Commonwealth v. Scoleri, Appellant.
Supreme Court of Pennsylvania
April 4, 1960
Argued October 15, 1959; reargued January 14, 1960. Reargument refused April 19, 1960.
The judgment is reversed and the complaint reinstated with leave to the defendant to file answer thereto within twenty days of the date of the lower court‘s receipt of the remanded record.
Mr. Justice BELL and Mr. Justice MUSMANNO dissent.
reargument refused April 19, 1960.
Michael von Moschzisker, with him von Moschzisker, Bradley and Carroll, for appellant.
Paul M. Chalfin, First Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE BENJAMIN R. JONES, April 4, 1960:
Anthony “Tony” Scoleri, the appellant, and his brother, Joseph “Eddie” Scoleri,1 were charged in a
On August 28, 1958, Max Gordon operated a “notions” store at the southwest corner of Newkirk and Reed Streets, Philadelphia. This store was located on the first floor of the premises and in the rear thereof was a kitchen; in the basement was a recreation-living room; on the second floor were the living quarters of the Gordon family which consisted of Max Gordon, his wife, Rose Gordon, and their 17 year old daughter, Sheila Gordon.
At approximately 8:40 o‘clock in the evening of that date, two men, both armed and masked,2 entered Gordon‘s store through the front door. Gordon and his wife were then in the kitchen; Sheila Gordon and her friend, Jack Dinerman, were watching television in the basement recreation room. Gordon was struck with a blunt instrument on the head, the blow causing him to fall to the kitchen floor although he was not rendered unconscious; Mrs. Gordon fainted and fell to the floor. The “taller” man guarded Mr. and Mrs. Gordon with a gun while the “shorter” man went down to the recreation room and ordered Sheila Gordon and Dinerman to the first floor. The “taller” man guarded both Gordons and Dinerman in the kitchen with a gun while the “shorter” man forced Sheila Gordon to accompany him to the second floor where he searched for money or other valuables. Upon their return to the kitchen both
During the course of the hold-up the men removed a ring from Mrs. Gordon‘s finger, some items of jewelry from the second floor bedroom, $14 from Dinerman‘s wallet and a small amount of money from the store‘s cash register. In addition to operating a “notions” store, Max Gordon also cashed checks and issued money orders for the American Express Company and several American Express Company orders were found missing.5
There was definite and certain identification of both men who took part in this affair.6 Dinerman identified the “shorter” man as “Tony” Scoleri and testified that it was he who removed the money from his (Dinerman‘s) wallet and it was he who was observed shooting at Max Gordon in the store. From a photograph Dinerman also identified the “taller” man, - a “light skinned negro” - as Richard “Ricky” Woods. Sheila
After these men left Gordon‘s store they ran south along the westerly side of Newkirk Street until they reached Dickinson Street; at that point they turned right and ran to 29th Street - less than a city block west of Newkirk Street - where they entered a 1955 Chevrolet two door sedan operated by “Eddie” Scoleri. Woods, the wounded “taller” man who had fallen several times en route to this point, was helped into the car by appellant. A number of youngsters who happened to be in the neighborhood pursued the two men until they drove away in the car; during this pursuit, “Tony” Scoleri fired his gun at the youngsters.
Both Scoleris and Woods went directly to the apartment of one Ida Iocco, “Tony” Scoleri‘s girl friend, arriving there at approximately 9 o‘clock p.m. Denise Devonshire and Harry Shinock, who were in the Iocco apartment at that time, saw Woods carried into the apartment by the Scoleris and placed in the bedroom where he subsequently died, no medical care having been summoned. Several days later Scoleris took Wood‘s body to New Jersey where they buried it in a shallow trench.
On August 30, 1958 the Scoleris and Ida Iocco went to New Jersey; after arranging for “Eddie” Scoleri‘s 1955 Chevrolet sedan to be repainted, they took an automobile belonging to Pat Scoleri, a brother of “Tony” and “Eddie“, and went to West Virginia where they stayed with some friends. From one of these friends, -
Shortly after the commission of the hold-up both Scoleris, in each other‘s presence, related to Ida Iocco how “Tony” Scoleri and Woods had entered Gordon‘s store and committed the hold-up and that “Eddie” Scoleri drove the get-away car, “Tony” Scoleri stating that he had “shot at Max Gordon“. The bullet which fatally wounded Woods was traced to Max Gordon‘s gun. “Tony” Scoleri‘s gun was never recovered; however, there was evidence that, prior to, during and subsequent to the hold-up, “Tony” Scoleri had in his possession a .32 calibre automatic gun and the autopsy on Max Gordon‘s body revealed the presence of two .32 calibre bullets.
Appellant‘s defense was an alibi supplemented by testimony that, as the result of an ankle injury sustained 10 days prior to the date of the hold-up, his ability to walk was so impaired that he could not have run from Gordon‘s store as testified by certain Commonwealth witnesses.
“Eddie” Scoleri testified that “Tony” Scoleri had not taken part in the hold-up. His testimony was that Joseph “Yogi” Santarpio and Woods were the two men
The Commonwealth, in rebuttal, called (1) F. M. Caraker, appellant‘s parole officer, who testified that on two occasions - two days prior to and the day subsequent to the hold-up - he had seen appellant and noticed nothing unusual in his manner of walking and (2) five witnesses all of whom testified that “Yogi” Santarpio9 was with them working in a garage at the time of the robbery.
Appellant contends that he is entitled to a new trial on three grounds: (1) that the trial court‘s action in proceeding with the trial, in view of appellant‘s physical and mental condition, was highly prejudicial; (2) that the trial court erred in its instructions to the jury on reasonable doubt and the defense of alibi; (3) that the passage by the General Assembly of Act 594 of 1959, approved December 1, 1959, which provides for a “split verdict” trial in homicide cases, compels a new trial.
During the course of the trial10 - at approximately 5:25 a.m. Monday, November 24th - a prison guard discovered that appellant had slashed his left arm in sev-
“DR. CARIDEO: He is still under the effect of sedation and medication that he had this morning. There is evidence of the sedative effects. He does respond to stimuli, but he lapses back into drowsiness, and he is uncooperative, and that is the large element of his present condition.
“THE COURT: Doctor, I noticed you were talking to him and he made no response, and then you asked him to take a deep breath What was it you put up to him?
“DR. CARIDEO: Aromatic spirits.
“THE COURT: Which he fought, and he threw his head violently to the right and left, and when his head was held and he was restrained, you forced him to smell it, and he did take a deep breath, and then a moment thereafter you asked him how he felt and he answered, ‘All right.’
“DR. CARIDEO: You may have noted when I held the perle of aromatic spirits to his nose, he didn‘t breathe. His breathing stopped at that point - He would not inhale. So there is a conscious element there that is coupled with his restraint and his unwillingness to cooperate.” ...
“THE COURT: ... Doctor, do you anticipate within hours, when this so-called tranquilizer, the effect thereof, has worn off, that he will be capable?
“DR. CARIDEO: I see no other reason for him not responding other than malingering after a reasonable period of time has elapsed so that this is out of his system.” (Emphasis supplied)
At 7:30 p.m., after another examination of appellant, Dr. Carideo reported, that, in his opinion, none of the physical effects earlier noted then existed, the effects of the drug thorazine should have been fully dissipated and appellant was then aware of his surroundings. At this point the trial was resumed without any objection on the part of defense counsel.
At approximately 9:15 p.m. the trial court ordered a trial recess. Again Dr. Carideo examined appellant and the following discussion took place:
“THE COURT: Doctor, you have just examined him during the recess period. Is your opinion the same now as it was when we started, or is he in a better condition to hear than he was?
“DR. CARIDEO: I think his condition is better. I think he is more responsive to stimuli and beginning to speak spontaneously, and he asked for a glass of water, and desired to use the toilet, and I think he is more responsive now than he was in the beginning. His condition is essentially normal otherwise; his pressure, respiration and pulse are all normal.
“THE COURT: Of course, that was his condition before we brought him in the first time?
“DR. CARIDEO: Yes, that is correct. “THE COURT: So that you think, as you did then, he is not only capable of understanding, but more capable of understanding?
“DR. CARIDEO: More so than he was possibly five hours ago.” (Emphasis supplied).
After another examination by Dr. Carideo at 9:40 p.m. the trial was then resumed, again without objection by defense counsel. At 10:20 p.m., after the defense had completed its testimony and before the Commonwealth presented its rebuttal evidence, the following discussion took place:
“MR. MCCLAIN: If the Court please, I object to any rebuttal being produced by the Commonwealth in the present condition of this defendant. Neither my colleague, Mr. King, nor myself are able to consult with him or talk to him about the evidence which is now to be offered. Therefore, I object to any further testimony on behalf of the Commonwealth until he is able to consult with his counsel.
“THE COURT: I have been advised before we brought him in that he was able to consult. I have been advised by the doctors. A doctor is here in attendance, and he has stated that since that time he is better able than he was five hours ago, which antedated the time we started this session by two hours, and you notice this, he has asked for water, and he has asked for a blanket, and inasmuch as some of the testimony has been taken within his presence and within his hearing, I do not propose to have this case interrupted any longer.
Your objection is overruled.”
“MR. MCCLAIN: Will your Honor bear with me a moment? I say to you, your Honor, that examination comes from a police surgeon, and we should like the privilege of having a physician of our own selection make an examination of this man.
“THE COURT: Colonel, I asked you that before we started this session, and you told me you had a doctor with you, and I told the police surgeon, Dr. Carideo, not to go in there without the other doctor. “MR. MCCLAIN: That was, your Honor -
“THE COURT: Pardon me, I have not finished. I asked you and Mr. King, and I held the doctor back there, and you told me you did not wish or desire to have this man examined by another physician, and it was then, and then only, I permitted Dr. Carideo to go back there to make another examination.
“MR. MCCLAIN: Perhaps there was a misapprehension, your Honor. That doctor who was in the elevator with us coming up was Dr. Rotman from the Southern Division of the Einstein Center.
“THE COURT: So I found out afterwards.
“MR. MCCLAIN: Whom we were calling to testify to that slip that your Honor has not allowed in evidence.
“THE COURT: I understand that now, but I asked you when I learned that whether you were going to bring a doctor in to examine him, and both you and Mr. King said, no.
“MR. MCCLAIN: We have had no opportunity to consult the doctor.
“THE COURT: You had opportunity all day. I gave you that opportunity all day long to do that, and you haven‘t done it, and now at this time, twenty minutes past ten at night, after this jury has been held up all day with nothing to do, you come in and ask for that.
Objection overruled. You have an exception and the record is protected.”
The next morning both Dr. Carideo and a Dr. Ingaglio - the latter selected by defense counsel - examined appellant and reported to the trial judge. Dr. Ingaglio stated: “I haven‘t found anything at all contrary to Dr. Carideo‘s examination. The patient is
Appellant‘s counsel13 now contends that the trial court, in this connection, erred: (1) in directing that the trial resume after having been informed by defense counsel that they were unable to consult or talk with him about the evidence about to be offered by the Commonwealth; (2) in receiving evidence concerning appellant‘s physical and mental condition in the absence of both appellant and the jury and later instructing the jury concerning such evidence; (3) in permitting the trial to resume after receiving medical advice as to defendant‘s disability.
Certain facts in the background of this incident should be noted: (1) both “Tony” Scoleri and “Eddie” Scoleri had fully completed their testimony prior to the week-end adjournment of the trial on November 22nd; (2) when appellant was first examined after discovery of his injury, it was ascertained that the lacerations were minor - only skin deep without any tendon or arterial involvement, - the loss of blood was slight, his blood pressure and pulse were good and, even though in a conscious state, appellant refused to cooperate with the medical examiner.
Appellant‘s apathy, lethargy or drowsiness, if any existed, could be attributed to only one cause, i.e., the
Appellant next urges that appellant had the right to confront all the witnesses and be present at every stage of the trial; with that statement of the law there can be no disagreement: Commonwealth v. Ballem, 386 Pa. 20, 29, 123 A. 2d 728 (1956); Commonwealth ex rel. Tanner v. Claudy, 378 Pa. 429, 431, 106 A. 2d 401 (1954);
When the trial resumed the court stated to the jury: “Before we start, I want you to know that under professional medical advice this defendant‘s trial continued, notwithstanding what you have witnessed here in the courtroom. The professional medical advice was that he was competent to hear everything intelligently, his pulse was normal, there was no high blood pressure; no distress, and there was no medical reason for this particular condition, an obvious condition, and the physicians say there was nothing wrong with him whatsoever. Had it been that he was incapable of hearing what was going on here, we could not have proceeded. We would have just had to continue the case. We continued it for one day, as you know.”
For obvious reasons this statement evoked neither objection nor unfavorable comment from defense counsel. The trial court‘s statement was fair to both Commonwealth and Scoleri; it allayed any possible suspicion of an attempt by Scoleri at self-destruction as well as any sympathy which Scoleri‘s obvious condition might have engendered in the jury.
Dr. Ingaglio, after he examined appellant on November 25th, was of the opinion that psychiatric care would be helpful at that time. Defense counsel made no objection to resumption of the trial on that basis but it is now urged that, in the face of this suggestion, it was error for the trial to be resumed. That “Tony” Scoleri at trial for murder, suffered from anxiety and apprehension was an essentially normal, not abnormal nor unusual, manifestation. Freedom from worry and anxiety is yet to be recognized as a right guaranteed, by the constitution or otherwise, to a defendant on trial for a crime, particularly the crime of murder. With eminent propriety the trial court under the circumstances herein presented resumed the trial.
On the defense of alibi the trial court stated: “What is an alibi? First of all, when an alibi is set up, it still requires the Commonwealth to prove every essential element of the case. The Commonwealth cannot be remiss, it still has to prove every element of the case, notwithstanding the fact that an alibi is set up. The Commonwealth‘s statements of fact must include the presence of the defendant at the time of the homicide, because that is the material factor or material element in the case...“. Further: “A defendant is not required to establish an alibi beyond a reasonable doubt. It is a strong defense, it is a full defense, it is a perfect defense - in fact, the most perfect defense a man can make, because, as I said to you, no man can be in two distinct places at the same time, and even if he at-
When given, these instructions were in full accord with the then existing principles of the law: Rudy v. Commonwealth, 128 Pa. 500, 507, 508, 18 A. 344 (1889); Commonwealth v. Barrish, 297 Pa. 160, 167, 168, 169, 170, 146 A. 553 (1929); Commonwealth v. Jordan, 328 Pa. 439, 446, 196 A. 10 (1938); Commonwealth v. Blanchard, 345 Pa. 289, 291, 26 A. 2d 303 (1942); Commonwealth v. Richardson, 392 Pa. 528, 544, 140 A. 2d 828 (1958); Commonwealth v. Gates, 392 Pa. 557, 564, 141 A. 2d 219 (1958); Sadler, Criminal Procedure in Pennsylvania, (2nd ed.), Vol. 2, 580. Cf: Commonwealth v. Barnak, 357 Pa. 391, pp. 406, 407, footnote, 54 A. 2d 865 (1947). On May 28, 1959 - six months subsequent to the appellant‘s trial and conviction - Commonwealth v. Bonomo, 396 Pa. 222, 151 A. 2d 441 (1959), effected a change in the law on this subject. In Bonomo (p. 230), this Court stated: “Hence, whenever the prosecution relies upon proof that the defendant is present at the commission of the crime, it cannot be said with any show of reason that the defendant, who asserts he was absent, has any burden of proving it.” Appellant seeks a new trial because of the change in the law effected by Bonomo. As Mr. Justice MCBRIDE clearly and distinctly set forth in Bonomo, the Court established “the rule which shall be followed hereafter in this jurisdiction” :15 Bonomo furnishes the guide for
Lastly, appellant contends that the passage—one year subsequent to appellant‘s trial and conviction—by the 1959 legislature of the so-called “split verdict” statute17 compels the grant of a new trial. Although
For the ascertainment of the legislative intent in determining whether a statute is retroactive or retrospective in operation the legislature itself has set up certain definite yardsticks for the guidance of the judiciary.
In the first place, Section 56, Art. IV of the Statutory Construction Act20 provides: “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” (Emphasis supplied). In the construction of statutes our courts have uniformly adhered to this legislative mandate: Commonwealth v. Rockwell Mfg. Co., 392 Pa. 339, 140 A. 2d 854; Creighan v. Pittsburgh, 389 Pa. 569, 132 A. 2d 867; Hirsch v. Bunker Hill Mutual Ins. Co., 389 Pa. 92, 132 A. 2d 212; Sawdey Liquor License Case, 369 Pa. 19, 85 A. 2d 28; Bowie Coal Company Petition, 368 Pa. 102, 82 A. 2d 24; Commonwealth v. Repplier Coal Co., 348 Pa. 372, 35 A. 2d 319; Farmers Nat‘l Bank & Trust Co. v. Berks County Real Estate Co. et al., 333 Pa. 390, 5 A. 2d 94. See also: Barnet v. Barnet, 15 S. & R. 71, 72; Mullock v. Souder, 5 W. & S. 198, 199; Neff‘s Appeal, 21 Pa. 243, 247; Taylor v. Mitchell, 57 Pa. 209, 211, 212. The instant statute not only lacks a clear and manifest expression of intent that it be construed retroactively, but it does not contain any such implication. In the second place, since the 1959 statute is amendatory, Section 73, art. V of the Statutory Construction Act applies: “Whenever a section or part of a law is amended, the amendment shall be construed as merging into the original law, become a part there
Commonwealth ex rel. Lyons v. Day, 177 Pa. Superior Ct. 392, 110 A. 2d 871, Commonwealth v. Voci, 393 Pa. 404, 143 A. 2d 652 and Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657, are illustrative of a sound judicial refusal to apply criminal statutes retroactively. In Day, supra, the relator in a habeas corpus proceeding, convicted of burglary in 1946, had been sentenced to the Pennsylvania Industrial School under a statute which required him to serve a 20 year maximum term unless sooner released by the Pardon Board; in 1953 the legislature passed an amendatory statute limiting the duration of a sentence to the Industrial School to a 6 year term; the Superior Court rejected relator‘s contention that the 1953 statute operated retroactively to reduce his duly imposed sentence. In Voci, supra, we did not apply retroactively a statute prohibiting the introduction of evidence secured by wiretap in any Pennsylvania court to proceedings then pending on appeal in which Voci had been convicted on the basis of
One hundred ten years ago in De Chastellux v. Fairchild, 15 Pa. 18, 20, Chief Justice GIBSON stated: “If any thing is self-evident in the structure of our government, it is, that the legislature has no power to order a new trial, or to direct the court to order it, either before or after judgment. The power to order new trials is judicial; but the power of the legislature is not judicial.” Mr. Justice (later Chief Justice) WOODWARD in Commonwealth ex rel. Johnson v. Halloway, 42 Pa. 446, 448, 82 Am. Dec. 526, stated: “The whole judicial power of the Commonwealth is vested in courts. Not a fragment of it belongs to the legislature. The trial, conviction and sentencing of criminals are judicial duties, and the duration or period of the sentence is an essential part of a judicial judgment in a criminal record. . . . If [the legislature] may authorize boards of inspectors to disregard judicial sentences, why may they not repeal them as fast as they are pronounced, and thus assume the highest judicial functions? It is to be observed that these questions have no reference to the power of the legislature to prescribe a general rule of law that
The appellant‘s contention rests not upon a legal, but upon an emotional, basis for an application of this statute in a retroactive manner. What appellant in effect says is that the method of procedure formerly recognized by this Court—the one under which appellant was tried and convicted—was an “unfair” method and that the opportunity has now arisen by virtue of the new procedure set forth in the statute for the Court, by the grant of a new trial, to direct that the appellant be tried under a form of procedure more “fair” in that the jury will not know, before reaching a verdict on the issue of guilt or innocence, of appellant‘s past criminal record. Such argument would be applicable not only to the appellant but also to all other defendants under conviction of murder in the first degree whose cases are awaiting disposition either in the lower courts or in this Court as well as the hundreds of convicts now in prison or penitentiary for life for first degree murder whose cases have been concluded by the entry of a final judgment.21
This defendant has no right, vested or otherwise, to a new trial by a particular procedural process provided that the procedure under which his trial was conducted met the requirement of the due process clause: Agostin v. Pittsburgh Steel Foundry Corp., 354 Pa. 543, 47 A. 2d 680; Penelope Club Liquor License Case, 136 Pa. Superior Ct. 505, 512 et seq., 7 A. 2d 558, 562; Fleming v. Rhodes, 331 U. S. 100, 91 L. ed. 1368; Snyder v. Mass., 291 U. S. 97, 78 L. ed. 674; Luria v. United States, 231 U. S. 9, 58 L. ed. 101; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061; Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262; Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075; U. S. v. Papworth, 156 F. Supp. 842, 851, aff‘d. 256 F. 2d 125.
We have carefully examined the entire record of these proceedings and are satisfied that appellant was given a fair trial. He was accorded the benefit of every right guaranteed by law to a defendant in a capital case; he was tried in a manner and under a form of procedure sanctioned by this Court on innumerable occasions; he had able counsel who were given full opportunity to present in all its details appellant‘s defense; his trial was free from error on the part of the court.
Judgment affirmed.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
The jury in this case found the defendant guilty of murder in the first degree and fixed the penalty at death. The defendant has appealed, alleging trial errors.
During the trial, the question arose as to whether the defendant was physically and mentally able to understand what was transpiring in the courtroom at the time. Instead of resolving this question with the scientific impartiality of a thermometer lowered into water to ascertain its temperature, the judge became impatient and ruled in a manner which suggested that his decision was being guided by anger rather than by cool intellectual processes.
The facts are as follows. In the early morning of November 24, 1958, being the seventh day of the trial, the defendant Anthony Scoleri was discovered by a prison guard to be suffering from many lacerations to his arm, apparently self-inflicted. Surgical attention was required and 24 stitches closed the wounds. In order to prevent infection he was given 600,000 units of penicillin and so as to induce sedation there were administered to him 100 milligrams of thorazine.
The trial judge, learning of what had happened, ordered the day‘s session to begin at 2 p.m., but at that hour the police surgeon, Dr. Carideo, reported that the defendant was still suffering from the effects of the medication to which he had been subjected and that intermittently he lapsed into drowsiness. The judge, who
“THE COURT: Doctor, I noticed you were talking to him and he made no response, and then you asked him to take a deep breath. What was it you put up to him?
DR. CARIDEO: Aromatic spirits.
THE COURT: Which he fought, and he threw his head violently to the right and left, and when his head was held and he was restrained, you forced him to smell it, and he did take a deep breath, and then a moment thereafter you asked him how he felt and he answered, ‘All right.‘”
The judge postponed proceedings until 7:30 that evening. At that hour the trial was resumed. Four attendants carried Scoleri into the courtroom on a collapsible stretcher which was placed on the floor. With the defendant prostrate on the floor the trial proceeded until 9:15 when the police surgeon examined him and reported to the court that his condition was “better” and that “he is more responsive to stimuli and beginning to speak spontaneously.” Also, that “his condition is essentially normal otherwise; his pressure, respiration and pulse are all normal.”
The fact that the doctor used comparatives, namely, that the defendant was “more” responsive to stimuli, plainly denotes that he had not been completely responsive to stimuli prior to that time. The fact that the doctor said that the defendant was “beginning to speak spontaneously” clearly implies that from 7:30 until 9:15 he could not speak spontaneously and therefore could not communicate with his attorney while evidence was being presented in his case. The fact that the doctor used the word “otherwise” indicates that Scoleri could have been lacking complete awareness. The doctor emphasized this concept when, in answer to the judge‘s question as to whether the defendant was
“More so” speaks for itself.
Thus, there can be no doubt that some time during the previous five hours, one hour and forty-five minutes of which transpired in the active courtroom, the defendant lacked complete understanding of what was transpiring and was therefore unable to confront the exigencies and demands of the trial.
At 2 p.m., the judge had himself admitted that the defendant was incapable of understanding everything. The record shows the following colloquy between the judge and Dr. Carideo at the time:
“THE COURT: In view of that, the Doctor thinks he is still under enough of this sedation or tranquilizer—
DR. CARIDEO: Tranquilizer, that is correct, sir.
THE COURT: —to make him capable of understanding what goes on, but perhaps not understand everything. Is that correct, Doctor?
DR. CARIDEO: That is correct, sir.”
However, all this is merely prelude to the serious happenings which occurred later. At 10:20 p.m., Mr. McClain, one of defense counsel, made the categorical statement that the defendant‘s condition was such that it was impossible for counsel and co-counsel to talk to him. These are Mr. McClain‘s words: “If the Court please, I object to any rebuttal being produced by the Commonwealth in the present condition of this defendant. Neither my colleague, Mr. King, nor myself are able to consult with him or talk to him about the evidence which is now to be offered. Therefore, I object to any further testimony on behalf of the Commonwealth until he is able to consult with his counsel.”
The judge, however, instead of having the doctor (who was present and prepared to give service) resolve
The fact that the doctor told the judge that the defendant was “better able than he was five hours ago” certainly cannot be accepted as evidence as to what his present condition was. A fever patient who has a temperature of 104 1/2 degrees at 5 o‘clock and a temperature of 104 at 10 o‘clock is certainly better off than he was before, but not very much.
After his objection had been overruled, defendant‘s counsel asked to be heard on the matter. He pointed out that the advice referred to by the judge came from a police surgeon and that he wished to have the privilege of calling in a physician of his own selection to examine the defendant. Instead of passing upon this reasonable request, the judge took counsel to task. He said that he had given defense counsel an opportunity to get a doctor. The defense counsel replied: “We have had no opportunity to consult the doctor.”
The judge then censured defense counsel: “You had opportunity all day. I gave you that opportunity all day long to do that, and you haven‘t done it, and now at this time, twenty minutes past ten at night, after this jury has been held up all day with nothing to do, you come in and ask for that. Objection overruled.”
The judge here was unreasonable in more ways than one. The crisis occurred at night, not during the day. Examining the defendant in the daytime would not determine whether he was to be unconscious at 10:20 p.m. You can‘t set the bone of a man‘s leg before it is broken. Many doctors could have found Scoleri well throughout the entire day, and he could still have collapsed at 10:20 p.m.
I repeat that the only issue before the judge was whether Anthony Scoleri was mentally aware of what was taking place, whether he was able to consult with his attorney, and whether he was mentally able to grasp the evidence moving him toward his death. This issue the judge refused to meet and, in that refusal, he denied the defendant due process.
As far as the history of the case shows, the defendant at this point could have been entirely unconscious. He lay on the floor like a stray dog that had slipped by the guard at the door and was either dazed by what was happening around him or did not move for fear he might be kicked out. Regardless of what the defendant‘s antecedents may have done, he was still a human being on trial for his life and he was entitled to the solicitude of the judge, who was charged with the responsibility of seeing to it that the accused‘s consti
The judge may have been annoyed because Scoleri‘s wounds had possibly been self-inflicted, but, regardless of the defendant‘s actions in that respect or in any respect, the judge should not have allowed his temper to gain an upper hand over the equanimity which is always expected of a judge. A judge, of course, is a human being like everyone else, but when he mounts the bench he must leave behind the frailties and passions which are sheddable. Anger is one of them. A judge may react like any other human being and he would not be a good judge if he did not, but he must control the outer expression of his inner feelings so that his pronouncements will express cold neutrality and not his past experiences as a “fighting district attorney” or as a “battling criminal lawyer.”
No judge should ever be visibly wrought up in the presence of the jury. He should never hurl thunderbolts of Olympian judgment when there is always the danger that one of them may strike the constitutional rights of the accused. When a judge becomes wrathful on the bench, the fury of his ire may sweep into the jury box and, in consequence, the jury may generate against the target of his rage a resentment which is not kindled from the evidence.
The Majority Opinion argues valiantly to support the position taken by the trial judge in this case, but it is to be noted that it does not controvert, because it cannot, the following grave and momentous fact. Defense counsel, who, of course, is an officer of the court, made the categorical and definitive statement that the defendant was in such condition that he could not consult with his lawyer to discuss the Commonwealth‘s evidence aimed at sending him to the electric chair. Neither the Commonwealth nor the judge disproved
Nor can it be said that the error was a harmless one. The evidence presented by the Commonwealth against the defendant when, according to the undenied statement of defense counsel, the defendant was incapable of comprehending what was taking place, was of an extremely vital character. The defendant, whose defense was that of an alibi, had testified that he could not have been the person seen running from the locale of the crime because an injury had compelled him to walk with a limp.
Whether he walked normally or limped, on or about the day of the crime, became, therefore, a matter of supreme importance in determining identity of the actual criminal. While Scoleri lay unconscious, at the very brink of an eternal judgment, on that crucial night of his trial, the Commonwealth produced a witness, Franklin M. Caraker, parole officer, who testified that two days before, and a day after, the murder, he had seen Scoleri walking and had detected no limp or abnormality in his stride. Another witness, John Santarpio, also testified in behalf of the prosecution. The testimony of both witnesses covers 36 pages in the trial transcript and consumed about thirty minutes, during which time the defendant lay inertly on the floor like a log.
The trial judge could easily have cut the Gordian knot of indecision, indefiniteness, and ambiguity at
And then there was another pass out of the canyon of controversy as to the defendant‘s physical condition. The judge could have adjourned court. As stated, it was already 10:20. There was no urgency for driving toward midnight. There is always the possibility and even probability, and certainly at least the hope, that with the passing of the dark hours the perplexities which defy present solution will be considerably simplified after rest and sleep. The dawn often reveals in the dust at our feet the key for which we gropingly and vainly searched during the blackness of the night.
The judge compounded the contretemps of the night of November 24th when he came to his charge. He said to the jury: “Before we start, I want you to know that under professional medical advice this defendant‘s trial continued, notwithstanding what you have witnessed here in the courtroom. The professional medical advice was that he was competent to hear everything intelligently, his pulse was normal, there was no high blood pressure, no distress, and there was no medical reason for this particular condition, an obvious condition, and the physicians say there was nothing wrong with him whatsoever. Had it been that he was incapable of hearing what was going on here, we could not have proceeded. We would have just had to continue the case. We continued it for one day, as you know.”
The judge had acted somewhat as a medical assistant when he stood by as Dr. Carideo examined the de
The judge said that if Scoleri had been “incapable of hearing,” he would have continued the case. How did he know that Scoleri was not incapable of hearing? He conducted no test for hearing. The record reveals that during the period involved the defendant was mute. Whether he heard or not during this time is something the judge could not possibly be certain about.
It might be relevant to observe that at least one person, impartial and coldly neutral in the proceedings, believed that Scoleri could not hear. Burton A. Chardak of the Philadelphia Bulletin wrote of the session of the morning of November 25, 1958, as follows: “Scoleri, feet dragging, eyes closed, was carried into court at 10:20 a.m. by court officers. He didn‘t seem to hear as he was admonished to keep his head up.
“At one point in the Commonwealth rebuttal testimony, the defendant slumped down in his seat. His head fell to one side. It seemed he would have fallen had not a court officer caught him.
“Dr. Louis Carideo, one of two police surgeons in attendance, broke an ampule of smelling salts under his nose. Scoleri shook his head as if still dazed.
In his charge to the jury the judge said in scarcely veiled language that Scoleri was malingering. The jury could well have believed that, despite what their eyes told them, the judge had superior knowledge on the defendant‘s physical condition and that, therefore, they could dismiss from their minds what they saw, and accept, instead, the judge‘s conclusion that the defendant was indeed malingering. But whether the defendant was feigning an incapacity which did not exist was a question of fact for the jury to determine, since it was directly tied up with the question of credibility. And credibility was all an all-decisive factor in appraising Scoleri‘s defense.
Scoleri testified that he was elsewhere at the time of murder. He testified to an alibi. If the jury believed that Scoleri was counterfeiting his apparent inability to understand, they could believe that he coined the story of his alibi in the same mint of mendacity. Thus, when the judge took away from the jury the right to determine credibility on that particular phase of the case, the defendant‘s constitutional rights were directly invaded. He did not receive a trial by jury as it has come down to us through the centuries and he is, therefore, entitled to a new trial.
But the case is even more disturbing than I have indicated. The jury did not hear the statements of the doctors regarding the defendant‘s condition. They were entirely in the dark as to what had occurred and thus were compelled to follow the lantern held up by the judge, even though its fuel was supplied didactically and not evidentially.
On the morning of November 25th, Dr. Phillip Ingaglio, after examining the defendant, informed the
Then the following ensued:
“THE COURT: You mean after the case is over?
DR. INGAGLIO: Right at this particular time?
THE COURT: Do you agree with that, Dr. Carideo?
DR. CARIDEO: I think it is something that is worthy of more observation. It would seem to me if he is in a psychiatric condition which would require care, it would certainly be something to antedate this, or precede this, which would take a considerable time hereafter to resolve.
DR. INGAGLIO: That is true.
DR. CARIDEO: I would think his present mood or disposition is something he is going to maintain as long as he is under the same set of circumstances.”
After all this, the judge observed: “It follows a pattern. This is not the first time we have seen a situation like this. There is no change, so we will go right ahead.”
Here, it would almost seem that the judge had put away his robe and strapped on a stethoscope. He had become a medical consultant. He listened to one doctor say that the defendant‘s receptivity was equal to that of a log, and he had heard another doctor say that more observation was in order. Then, weighing these scientific findings he concluded, as a diagnostician, that there was “no change.” No change from what? No change from normality or no change from abnormality? He based his diagnosis, he said, on the fact that he had seen other situations like this one, and that this one followed “a pattern.” Was he referring to a medical pattern, a disease pattern, an evidential pattern, a procedural pattern? But, regardless
If the jury believed, and they hardly could have believed otherwise from what the judge told them, that Scoleri was malingering, this belief could well have been the additional weight thrown into the scales of deliberation which earned for Scoleri the penalty of death instead of that of life imprisonment, assuming that they would have found him guilty of first degree murder in any event. On this basis alone, justice demands a new trial for the defendant.
And I don‘t think there can be any question that he is entitled to a new trial as the result of our decision in Commonwealth v. Bonomo, 396 Pa. 222, and because of the recent legislation of our General Assembly—
I dissent.
DISSENTING OPINION BY MR. JUSTICE BOK:
I dissent on the one ground that we should, in the interests of justice, require a new trial because of the
I quarrel with the Majority‘s argument because I think that it thrusts in the wrong direction. The Legislature has unfalteringly since 1911 turned its face against the introduction of evidence of independent, unconnected crimes, and hence it cannot be said that the Act of 1959 has either a retroactive or a prospective effect. It was passed to correct a bad decision of this Court in Commonwealth v. Parker, 294 Pa. 144 (1928), 143 A. 904, which we have followed until now, and hence the Legislature has only repeated what it said in 1911 and has stood for ever since.
The
By the
By the
The Act of 1959 again repeats the Legislature‘s will on the subject by making procedure for it.
The Parker case is really all that the Majority has to rely on, granted the Legislature‘s consistency of purpose since 1911. It is a feeble reed to stand against the reiteration of that purpose in the Act of 1959, which was passed to abolish Parker, as the Majority opinion says.
Besides, there is as yet no final judgment here. The case is still in gremio legis, and I am not impressed by the notion that if we unwind this tentative judgment we must also unwind the final judgments of all persons now serving life imprisonment for murder in the State. At least they have their lives, which Scoleri soon won‘t have, and it seems to me reasonable and substantial justice to insist that litigation end with final judgment.
I think that all of the imponderables, plus the ponderable will of the people, consistent since 1911, should compel a new trial, and that we should not be astute in letting a man go to his death after the Legislature, in furtherance of its 49-year-old policy, has again expressed itself as clearly as it did less than four months ago.
Mr. Justice COHEN joins in this dissent.
The appellant‘s petition for reargument erroneously deduces that our decision with respect to the legislative intent of the so-called Split Verdict Act of December 1, 1959, was by six members of the Court who were evenly divided. Such is not the case. Our decision that the statute was not retroactive and, therefore, had no bearing on the Scoleri appeal, was by a vote of four to three of the full membership of the court on the question of a new trial because of the statute. However, on the merits of the defendant‘s appeal the Court was divided six to one—a fact which the petition for reargument understandably does not stress.
The appeal was first argued on October 15, 1959, before the full court of which Mr. Justice McBRIDE, who was serving an appointive term to expire December 31, 1959, was then a member. The appeal not having been disposed of during Mr. Justice McBRIDE‘S tenure, a reargument was ordered on January 2, 1960, in order that Mr. Justice EAGEN, who was sworn in that day as a member of the court for a full elective term could participate in the disposition of the appeal on the merits. The order directing a reargument was as follows: “AND NOW, January 2, 1960, reargument of the above entitled appeal is ordered at the session commencing January 4, 1960, at Philadelphia.” In communicating to counsel the substance of this order for reargument, our clerk informed them that the order contemplated a full reargument of the appeal on the merits and that the Court also invited an expression of counsels’ views with respect to the intended effect of the
Because Mr. Justice BELL also voted on the question of the legislative intent of the Split Verdict Act, on which he had not heard counsel orally, the petitioner argues that he was thereby denied due process. The complaint is patently groundless. Mr. Justice BELL read the supplemental briefs of counsel on the question of the statute; he considered the Act itself; and he participated in the Court‘s conference discussions relative to the statute‘s intended purview—a pure question of law that had arisen subsequent to and dehors the Scoleri appeal. The solution of that question by the Court required no oral argument of counsel and the members of the Court, who heard counsel‘s oral argument on the Act, are unanimous that it contained nothing beyond what the supplemental briefs of counsel set forth.
The participation by Mr. Justice BELL in the consideration and decision respecting the legal effect of the Split Verdict Act was with the unanimous approval of the members of the court. The suggestion that the Scoleri appeal should be argued again so that the Court could hear further unnecessary oral argument of coun
This opinion represents the unanimous view of the members of the Court with respect to the procedural question raised by the petition for reargument. The petition for reargument is denied.