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June 6, 1957


Appeal, No. 124, March T., 1957, from judgment and sentence of Court of Oyer and Terminer of Allegheny County, Nov. T., 1949, in case of Commonwealth of Pennsylvania v. Cleveland Thompson. Judgment and sentence affirmed.


Franklin E. Conflenti, with him Ezra C. Stiles, Jr., for appellant.

Samuel Strauss, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold and Jones, JJ.

Author: Jones

[ 389 Pa. Page 384]


The defendant, having been found guilty of murder in the first degree with the death penalty affixed and having been sentenced to death, appeals from the refusal of the Court below to grant him a new trial.

Wallace Russell died as a result of wounds received in a shooting which took place on September 13, 1949 in a drinking place known as the Barbary Coast Club in Pittsburgh. The defendant, charged with having shot Russell, was indicted for murder and manslaughter in connection with his death. After a trial by jury, in January, 1950 defendant was found guilty of murder in the first degree with the death penalty affixed and sentenced to death. This conviction was upheld by this Court in a unanimous opinion (Com. v. Thompson, 367 Pa. 102, 79 A.2d 401); a petition for reargument

[ 389 Pa. Page 385]

    was refused and the U.S. Supreme Court denied certiorari (Thompson v. Commonwealth, 342 U.S. 835, 96 L.Ed. 631, 72 S.Ct. 58).

Then ensued a long series of legal proceedings which resulted eventually in a new trial for the defendant.*fn1

The defendant was retried and, at this new trial, the jury returned a verdict finding the defendant guilty of murder in the first degree, with the death penalty attached. A motion for a new trial having been refused by the court en banc the defendant was sentenced to death. From that judgment of sentence this appeal was taken.

[ 389 Pa. Page 386]

At approximately seven o'clock on the evening of September 13, 1949, the defendant entered a drinking place located at 20 Townsend Street, Pittsburgh, known as the Barbary Coast Club. Previously on the same day the defendant had been in this club, after sometime he left there and, when he returned, he had in his possession a .45 caliber Colt revolver. When the defendant returned there were present, among others, one Aaron Daniels, a patron, and one Wallace Russell, the bartender. Russell and Daniels had been engaged in a conversation and Daniels was turning from the bar to leave the place when he was shot through the left arm by the defendant and then Russell was shot by defendant according to the Commonwealth's version which was denied by the defendant. There was some testimony that before any shot was fired, the defendant said "This is a stick-up, don't nobody move." There was also some testimony that the bartender said "Don't kill me, if you want the money take the money. Don't kill me", that the bartender raised his hands in the air from behind the bar and that the defendant shot him through the abdomen, inflicting wounds from which Russell died. There was also some testimony that the defendant had reached into the bartender's pocket and some testimony that defendant had gone behind the bar to the cash register and that, when backing toward the door to make an exit from the place, the defendant said "Nobody move, if you do, I will kill you." Five witnesses testified on behalf of the Commonwealth to the events surrounding the shooting.

At the second trial, the defendant did not testify. However, the Commonwealth offered in evidence a statement made to the police by defendant the day following the shooting, and defendant's testimony at the first trial and at the habeas corpus proceedings. According

[ 389 Pa. Page 387]

    to defendant's statement to the police he went to the Barbary Coast Club at approximately two o'clock in the afternoon; after some time there, he got into an altercation about dancing with a woman with the reputed owner, one Johnny Taylor; according to the defendant, Taylor kicked him while Russell held a gun on him and defendant was forced to leave the premises; the defendant stated that he then went to his home to get his gun, at first stating that he got the gun and went back to kill somebody because somebody had kicked him and later stating that he secured the gun not to kill anyone but to talk it over with Johnny Taylor. Defendant stated that he returned to the Barbary Coast hoping to talk it over, that he remembered firing only one shot: "Q. How many shots did you fire from this revolver? A. I don't remember but firing one. Q. And who did you fire that at? A. The fellow that I killed." He stated that he then left. According to defendant's testimony at the first trial, defendant went to the Barbary Coast Club at approximately three o'clock in the afternoon, saw one Susie Horton there and got into an altercation with Johnny Taylor about dancing with the Horton woman; Taylor threatened to evict him; defendant stated to back toward the door, Johnny Taylor kicked him and he saw a gun pointing at him; at that time the defendant stated he had drunk four pints of moonshine and had been smoking marihuana; defendant stated that he went home, secured his gun and returned to find out why he was kicked out of the Barbary Coast; upon his return, he saw a man (apparently Daniels) lying on a table; that the bartender, Russell, started after him with a gun in his hand and that if he, the defendant fired his gun, he had no recollection of the incident; he denied he said anything about a stick-up or that he tried to take any money from any person. At the habeas corpus proceedings

[ 389 Pa. Page 388]

    the defendant testified that, after he was thrown out of the Barbary Coast, he did not leave the premises but went downstairs and there met one Oscar Carey who gave him a gun; that he went upstairs with the gun and the bartender ran toward him with a gun and grabbed him by the collar; he did not admit firing any shot but he did admit that he told some friends later that he had "shot somebody" and that he had been drinking.

It is highly significant that one of defendant's own witnesses, upon cross-examination, testified that shortly after the shooting the defendant came to her home and that, after he had left her home, she saw on the stairs a wallet in which was the social security card of the deceased Russell. Oscar Carey, a rebuttal witness for the Commonwealth, testified that the gun had been taken by the defendant from Carey's home shortly before the shooting, without Carey's knowledge; he denied that he had given the gun to the defendant in the downstairs area of the Barbary Coast Club and he testified that he was present when the defendant dropped the wallet in which he found not only the deceased's social security card, but also a numbers slip and six dollars. The defendant, in neither his statement nor his testimony at the previous proceedings, denies that he fired a shot and the testimony of several witnesses who saw and talked with him after the shooting is to the effect that defendant acknowledged having shot someone. Although the defendant testified that he was rushed or attacked by the bartender, he at no time stated that by such tactics he was ever put in fear or in terror or that when he fired the shot he was acting under the compulsion of any fear.

The Commonwealth proceeded upon two theories: (1) that the killing of Russell took place during the commission of a robbery and, (2) even if that had not

[ 389 Pa. Page 389]

    been established, the killing was accomplished wilfully, deliberately and with premeditation. The principal defense*fn2 was that when the defendant returned to the Barbary Coast, he was attacked by Russell, who then had a gun in his hand, and that, if the defendant did shoot, it was an act of self-defense.

On this appeal, the defendant urges that the Court below erred in three respects: (1) that the Court erred in its instructions to the jury relative to the law of self-defense and voluntary manslaughter; (2) that the Court erred in permitting the reception into evidence of a court-martial record of the defendant to assist the jury in determining the appropriate penalty in the event that defendant was found guilty of murder in the first degree; (3) that the Court erred in proceeding to trial without having disposed of a writ of habeas corpus mailed to he Court by the defendant.

The defendant urges that the Court erred in its charge: that the jury should have been instructed that, although it might conclude that the defendant had not established self-defense by a fair preponderance of the evidence, yet it may and should consider the evidence offered in support of self-defense in determining whether the defendant was guilty of voluntary manslaughter because of having acted under an uncontrollable fear of death or serious bodily harm, even though such fear might have been unreasonable. Stated in another manner: should the Court have instructed the jury that "where self-defense is not properly made out, the jury may consider that the defendant acted under uncontrollable fear of death or serious bodily harm, even though the fear was an unreasonable one": Com. v. Banks, 376 Pa. 531, 534, 103 A.2d 726.

[ 389 Pa. Page 390]

The defendant relies upon Com. v. Colandro, 231 Pa. 343, 352, 80 A. 571, wherein we stated: "While the evidence might not have been sufficient to satisfy the jury that the plea of self-defense had been sustained, it might have appealed to them as sufficient to negative or to throw such a doubt upon the element of malice as to reduce the crime to manslaughter. Therefore, in addition to the instruction on the law of self-defense, the jury should have been told, if they found that at the time of the shooting the defendant was not actuated by malice, but that he acted under the influence of an uncontrollable mortal fear raised by the threats and conduct of Rocco, and if they thought that the immediate circumstances, though adequate to raise the fear, were not sufficient reasonably to justify a belief on the part of the defendant that he was in immediate danger of death or great bodily harm, the grade of the crime would not rise higher than manslaughter." This language must be read in context with the factual situation in the Colandro case. In that case, there was testimony that for three months prior to the shooting the deceased had demanded money of the defendant, that deceased produced a revolver and threatened to kill defendant unless his demands were complied with, that deceased's threats continued until the afternoon of the day of the shooting, that deceased sent a messenger to defendant conveying similar threats and at the time of the shooting when the deceased entered the room, he repeated his threats, started to shoot and the defendant was placed in fear. In the Colandro case, the Court instructed the jury that there was only "one issue" - self-defense - , that the possibility of manslaughter was not present and that it was necessary for the defendant to satisfy the jury that his version of the shooting was correct.

[ 389 Pa. Page 391]

    that defendant was acting in fear; Com. v. Broeckey, 364 Pa. 368, 372, 373, 72 A.2d 134 in which defendant's plea for acquittal was based on self-defense, the Court failed to distinguish between voluntary manslaughter and self-defense and the "charge of the court precluded a verdict of not guilty"; Com. v. Banks, supra, in which the Court, although leaving manslaughter to the jury, stated that there was no evidence to sustain a verdict of voluntary manslaughter - this despite the fact that there was positive testimony that the defendant was "scared" by the deceased's actions and "by being scared" defendant's gun went off.

In Com. v. Cargill, 357 Pa. 510, 55 A. 373 the facts were somewhat similar to the case at bar. In that case, deceased operated a gambling house in which defendant had lost heavily two days prior to the shooting; the defendant went to the gambling house and, while discussing with deceased the money which he had lost, the deceased suddenly jumped up from his chair with his hand on his gun; defendant began shooting because he knew that deceased had a gun and feared him because of his bad reputation; the defense was self-defense. We there upheld a charge much more general on the subject of voluntary manslaughter than the charge herein examined.

The Court below in this case instructed the jury, inter alia, as follows: "The other grade of the crime to which we have referred is voluntary manslaughter. Manslaughter is the killing of a person without malice. It is committed when the death is intentionally brought about, but brought about under the influence of passion. As here used, the term 'passion' includes both anger and terror, provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected, namely any of the emotions of the mind known as anger, rage, fear, sudden resentment

[ 389 Pa. Page 393]

    or terror, rendering the mind incapable of cool reflection. Therefore, to reduce an intentional blow, shot, stroke or wounding resulting in death, to voluntary manslaughter, there must be a sufficient cause of provocation and a state of rage or passion, without time to cool, placing the prisoner beyond the control of his reason and suddenly impelling him to the deed." (Emphasis supplied)


"Now, on the other hand, in order to reduce it below murder in the second degree, there must be evidence showing that the act was committed under the influence of passion, depriving the person acting in committing the crime of the ability to control himself, temporarily obscuring his reason".

After noting that defendant's counsel in his summation to the jury had stated that defendant was acting in self-defense the Court below charged completely and fully on the subject of self-defense. Of that instruction, the defendant makes no complaint.

In concluding his charge, the trial judge said to the jury: "Fourth, was the killing committed in the heat of passion, as described heretofore in the charge? If you find that it was, as a fact, you would then be justified in returning a verdict of guilty of voluntary manslaughter. Or, fifth, did the defendant act in self-defense, as that term has been described to you? If you find that he did, as a fact, you would then be justified in returning a verdict of not guilty."

At the conclusion of the charge when asked by the Court whether any further instructions were requested, defendant's counsel made no request. No exception, general or special, was taken to the charge and no objection thereto raised by defendant's counsel. It would appear that at the time counsel were satisfied with the instructions.

[ 389 Pa. Page 394]

The instructions must be read in their entirety and with relation to the evidence which was presented. In Com. v. Almeida, 362 Pa. 596, 600, 68 A.2d 595, we stated: "There is no rule more firmly established in law than that which was reiterated in Commonwealth v. Thompson, 321 Pa. 327, 330, 184 A. 97, to wit; 'The charge must be read as a whole, and excerpts therefrom must be read in relation to the context. It cannot properly be separated into parts and these treated piecemeal. ... (citing cases). In Harman et ux. v. Chambers, 358 Pa. 516, 519, 57 A.2d 842, Mr. Justice JONES speaking for this Court said: 'In scrutinizing a trial court's instructions to the jury for possible error, the charge must be read and considered as a whole,'"

An examination of the present charge in its entirety is convincing that the jury were well, properly and adequately instructed both on self-defense and voluntary manslaughter. The Court informed the jury that when a killing takes place, without malice but intentionally, but brought about by passion, including fear and terror, such a killing would be voluntary manslaughter. At no place in the charge nor in any manner whatsoever did the Court even intimate to the jury that they could not find the defendant guilty of voluntary manslaughter. A trial court is not required to use any particular language in instructing a jury provided that the language employed adequately and fully conveys to the jury the law applicable to the facts in the case. The Court below fully instructed the jury and a reading of the entire charge is persuasive of the conclusion that the jury fully understood that if they believed the defendant shot Russell under the sway, compulsion and influence of fear or terror, however unreasonable it may have been, they could find the defendant guilty of voluntary manslaughter.

[ 389 Pa. Page 395]

An analysis of the evidence produced at this trial fails to reveal a single instance where the defendant, expressly or impliedly, indicates that he was placed in any fear or terror or that he shot Russell while under the influence of such fear or terror. While defendant urges that the Court should have charged in the language of the Colandro case, supra, he fails to point to any evidence which would have justified the language of such a charge. There is no duty on a trial judge to charge and instruct a jury upon law which has no applicability to the presented facts: there must be some relationship between the law upon which an instruction is required and the evidence presented at the trial. For instance, a court is not required to instruct on the law applicable to an alibi, if the record fails to reveal any evidence upon which alibi may be premised. However, despite the lack of any evidence in this respect, the court below in the exercise of an abundance of caution fully and adequately instructed the jury on voluntary manslaughter and its possibility as a verdict. Evidently even defendant's counsel before the verdict were satisfied with the Court's charge because they failed either to request additional instructions or to except to the instructions as given. The words of the late Chief Justice MAXEY en Com. v. Barnak, 357 Pa. 391, 419, 54 A.2d 865 are particularly apposite: "Taking an appeal in criminal cases is not a game in which the appellant wins if he can show the trial judge fell a few degrees short of perfection in the conduct of his trial."

We find no error of commission or omission in the instructions of the Court below.

Defendant's second assignment of error relates to the admission in evidence of the record of prior convictions of defendant. First, the Commonwealth offered in evidence a record of the Allegheny County

[ 389 Pa. Page 396]

Court indicating that defendant, under the alias of Robert Patterson, had been convicted of felonious assault and sentenced to the Allegheny County Work House for a term of 6 to 18 months; to this offer no objection was made and, apparently, the admission of this particular record is not assigned as error. Second, the Commonwealth offered in evidence the record of a general court-martial dated May 23, 1943, convened at Whittington Barracks, Lichfield, Staffordshire, England wherein the defendant was Cleveland Thompson, the present defendant: at that court-martial Cleveland Thompson was charged with violating the 93rd Article of War in three specifications. The first specification charged defendant with having committed an assault, with the intent to commit a felony, namely murder, by shooting Private Albert Johnson in the shoulder with a rifle; the second specification charged defendant with having committed an assault, with intent to do bodily harm, by shooting Private Wilbur Adkins in the foot with a rifle; the third specification charged defendant with having committed an assault, with intent to do bodily harm, by shooting Private John Camp in the buttocks with a rifle; all three assaults were alleged to have taken place at Whittington Barracks on November 27, 1942. The record, properly authenticated, indicates that defendant entered a plea of guilty to the first specification and pleas of not guilty to the second and third specifications; the findings on all three specifications and the charge were guilty and the defendant was sentenced to the Disciplinary Training Center No. 1, Shepton Mallet, Somerset, England. The objection to the admission of this court-martial record was based on the ground that such a record lacked judicial authority and finality and was not to be considered a prior conviction by a court recognized as a judicial tribunal.

[ 389 Pa. Page 397]

By this assignment of error two separate questions are presented: (1) whether any record of a prior conviction should be permitted in evidence in a homicide trial? and (2) even if records of prior convictions are generally admissible in evidence, was this court-martial record within the class of admissible records?

Prior to the Act of 1925,*fn3 neither a court nor a jury had any discretion in fixing the penalty for murder in the first degree (Com. v. Bishop, 285 Pa. 49, 59, 131 A. 657) and a verdict of murder in the first degree automatically carried with it the penalty of death. (Com. v. Madaffer, 291 Pa. 270, 275, 139 A. 875).

The Act of 1925, supra, placed in the jury the right to fix the penalty, after a verdict of murder in the first degree, either at life imprisonment or death. With the advent of that Act of Assembly, a new concept concerning the admission of records of prior convictions against a defendant in a homicide case was enunciated in Com. v. Parker, 294 Pa. 114, 152, 153, 143 A. 904. The late Mr. Chief Justice VON MOSCHZISKER speaking for this Court, stated: "Therefore, under such acts (those empowering a jury in its discretion to choose for the defendant a sentence of either death or life imprisonment), it should not necessarily be accounted reversible error if the trial judge, in the exercise of his discretion, allows the jury the same sort of information that a judge considers when deciding as to punishment for crime." Further, the Court said (pp. 154, 155): "While, under the Act of 1925, the jury are supposed to determine the degree of defendant's guilt before assessing the punishment (Com. v. Curry, 287 Pa. 553, 558), yet the act requires both the question of guilt and the punishment to be covered by one verdict.

[ 389 Pa. Page 398]

It may be that, if under any circumstances evidence of other offenses than the one on trial is admitted as helpful to the jury in the performance of its duty in assessing the punishment, such proof will inevitably be used by it in determining the guilt of the prisoner. This is not an insurmountable objection. ... The Act of 1925 was not passed to help habitual criminals, and we take judicial knowledge of the fact that offenders of that designation have become so general that the law, not only lex scripta, but non scripta, must advance to protect society against them. This being so, in a case like the present, where the trial judge was convinced from the confessions of the defendants, as the Court below evidently was, that they were habitual offenders against society, - robbers, burglars, and, as occasion arose, murderers, - where the evidence indicated such to be their general manner of life, and where the defendants asked that, if convicted, the jury, in assessing punishment, extend mercy to them, we cannot say it was reversible error to receive their full confessions in evidence, even though it is possible that the admissions therein of other offenses may have ...

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