Appeal, No. 97, Jan. T., 1952, from judgment and sentence of Court of Oyer and Terminer of Philadelphia County, June T., 1946, No. 646, in case of Commonwealth of Pennsylvania v. Aaron Turner. Judgment reversed.
Edwin P. Rome, for appellant.
Richardson Dilworth, District Attorney, with him Thomas M. Reed, Assistant District Attorney, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The defendant, Aaron Turner, appeals from his conviction of murder in the first degree committed during the perpetration of a robbery, with sentence of death fixed by the jury. Motion for new trial was denied by the court en banc. This was defendant's third trial for the offense. Each of two earlier trials had the same outcome, but the similar sentences imposed were successively set aside for trial errors. As to the first trial see Turner v. Pennsylvania, 338 U.S. 62, 69 S. Ct. 1352, reversing the decision of this Court reported at 358 Pa. 350, 58 A.2d 61. For the reversal of sentence in the second trial see Commonwealth v. Turner, 367 Pa. 403, 80 A.2d 708.
In reversing the first conviction, the Supreme Court of the United States held that an alleged confession reduced to writing and signed by Turner while in the
custody of police was inadmissible because obtained by their coercive influence. This Court in reversing the second conviction felt constrained to hold equally inadmissible for the same reason the admission of guilt made by Turner at a preliminary hearing held during the course of the obtaining of the condemned confession.
At the present trial, in accordance with these rulings of the United States Supreme Court and of this Court, evidence of the confession and admission above mentioned was not adduced and the Commonwealth's case rested solely upon the testimony of a self-confessed accomplice and the testimony of two detectives, members of the Philadelphia police force, as to an alleged statement made by the defendant while in custody but claimed by the Commonwealth to be free from any compulsion.
The Commonwealth produced evidence from which the jury could have found the following facts. In the afternoon of December 15, 1945, Frank Endres, about 63 years of age, and Charles Simmons, about 53 years of age, were in the Ace Broom Factory owned by Simmons and located at 353-55 North Second Street, Philadelphia. At or about five o'clock in the afternoon a police officer by the name of Monaghan who was patrolling the neighborhood to try doors and see whether they were locked, found the factory door unlocked, entered and found the bodies of Endres and Simmons lying on the floor in pools of blood. Both were unconscious and never regained consciousness. There was blood on brooms that were stacked against the wall nearby. The two men were taken to the hospital by the police; Endres died two days later and Simmons on December 21st. Dr. Wadsworth, the coroner's physician, who performed an autopsy, testified that Endres died as a result of a crushed skull, and Simmons of multiple injuries
to the head, and that the injuries to both men had apparently been inflicted by a blunt instrument. There was testimony that pockets of the two men were turned inside out. Mrs. Simmons testified that her husband often carried several hundred dollars on his person. There were no eye witnesses to the crime and no one was seen entering or leaving the factory at the time of its perpetration.
On May 24, 1946, the police arrested one Clarence Lofton and on June 3rd arrested the defendant Turner and one Jasper Johnson. The three were charged with the crime and jointly indicted for the murder of Endres. The three trials of Turner were on this indictment. Johnson was separately tried thereunder and convicted of murder in the first degree with sentence of death, but his conviction, upheld by this Court, (see 365 Pa. 303, 74 A.2d 144), was set aside by the United States Supreme Court on November 13, 1950 without opinion in an order citing its decision in the Turner case, 338 U.S. 62, supra. Lofton pleaded guilty and the lower court sentenced him to life imprisonment. Thereafter he testified as a witness for the Commonwealth in the second and third trials of Turner.
At the third of Turner now here for review, in order to connect him with the commission of the crime, the Commonwealth relied upon the testimony of Lofton and that of two police detectives, Thompson and O'Mahoney, who testified that on June 6, 1946 they had secreted themselves in a cell adjoining that occupied by Turner, Johnson and Lofton and overheard the three men talking. Thompson testified, "Turner said he had a hell of a time with the second man. He hit him pretty hard twice and blood came out of his ears." O'Mahoney's testimony is ...