Appeal, No. 282, Jan. T., 1959, from judgment of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, Sept. T., 1958, No. 839, in case of Commonwealth of Pennsylvania v. Anthony Scoleri. Judgment affirmed; reargument refused April 19, 1960.
Michael von Moschzisker, with him von Moschzisker, Bradley and Carroll, for appellant.
Paul M. Chalfin, First Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride,*fn* JJ.; reargued January 14, 1960. Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
Anthony "Tony" Scoleri, the appellant, and his brother, Joseph "Eddie" Scoleri,*fn1 were charged in a
bill of indictment by the grand jury of Philadelphia County with the murder on August 28, 1958 of one Max Gordon. After a trial before Judge VINCENT A. CARROLL and a jury the appellant was found guilty of murder in the first degree and the penalty fixed at death. On June 23, 1959, - appellant's new trial motion having been denied, - appellant was sentenced to death; from that judgment of sentence this appeal was taken.
On August 28, 1958, Max Gordon operated a "notions" store at the southwest corner of Newkirk and Reed Streets, Philadelphia. This store was located on the first floor of the premises and in the rear thereof was a kitchen; in the basement was a recreation-living room; on the second floor were the living quarters of the Gordon family which consisted of Max Gordon, his wife, Rose Gordon, and their 17 year old daughter, Sheila Gordon.
At approximately 8:40 o'clock in the evening of that date, two men, both armed and masked,*fn2 entered Gordon's store through the front door. Gordon and his wife were then in the kitchen; Sheila Gordon and her friend, Jack Dinerman, were watching television in the basement recreation room. Gordon was struck with a blunt instrument on the head, the blow causing him to fall to the kitchen floor although he was not rendered unconscious; Mrs. Gordon fainted and fell to the floor. The "taller" man guarded Mr. and Mrs. Gordon with a gun while the "shorter" man went down to the recreation room and ordered Sheila Gordon and Dinerman to the first floor. The "taller" man guarded both Gordons and Dinerman in the kitchen with a gun while the "shorter" man forced Sheila Gordon to accompany him to the second floor where he searched for money or other valuables. Upon their return to the kitchen both
Dinerman and Sheila Gordon were ordered to lie or crouch on the floor while the two men forced Max Gordon at gunpoint from the kitchen into the store. While in the store a gun battle ensued during the course of which appellant - at trial identified as the "shorter" man - was observed shooting at Max Gordon; Max Gordon received three gunshot wounds in his body*fn3 and Richard "Ricky" Woods - identified at trial as the "taller" man - received a stomach wound.*fn4 Both hold-up men then ran from the premises.
During the course of the hold-up the men removed a ring from Mrs. Gordon's finger, some items of jewelry from the second floor bedroom, $14 from Dinerman's wallet and a small amount of money from the store's cash register. In addition to operating a "notions" store, Max Gordon also cashed checks and issued money orders for the American Express Company and several American Express Company orders were found missing.*fn5
There was definite and certain identification of both men who took part in this affair.*fn6 Dinerman identified the "shorter" man as "Tony" Scoleri and testified that it was he who removed the money from his (Dinerman's) wallet and it was he who was observed shooting at Max Gordon in the store. From a photograph Dinerman also identified the "taller" man, - a "light skinned negro" - as Richard "Ricky" Woods. Sheila
Gordon confirmed Dinerman's identifications. Dr. Norman Kushner, standing outside his office, - located directly across the street from Gordon's store - observed the two hold-up men leave the store and identified "Tony" Scoleri as one of the men. David Tupper and Joseph Sannasardso, two youngsters who pursued the two men in their flight down the street subsequent to the hold-up, identified "Tony" Scoleri as one of the men.
After these men left Gordon's store they ran south along the westerly side of Newkirk Street until they reached Dickinson Street; at that point they turned right and ran to 29th Street - less than a city block west of Newkirk Street - where they entered a 1955 Chevrolet two door sedan operated by "Eddie" Scoleri. Woods, the wounded "taller" man who had fallen several times en route to this point, was helped into the car by appellant. A number of youngsters who happened to be in the neighborhood pursued the two men until they drove away in the car; during this pursuit, "Tony" Scoleri fired his gun at the youngsters.
Both Scoleris and Woods went directly to the apartment of one Ida Iocco, "Tony" Scoleri's girl friend, arriving there at approximately 9 o'clock p.m. Denise Devonshire and Harry Shinock, who were in the Iocco apartment at that time, saw Woods carried into the apartment by the Scoleris and placed in the bedroom where he subsequently died, no medical care having been summoned. Several days later Scoleris took Wood's body to New Jersey where they buried it in a shallow trench.
On August 30, 1958 the Scoleris and Ida Iocco went to New Jersey; after arranging for "Eddie" Scoleri's 1955 Chevrolet sedan to be repainted, they took an automobile belonging to Pat Scoleri, a brother of "Tony" and "Eddie", and went to West Virginia where they stayed with some friends. From one of these friends, -
John Loving - they borrowed an automobile and proceeded to Cleveland where they stole another automobile. While in Cleveland, at "Tony" Scoleri's direction, "Eddie" Scoleri and Ida Iocco had their hair dyed and "Tony" Scoleri, who ordinarily wore eyeglasses, ordered contact lenses. They then went to Chicago and, while there, Ida Iocco was burned under mysterious circumstances and had to be hospitalized. Both Scoleris then left Chicago and went to Kansas City, Missouri, where they were apprehended at gun-point by Kansas City police officers.*fn7 During the entire flight both Scoleris used fictitious names.
Shortly after the commission of the hold-up both Scoleris, in each other's presence, related to Ida Iocco how "Tony" Scoleri and Woods had entered Gordon's store and committed the hold-up and that "Eddie" Scoleri drove the get-away car, "Tony" Scoleri stating that he had "shot at Max Gordon". The bullet which fatally wounded Woods was traced to Max Gordon's gun. "Tony" Scoleri's gun was never recovered; however, there was evidence that, prior to, during and subsequent to the hold-up, "Tony" Scoleri had in his possession a .32 calibre automatic gun and the autopsy on Max Gordon's body revealed the presence of two .32 calibre bullets.
Appellant's defense was an alibi supplemented by testimony that, as the result of an ankle injury sustained 10 days prior to the date of the hold-up, his ability to walk was so impaired that he could not have run from Gordon's store as testified by certain Commonwealth witnesses.
"Eddie" Scoleri testified that "Tony" Scoleri had not taken part in the hold-up. His testimony was that Joseph "Yogi" Santarpio and Woods were the two men
who committed the hold-up and shot Max Gordon and that he, under compulsion of Woods and Santarpio, acted as the driver of the get-away car. After the hold-up "Yogi" Santarpio left them, and "Eddie" Scoleri, while driving the wounded Woods, happened to see his brother "Tony" Scoleri on the street and persuaded him to drive them to the Iocco apartment.*fn8
The Commonwealth, in rebuttal, called (1) F. M. Caraker, appellant's parole officer, who testified that on two occasions - two days prior to and the day subsequent to the hold-up - he had seen appellant and noticed nothing unusual in his manner of walking and (2) five witnesses all of whom testified that "Yogi" Santarpio*fn9 was with them working in a garage at the time of the robbery.
Appellant contends that he is entitled to a new trial on three grounds: (1) that the trial court's action in proceeding with the trial, in view of appellant's physical and mental condition, was highly prejudicial; (2) that the trial court erred in its instructions to the jury on reasonable doubt and the defense of alibi; (3) that the passage by the General Assembly of Act 594 of 1959, approved December 1, 1959, which provides for a "split verdict" trial in homicide cases, compels a new trial.
During the course of the trial*fn10 - at approximately 5:25 a.m. Monday, November 24th - a prison guard discovered that appellant had slashed his left arm in several
places;*fn11 24 sutures were required to close the lacerations and, at approximately 7 a.m., appellant was given 600,000 units of penicillin and 100 milligrams of Thorazine, a tranquilizer. The court was apprised of this situation and withheld resumption of the trial until 7:30 p.m. on that date. Throughout the morning and afternoon of November 24th the court received numerous medical reports concerning appellant's physical and mental condition.*fn12 Dr. Carideo, a police surgeon, examined appellant at 11 a.m. and reported that he was then under the influence of sedation but, in the doctor's opinion, was malingering to some extent. After another examination of appellant at 2 p.m., Dr. Carideo again reported to the court and the following discussion took place:
"DR. CARIDEO: He is still under the effect of sedation and medication that he had this morning. There is evidence of the sedative effects. He does respond to stimuli, but he lapses back into drowsiness, and he is uncooperative, and that is the large element of his present condition.
"THE COURT: Doctor, I noticed you were talking to him and he made no response, and then you asked him to take a deep breath What was it you put up to him?
"DR. CARIDEO: Aromatic spirits.
"THE COURT: Which he fought, and he threw his head violently to the right and left, and when his head was held and he was restrained, you forced him to smell it, and he did take a deep breath, and then a moment thereafter you asked him how he felt and he answered, 'All right.'
"DR. CARIDEO: You may have noted when I held the perle of aromatic spirits to his nose, he didn't breathe. His breathing stopped at that point - He would not inhale. So there is a conscious element there that is coupled with his restraint and his unwillingness to cooperate."
"THE COURT: ... Doctor, do you anticipate within hours, when this so-called tranquilizer, the effect thereof, has worn off, that he will be capable?
"DR. CARIDEO: I see no other reason for him not responding other than malingering after a reasonable period of time has elapsed so that this is out of his system." (Emphasis supplied)
At 7:30 p.m., after another examination of appellant, Dr. Carideo reported, that, in his opinion, none of the physical effects earlier noted then existed, the effects of the drug thorazine should have been fully dissipated and appellant was then aware of his surroundings. At this point the trial was resumed without any objection on the part of defense counsel.
At approximately 9:15 p.m. the trial court ordered a trial recess. Again Dr. Carideo examined appellant and the following discussion took place:
"THE COURT: Doctor, you have just examined him during the recess period. Is your opinion the same now as it was when we started, or is he in a better condition to hear than he was?
"DR. CARIDEO: I think his condition is better. I think he is more responsive to stimuli and beginning to speak spontaneously, and he asked for a glass of water, and desired to use the toilet, and I think he is more responsive now than he was in the beginning. His condition is essentially normal otherwise; his pressure, respiration and pulse are all normal.
"THE COURT: Of course, that was his condition before we brought him in the first time?
"DR. CARIDEO: Yes, that is correct.
"THE COURT: So that you think, as you did then, he is not only capable of understanding, but more capable of understanding?
"DR. CARIDEO: More so than he was possibly five hours ago." (Emphasis supplied).
After another examination by Dr. Carideo at 9:40 p.m. the trial was then resumed, again without objection by defense counsel. At 10:20 p.m., after the defense had completed its testimony and before the Commonwealth presented its rebuttal evidence, the following discussion took place:
"MR. MCCLAIN: If the Court please, I object to any rebuttal being produced by the Commonwealth in the present condition of this defendant. Neither my colleague, Mr. King, nor myself are able to consult with him or talk to him about the evidence which is now to be offered. Therefore, I object to any further testimony on behalf of the Commonwealth until he is able to consult with his counsel.
"THE COURT: I have been advised before we brought him in that he was able to consult. I have been advised by the doctors. A doctor is here in attendance, and he has stated that since that time he is better able than he was five hours ago, which antedated the time we started this session by two hours, and you notice this, he has asked for water, and he has asked for a blanket, and inasmuch as some of the testimony has been taken within his presence and within his hearing, I do not propose to have this case interrupted any longer.
Your objection is overruled."
"MR. MCCLAIN: Will your Honor bear with me a moment? I say to you, your Honor, that examination comes from a police surgeon, and we should like the privilege of having a physician of our own selection make an examination of this man.
"THE COURT: Colonel, I asked you that before we started this session, and you told me you had a doctor with you, and I told the police surgeon, Dr. Carideo, not to go in there without the other doctor.
"MR. MCCLAIN: That was, your Honor -
"THE COURT: Pardon me, I have not finished. I asked you and Mr. King, and I held the doctor back there, and you told me you did not wish or desire to have this man examined by another physician, and it was then, and then only, I permitted Dr. Carideo to go back there to make another examination.
"MR. MCCLAIN: Perhaps there was a misapprehension, your Honor. That doctor who was in the elevator with us coming up was Dr. Rotman from the ...