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May 27, 1952


Appeals, Nos. 188, Jan. T., 1951 and No. 100, Jan. T., 1952, from judgment and sentence of Court of Oyer and Terminer of Philadelphia County, Feb. Sessions, 1950, No. 125, in case of Commonwealth of Pennsylvania v. Theodore Elliott. Judgment and sentence affirmed; reargument refused June 24, 1952.


Barnie F. Winkelman, with him Arthur W. A. Cowan, for appellant.

Thomas M. Reed, Assistant District Attorney, with him Malcolm Berkowitz, Assistant District Attorney and Richardson Dilworth, District Attorney, for appellee.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Bell

[ 371 Pa. Page 72]


The defendant, Theodore Elliott, was indicted and tried for the murder of a police officer whom he shot in the course of an armed robbery. He pleaded not guilty, but after five days of trial changed his plea to guilty. He was 23 years old and was regularly employed in a cement factory where he earned $84 and upwards a week. The robbery was planned and executed by defendant and his cousin, John S. Frank. Frank, who shortly after his arrest confessed to the robbery, was sentenced to life imprisonment. After the plea of guilty, counsel for the defendant requested that the Court appoint a psychiatrist to examine Elliott and the Court appointed Dr. William Drayton, Jr., to act for the Commonwealth as well as for the defendant.

The three Judges who sat to impose sentence carefully considered all of the evidence as well as the report of Dr. Drayton and other matters to which we shall hereinafter refer, and found without hesitation that "the murder of Officer Mitchell was wilful, deliberate and premeditated, and constitutes murder of the first degree. Commonwealth v. Drum, 58 Pa. 1."

[ 371 Pa. Page 73]

The Court's opinion is so able and illuminating that we quote with approval the following excerpts therefrom:

"Since the solemn choice of the penalty must be left to the conscience and unfettered judgment of the court in the light of the facts of the particular case before it, precedents are not of great value, and decisional law cannot and has not shackled the exercise of such judgment into the bonds of stare decisis.

"We are confronted with a problem of penology: Commonwealth v. Ritter, [13 D. & C., 285, 288]. 'A court is not called upon to state, and we think generally would do well to refrain from recording, in detail its reasons for the sentence it imposes in each case.' Commonwealth v. Levin, 66 D. & C. 55, 62.

"Penologists have recognized four theories upon which the imposition of punishment is based; namely, reformation, retribution, restraint and deterrence. The first has no application in this case, the second is incongruous in an era of enlightenment; the third is relatively unimportant where the choice is life imprisonment or death; the fourth must be regarded as an important objective of punishment regardless of the enormous amount of conflicting literature on the subject. 'The real question is not as to whether the death penalty is in general a deterrent, but as to the particular kinds of murder cases in which execution would or would not be most likely to effect deterrence. It becomes a problem of determining the basis upon which to make such classification.' Commonwealth v. Ritter, supra, at pages 291, 292.

"In applying theories such as these, we must consider all of the features and circumstances of the specific crime and the history of the defendant who committed it. A distinction has been made between crimes of mental as opposed to emotional impulse. A

[ 371 Pa. Page 74]

    diabolically planned murder by poison or lying in wait for some mercenary or similar motives requires the death penalty; whereas, a killing engendered for reason of passion, though with the necessary elements of a specific intent to kill, may be considered differently. Certainly a murder committed in the course of an armed robbery, ruthlessly shooting down the first obstacle of human resistance, as was the case here, demands the former penalty. The unwarranted murder of Officer Mitchell was such a crime.

"In turning to the individual who committed this crime, we are concerned with his depravity. The facts of this murder convince us that he is an individual who is dangerous to society and undoubtedly of savage nature. There was no reason to mow this victim down in cold blood, no occasion to fire so precipitously except as a manifestation of a savage and depraved nature.

"His personal history is replete with crime from an early age; larcenies, burglaries, hold-ups, possession of firearms, and confinement on at least three occasions to correctional institutions. Although his mental level is allegedly low as measured by psychological testing, he exhibited throughout the trial an innate shrewdness and sharp perception. He was characterized by the detectives as the leader of a long series of crimes and his aggressive tendencies corroborate such a conclusion.

"There were no economic pressures which excited this lust for crime. His work record was steady; his earnings adequate. We have searched his history carefully for some justifiable explanation. We have found none, only a depraved, cruel, ruthless and brutal individual. There can be but one choice.

"The court therefore adjudges the defendant, Theodore Elliott, to be guilty of murder in the first degree and fixes the penalty at death."

[ 371 Pa. Page 75]

Counsel for defendant admits that he was not legally insane, but contends he was so mentally deficient as to justify only a sentence of life imprisonment. Mental deficiency is a fact which always should be and in this case was taken into consideration in determining and fixing the penalty or sentence. However, no case in Pennsylvania has ever decided that a trial Judge or a Supreme Court must, as a matter of law, reduce a sentence from death to life imprisonment because the defendant is an unstable, weak moron or a mental defective.

Dr. Drayton had examined Elliott in 1939 as well as in 1950.In his report relative to his examination of Elliott in 1950, Dr. Drayton reported that he not only examined him, but he read all the notes of testimony, some of them twice, as well as examined the court records. Dr. Drayton stated that defendant was a middle grade moron, and that he was mentally defective and a fabricator of the first water. He likewise found that he had a certain amount of native shrewdness and showed no evidence of being mentally ill.

There is no contention by defendant or by his counsel that he was insane.

After the death sentence was imposed, counsel for defendant filed a petition to incorporate certain records showing defendant's history and his examination by other psychologists and psychiatrists; and likewise petitioned the Court to vacate the sentence. The sentencing Court granted the petition and heard and studied all the evidence which defendant's attorney so thoroughly and painstakingly presented. The sentencing Court, composed of three judges, was ...

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