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COMMONWEALTH v. DAVIS (05/08/59)

May 8, 1959

COMMONWEALTH
v.
DAVIS, APPELLANT.



Appeal, No. 54, March T., 1958, from judgment of sentence of Court of Oyer and Terminer of Armstrong County, June T., 1957, No. 1, in case of Commonwealth of Pennsylvania v. Robert Tallie Davis. Judgment of sentence reversed; reargument refused July 2, 1959. Indictment charging defendant with murder. Before GRAFF, P.J. Verdict of guilty with penalty fixed at death; motions for new trial and in arrest of judgment refused, and judgment of sentence entered. Defendant appealed.

COUNSEL

H. H. Heilman, Jr., with him Floy C. Jones, Jr., for appellant.

Samuel Strauss, Special Assistant District Attorney, with him Robert E. Ashe, former District Attorney, and Harry A. Heilman, Jr., District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Jones

[ 396 Pa. Page 159]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

We are herein presented with an appeal from a judgment of sentence upon defendant of the death penalty after his conviction of murder in the first degree.

On January 30, 1957 between 10:00 and 10:15 p.m. the victim, Emily Foster, left a bingo game in Vandergrift, Pa., to return to her home in Leechburg, Pa. - a distance of approximately five miles - and arrived there approximately fifteen minutes later. The defendant had followed her for some distance.*fn1 Mrs. Foster had placed her car in the garage and closed the garage door when she was hit on the head several times with a blunt instrument. These blows caused a fracture of her skull, rendered her unconscious and caused

[ 396 Pa. Page 160]

    almost instantaneous death. The victim's body was discovered by her husband at about 11:05 p.m. when the latter returned from a bowling alley. The victim's purse, containing money, bingo items and other articles, was missing. The defendant left the scene of the crime by automobile, presumably to return to his home in Pittsburgh, and on the way disposed of the victim's purse and other items.

On March 18, 1957, while in the custody of Allegheny County authorities as a suspect in the commission of other crimes, the defendant admitted the attack upon Mrs. Foster and on the following day reenacted the crime in the presence of state policemen. He signed a written statement which described in detail his activities and indicated whereat he had disposed of various possessions of the victim. The day subsequent to the crime these articles were found at or near the places indicated in defendant's written statement. At trial the defendant repudiated his written statement, denied that he had been in Leechburg at the time of the crime and denied that he had attacked the victim.

Defendant's present contentions are: (1) that the verdict was contrary to the evidence and the weight of the evidence; (2) that certain photographs of the victim and her clothing were improperly admitted in evidence; (3) that the court below erred in admitting into evidence records of prior convictions of the defendant. More important, however, than these contentions is one which was not raised upon this appeal but which was raised by us at oral argument - whether the conduct of the prosecuting attorney in his cross-examination of the defendant so seriously prejudiced the defendant to the extent that he was deprived of a fair trial.

[ 396 Pa. Page 161]

At the conclusion of the Commonwealth's case the records of defendant's prior convictions were admitted in evidence "for the sole purpose of assisting the jury in determining the penalty to be inflicted in the event of a finding of murder in the first degree."*fn2 The admissibility of such evidence has been long recognized but only for that very restricted and limited purpose: Commonwealth v. Thompson, 389 Pa. 382, 133 A.2d 207 and cases therein cited.

After the defendant concluded his case during which he had taken the stand to testify, records of prior convictions were again offered by the Commonwealth and admitted in evidence "for the specific purpose of affecting the credibility" of the defendant.*fn3 Such evidence was likewise admissible but only for that very restricted and limited purpose: Commonwealth v. Yeager, 329 Pa. 81, 90, 196 A. 827; Commonwealth v. Williams, 307 Pa. 134, 149, 160 A. 602; Commonwealth v. Quaranta, 295 Pa. 264, 272, 273, 145 A. 89; Commonwealth v. Dorst, 285 Pa. 232, 238, 132 A. 168.

The Act of March 15, 1911, P.L. 20, 19 PS ยง 711, imposes strict limitations upon the right to cross-examine a defendant in a criminal case concerning his commission or conviction of any offense other than that offense for which he is presently being tried. Instances wherein a prosecuting attorney has been permitted to question a defendant concerning previous arrests or convictions for crimes unconnected with the crime charged in the indictment are clearly inapposite to the instant factual situation: Cf. Commonwealth v. Dillard,

[ 396 Pa. Page 162313]

Pa. 420, 422, 169 A. 138; Commonwealth v. Flood, 302 Pa. 190, 194, 153 A. 152.Unless the Act of 1911, supra, is to be rendered entirely nugatory the utilization by the Commonwealth of prior convictions of a defendant in a homicide case must be strictly and ...


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