Com. v. McCoy

• Decision Date: 18 July 1961
• Parties: COMMONWEALTH of Pennsylvania v. Frank McCOY, Appellant.
• Court: Pennsylvania Supreme Court

Page 795

172 A.2d 795

405 Pa. 23

COMMONWEALTH of Pennsylvania v. Frank McCOY, Appellant.

Supreme Court of Pennsylvania.

July 18, 1961.

Rehearing Denied Aug. 9, 1961.

J. Charles Short, Israel Stiefel, Philadelphia, for appellant.

Arlen Specter, William H. Wolf, Jr., Richard A. Sprague, Asst. Dist. Attys., Paul M. Chalfin, First Asst. Dist. Atty., James C. Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

CHARLES ALVIN JONES, Chief Justice.

Gaetano Sabelli, the owner of a grocery store in Philadelphia, was shot and killed by the defendant, McCoy, during the course of his armed robbery on the premises on July 1, 1957. McCoy was indicted for murder for the felonious killing and was tried under the so-called 'Split-Verdict Act' of December 1, 1959, P.L.1621, amending Section 701 of The Penal Code of June 24, 1939, P.L. 872, 18 P.S. § 4701 (Pocket Part). ¹ At the trial of the issue of the defendant's guilt or innocence of murder, the jury returned a verdict of guilty of murder in the first degree. As required by the 'Split-Verdict Act', the court then entered upon a hearing with respect to the penalty to be imposed on the verdict, at which hearing the jury received additional evidence on the question of the penalty to be imposed on the convict, as between death and life imprisonment. The jury fixed the penalty at death. Following denial by the court en banc of defendant's motion for a new trial, judgment of sentence was entered on the verdict, from which the defendant took this appeal.

That the appellant is guilty of murder in the first degree is conceded and no trial error on the question of his guilt or innocence is assigned. He alleges, however, that on the question of penalty the trial was infected with prejudicial error because the victim of a prior armed robbery, to which the defendant had pleaded guilty, was permitted by the court to testify concerning the circumstances of that crime and, also, because the trial judge, in his charge on the question of penalty, instructed the jury to consider the possibility of defendant's rehabilitation.

The 'Split-Verdict Act' provides in material part as follows: 'In the trial of an indictment for murder, the court shall inform the jury that if they find the defendant guilty of murder in the first degree, it will be their further duty to fix the penalty therefor, after hearing such additional evidence as may be submitted upon that question. Whenever the jury shall agree upon a verdict of murder of the first degree, they shall immediately return and render the same, which shall be recorded, and shall not thereafter be subject to reconsideration by the jury, or any member thereof. After such verdict is recorded and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received in the trial as may be relevant and admissible upon the question of the penalty to be imposed upon the defendant, and shall permit such argument by counsel, and deliver such charge thereon as may be just and proper in the circumstances. The jury shall then retire and consider the penalty to be imposed and render such verdict respecting it as they shall agree upon.'

The Commonwealth's evidence on the question of penalty included a reading of three bills of indictment based on an armed robbery committed on June 15, 1950, to all of which indictments the defendant had pleaded guilty. This evidence was followed by the oral testimony of the victim of the prior and unassociated robbery which had taken place in an Army-Navy store where the witness was then working. The witness described in detail the defendant's conduct as to how he had posed as a customer desiring to purchase gloves and, while being waited upon, had drawn a gun on the witness whose hands he had tied together and that the defendant then proceeded to empty the cash register; thereafter, in an effort to get more money, he gave the victim rough physical treatment by knocking him over a bed standing in an upstairs room, where he had been pushed by the defendant, and by hitting the victim on each side of the head with the butt of a gun.

Following enactment of the Act of March 15, 1911, P.L. 20, 19 P.S. § 711 (dealing with admissibility of evidence at criminal trials), but prior to enactment of the Act of May 14, 1925, P.L. 759 (placing upon the jury the duty of fixing the penalty between death and life imprisonment upon a conviction of first degree murder), the Commonwealth was precluded from introducing in a criminal trial evidence of the defendant's prior convictions of dissociated crimes. Until the passage of the Act of 1925, supra, a conviction of first degree murder had automatically carried with it the death penalty. In interpreting the Act of 1925, this court announced in Commonwealth v. Parker, 1928, 294 Pa. 144, 143 A. 904, that evidence of convictions of prior crimes should be admitted at the trial of capital cases as an aid to the jury, should it find the defendant guilty of murder in the first degree, in fixing the penalty to be imposed upon him as between death and life imprisonment, subject, however, to the precaution that the jury be expressly instructed not to consider the evidence on penalty (i. e., prior unrelated convictions) unless and until the defendant was found guilty of first degree murder. Although the ruling has been severely criticized from time to time by members of the bench, the bar, law reviews and text writers on the ground that it is impossible by a mere cautionary instruction to the jury to obliterate from the minds of its members the prejudicial impressions registered by the introduction of evidence concerning prior dissociated criminal conduct of the defendant, the decision in Commonwealth v. Parker has been uniformly followed by this court.

To overcome the objections to the Parker rule, the legislature, in 1959, passed the 'Split-Verdict Act', so called. The purpose of the Act is to insure that the defendant in a murder case will be tried on the issue of his guilt or innocence of the crime charged, free from any possible prejudicial effect which might arise from the introduction in evidence of his past unrelated criminal record. This was to be achieved by postponing the introduction of such record in evidence until after the jury has determined, in case it did so, that he is guilty of murder in the first degree. That is what the Act of 1959 was intended to effect and that is what it has accomplished.

The prosecuting attorney contends, however, that the Act was also intended to enlarge the rules of evidence on the question of penalty in murder cases, where the defendant is found guilty of murder in the first degree, and cites numerous cases of this court wherein it has been said that the jury, in such instances, is entitled to receive evidence concerning 'what manner of man' the defendant is in order to better determine whether he should be sentenced to a term of life imprisonment or should suffer the death penalty. The phrase, 'what manner of man', which appears to have been first employed in like context in Commonwealth v. Dague, 1930, 302 Pa. 13, 14, 152 A. 839, was a mere figure of speech used to connote succinctly what the evidentiary rule of the Parker case embraced. The expression was never intended to expand the decision in the Parker case with respect to the range of evidence admissible on the question of penalty in first degree murder cases.

If it were necessary to construe the 'Split-Verdict Act' in the manner which the district attorney urges upon us, it would obviously be unconstitutional. It is plain enough that the subject of evidence is not only not 'clearly expressed' in the Act's title, as required by Article III, Section 3, of the State Constitution, P.S., but it is not even hinted at. The title in full reads as follows: 'An Act Amending the act of June 24, 1939 (P.L. 872), entitled 'An act to consolidate, amend and revise the penal laws of the Commonwealth,' changing the method for determining the penalty to be imposed for the crime of murder of the first degree.' It actually amended Section 701 of 'The Penal Code' relating to degrees of murder and penalties, but not evidence. All that the amendment was designed to effect was to change the method for determining the penalty by having the evidence of the defendant's prior convictions for unassociated crimes excluded at trial until the jury's verdict on the question of the defendant's guilt or innocence was rendered and, upon the jury's finding the defendant guilty of murder in the first degree, the evidence of his prior convictions would then be offered as an aid to the jury in fixing the penalty.

Even if there were any doubt that the legislature did not intend to enlarge the scope of the evidence admissible on the question of penalty, the resolution of such doubt would necessarily result in the rejection of the district attorney's contention. A statute must be construed in such manner, if possible, as to bring it in harmony with constitutional requirement. Commonwealth ex rel. Dermendzin v. Myers, 1959, 397 Pa. 607, 614, 156 A.2d 804; Parente Appeal, 1957, 390 Pa. 249, 253, 135 A.2d 62; Tremont Township School District v. Western Anthracite Coal Co., 1950, 364 Pa. 591, 596, 73 A.2d 670. In the present instance, that can be done only by construing the Act of 1959 as not intended to change the character of evidence admissible on the question of penalty after a jury's conviction of a defendant of first degree murder. But, such is, in reality, the clear meaning of the language employed by the legislature. The Act provides that 'After such verdict [guilty of murder in the first degree] is recorded and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received in the trial as may be...