Appeal, No. 103, Jan. T., 1957, from judgment of sentence of Court of Oyer and Terminer of Blair County, Jan. T., 1956, No. 2, in case of Commonwealth of Pennsylvania v. Glenn Arthur Leamer. Judgment affirmed. Indictment charging defendant with murder upon a plea of guilty. Before KLEPSER, P.J. Verdict of guilty of first degree murder with penalty fixed at death and judgment of sentence entered thereon. Defendant appealed.
Richard A. Carothers, with him Gerald S. Turner, for appellant.
Park H. Loose, District Attorney, with him Frank B. Warfel, First Assistant District Attorney, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Before the court without a jury, defendant pleaded guilty to an indictment charging him with murder.
After taking testimony which included confession of the crime, the court below determined that it was murder of the first degree and imposed the death penalty. On this appeal he admits that the court properly found him guilty of murder of the first degree, but contends that because of his background of "emotional instability" the court erred in not limiting the penalty to life imprisonment.
Section 701 of the Penal Code of 1939, 18 PS § 4701, provides that where the court below "determines the crime to be murder of the first degree, [it] shall, at its discretion, impose sentence of death or imprisonment for life"; and we have held that unless we find an abuse of that discretion we will not reduce the sentence from death to life imprisonment: Commonwealth v. Gossard, 383 Pa. 239, 117 A.2d 902; Commonwealth v. Thompson, 381 Pa. 299, 113 A.2d 274."No hard and fast rule as to what proof is sufficient for this purpose [imposition of life imprisonment rather than the death penalty] can be laid down, but the circumstances of each case must be considered as a whole and the determination permitted to rest in the sound discretion reposed by statute in the court below": Commonwealth v. Thompson, 381 Pa. 299, 303, 113 A.2d 274. In fullest compliance with the requirements of the Act of February 15, 1870, P.L. 15, 19 PS § 1187, we have painstakingly examined this record, and we find no justification for reversal.
On the evening of November 2, 1955, the defendant, then 30 years of age, went to the home of his grandfather, aged 92 years, with the avowed purpose of robbery. Failing to gain entrance by prying several other windows with a screw driver, he finally forced open the window of the bedroom in which his grandfather was sleeping. He "called to him a couple of times to
see if he was there or not"; and stated the reason for doing so as follows: "Well, I figured that was the only way - I wanted to see if he was there, and then it was either forget about it, or else I had to kill him, if he knew I was there - if I could have got in without him hearing me, and I was in there robbing him or something, and he found that out, I would probably have to kill him anyway." Upon receiving answer from his grandfather, he asked him to come out to his car to see an albino deer. They walked out, and as they did so, defendant struck his grandfather on the head with a 3/4" pipe, about five inches long. As he was falling to the ground, still conscious, the victim "grabbed hold of [defendant's] ... coat and pulled [him] ... down with him, and got his hand around my neck a little, not enough to amount to anything." Defendant then "started to choke him ... hit him a couple of times more ... until I didn't think he was breathing." Thereupon he removed the victim's pocketbook and a key from his trousers; left him on the ground, to ...