Commonwealth v. Darcy

• Citation: 66 A.2d 663,362 Pa. 259
• Parties: Commonwealth v. Darcy, Appellant
• Decision Date: 26 May 1949
• Court: Pennsylvania Supreme Court

66 A.2d 663

362 Pa. 259

Commonwealth v. Darcy, Appellant

Supreme Court of Pennsylvania

May 26, 1949

Argued April 19, 1949

Appeal, No. 136, Jan. T., 1949, from judgment of Oyer and Terminer, Bucks Co., Feb. T., 1948, No. 37, in case of Commonwealth v. David Darcy. Judgment affirmed; reargument refused June 24, 1949.

Indictment charging defendant with murder. Before KELLER, P.J.

Verdict of guilty with penalty of death and judgment of sentence entered thereon. Defendant appealed.

The judgment is affirmed and the record is remitted to the court below so that sentence imposed may be executed.

Thomas D. McBride, with him Michael von Moschzisker and Webster S. Achey, for appellant.

Edward G. Biester, District Attorney, for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.

OPINION

MR. CHIEF JUSTICE MAXEY

David Darcy was indicted with three others, Harold Foster, Harry Zietz and Felix Capone, ^[1] for the unlawful killing on December 22, 1947, of William Kelly, who died as the result of a shot fired by Zietz a few moments after the perpetration of an armed robbery by him, the appellant, Foster and Capone and while the defendant and his confederates were escaping from the scene. Darcy was tried before President Judge HIRAM H. KELLER and a jury. He did not testify and no evidence was given in his behalf. The jury found him guilty of murder in the first degree and fixed death as the penalty. A new trial was refused and this appeal followed.

At about 11:25 P.M., on December 22, 1947, Darcy and his three confederates arrived at the Feasterville Tavern, located at the junction of Churchville-Newtown-Bustleton Roads, in the village of Feasterville, Bucks County. Darcy, Foster and Zietz entered the tavern while Capone acted as a "lookout" nearby in a parked automobile. Foster ordered "beers" and was served. Within a few minutes Foster went behind the bar, drew a gun and announced that "it was a hold up." Darcy went to the shuffle board room at the rear and said to the six persons congregated there: "It's a stick up." Allen Hellerman said: "Are you kidding?" Darcy then fired two shots at Hellerman's feet and "Eddie" Wunsch began grappling with Darcy. Zietz fired shots at Wunsch and Hellerman, causing the latter's permanent paralysis. Wunsch suffered severe arm and shoulder injuries. Foster fired two shots from behind the bar during the hold up.

Darcy then threatened several patrons with his gun, lined them up against a wall with their hands up, and demanded their wallets and watches. Before taking the watches Darcy declared that he felt like shooting someone, and further remarked: "Where is the police, I feel like shooting some of them?" Foster, who was behind the bar "covering" the proprietor and his wife, rifled the cash register of $78 and $2 from the former.

While these crimes were being committed within the tavern, Mrs. Leutwyler ran across the road to the Buck Hotel and gave the alarm. At the hotel she found the bartender and two other persons, William Kelly and Frank J. Walter. They followed her outside and stood at the intersection of the Churchville-Newtown and Bustleton Roads. While there Horace Patterson, a friend of Kelly, drove out of the Churchville Road and stopped to talk with him and Walter. They noticed a 1939 Plymouth automobile with the engine running, standing in front of the Feasterville Tavern, headed towards Newtown. This car was for the bandits' "get away." Three men ran from the Feasterville Tavern, got into the car and started off. As the car was entering the Newtown Road, about ten or twenty feet from where Walter and Kelly were standing, two shots were fired from it and Kelly fell.

According to the statement made by Zietz and his companions to the police shortly after their apprehension within a few hours after the hold up, as Zietz, the driver of the fleeing car, proceeded to drive away, one of his companions said: "Someone is coming out the door." Zeitz then fired two shots with his left hand from the front window of the driver's side in the direction of Kelly, who was from ten to twenty feet away. One of these bullets struck Kelly in the back of his head causing his death on the following day.

The commonwealth offered, over objection, testimony that after leaving the Feasterville Tavern, the defendant and his three companions committed another hold up about five minutes before midnight on the same evening at the Deacon Inn, which lies about eight or thirteen miles from the Feasterville Tavern. This testimony was admitted as showing a plan or system of criminal acts by the defendant and his confederates, and to reveal to the jury the defendant's criminal record so that in the event the jury found him guilty of murder in the first degree the appropriate penalty might be imposed.

The commonwealth offered in evidence an exhibit which purported to be voluntary joint statements or confessions made to the police by Darcy and his companions. These statements related both to the hold up at Feasterville and the subsequent hold up at Deacon Inn. Another exhibit received in evidence consisted of written statements made by the four prisoners purporting to be admissions of the following hold ups which had occurred during the four weeks preceding the one in Feasterville: a hold up at Waterford, New Jersey, on November 30, 1947, another at Maple Shade, New Jersey, on December 3, 1947, and a third at Elkins Park, Pa., on December 13, 1947. Defendant's counsel objected to these on the ground that the statements were inadmissible under the Act of July 3, 1947, P.L. 1239, § 1.

There are twenty-six assignments of error but only a few of them require discussion. The second assignment set forth that the court erred in allowing the jury to be taken to the scene of the crime while the prisoner was remanded on order of the court to the county prison and thus restrained from being present when the jury made its visit. The appellants complain that this action of the trial court violated the due process clause of the Fourteenth Amendment to the United States Constitution, violated the defendant's right to be confronted by the witnesses against him, and violated Article I, Section 9, of the Pennsylvania Constitution.

A stipulation was filed by the District Attorney and by the defendant's counsel as to what took place at the viewing of the Feasterville Inn premises where the robbery and the homicide took place. According to the stipulation, the defendant was conducted back to the county prison at the direction of the court while the jury of fourteen members, the trial judge, the district attorney, the assistant district attorney and the attorney for the defendant viewed the locus of the crime. While there the jury's attention was directed to nine separate objects by the court at the request of the district attorney and defendant's counsel. These objects were specifically: the space directly in front of the fireplace; the change in location of the main entrance to the barroom from a side wall to the front wall of the building; the location of certain other objects, such as, the swinging door behind the bar, the kitchen connected with the barroom, a wall telephone, the radiator, and certain tables; the location of a triangular piece of ground at the intersection of Bustleton Pike and the Churchville Road; and the position of a cardboard in a second story window in a dwelling house across the street, known as Bustleton Pike.

Under the decisions of the United States Supreme Court and of this Court there was no error in permitting the jury to visit the locus of the crime in the absence of the prisoner. In Commonwealth v. Westwood, 324 Pa. 289, 308, we said: "It is established that no right of a defendant is violated when he is not present at a view of the premises where the alleged crime is committed." There is no distinction between the cases in which the defendant was at liberty to attend the viewing and chose not to do so, and those cases in which he was refused permission to attend the viewing. If the right to accompany the jury during a viewing is a fundamental right essential to due process of law, the prisoner cannot waive it ^[2] any more than he can waive, after pleading "not guilty," the right to be tried by a jury of twelve qualified persons. In the Westwood case we said: "In Com. v. Snyder, 185 N.E. 376, the Supreme Judicial Court of Massachusetts held that 'a view is not such a taking of evidence as violates the constitutional right of the defendant to meet the witnesses against him face to face: 3 Wigmore on Evidence (2d Ed.), Section 1803....Defendant's contention that the refusal to grant the motion [that the defendant be allowed to be present at the view] is a violation of article XIV of the Amendments to the Constitution of the United States in that it is a denial of "effective aid in the preparation and trial of a capital case," and therefore is a denial of due process of law, citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, is unsound, in that the chief purpose of a view is to enable the jury to understand better the testimony which has or may be introduced, and because the view is not a part of the trial, it being suspended while the view is taken.'" That case was appealed to the United States Supreme Court, Snyder v. Massachusetts, 291 U.S. 97, and that tribunal, in an opinion by Mr. Justice CARDOZO, referring to the absence of a defendant during a view of the locus in quo, said: "If the risk of injustice to the prisoner is shadowy at its greatest, it ceases to be even a shadow when he admits that the jurors were brought to the right place and shown what it was right to see. That in substance is what happened here."

So likewise in the case now...