sentence,—his his demonstrated attitude law clivities, toward mitigating factors other such order, and, hand, may impaired mental exist nature of health, circum state of or other deficiencies, intoxication, Accordingly, stances. it has been held that never dеfendant’s commission be shown of other crimes can only by proof contrary, official there on the records; shape of has been received in the of oral statements (Common by or written confessions made defendant wealth 143 Common Parker, A. 144, 294 Common wealth v. Pa. 144 A. Mellor, 339, Dague, 302 152 wealth v. Pa. A. Common 288), wealth Pa. A. 2d as well Petrillo, through oral elicited from defendant (Commonwealth on the witness stand v. Flood, A. 152; Commonwealth Kurutz, 28).” 168 In Thompson, supra, Commonwealth v. the Court sustaining a murder conviction admissi- and the bility pur- of the record of a court-martial for the sole pose аiding determining imposed (page 399) said : “For dec- almost three Pennsylvania ades it has been a well established recognized prior rule of law that evidence of of- by by proven fenses committed whether defendant, records written or oral state- convictions, upon made ments еlicited cross- examination of the is admissible in a homi- defendant, *6 prior admissibility of on Accord . .”
tide trial.
.
penalty: Com
determining
purpose
the
of
for
crimes
A. 2d
Lowry,
monwealth
during the Commonwealth’s
contended
Defendant
right
the notes
introduce
the
to
that he had
case
of
con
prior
he was
the
cases which
in аll
presentation
his de
it came to.the
but when
victed,
stand
only
to take the witness
he not
failed
fense
which
of indictment
the bills
not offer
did
he likewise
imposed
his
had been
which
sentences
the
showed
mitigating cir
prior
introduction
The
convictions.
re
to the
was,
in relief- of
cumstances
largely
dis
split
for the
a matter
statute,
cent
verdict
Judge:
Williams,
the trial
cretion of
retry
jury
permit
to
a
602. To
Defendant’s third contention jury Judge the trial to refuse to instruct plea guilty” murder of the of “not is a denial charged charge. Judge unnecessary. This The was part, jury, in material as “The defendant follows: produce any has not seen fit to evidence-in answer charge to answer Commonwealth, produced by to the evidence the Commonwealth. charge you, is the and I so that the fact that law, go defendant does not stand taken on the is not be any guilt, and considered or to be against anything taken and considered him what- soever. When the Evidence was General Act of 1887 passed provided may neglect it ... was ... ‘Nor actually or refusal of the defendant on trial in a crim- court offer himself be treated as inal as witness adversely or be creating presumption against any Mm, trial.’ referred to court or counsel during want to know that.” you the trial said
Moreover Judge repeatedly alone theirs their recollection and was mind was and that bear binding; “you [must] presumed criminal case the defendant and the burden is the Commonwealth innocent, be- to prove charged the defendant of the crime guilty shifts.” yond reasonable this burden never doubt, The Common- trial further “Since the Judge charged wealth has the burden trial estab- throughout *7 lish reasonable the of the defendant a guilt beyond the doubt, light will the evidence in the jury weigh that burden fair a verdict.” That was a reaсhing and (under charge. the issues in a case) proper this
In Commonwealth 378 106 A. Pa. 412, Kloiber, 2d the come Court said “We 820, (pages 417-418) : now to the charge: from the Court’s following excerpt ‘I think is no there contradiction of Kloiber William the been at farm having Michael having gone with least the to Star. аt first the Silver Senkovich, time, So that William Kloiber does not make a denial that he was with Michael on Senkovich morning early when this . .’. robbery ample occurred . There was to that William testimony prove Kloiber was at farm and at the Silver Star with Senkovich at times in question; but whether question remains this an adverse constituted comment the Court failure defendant’s to testify violation of §10 ¡1887, of the Act of
“William Kloiber Mot pleaded and did not guilty’ take the stand. After witness correctly telling that it is their understanding recollection governs and that prevails, are the persons determine its they weight and сredi- said: ‘There is one more bility, to be thing
270 person you, any accused
said to and that that They testify. right crime has a constitutional not right to do a see fit have not to take the stand if impress you fact that and I that the want so, person that constitutional to exercise has chosen any right give you power unfair does to draw put person. concerning To or adverse inference testify in specifically, Kloiber William chose not privilege, and this case. That his constitutional was give you right the fact that he does exercised right any adverse inference that could draw very certainly fair to him in this cаse.’ That was proper statement of the law. Judge William “. . . trial The statement with Sen- Kloiber that he was does make denial robbery morning early oc- kovich on the when consti- decisions curred . . does not under our . 275 tute reversible error: Commonwealth v. Thomas, Holley, 137, Pa. 118 A. Commonwealth 667; 141, 358 Pa. 56 A. 2d Cоmmonwealth 296, 300, Superior 44 158 Pa. 164, 168, 169, Ct. Schuster, 2d Commonwealth v. Nelson, A. Pa. 542; Commonwealth v. Chickerella,
A. v. Green, 129. Cf. however, A. Foley, Commonwealth v. *8 Superior Ct. 414.” supra, the trial
In Commonwealth v. Chickerella, dispute Judge facts; the been no as to said “There has any say, to has made denial of that is the defense not This the as offered the Commonwealth.” charge Section not violate held that that did Court supra. April Act Similarly in Pa., Thomas, charge following supra, Court sustained the 140-141) (pages to : “‘The has not seen fit charge produce any evidence in answer to of the pro- to the answer evidence Commоnwealth, I so duced is law, Commonwealth. charge not you, that does that the fact the defendant go produce any evidence on the or does stand, to and considered as his is not be taken own behalf, any guilt, or considered evidence of to be taken and against anything . . him whatsoever. longer mere It is to
“. . . be noted no does the advantage of the to mention defendant’s failure take right (Com. his be heard constitute error 557), justify W.N.C. reversal Brown, thereto must he ‘adverse/ reference statement Common “So, wealth is uncontradicted is Com. Chicker harmless: Superior 251 Pa. Com. v. 34 Pa. Ct. ella, Martin, Superior con Com. v. Ct. To Rizzo, indicating go stitute the remark must error, further, duty testify, permitting of the defendant to an inference to failure unfavorable from drawn his Foley, to do so: Com. v. Com. v. Green, Superior . Ct. 414. .” Defendant’s fourth an contention is that it was juror privacy invasion and the coercion of a consequently Judge “error for the trial them advise juror that each when examined stated that he had no scruples pen- against conscientious or other the death alty.”
After two hours of deliberation the returned ques- Judge to the courtroom and asked the trial tion: No. “Juror 5—we his would like to know what question answer whether believes he —of capital punishment.” The Court answered: jury, question “Members of answer propounded you that has been to the instruct juror any capi- has what said about his belief in punishment tal on his voir dire matter your responsibility consideration. Your render is to *9 given and
a verdict under all the evidence the law this Court. you by sworn “I juror in that each who passing may say had that he in this and stated when examined, case, death scruples against no conscientious or other in a case. proper “The back.” jury may go do? а trial What else could a Is Judge say jus- be be law endless, nullified, aof delayed tice because befogged needlessly Judge’s harmless question juror irrelevant by con- answer thereto? This unprejudicial accurate and de- tention is obviously utterly so trivial of merit. void affirmed.
Judgment Dissenting Opinion Musmannо: Me. Justice Opinion cites Commonwealth The Majority support position its Thompson, introduce convictions it is proper before it is in murder cases even established pres- committed the crime with he in the charged. Thompson stands dissented ently and I set dissent this case the reasons case, forth at case. Thompson length Dissenting Opinion Me. Justice Boic: I dissent for the given dissenting- reasons my opinion in Commonwealth Scoleri, 2d 215. (1960), County. Allegheny
Henry, Appellant,