Appeal, No. 145, March T., 1956, from judgment of Court of Oyer and Terminer of Allegheny County, June T., 1954, No. 124, in case of Commonwealth of Pennsylvania v. Earl Richard Saunders. Judgment affirmed. Indictment charging defendant with murder. Before ALPERN, J. Verdict of guilty of murder in the first degree, with recommendation of life imprisonment, and judgment of sentence entered thereon. Defendant appealed.
Norman Landy, with him Norman Paul Wolken and Wolken & Landy, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney and George H. Ross, Assistant District Attorney, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
Shortly after seven o'clock on the morning of June 2, 1954, John T. Neelans, a 62 year old attendant at a gasoline station located at Reedsdale Street and Ridge Avenue in the City of Pittsburgh, was struck on the head, shot in the chest, and robbed, by someone who stepped out from the side of the station; he died a few minutes later. The crime thus committed was murder in the first degree, the only question being the identity of the assailant. The defendant, Earl Richard Saunders, a lad not quite 16 years of age at the time of the crime, was charged with the murder, tried, convicted, and sentenced in pursuance of the recommendation of
the jury to life imprisonment, the court having denied him a new trial.
The record is extraordinarily voluminous. No trial could have been conducted with more meticulous care and judicial fairness, nor did counsel for the defendant overlook any point helpful to his client. A careful reading of the testimony does not support appellant's contention that the evidence in regard to the identification of the perpetrator of the crime was not sufficiently clear and convincing to justify the conviction.
A witness named Smaltz, a workman who happened to emerge at the time of the occurrence from a steel supply company where he was employed and which was in close proximity to the gasoline station, saw the scuffle between the robber and his victim. He testified as to the cap, shirt or jacket, and jeans worn by the assailant, the gray or white mask which covered part of his face, that he was a colored man, that there was something unusual about his gait - "he had sort of a gangling walk" - and that he ran up Fulton Street. Smaltz further testified that he attended a line-up in the police station two days after the murder where he picked out Saunders by his posture, the way he was built and the manner in which he walked. However, at the coroner's inquest and at the trial he stated that he could not "positively" identify him, as he had not had a good look at his face.
Another witness named Grainer, employed as a truck driver for an express company, saw the man running up the street with a white mask covering the lower part of his face; his height was about five feet, ten inches; he wore a pair of blue jeans.
A witness named Wenzelburger, employed as a milk driver for a dairy company, testified that he was not able "positively" to identify the man; he saw him running
up Fulton Street and turning left into Medley Street; he noticed that as he ran "he sort of held his arms away from his body"; he saw him "sort of adjust" his mask as he turned into the latter street. At the police line-up Wenzelburger identified defendant on his "general appearance as it looked to me the morning I saw the crime," - on his color, his height, his build and the way he carried his arm.
Arizona Nicholson, a clergyman, testified that the assailant was a colored man, that he was partially masked, and that he was approximately five feet, eight inches tall. He identified the defendant at the police line-up but could not now "swear to it" not having been able to see his face clearly, but he "believed" that defendant was the man he had seen with the mask; he resembled the fellow he saw bending over the man.
The principal witness for the prosecution was a ten-year old lad named Edward Hargrove, whom the trial judge, in the court's opinion denying a new trial, characterized as a "bright lad," saying that "It was obvious to the court, to the jury and to the spectators that young Edward was telling the truth. He handled himself so intelligently, so quietly and so effectively on cross-examination that no one could doubt the sincerity of his story." This young negro boy was on friendly terms with defendant; they had known one another very well for from three to five years; their houses were only five doors apart, they attended adjoining schools, and they saw one another practically every day. Hargrove testified - not aggressively nor venomously but with laudable caution and restraint - that he happened to be standing with his little sister that early morning in front of the defendant's house at Fulton and Medley Streets when he saw the gas-station attendant come down Ridge Avenue to open the station door. He saw someone wearing a mask come out from the side of the station
and attack the attendant, and he heard the victim's screams. He saw the robber go through the man's pockets and then run up Fulton Street still wearing his mask, but when he came to the corner of Fulton and Medley Streets, right across the 24 foot wide street from where Hargrove was standing, the mask slipped for a moment, Hargrove got a good look at his face and immediately recognized the defendant. He told his mother and stepfather what he had seen and that it was the defendant who had committed the crime, and he identified defendant at the police line-up. He testified at the trial that he was sure it was the defendant, that he had "never doubted it," that he had had a good look at his face and had recognized him also by his arm which "was kind of bent out";*fn1 of all the boys he knew none looked like the defendant. Hargrove was well acquainted with defendant, he saw his face clearly even though briefly, his identification of him was without reservation and his testimony was not weakened in the slightest by cross-examination.
Defendant denied his guilt, and several members of his family testified, by way of an alibi, that they saw him in bed at various times between six-thirty an eight o'clock A.M., two of them - a ten-year old brother and an eight-year old nephew - at about the time of the occurrence of the crime. Some of them said that he was in bed that June morning under the covers with his clothes on, including a pair of blue jeans, from which the jury might well have believed that he had but recently and hurriedly slipped into bed, although his family testified that it was his habit to sleep with his clothes on.
This brings us to one of the principal issues in the case which arises from the so-called "recantation" of the Hargrove boy's testimony. It appears that some five months after the trial, in an examination in the office of defendant's counsel,*fn2 he stated: "I was going to change my mind because it could be somebody else who looks like Richard [the defendant] and I don't think it was him now." Because of this development the court itself examined Hargrove in connection with the argument on the motion for a new trial. At that hearing Hargrove insisted that he had told the truth when he testified at the trial, but that he had had "bad dreams" and "something kept telling me it wasn't him." The court came very definitely to the conclusion that it was not "something" but more likely "somebody" who "kept telling" him. He gave his testimony this time under obvious stress, tension and emotion and occasionally with tears. While he insisted that it was because of the "bad dreams" that he came to believe that it was not the defendant whom he had seen, it appeared that the boys in the neighborhood, friends of the defendant, would no longer play with Hargrove as they had been wont to do, nor talk to him except to call him names and charge him ...