Appeal, No. 104, Jan. T., 1950, from judgment and sentence of Court of Oyer and Terminer of Delaware County, March Sessions, 1949, No. 444, in case of Commonwealth of Pennsylvania v. Walter Maloney, Jr. Judgment and sentence affirmed; reargument refused June 7, 1950.
Thomas D. McBride, with him Michael von Moschzisker, Raymond E. Zickel and Edward H. Bryant, Jr., for appellant.
C. William Kraft, Jr., District Attorney, with him R. Paul Lessy, Assistant District Attorney, for appellee.
Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.
OPINION BY MR. JUSTICE HORACE STERN
In this appeal from the conviction by a jury of first degree murder with the death penalty the defendant, Walter Maloney, Jr., complains of errors in the trial judge's charge and alleged misconduct on the part of the District Attorney.
In 1930 Maloney was convicted in Philadelphia of murder in the first degree with the penalty fixed at life imprisonment; he was confined in the Eastern State Penitentiary and there met one Alexander Niemi, a fellow prisoner. Maloney's life sentence was commuted by the Pardon Board and he was released in 1946. He subsequently resumed his acquaintance with Niemi and associated with him on several occasions. On the night of January 6, 1949 he met Niemi in Upper Darby, Delaware County. They went in Niemi's car to a taproom in East Lansdowne, then rode around the county for nearly two hours, and about 10:30 P.M., after parking the car on a back street, they entered the so-called "520 Grille" in Chester, where they stood at the bar drinking until around midnight. After the other patrons of the establishment had left and only the manager, Jacob Davis, and a bartender remained in the room Niemi suddenly, with a pointed revolver in hand, said: "Fellows, this is it"; at that moment Maloney backed directly behind Niemi with his hand on a loaded revolver in his right overcoat pocket. Niemi ordered Davis to hand over the paper money from one of the cash registers; Davis obeyed and placed the paper currency on
the bar, whereupon, according to the testimony of the bartender, Maloney scooped it up with his left hand and stuffed it into his pocket. Then Niemi ordered Davis to hand over the paper money from the other cash register; Davis did this and Niemi stuffed it in his own pocket. Niemi then inquired about the drawer underneath this register; Davis opened it and as he did so Maloney started to run; as he reached the storm door and was going through it Niemi, after jerking his head around to observe Maloney, suddenly fired his gun and shot and killed Davis. Niemi then backed out on a run following Maloney and the two of them entered Niemi's car and drove up to Philadelphia; on the way Maloney threw his gun out of the window of the car. He stayed at his home in Philadelphia for about a week, and then, having heard that Niemi had been arrested and that he himself was being sought, he fled to Atlantic City where he remained for over a month; running out of funds he returned to Philadelphia to get more money; here he was arrested and on the following day he gave a signed statement to the Delaware County District Attorney. His trial and conviction followed.
The Commonwealth tried the case on the theory that Maloney had conspired with Niemi to rob the 520 Grille and that they were engaged in a joint venture for that purpose. Maloney's defense, on the other hand, was that he had met Niemi that night only by accident, that he had been on his way to visit his sister in order to return the gun which he had in his pocket to his brother-in-law who owned it; he said that the gun was wrapped in paper. He claimed that he did not know that Niemi had any intention of committing the robbery or that Niemi had a loaded gun in his possession, -- that he himself had no thought of doing anything wrong. He had repeatedly suggested to Niemi to "drink up and let's get out of here", the last time being about ten minutes before the holdup. He denied that he had taken any of
the money, stating that what he had picked up from the bar was a newspaper which he had previously purchased. He admitted that he did not carry out his alleged intention of delivering the gun at his sister's house and he also admitted ...