Commonwealth v. Parker

• Decision Date: 26 November 1928
• Docket Number: 223-5
• Citation: 143 A. 904,294 Pa. 144
• Parties: Commonwealth v. Parker et al., Appellants
• Court: Pennsylvania Supreme Court

143 A. 904

294 Pa. 144

Commonwealth v. Parker et al., Appellants

Nos. 223-5

Supreme Court of Pennsylvania

November 26, 1928

Argued September 24, 1928

Appeals, Nos. 223-5, Jan. T., 1928, by defendants, James Parker, Raymond Parker and John H. Wilson, from judgment of O. & T. Erie Co., Feb. T., 1928, No. 1, on verdict of guilty of murder of the first degree, in case of Commonwealth v James Parker, Raymond Parker and John H. Wilson. Affirmed.

Indictments for murder. Before HIRT, J.

The opinion of the Supreme Court states the facts.

Verdict guilty of murder of the first degree with penalty of death on which judgment of sentence was passed. Defendants appealed.

Errors assigned were various rulings on evidence, refusal of new trial and sentences, passed on defendants respectively, quoting record.

The judgments appealed from are affirmed; the record to be remitted to the court below for purposes of execution.

Wm. J. Carney, with him Rossiter & Dunn, for appellants. -- The confessions covering a hold-up over a month after the homicide are separate, severable and distinct. They should have been excluded: Com. v. Wilson, 186 Pa. 1; Com. v. Jones, 280 Pa. 368.

If our civil law permits the excision of reference to insurance carriers in negligence cases, a fortiori the criminal law should show an at least coincident facility in excising reference to extraneous crimes in a matter of life and death: Com. v. House, 6 Pa. Superior Ct. 92, 104; Com. v. Ensign, 40 Pa.Super. 157, 162; Com. v. Haines, 257 Pa. 289.

Otto Herbst, District Attorney, with him M. E. Graham, Assistant District Attorney, for appellee. -- The argument for new trial was correctly heard by the trial judge alone: Com. v. Toth, 145 Pa. 308.

The complete confessions of defendants were admissible: Com. v. Brandler, 81 Pa.Super. 585; Goersen v. Com., 99 Pa. 388.

The defendants' confession of a subsequent robbery in which they used a pistol stolen at the homicide, was admissible: Com. v. Haines, 257 Pa. 289; Com. v. Weiss, 284 Pa. 105; Com. v. Robb, 284 Pa. 99; Com. v. Levinson, 34 Pa.Super. 286; Swan v. Com., 104 Pa. 218; Goerson v. Com., 99 Pa. 388.

The notation in Wilson's confession that he "identified" the pistol was admissible: Brown v. Products Co., 259 Pa. 270.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. CHIEF JUSTICE MOSCHZISKER:

This case involves appeals by three defendants, James Parker, Raymond Parker and John H. Wilson, who, with Joe B. Ware, were indicted for the killing of Pelegrino Cocco, in the City of Erie. All were tried at one time. The appellants were found guilty of murder of the first degree, and the jury fixed the death penalty for them. Ware, a mere youth, was found guilty of the same degree of crime, but in his case the penalty was fixed at life imprisonment, and he did not appeal.

Briefly, the facts are: The deceased was found dead in his dwelling house on the morning of November 21, 1927, under circumstances which indicated that he had been murdered while a burglary and robbery was being perpetrated. Late in the next month, defendants John H. Wilson and James Parker, together with one John W. Christy, were arrested for the robbery of a street car conductor in the City of Erie. This last mentioned offense occurred after the alleged murder and had no connection with it other than through the fact that a pistol stolen from Cocco, at the time of his slaying, was used in the perpetration of the subsequent robbery. Confessions by Wilson and James Parker to the Erie chief of police covered the commission of both the Cocco homicide and the robbery of the street car conductor; they implicated in the former crime, as coparticipants, Raymond Parker and Joe B. Ware, both of whom were subsequently arrested and made separate confessions.

The controlling points for decision, raised upon this appeal, are: (1) Whether or not it was reversible error for the trial judge to hear defendants' motion for a new trial, sitting alone, instead of convening with his colleagues as a court in banc. (2) Whether or not it was proper to admit in evidence those portions of the confessions containing admissions to the effect that, at the time of the robbery of the street car conductor and of another hold-up, the defendants possessed a pistol which was identified as property stolen from Cocco, the murdered man. (3) Whether or not it was reversible error to receive in evidence, as part of one of the confessions, a notation therein that the declarant identified the before mentioned pistol as his property, without recording his actual words of recognition or particularizing how he made the identification.

Under Equity Rule 71, all motions for new trials must be heard by the court in banc: Stone v. New Schiller, etc., 293 Pa. 161, 168; Carney v. Penn Oil Co., 289 Pa. 588, 590, 591, and authorities there cited. In the case of Sterrett v. McLean et al., 293 Pa. 557, 563 et seq., an appeal from a salary board to the court of common pleas was required to be heard by the court in banc. In civil cases the court hearing motions for a new trial must sit in banc: Zimmerman v. Penna. R.R. Co., 293 Pa. 264, 266-7; Gail v. Phila., 273 Pa. 275, 279. There is no statutory requirement nor decision in Pennsylvania that a motion for a new trial in a homicide case must be heard in banc, yet this very proper practice prevails in the larger judicial districts of the State, and, had a request been made and refused that this course be pursued by the court below, we might have returned the record to give us the benefit of such a review; but, under the circumstances, and in view of the fact that the record before us suggests no doubt of the justice of the verdict, we shall not disturb the judgment entered thereon for such a purpose.

John H. Wilson's confession begins with an account of the street car robbery, and proceeds to a point where, on the production of a pistol of distinct model and number, he admitted it to be the one used by him in the commission of that crime. Continuing, he confessed to participation in the robbery and murder of Cocco; finally, he admitted that the pistol used in the street car hold-up was taken from Cocco on the night when he, Wilson, and his three companions had disarmed their victim and murdered him. The confession contains a scant reference to still another hold-up, in which this pistol also figured, mentioned at the beginning of the next paragraph; but on Wilson's denial of participation, this subject was dropped.

The statement of Raymond Parker contained a somewhat similar confession, opening with a reference to another hold-up or robbery at which the pistol previously stolen from Cocco was used, and leading up to the identification of this weapon as the one he had seen in the hands of his brother James Parker at the time of the last above mentioned hold-up.

As to James Parker, one of the police officials who questioned him at the time of his confession, testified that, in the course of that confession, Parker had admitted participating in the street car hold-up. This witness said also that the confession had been taken down in shorthand by another witness; these stenographic notes, testified to by the last mentioned witness, disclose that when James Parker was shown the weapon used in the street car robbery, he said it was the pistol with which Cocco had been killed.

Other uncontradicted witnesses, in addition to the defendants, identified the pistol in question as the property of Cocco, and still others testified to seeing it in the possession of defendants after the date of the homicide.

All of the evidence relating to other crimes than the one for which defendants were on trial went upon the record, as part of the confessions, over objections by defendants' counsel. The trial judge, however, took care, in his charge to the jury, to limit the applicability of each confession to the particular defendant who made it, and warned the jurors "to disregard that portion of [each] confession . . . relating to another offense."

Appellants' chief complaint is that the court below admitted the confessions as a whole, without excerpting and keeping from the jurors the portions dealing with other crimes, which defendants either expressly or in effect asked the trial judge to eliminate from their consideration.

Appellants combating the admission of these confessions, rely largely on Com. v. Jones, 280 Pa. 368, 372, and Com. v. Wilson, 186 Pa. 1, 22, which hold that "statements in regard to other crimes committed at other times, at other places, and upon other persons," bearing no connection with the instant killing, are not admissible against a defendant. Suffice it to say, in neither of the cases relied on by appellants did the other crimes there brought into question bear any relation to the one for which defendant was on trial; while in the present case they possessed a highly evidentiary character. First and foremost, those portions of the confessions relating to the street car robbery and the other hold-ups contain admissions that, at the time they occurred, the defendants had possession of property previously taken from Cocco, -- the very pistol with which he was killed. The possession of this weapon, so soon after the killing of Cocco, in itself tended to prove defendants' guilt: Williams v. Com., 29 Pa. 102; Wilson v. U.S., 162 U.S. 613, 620; 8 R.C.L., section 180, p. 187; 16 Corpus Juris, section 1026, p. 542. The pistol was stolen property, and this fact tended to substantiate those parts of the confession which show that the homicide was committed during the perpetration of a burglary and robbery. Therefore the matter in question was directly relevant to establish first...