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COMMONWEALTH v. GREEN (05/08/59)

May 8, 1959

COMMONWEALTH
v.
GREEN, APPELLANT.



Appeal, No. 385, Jan. T., 1957, from judgment of sentence of Court of Oyer and Terminer of Philadelphia County, July T., 1957, No. 1434, in case of Commonwealth of Pennsylvania v. Isaiah James Green, Jr. Death sentence vacated; reargument refused July 2, 1959. Indictment charging defendant with murder. Before OLIVER, P.J., MILNER and DAVIS, JJ., without a jury. Defendant entered plea of guilty to murder generally, and was adjudged guilty of murder in the first degree, with penalty fixed at death and judgment of sentence entered thereon. Defendant appealed to Supreme Court which ordered resentencing, and defendant resentenced to death. Defendant appealed.

COUNSEL

Edward A. Garabedian, for appellant.

Juanita Kidd Stout, Assistant District Attorney, with her 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.

Author: Jones

[ 396 Pa. Page 139]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

On July 24, 1957, three 15 year old boys - the appellant Green, Edwin Walker and James Crowson, - made

[ 396 Pa. Page 140]

    plans to rob a jewelry store located on Germantown Avenue, Philadelphia. However the next morning the boys abandoned their original plans and decided to rob a drug store located on Germantown Avenue, a drug store owned and operated by Jacob Wallfield, a 75 year old man.

Pursuant to their plans the three boys, at approximately 8:45 A.M. on July 25, 1957, entered the drug store. Walker sat on a stool at the soda fountain, Crowson stood near a counter and Green, armed with a double barreled .12 gauge shotgun,*fn1 stood near Walker. The druggist, Mr. Wallfield, had come from the back to the front of the store and was behind the soda fountain chopping ice when, noticing Green in the rear of the fountain, he ordered Green to get from behind the fountain. Green without further ado shot Mr. Wallfield in the abdomen. Green and the other boys then ran out of the store. No money was taken by them from the store. Mr. Wallfield was later removed to a hospital where he died the same day of the gunshot wound. The gun was found in the backyard of Walker's home under a pile of debris.

The three boys were apprehended on July 27, 1957: orally and in writing they each confessed and described their respective participations in the affair. On August 6, 1957, Green, represented by counsel, entered a plea of not guilty. His counsel later petitioned for a change of venue which was refused. On September 4, 1957 Walker and Crowson, both represented by counsel, entered pleas of guilty to murder generally; at the same time Green, again represented by counsel, entered a plea of guilty to murder generally after withdrawing his original plea of not guilty.

[ 396 Pa. Page 141]

The court below, composed of President Judge OLIVER, Judge MILNER and Judge DAVIS, took testimony to determine the degree of guilt and on September 5, 1957 the court unanimously found all three defendants guilty of murder in the first degree. To determine the appropriate penalty the court then took testimony as to any mitigating circumstances and on September 9, 1957 fixed the penalty for Walker and Crowson at life imprisonment and for Green as death by electrocution.

Green appealed from this sentence alleging, inter alia, as error that, during his sentencing and at the point when the court pronounced the word "death", he fainted and was not consciously present during the pronouncement of the remainder of the sentence. On June 4, 1958 we remanded the record to the court below "for a resentencing of the defendant" and directed that "the record as augmented by a transcript of the resentencing be returned to this court promptly".*fn2 On June 12, 1958 Green was resentenced, the record remanded to this Court and a reargument heard.

Four questions are raised by appellant: (1) was the denial of a change of venue an abuse of discretion by the court below? (2) did the court below err in admitting into evidence Green's written confession? (3) did the court below err in refusing to permit appellant to withdraw his plea of guilty prior to the resentencing? (4) did the court below abuse its discretion in imposing the death penalty upon appellant? We shall consider severally each question.

Repeatedly we have held that the refusal of a petition for a change of venue is a matter within the sound

[ 396 Pa. Page 142]

    discretion of the court below and will not be disturbed on appeal unless it appears that such discretion was abused: Com. v. Allen, 135 Pa. 483, 19 A. 957; Com. v. Buccieri, 153 Pa. 535, 26 A. 228; Com. v. March, 248 Pa. 434, 94 A. 142; Com. v. White, 271 Pa. 584, 115 A. 870; Com. v. Riggs, 313 Pa. 457, 169 A. 896; Com. v. Simmons, 361 Pa. 391, 397, 65 A.2d 353, cert. den. 338 U.S. 862, 70 S.Ct. 96, rehearing den. 338 U.S. 888, 70 S.Ct. 181 and cases therein cited; Com. v. Capps, 382 Pa. 72, 114 A.2d 338. See also: U.S. ex rel. Darcy v. Handy, 130 F.Supp. 270, aff. 224 F.2d 504, aff. 351 U.S. 454, 76 S.Ct. 965. The instant petition for a change of venue was based upon the publication of certain newspaper articles concerning the homicide, the recent death of another druggist under similar circumstances and certain activity of the Retail Druggists Association of Philadelphia condemning the occurrence of such crimes. The Commonwealth having filed an answer, the court below took testimony and the testimony, very meager, revealed that three Philadelphia newspapers had published news articles concerning the crime at or about the time of its commission, that the Mayor of Philadelphia had appointed a three man commission to study juvenile delinquency without any mention of this particular offense, that the Retail Druggists Association was aroused because of the killing of Mr. Wallfield and a Mr. Viner, both retail druggists, and that the District Attorney, allegedly, stated his disbelief of Green's age. The court below very properly dismissed the petition. When we consider the entire absence of any proof whatsoever of bias or prejudice on the part of the three judges who acted as triers of the facts, the appellant pleaded guilty to this felony murder and that appellant utterly failed to offer any proof "that there is a combination against [Green], instigated by influential persons, by reason of which

[ 396 Pa. Page 143]

    he [could] not obtain a fair trial"*fn3 the court below could not have done otherwise than refuse a change of venue. Not only was there no abuse of discretion shown; on the contrary, the court below most properly exercised its discretion in refusing this unsubstantiated request for a change of venue.

Appellant next contends that the court erred in admitting into evidence his written confession. The record demonstrates the complete lack of merit in such contention. When the written confession was introduced during the direct examination of Detective Hammes appellant's counsel made no objection whatsoever. On the other hand, appellant's counsel not only conceded the absence of any duress in securing this confession but emphasized the voluntary nature of the confession so that the court might be impressed by the fact that Green made no effort to hide the crime. The objection now made that Green, a 15 year old boy, was not specifically warned that he might incur the death penalty, although he was warned that he was charged with murder and robbery and that anything he said would be used against him, does not render inadmissible a written confession of guilt concededly made voluntarily and truthfully.*fn4 Cf: Com. v. Smith, 374 Pa. 220, 232, 233, 97 A.2d 25; Com. v. Cavalier, 284 Pa. 311, 131 A. 229.

At the time of Green's original arraignment he was represented by counsel; he then entered a plea of not guilty. Approximately a month later, represented by the same counsel, Green withdrew his original plea of not guilty and entered a plea of guilty to murder generally. From that time until the time of Green's

[ 396 Pa. Page 144]

    resentencing, neither in the court below nor in this Court at the time of the original argument, was there any request or suggestion on Green's part that he desired to change once again his plea. At the time of resentencing appellant's counsel petitioned for permission to withdraw a plea of guilty and enter a plea of not guilty; the ground for such request was that he, as counsel, after a conference with Judge MILNER, counsel for Crowson and Walker and an assistant district attorney, "drew the conclusion" that Green's sentence would be no greater than life imprisonment and that he so advised his client. An examination of the record reveals no misapprehension of facts or law on the part of Green or his counsel, no doubt of the appellant's guilt, no defense whatsoever to the homicide and certainly no justifiable reason to submit this cause to a ...


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