Com. v. Scoleri

• Decision Date: 04 April 1960
• Parties: COMMONWEALTH of Pennsylvania v. Anthony SCOLERI, Appellant.
• Court: Pennsylvania Supreme Court

Page 215

160 A.2d 215

399 Pa. 110

COMMONWEALTH of Pennsylvania v. Anthony SCOLERI, Appellant.

Supreme Court of Pennsylvania.

April 4, 1960.

Rehearing Denied April 19, 1960.

Michael von Moschzisker, von Moschzisker, Bradley & Carroll, Philadelphia, for appellant.

Victor H. Blanc, Dist. Atty., Domenick Vitullo, Juanita Kidd Stout, A. Charles Peruto, Asst. Dist. Attys., Paul M. Chalfin, First Asst. Dist. Atty., Philadelphia, for appellee.

Argued Oct. 15, 1959, before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and McBRIDE, JJ.

Reargued Jan. 14, 1960, before CHARLES ALVIN JONES, C. J., and MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

BENJAMIN R. JONES, Justice.

Anthony 'Tony' Scoleri, the appellant, and his brother, Joseph 'Eddie' Scoleri, ¹ were charged in a bill of indictment by the grand jury of Philadelphia County with the murder on August 28, 1958 of one Max Gordon. After a trial before Judge Vincent A. Carroll and a jury the appellant was found guilty of murder in the first degree and the penalty fixed at death. On June 23, 1959,--appellant's new trial motion having been denied,--appellant was sentenced to death; from that judgment of sentence this appeal was taken.

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 on 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 Dinerman and Sheila Gordon were ordered to lie or crouch on the floor while the two men forced Max Gordon at gunpoint from the kitchen into the store. While in the store a gun battle ensued during the course of which appellant--at trial identified as the 'shorter' man--was observed shooting at Max Gordon; Max Gordon received three gunshot wounds in his body ³ and Richard 'Ricky' Woods--identified at trial as the 'taller' man--received a stomach wound. ⁴ Both hold-up men then ran from the premises.

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 Gordon confirmed Dinerman's identifications. Dr. Norman Kushner, standing outside his office,--located directly across the street from Gordon's store--observed the two hold-up men leave the store and identified 'Tony' Scoleri as one of the men. David Tupper and Joseph Sannasardso, two youngsters who pursued the two men in their flight down the street subsequent to the hold-up, identified 'Tony' Scoleri as one of the men.

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 enroute 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,-- John Loving--they borrowed an automobile and proceeded to Cleveland where they stole another automobile. While in Cleveland, at 'Tony' Scoleri's direction, 'Eddie' Scoleri and Ida Iocco had their hair dyed and 'Tony' Scoleri, who ordinarily wore eyeglasses, ordered contact lenses. They then went to Chicago and, while there, Ida Iocco was burned under mysterious circumstances and had to be hospitalized. Both Scoleris then left Chicago and went to Kansas City, Missouri, where they were apprehended at gunpoint by Kansas City police officers. ⁷ During the entire flight both Scoleris used fictitious names.

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 who committed the hold-up and shot Max Gordon and that he, under compulsion of Woods and Santarpio, acted as the driver of the get-away car. After the hold-up 'Yogi' Santarpio left them, and 'Eddie' Scoleri, while driving the wounded Woods, happened to see his brother 'Tony' Scoleri on the street and persuaded him to drive them to the Iocco apartment. ⁸

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' Santarpio ⁹ 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, 18 P.S. § 4701, which provides for a 'split verdict' trial in homicide cases, compels a new trial.

During the course of the trial ¹⁰--at approximately 5:25 a. m. Monday, November 24th--a prison guard discovered that appellant had slashed his left arm in several places; ¹¹ 24 sutures were required to close the lacerations and, at approximately 7 a. m., appellant was given 600,000 units of penicillin and 100 milligrams of thorazin, a tranquilizer. The court was apprised of this situation and withheld resumption of the trial until 7:30 p. m. on that date. Throughout the morning and afternoon of November 24th the court received numerous medical reports concerning appellant's physical and mental condition. ¹² Dr. Carideo, a police surgeon, examined appellant at 11 a. m. and reported that he was then under the influence of sedation but, in the doctor's opinion, was malingering to some extent. After another examination of appellant at 2 p. m., Dr. Carideo again reported to the court and the following discussion took place:

'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...