Appeal, No. 284, Jan. T., 1958, from judgment of Court of Oyer and Terminer of Philadelphia County, Dec. T., 1957, No. 172, in case of Commonwealth of Pennsylvania v. Lester Graves. Judgment affirmed.
John B. Brumbelow, with him Colbert C. McClain, for appellant.
Martin M. Krimsky, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE BELL.
This is an appeal from the judgment and sentence of the Court of Oyer and Terminer of the County of Philadelphia.
On May 5, 1958 defendant, Lester Graves, entered a plea of guilty to murder generally. After hearing evidence from both the Commonwealth and the defendant, the Court, which was composed of three able Judges, unanimously found defendant guilty of murder of the first degree and sentenced him to death.
Since the defendant does not, and could not successfully, contend that the Court below erred in determining the crime to be murder of the first degree, we shall not recite the details of this killing which was extremely brutal and horrible. It will suffice to describe it as a brutal atrocious killing*fn* of a four year old girl.
Defendant contends (a) that the lower Court should have sentenced him to life imprisonment instead of to death because he is mentally deficient, and (b) that the lower Court did not realize it had a discretion as to the penalty to be imposed. There is no merit in either contention.
The applicable law is stated in Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455 (page 228):
"When the Court below has determined in the exercise of its statutory discretion that the extreme penalty shall be imposed, the question on appeal is not whether this Court would have imposed a different penalty, the question, or more accurately the questions are: (1) Accepting as true all of the ...