Appeal, No. 95, Jan. T., 1953, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1952, No. 4124, in case of Commonwealth of Pennsylvania ex rel. Theodore Elliott v. Dr. Frederick S. Baldi, Superintendent, Philadelphia County Prison and J. W. Claudy, Warden, Western State Penitentiary. Order affirmed.
Barnie F. Winkelman, with him William R. Pomerantz, for appellant.
Michael von Moschzisker, First Assistant District Attorney, with him Samuel Dash, Assistant District Attorney and Richardson Dilworth, District Attorney, for Superintendent, Philadelphia County Prison, appellee.
Randolph C. Ryder, Deputy Attorney General, with him Frank P. Lawley, Jr., Assistant Deputy Attorney General and Robert E. Woodside, Attorney General, for Warden, Western State Penitentiary, intervening appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
It will aid in a proper understanding and determination of this appeal if we briefly review some of the facts and some of the issues which are fully set forth in our opinion in Commonwealth v. Elliott, 371 Pa. 70, 89 A.2d 782.
Elliott ruthlessly shot and killed a policeman during a robbery. He pleaded guilty to murder and a three Judge court found him guilty of murder in the first degree. Elliott's counsel, whose industry and zeal in his behalf have been remarkable, obtained the appointment (by the trial Court) of Dr. Drayton, a psychiatrist, and presented to that Court Elliott's history and background from a very early age. Elliott and his counsel have continuously, consistently and unqualifiedly admitted that the killing was first degree murder and that he (Elliott) was and is sane, but allege that he was and is an irresponsible moron or mental defective and consequently should have been sentenced to life imprisonment instead of death.
After a careful study of all the evidence, including Elliott's history from his early youth, the Court below, in a very able and persuasive opinion, imposed the death sentence. Thereafter Elliott's counsel discovered that Dr. Drayton, the court-appointed psychiatrist, had himself been committed as of January 12, 1952, because of an incurable mental disease which was progressive and which had deprived him of any judgment or insight. The commitment proceedings had been brought by Dr. Drayton's wife on or about September 18, 1951. These facts were contained in an affidavit by Thomas D. McBride, Esq., which was filed in U.S. ex rel. Smith v. Baldi, 344 U.S. 561.
At the oral argument of Elliott's appeal before this Court in the prior case of Commonwealth v. Elliott, permission to file the McBride affidavit was requested and granted. Dr. Drayton's reports of his examination of Elliott in 1938 and also on July 3, 1950, stated that defendant was a middle grade moron and a mental defective who was, however, a shrewd fabricator. The case was unusual in that all of the psychiatric and similar history with respect to the mental condition of the defendant from the time he was 10 years old are in substantial and practically unanimous agreement, viz., that the defendant was an aggressive, unstable, dangerous moron who was mentally defective. The important fact to note and remember throughout the present case is that experts and laymen all agree (1) that defendant was sane, and (2) that he was a moron and mentally defective. We decided that this was a factor to be taken into consideration in determining and fixing a sentence, but did not require the imposition of a life sentence instead of death.
In that case we very carefully considered all points raised by the defendant -- including ...