Commonwealth v. Petrillo
| Decision Date | 27 March 1940 |
| Parties | COMMONWEALTH v. PETRILLO. |
| Court | Pennsylvania Supreme Court |
COMMONWEALTH
v.
PETRILLO.
Supreme Court of Pennsylvania.
March 27, 1940.
[Copyrighted material omitted.]
Appeal No. 90, January term, 1940, from judgment and sentence of Court of Oyer and Terminer, Philadelphia County, February Sessions, 1939, No. 462; McDevitt, President Judge.
Herman Petrillo was convicted of murder in the first degree, and he appeals. Reversed, and new trial ordered.
Argued before SCHAFFER, C. J, and MAXEY, DREW, LINN, STERN, BARNES, and PATTERSON, JJ.
Harry M. Berkowitz, of Philadelphia, for appellant.
Vincent P. McDcvitt, Asst. Dist. Atty, and Charles F. Kelley, Dist. Atty, both of Philadelphia, for appellee.
MAXEY, Justice.
Herman Petrillo appeals from the sentence of death imposed upon him after he was convicted on March 23, 1939, of murder in the first degree upon an indictment charging him and Stella Alfonsi with the wilful and malicious killing of the latter's husband, Ferdinand Alfonsi, who died of arsenical poisoning on October 27, 1938. Appellant elected to be tried separately. It was alleged that the motive for the homicide was the collection by Mrs. Alfonsi of the proceeds of insurance policies she had been carrying, as sole beneficiary, for about two years on the life of her husband, though it happened that the largest policy, one for $2,000, had lapsed 27 days before his death. Some small industrial insurance policies had also lapsed, and Alfonsi died with only $400 "death benefits". Mrs. Alfonsi was acquitted of her husband's murder on October 27, 1939.
The Commonwealth's chief witness was a man who was called George Myer, but who admitted on cross-examination that his real name was Newmyer and that in 1927 he served eight months and ten days of a ten months sentence in a Wilmington jail for "conspiracy to commit forgery". On June 30, 1938, Myer was introduced to defendant, Petrillo, by Domenick Polcino, whom Myer had met when both were in the Wilmington jail. Myer testified: "Polcino told Petrillo [defendant] that I needed $25.00 to keep my business up. * * * He [defendant] asked me why stop at $25 when I had a chance to make $500. So I asked him what his proposition was and he told me to bump off a guy, * * * a fellow by the name of Ferdinand Alfonsi." Myer said he asked defendant "why he didn't do the job himself", and the latter replied: "Well, I know this man and I can't do it but I just knocked a guy off five days ago, but I didn't know him so good." Myer testified that defendant showed him an iron pipe eighteen inches long, which he wanted him to hit Alfonsi over the head with and then throw the latter downstairs to make it look like an accident, that on the following day defendant told him he had made arrangements with Mrs. Alfonsi for her "to go at 8 o'clock to a show with her two children and be back again after the job was completed", that he (Myer) "went around that night" to see "whether Mrs. Alfonsi was really connected with this in any way" and that he saw her leave about 8 o'clock and come back a quarter to eleven; that the next morning he told defendant that he was to the house and nobody was there, and defendant said he would make arrangements for him to do the job that night, that defendant later suggested that Myer kill Alfonsi by hitting him over the head with a bag of sand, that defendant said he made arrangements for Mrs. Alfonsi to put a white towel on the back fence so that Myer would get to the right house, that defendant later took Mrs. Alfonsi to her mother's in Bristol for ten days during which time Myer was supposed "to do the job", and that defendant offered to give him $500 in lawful money or $2,500 in counterfeit money to do this. Myer had no conversation at any time with Mrs. Alfonsi except on September 5, 1938, when, according to his testimony, he went to the Alfonsi home and "asked for the contractor" and was informed by her that "he has been very sick". Myer then asked his name and she replied: "Alfonsi." Myer then said to her: "I am looking for Periniti, the contractor." She replied: "He is over on Clearfield Street, Belgrade Street." Myer said he told defendant that he had a friend who "just came out of Trenton from doing three years * * * for murder" and "he will do the job" and that defendant asked him to "bring him along".
Myer claims that he then "went to the Secret Service" and "explained everything" and Stanley B. Phillips was assigned to work with him. Phillips at the time was an agent of the United States Secret Service and was assigned to this case (so he testified) by his Chief, W. A. Landvoight, shortly before August 1, 1938. On this latter date he first met the defendant in the store of Domenick Polcino at 1802 East Thayer Street, Philadelphia. Myer said he and Phillips "proceeded to dicker" with defendant for the counterfeit money, that defendant suggested to him and Phillips that they take Alfonsi "out in an automobile,
ask him to look at the headlights and then run over him and then keep on going", or that they "take him down to the beach for a swim and say that he did not come out of the water again", that they kept "stalling" defendant off and later found that Alfonsi was very sick, and that they later met defendant who told them they "didn't have to go ahead with the job" because Alfonsi was in the hospital, and that defendant said: "The fools in the hospital think he has got influenza or pneumonia. * * * I gave him enough arsenic to kill six men." Myer said that when defendant talked about having given Alfonsi arsenic, he questioned defendant as to how he knew that "the arsenic would work", and he replied: "It worked on the other job. I know it will work on this one."
Phillips testified that Myer introduced him to defendant in Polcino's store assuring defendant that he (Phillips) could be "trusted", that he met defendant three or four times a week between August 1st and September 20th and that on "almost all of these occasions some mention was made of this particular 'job' that we were supposed to do". He said that defendant told him Alfonsi was insured and "if this man died as the result of what appeared to be an accident that the double indemnity clause would be in force".
Dr. Henry E. D'Alonzo, who attended Alfonsi, testified that he thought at the time that Alfonsi had pneumonia or a toxic condition. After treating him for a few days, Alfonsi kept getting worse and he told both Alfonsi and his wife that he was going to take Alfonsi to the hospital, that Alfonsi was "eager to come to the hospital", but that Mrs. Alfonsi insisted: "No, no, no, I don't want him to go to the hospital. I will pay any amount of money that it costs. I want him to stay home." The doctor testified that the next day he convinced Mrs. Alfonsi that her husband should be taken to the hospital by telling her that he would be there only a half hour for the purpose of getting an X-ray taken, and that her husband was then taken to the hospital. Mrs. Alfonsi told the doctor that defendant recommended him to her. The doctor also testified that sometime prior to his treating Alfonsi, defendant came to his office for examination and while there offered the doctor "two or three hundred dollars" for "typhoid germs" and the doctor said he told defendant to "get out".
Dr. Strawbridge, who attended Alfonsi at the hospital, testified that the city chemist's report showed "that arsenic had been found in large quantities in the urine" and that Alfonsi suffered "severe pains and distress in the joints", and that the patient's death on October 27th was caused by "paralysis of the muscles of respiration as a result of arsenic poison".
A druggist testified on behalf of the Commonwealth that defendant on two different occasions made inquiry and attempted to buy poisons and live typhoid germs from him.
John Cacopardo was called by the Commonwealth as a witness and was permitted to testify, over the objections of defendant's counsel, to a conversation between his uncle, Paul Petrillo, and himself. Only a small portion of this conversation was in the presence of defendant. The gist of the conversation that the witness related, and which was not in the presence of defendant, was that Paul Petrillo tried to induce him to drop certain powder in a glass of beer to be administered to an unnamed man which Paul said he had insured for $500. Later "Uncle Paul" also suggested to the witness a plan for killing Domenick Starace. He said he told his uncle that: "If anything happens to Domenick Starace I will expose you. I will tell everything I know." He said that Paul then threatened to kill him. Later his Uncle Paul and the latter's mistress, Rose Carina, went to Brooklyn to the Starace family. The witness visited them there. He said that Molly Starace (Mrs. Starace's daughter) had a certain letter that the witness wanted to get, that he, his uncle Paul and Molly entered the latter's bedroom, and the witness said: "Molly, I know what is going on here, and I do not want to have any part of it. * * * If anything happens, I do not want to be implicated in it. If, anything happens to your father—your stepfather—I am going to tell everything." Molly noticed that the witness had a gun and she told his Uncle Paul. While the witness and his uncle were struggling for possession of it, the uncle "pressed the gun" and the witness fainted. While Cacopardo was on the stand, the Commonwealth put in evidence, over objection, a letter allegedly written by Paul Petrillo to Molly Starace in which he suggested that the only way to "quiet" Molly's stepfather was "to send him to 'California'" (meaning, as it was testified
later, to kill him). The word "California" was underscored. The letter then said: "Johnny [Cacopardo] understands what I mean, and I could do it in twenty-four hours or a week. Anyway you want it, but it will cost your mother $500. Let me know if there is any insurance on his life. If not...
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