Appeal, No. 291, Jan. T., 1959, from judgment of Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, July T., 1957, No. 351, in case of Commonwealth of Pennsylvania v. Frank McCoy. Judgment reversed. Indictment charging defendant with murder. Before CARROLL, P.J. Verdict of murder in first degree with penalty fixed at death, defendant's motion for new trial dismissed and judgment of sentence entered. Defendant appealed.
J. Charles Short, with him Israel Stiefel, for appellant.
Richard M. Rosenbleeth, Assistant District Attorney, with him Domenick Vitullo, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN
Frank McCoy, after trial, was convicted by a jury of murder in the first degree, with the penalty fixed at death. The court below denied a motion for a new trial and this appeal is from the judgment and sentence, imposed in accordance with the verdict.
That the facts warranted the finding of guilt returned by the jury is not questioned by counsel and an examination of the record definitely discloses all the essential ingredients of murder in the first degree. It is clear beyond question that the victim's death resulted
directly from violence inflicted upon him by the defendant while he was engaged in the perpetration of a robbery and that during the course thereof the defendant, according to the Commonwealth's withnesses, cruelly shot and killed the proprietor of a small business establishment, a man by whom he had previously been employed. However, basic prejudicial errors occurred during the trial which render a retrial necessary.
The trial judge, in part, said to the jury: "I say to you, if there is any doubt about this man's guilt, if there be any reasonable doubt about any fact upon which the ultimate verdict of guilt may rest, give him the benefit of that doubt and send him out that way; but if you have no doubt, and you find from all the evidence, beyond a reasonable doubt, that this is first degree murder, in that a decent citizen was brought to his death without a chance perhaps to repent, by a bullet from a gun in the hands of a man whose reputation before you is one that is steeped in crime, vicious crime - and at the commission thereof, beating, striking and ill using, on a previous occasion - you may then give consideration to that, and then, and then only, do you exercise the discretion the law not only gives you, but imposes upon you, to say whether or not in your judgment the penalty should be life imprisonment or death."
The evidence did not justify this characterization of the defendant as a "man whose reputation before you is one that is steeped in crime, vicious crime." The only previous criminal record disclosed is that the defendant in the year 1950, at the age of twenty-five years, plead guilty to the charge of armed robbery. One such conviction, even of so serious a nature, did not warrant the use of the words employed in the charge. But what is more important, the instruction above
quoted could not help but have the effect of causing the jury to consider the previous record of the defendant in determining his guilt on the present indictment, rather than of restricting its use to a determination of the penalty to be imposed after guilt of murder in the first degree had been first resolved. What influence this imprudent language had on the jury in arriving at its verdict as to the defendant's guilt is impossible to say. When this case was tried, Act of December 1, 1959, P.L. 1621, not being retroactive, did not apply: Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215(1960). But, even as of then, the sole and only purpose for the admission into evidence in this case of the record of the defendant's prior convictions was to aid the jury in fixing the penalty, after the jury found the defendant guilty of murder in the first degree: Commonwealth v. DePofi, 362 Pa. 229, 66 A.2d 649(1949); Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733(1953). Its purpose and scope were strictly limited and it was most incumbent upon the trial judge in such an instance to make certain that the jury clearly so understood. For the instructions to lead to the impression, even to the slightest degree, that this evidence should influence the jury's determination of the defendant's guilt was substantial and prejudicial error.
In this case, it also appears to us that the trial judge took an unduly active participation in the trial of the case. Numerous pointed questions, directed to the defendant from the bench, exhibited an extended and aggressive cross-examination not conducive to a fair trial or proper judicial demeanor. While, "It is always the right and sometimes the duty of a trial judge to interrogate witnesses, ... questioning from the bench should not show bias or feeling nor be unduly protracted": Commonwealth v. Watts, 358 Pa. 92, 96, 56 A.2d 81(1948); also, Commonwealth v. Myma, 278 Pa. 505, 508, 132 Atl. 486
(1924). We can well appreciate the high sense of moral indignation the presiding jurist experienced in listening to the account of the heinous crime involved. Yet, under such circumstances, it is more imperative than ever that one charged with such a great responsibility should preside with calmness and equanimity to make sure that the right of the defendant to a fair and impartial trial is constantly kept inviolate.
Judgment reversed, with a venire facias de novo.
CONCURRING AND DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
Frank McCoy, the defendant in this case, was indicted and tried for the murder of Gaetano Sabelli and was found guilty of murder in the first degree, the jury fixing the penalty at death. The defendant has appealed for a new trial, urging trial errors.
On the morning of July 1, 1957, Frank McCoy, armed with a revolver, and accompanied by a James Allen, entered the establishment of Gaetano Sabelli, who operated an importing business at 1000 South Ninth Street, Philadelphia. While McCoy was engaged in committing a robbery, which was the purpose of his visit, Mr. Sabelli came into the store and McCoy shot him. The defendant testified that as he held his revolver to the back of Sabelli, the latter suddenly turned and, in turning, caused McCoy's revolver to be accidentally discharged.
I agree wholeheartedly with the Majority of this Court that the defendant is entitled to a new trial, but I dissent from the Majority Opinion announcing that decision. I believe, and I make this statement most respectfully, that the Majority Opinion is inadequate.
An appellate decision which reverses a judgment of a lower court and remands the cause for a new trial should take pains to point out wherein the Trial Court erred so that it may not commit the same errors again.
This case is a very serious and solemn one since the verdict carried with it the death penalty. The defendant in his appeal protests that the trial judge unduly and actively participated in the trial and that this undue participation contributed heavily toward the death verdict. If the judge did inordinately become involved in the trial to the prejudice of the defendant's right to a fair trial, he may have come into conflict with what Justice KEPHART (later Chief Justice) said in the case of Commonwealth v. Myma, 278 Pa. 505, 508: "The practice of a judge entering into the trial of a case as an advocate is emphatically disapproved. The judge occupies an exalted and dignified position; he is the one person to whom the jury, with rate exceptions, looks for guidance, and from whom the litigants expect absolute impartiality. An expression indicative of favor or condemnation is quickly reflected in the jury box and at the counsel table. To depart from the clear line of duty through questions, expressions or conduct, contravenes the orderly administration of justice. It has a tendency to take from one of the parties the right to a fair and impartial trial, as guaranteed under our system of jurisprudence. Judges should refrain from extended examination of witnesses; they should not, during the trial, indicate an opinion on the merits, a doubt as to the witnesses's credibility, or do anything to indicate a leaning to one side or the other, without explaining to the jury that all these matters are for them." (Emphasis supplied.)
Did the Trial Judge in the case at bar enter into the trial as an advocate? The Majority Opinion hints that he may have. It says: "In this case it also appears
to us that the trial judge took an unduly active participation in the trial of the case. Numerous pointed questions, directed to the defendant from the bench, exhibited an extended and aggressive cross-examination not conducive to a fair trial or proper judicial demeanor."
What were those questions? Unless the Trial Judge knows which questions were improper, he may ask them again and, in the event of another guilty verdict, we may have to remand the case once more. I believe that correct procedure requires and justice demands that an appellate court chart a course for a new trial which will mark the dangerous reefs and perilous rocks on which the ship of a fair trial foundered in the first voyage.
This charting should not be done in the spirit of censuring the judge but with the object of illuminating the waters over which he must guide the craft of the new trial. It is my impression, as I read the record in this case, that at times the Trial Judge forgot he was wearing a robe and saw himself back in the lists as a battling district attorney determined to uphold the rights of the Commonwealth and to protect society from the defendant. But the courtroom already had a district attorney and nothing in the record would suggest that he was not discharging his responsibilities ably and conscientiously. Nevertheless, when he had finished with his cross-examination, the Trial Judge said: "I think this case has not been developed completely, and I take it it is my duty to develop it further." With this announcement, he practically shunted the district attorney aside, loosened his robe, and took over an active prosecution of the case.
I want to make it clear at the outset of my discussion that I believe a judge should ask questions in order to clarify issues, remove ambiguities, and protect the rights of parties and witnesses and uphold the
dignity of the proceedings. As justly stated by Justice (later Chief Justice) STERN in the case of Commonwealth v. Watts, 358 Pa. 92:"It is always the right and sometimes the duty of a trial judge to interrogate witnesses. The able and experienced Justice, however, added this limitation: "although, of course, questioning from the bench should not show bias or feeling nor be unduly protracted."
I believe that the very first question put by the Trial Judge in this case, when he took over the cross-examination, showed bias: "You apparently know how to handle a gun or a revolver, don't you? You know about revolvers, don't you?"
He then put a series of questions which seemed more like accusations than inquiries. And it is a matter of reasonable likelihood that an accusation coming from the determined lips of the judge may well, in the eyes and ears of a devoted jury, proclaim that the judge knows that the answers to the questions should be "Yes", regardless of how the defendant might reply. The following questions are typical of the judge's interrogation: "You planned this robbery, didn't you?" "Two weeks before this happened you had planned it with a man by the name of Allen; isn't that right?" "To rob your former employer?" "He (his accomplice) knew the place because you sort of took him down there and looked at it, didn't you?" "You told him before, so that it was you who was the captain of this enterprise, isn't that right?" "Why didn't you order him in the back without the ...