Appeal, No. 5, Jan. T., 1958, from judgment of Court of Oyer and Terminer and General Jail Delivery of Delaware County, March T., 1955, No. 338, in case of the Commonwealth of Pennsylvania v. Jerold Richardson. Judgment affirmed.
Fronefield Crawford, with him Crawford & Frazier, for appellant.
Ernest L. Green, Assistant District Attorney, with him J. Harold Hughes, First Assistant District Attorney, and Raymond S. Start, District Attorney, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
The defendant, Jerold Richardson, was convicted by a jury of first degree murder and sentenced to life imprisonment. In this appeal he seeks a new trial because of alleged trial errors.
Defendant, together with James Ryder and James Graham, was indicted for the murder of Roy Wunder, who was found dead at about 12:50 a.m. on Monday, September 20, 1954, in a taproom operated by him known as "Stony Creek Tavern" which is located on the Baltimore Pike, Springfield, Delaware County, Pa. Defendant was 17 years of age at the time of the crime. All three of the individuals involved applied for and were granted separate trials.
Defendant, through his court-appointed attorney, applied prior to trial, and during the trial for a change of venue; these applications were refused. Defendant, prior to trial and during the course of the examination of jurors on voir dire, applied for a continuance; these applications were refused.
Roy Wunder, the deceased, went to the Stony Creek Tavern sometime on Sunday evening, September 19, 1954. At approximately 12:50 a.m., on Monday morning, September 20th, Maurice Gouse was operating his automobile in an eastwardly direction towards Philadelphia and as he passed the Stony Creek Tavern his attention was directed to the breaking of glass. He looked at the Tavern building and saw two men, whom
he described as teenagers because of their dress and build, come through the window. He then noticed these same two individuals run to an automobile which was parked on an intersecting street near the Tavern. Gouse saw the lights of the automobile go on and the automobile start up, turn onto the Baltimore Pike, and then proceed in a westwardly direction towards Media, Pa. Gouse attempted to follow the get-away car in his own automobile, but was out-distanced. He then reported the incident to police officers who accompanied him to the Stony Creek Tavern and after gaining entrance, discovered the body of Roy Wunder.
Wunder's body was lying in the back of the barroom; there were bar stools overturned, a vase on the floor, and part of a top of a stool and broken water glasses on the floor. Gouse found a bullet on the cocktail lounge seat near the front of the barroom. This was proved to be the fatal bullet and was identified as a .38 S. & W. caliber. The gun used in the killing has never been found. Gouse gave the police a description of the automobile he pursued although he was not certain of some of its characteristics. The automobile as described by Gouse has never been located. It was later discovered that entrance to the taproom was gained through a skylight that led into the men's washroom.
Defendant was in the custody of the Philadelphia Police Department from December 14, 1954 until December 28, 1954, at which time he escaped from custody. He was rearrested on January 3, 1955. Sergeant McCrory and other officers questioned Richardson the same morning about some 60 or more burglaries in Philadelphia. At that time McCrory had no knowledge of the Stony Creek Tavern killing.
McCrory testified that defendant told him on January third that he and James Ryder and James Graham,
had driven to the Stony Creek Tavern and that Graham and Ryder entered the Tavern to rob it while he, Richardson, remained in the automobile. McCrory notified his superior who in turn notified the Delaware County authorities. That afternoon defendant admitted to Sergeant McCrory in detail his participation in the robbery. However, when he was informed that a murder had taken place at the Tavern, he denied any participation in the robbery. On January 4th, at about 11:45 p.m., after being questioned about the murder of Wunder, he signed a confession admitting his participation in the robbery during which Wunder was murdered.
Defendant's confession was read to him by the District Attorney of Delaware County, Raymond R. Start, in the presence of six other persons who signed defendant's confession as witnesses. In addition three other police officers and the official court stenographer were present, although they did not sign as witnesses. Seven of those who were present when the defendant's confession was read to him and when he executed it testified at the trial; five of the seven, including the District Attorney, Mr. Start, testified unequivocally that defendant voluntarily made and signed the confession and was not coerced, threatened or given any promises. The other two witnesses were not asked this question.
The relevant and material portions of defendant's confession (in question and answer form) are as follows: "Q. Do you know why you have been arrested? A. Yes. Q. Why? A. Homicide. Q. Do you want to make a voluntary statement? A. Yes. Q. It is my duty to warn you that anything you say or sign can be used against you at the time of your trial in court. Do you understand that? A. Yes. Q. In making this statement, do you make it of your own free will, without fear, force, threats or promises? A. Yes. Q. Jerold,
will you go on in your own words and tell us what you know concerning the shooting and murder of Roy E. Wunder, 46 years, white, proprietor of the Stony Creek Tavern, 334 Baltimore Avenue, Springfield Township, Delaware County, Pa., which occurred on Monday morning, September 30, 1954, at about 12:45 or 12:50 a.m. A. I met James Ryder about 12:00 p.m. Sunday afternoon, September 19, at 7th and Susquehanna Avenue. We got a trolley car and went down to 68th and Elmwood Avenue and went into a luncheonette known as 'Tony's'. We met Jim Graham. He told us about a gun store out on the Baltimore Pike which we could burglarize. We stayed around there until 3:00 o'clock and then went into the center of town in Philadelphia in Jim's car, Jim Graham driving. It was a 1950 Nash station wagon dark, I don't know what color. We went to 13th and Market in town and hung around the Arcadia until about dusk and then went out on the Baltimore Pike and I was driving at the time and Jim Graham directed. As we were passing the tavern, Jim stated that he knew of it being robbed before or that he himself robbed it. He said that we would find a small cabinet safe inside; that he and Ryder would go in while I stayed slouched in the car. They left the car and that was the last I seen of them until I heard a sound that I cannot identify; a few minutes later the breaking of glass. Then they came running around the corner of the building and jumped in the car. I shot out, down past the light, made a right and made another right a couple blocks down, that's the last I remember, Jim was directing. I am not familiar with the neighborhood until we finally got back to Tony's. When me and Ryder emerged from the car, Jim keeping the gun in the car. Me and Ryder then got a cab and dropped him off at 7th and York and proceeded home myself. Q. Is everything you have told
us in this statement the truth? A. Yes. Q. Can you read and write the English language? A. Yes. Q. How high did you go in school? A. Twelfth grade."
"... Q. Did Ryder and Graham have a gun? A. They both had guns. Q. Did you know what kind of guns they were? A. Two revolvers. Q. Do you know what caliber? A. I believe one was a .38, might have both been .38's, I am not sure. Q. Where did you first see these revolvers? A. Outside Tony's. Q. Did they have them in the car? A. Yes. Q. Did you see them? A. Yes. Q.And they took these guns to the tavern? A. I assumed they did. Q. What else did they take, if anything? A. Some talk of mentioning about a bar to get into the place. ... Q. What were your duties on this job besides driving the car? A. I was to be the lookout. Q. Now after Ryder and Graham went into this taproom, what was the next thing that occurred? A. I heard some noise I couldn't identify, not too loud, but a noise. Several minutes later I heard a glass break. Q. When was the first time you saw either of these boys after you heard the glass break? A. About thirty seconds later I seen them come around the corner. Q. What, if anything, did they say when they arrived at the car? A. Graham said, 'You're crazy.' Q. Graham said, 'You're crazy' to whom? A. To Ryder. Q. Anything else? A. I asked what happened and Graham said, 'Ask him.' Q. Meaning Ryder? A. Yes. Q. Did you ask Ryder what happened? A. Ryder told me to 'Get the hell out of here.' Q. What did you do when Ryder told you to 'get the hell out'? A. Made a right on Baltimore Pike going west. ... Q. And returning from the taproom by the way of the route you described to Tony's place, was there anything said about the guns? A. They said they had better get rid of them, Jim said that, he will take care of them. q. What Jim do you mean? A. Graham. Q. Let me understand
this. James Ryder said something about the guns and Jim Graham said he would take care of them. A. He said, 'Keep cool,' 'I will take care of them.' Q. Did he say what he was going to do with them? A. No. ... Q.Who described to you what occurred inside the taproom the morning Roy Wunder was killed? A. Ryder. Q. When did he describe this to you? A. In a cab. Q. Was that on your way to 7th and York? A. Yes. Q. What did he say? A. He told me Graham fired the shot. He said a man threw a chair at him and Graham went to duck and as he ducked both guns were cocked and pressure, Graham's pressure, his finger on the trigger, it startled Graham. That's what Ryder told me. I asked Graham and he told me just the opposite. Q. What did Graham say to you? A. I asked him what happened. I said who shot him. Red said 'you killed a man.' Graham said, 'I didn't shoot him, Ryder shot him.' ... Q. On the 3rd of January, 1955, did you tell Sergeant McCrory a story? A. Yes.Q. Was that story you told Sergeant McCrory in City Hall in Philadelphia, a true story? A. Yes. Q. But you didn't tell him the complete story? The story you are telling me now, did you? A. No, almost the same thing."
On January 5, 1955, defendant, Ryder, and Graham were taken to the Stony Creek Tavern where Ryder pointed out to the police the place where the automobile was parked and defendant confirmed Ryder's statement.
Defendant testified in his defense. He denied having participated in the robbery and repudiated his oral and his written confession. He testified that he did not sign the confession until after he had read a statement signed by Ryder in which the latter allegedly stated that Richardson had also gone into the taproom. Defendant stated that he did not intend to sign any statement until after he was shown Ryder's statement,
and that he signed his confession only because the police suggested that he put himself in the car and thus fully or partially escape responsibility for the crime.
Moreover, with respect to the conversation with Sergeant McCrory, defendant testified on direct examination - in an attempt to explain his oral confession: "Q. All right, now, will you go ahead with your conversation with Sergeant McCrory. A. I don't remember the exact conversation. Mr. McCrory did ask me about the Springfield job, which I told him yes, I done. Then - Q. At that time did you know what he was talking about? A. No sir, I didn't know anything about it. I thought it was just another burglary, and I realized they had me for about 60 or 70*fn* by that time, and I did not want to argue with the man about it. Q. So what was the next thing that was said about it? A. Well, he related to me about where the place was on Baltimore Pike, I can't get the exact conversation, the exact words that were used. Q. Was there anything said by him at that time regarding any person being shot? A. Well, sir, he continued to tell me about this burglary; and I continued to admit it up to the time that he said that the man was shot and I denied it then. I told him that I was talking about something else, another job completely out on the Baltimore Pike, it was a gun store, I said I didn't know anything about that. He smiled at me, patted me on the shoulder and walked away, saying I understand."
On cross-examination the defendant testified: "Q.Now on the 4th when you originally told Sergeant McCrory about being out, being on that Springfield job, you likewise told him Graham and Ryder were with you? A. That's right. Q. And that was before either of them signed the statement concerning you?
A. I did not realize what it was at the time. Q. Later you said today that you put them in because they were trying to put you in the middle, is that right? A. That is why I signed the statement I said, sir.Q. Yes, but here you put Ryder and Graham in verbally that morning before you knew they signed statements? A. That's right. Q. Well then it is not true that you signed this statement because they were putting you in the middle, was it? A. I thought that they had done it and that they were trying to frame me for it. Q. That is why you signed it? A. That is when I signed the statement. Q. But they hadn't put you in the middle in the morning when you told it verbally that you were out to Springfield and Graham and Ryder were with you? A. No, they did not put me in it then. Q. You were putting them in then? A. No. ... Q. Then you were willing to go for the burglary, but when you learned he died you wouldn't, is that right? A. I wasn't going to go for no killing I didn't ...