Appeal, No. 244, Jan. T., 1950, from judgment of Court of Oyer and Terminer of Philadelphia County, Jan. Sessions, 1949, No. 410, in case of Commonwealth of Pennsylvania v. Joseph Chambers. Judgment reversed.
Albert S. Oliensis, with him Maxwell L. Ominsky, for appellant.
Colbert C. McClain, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE BELL
This is the second time the defendant was convicted of first degree murder and at each trial the jury in their verdict imposed the death penalty. The defendant in this appeal raises two narrow but very important questions: (1) "Must a suspect in a capital case, prior to police questioning, be furnished counsel or at least advised of his right to counsel and to remain silent upon questioning"; and (2) Did the trial judge commit reversible error in his charge to the jury concerning a man named Phillips? The first question has been ruled adversely to the appellant in a companion case, Commonwealth v. Bryant, 367 Pa. 135, 79 A.2d 193; and we shall therefore proceed to a determination of the second question involved.
Joseph Saturno, 65 years old, was found dead in his apartment, 616 Pemberton Street, Philadelphia, about 6:25 p.m. on November 8, 1948. The deceased had been terribly beaten and mutilated, with about 20 wounds in the head; and his apartment was a shambles, with blood over everything. Detectives arrived at the scene of the crime shortly thereafter and as a result of a tip went to defendant's home at 633 Kenilworth Street, less than a block from the deceased's apartment. Defendant was shot by the detectives while he was attempting to escape and was then taken to a hospital. Detectives Lear and O'Donnell were permitted to testify, over objections of counsel, that they questioned defendant at the hospital and that defendant admitted being
Phillips testified at defendant's trial that defendant knocked him unconscious in a crap game on the afternoon of November 8th and that defendant's mother washed the wound; that Phillips then went to the Pennsylvania Hospital at about 4:15 p.m.; that he left the hospital around 5 o'clock and went to the house of Robert Magil, 638 Bainbridge Street, which is less than a block from Saturno's apartment; that he then went home, had supper and because his head hurt him, went right to bed; and that defendant lied when he said that Phillips had anything to do with the murder.
Detective O'Donnell testified that defendant (Chambers) definitely told him that Phillips got the patch on his head in his fight with Pop Saturno. Detectives O'Donnell and McColgan each testified that he had investigated these conflicting statements and found out from the hospital records and elsewhere that Phillips received the injury prior to 4:30 on the day of the murder; that they had also investigated Phillips' statement that he had nothing to do with the murder and that they had no proof that he participated in or had any connection with the murder of Saturno. The court then said: "Q. Let's dispose of Phillips. Did you check to see where Phillips was from the time he was discharged from the hospital until the time he was arrested? Did you make an investigation of that matter? A. Yes, we did. He told us the same story he told on the stand here. Q. Where did you ascertain where Phillips was, home in bed? A. We had nothing to prove that he was anywhere else.... The Court: He told you all the discussions up to that time, which would determine the status of Phillips. Now, Phillips is out. Q. All right. What happened after Phillips is eliminated ?"*fn*
It is also a fact, for what it is worth, that Phillips was ...