United States v. Banmiller

Citation310 F.2d 720
Decision Date10 October 1962
Docket NumberNo. 13834.,13834.
PartiesUNITED STATES of America ex rel. Anthony SCOLERI, Appellant, v. William J. BANMILLER, Warden, Eastern State Penitentiary.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Michael von Moschzisker, Philadelphia, Pa., for appellant.

Paul M. Chalfin, First Asst. Dist. Atty., Philadelphia, Pa. (Domenick Vitullo, Asst. Dist. Atty., Arlen Specter, Asst. Dist. Atty., Chief, Appeals Div., James C. Crumlish, Jr., Dist. Atty., Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.

BIGGS, Chief Judge.

In this habeas corpus proceeding, in which the writ was denied,1 we are concerned with an issue which arises under the Due Process Clause of the Fourteenth Amendment, an issue which is almost the same as that which was before us in United States ex rel. Thompson v. Price, 258 F.2d 918, 3 Cir., certiorari denied 358 U.S. 922, 77 S.Ct. 295, 3 L. Ed.2d 241 (1958), and which we there decided against the relator. The operative facts in the case at bar are somewhat different and we reach a different result.

Anthony Scoleri was indicted, tried, convicted and sentenced to death by the Court of Oyer and Terminer, Philadelphia County, for the felony murder of Max Gordon in Philadelphia on August 28, 1958. The trial took place November 17 through November 26, 1958. A jury was employed. During the prosecution's case-in-chief Richard Febo testified that he had known the relator for about eighteen years and at one time had been sentenced to prison with him. Scoleri's counsel moved for the withdrawal of a juror. This motion was denied but the court informed the jury that it would be charged later "with respect to that kind of testimony". There followed a conference at side-bar as to the method of charging the jury but it is unnecessary to detail that conference here. At a later point in the trial, when Lieutenant William Del Torre of the Philadelphia Police Force, the expert in charge of its ballistics laboratory, was testifying, the issue with which we are concerned came squarely before the trial court. The Assistant District Attorney stated: "I offer to prove for the purpose of penalty the prior record of convictions for armed robbery and burglaries of the defendant through the original bills of indictment * * * and through identification witnesses." Scoleri's counsel objected to any proof of his client's criminal record, specifically relying on the Due Process Clause. The objection was overruled and Scoleri's criminal record was put before the jury, with an instruction, however, that the record was to be considered by the jury solely in connection with fixing the penalty. The court admonished the members of the jury that "you are not to consider this record in any manner whatsoever in your consideration of the facts." This admonition was repeated later in the court's charge to the jury.2

It was thus brought to the attention of the jury that Scoleri had been convicted of or had pleaded guilty to twenty-five different charges of armed robbery. The jury found Scoleri guilty of first degree murder and returned "Death" as the penalty. That sentence was imposed by the court. A motion for a new trial based on the introduction of Scoleri's criminal record was overruled. The Supreme Court of Pennsylvania affirmed the judgment, three Justices dissenting. The Supreme Court of the United States denied certiorari. See note 1, supra. Habeas corpus was denied by the court below. The appeal at bar followed.

On August 28, 1958, the day of Gordon's murder and thereafter until its amendment by the "Split-Verdict Act" of December 1, 1959, P.L. 1621, Section 1, 18 P.S. § 4701 (Supp.),3 Section 701 of the Pennsylvania Criminal Code of 1939 applied in cases of first degree murder. The second paragraph of Section 701 provided in pertinent part: "Whoever is convicted of the crime of murder of the first degree is guilty of a felony and shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall fix the penalty by its verdict. The court shall impose the sentence so fixed, as in other cases. * * *"

Under that portion of the second paragraph of Section 701 of the Criminal Code of 1939 quoted, the jury had the duty of determining the penalty when, as in Scoleri's case, they convicted a defendant of first degree murder. The precursor of the statute referred to was the Act of May 14, 1925, P.L. 759. The earlier Act need not be quoted here for, insofar as the essential elements of the instant case are concerned, its substance was the same. In respect to its effect, Judge Maris of this court, in United States ex rel. Thompson v. Price, 258 F. 2d at p. 921, correctly and succinctly stated: "The Act of 1925 was interpreted by the Supreme Court of Pennsylvania to permit the admission of evidence of prior unrelated convictions solely for the purpose of enabling the jury, after it has found the accused guilty of first degree murder, to know what manner of man he is and whether he is entitled to mercy when they undertake their task of deciding what penalty should be imposed upon him." See Commonwealth v. Parker, 294 Pa. 144, 151-155, 143 A. 904, 906-907 (1928), in which Chief Justice von Moschzisker considered the effect upon the admissibility of evidence of prior convictions under the Act of the rule of evidence that, in the trial of a defendant for a crime, evidence of other independent, unconnected offenses committed by him is not admissible to establish his guilt of the crime for which he is on trial. As Judge Maris stated, id. supra, 258 F.2d at p. 921, "The Chief Justice stated that since the statute required the jurors to assess the punishment and permitted them to extend mercy in a proper case by reducing the penalty to life imprisonment, the jury should be permitted to have the same sort of information that a judge considers when he decides as to the punishment for crime. But since in Pennsylvania the jurors may not render piecemeal verdicts there is no provision for separate inquiry. Hence, concluded the Chief Justice, their single verdict must include both their finding as to the defendant's guilt and their determination as to the penalty to be imposed upon him." Chief Justice von Moschzisker concluded that the prescribed statutory practice was a permissible and proper one.

This ruling was followed by the Supreme Court in later cases4 and, until the amending statute was passed, was the law of Pennsylvania.5 It was, as we have stated, followed at Scoleri's trial, despite objections, and was approved by the Supreme Court of Pennsylvania on appeal by a vote of four Justices to three. See Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960). We reiterate that, in United States ex rel. Thompson v. Price, supra, this court, with two judges dissenting on petition for rehearing, held the practice not to be a violation of the standards of fundamental fairness required by the Fourteenth Amendment. In the case last cited, Judge Hastie, in a concurring opinion, made it clear that he would have dissented if the record of Thompson's conviction by a court martial had not been admitted into evidence not only without objection but with the consent of defense counsel. In the instant case there is no dispute that the record of Scoleri's twenty-five prior unrelated convictions of, or pleas of guilty to, charges of robbery with violence was objected to on the grounds of violation of the guarantee of due process; it is also plain that these objections were adhered to throughout the trial, were asserted in the Supreme Court of Pennsylvania, in the Supreme Court of the United States and in the court below.

The appellee asserts that Scoleri himself opened the door to the admission in evidence of his criminal record, and thereby, in effect, waived his rights under the Fourteenth Amendment. The appellee relies on five incidents which occurred at the trial. First, the appellee points to Scoleri's testimony on direct examination concerning his desire to take Ricky Woods, one of the robbers who had been shot in the hold-up, to the hospital. At this point, he testified, Dante Scoleri, his brother, told him: "Tony, with your record they will never believe you weren't there". Second, Scoleri also testified on direct examination that when he was asked for help by one of the men who had engaged in the hold-up, he said: "* * * I told him I had my back time, 30 years — 30 years parole hanging over my head, and there wasn't much I could do without becoming involved." Third, when Scoleri was asked by his counsel who Richard Febo was, he replied: "Richard Febo was my accomplice when we were arrested in 1948 for a series of armed robberies." Four, the appellee asserts that Doctor Anthony F. Vasquez, pastor of St. John the Baptist Church, in Philadelphia, testifying on Scoleri's behalf made reference to Scoleri's criminal record, to his imprisonment and to his being on parole. Five, that Ida Iocco, a witness called on behalf of the State, testified on cross-examination in reply to the question who is Febo, "He is a friend of Tony's Scoleri's. He was in prison with Tony, I understand, I was told." The appellee points out that Scoleri's counsel made no objection to this statement by Iocco.

But the first attempt at introduction of evidence relating to Scoleri's criminal record was at p. 489 of the transcript of his trial and its first admission was at p. 490 over Scoleri's counsel's objection. A defense motion to withdraw a juror was then denied. The formal introduction of Scoleri's record of twenty-five convictions of or pleas of guilty to armed robbery was at pp. 626-633 of the transcript. At this point the fat had already been put in the fire and the only statement...

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