Appeals, Nos. 119 and 121, Jan. T., 1960, from judgments of Oyer and Terminer of Philadelphia County, April T., 1957, No. 346, in case of Commonwealth of Pennsylvania v. Robert Lee Williams et al. Judgments affirmed; reargument refused January 3, 1961.*fn*
W. Bradley Ward, with him Joseph L. Ehrenreich, for appellant.
Garfield W. Levy, with him Irwin Apfel, for appellant.
Arlen Specter, 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. BENJAMIN R. JONES.
For the second time we have before us for determination the propriety of the imposition of death sentences upon Cater and Rivers, the present appellants, after their conviction of murder in the first degree by a three-judge court in Philadelphia County.
The pertinent facts surrounding this homicide and the trial were stated by Mr. Justice COHEN in Commonwealth v. Cater et al., 396 Pa. 172, 175, 152 A.2d 259: "On the evening of March 26, 1957, three young men planned and perpetrated a robbery at the pharmacy of Jacob Viner, a North Philadelphia druggist. One of the robbers accompanied Viner to the rear of the establishment, and after warning the druggist to 'shutup,' shot and killed him in the presence of his wife. The pharmacy's cash register was rifled of some $34 and the trio made good their escape.
"Subsequently, James Cater, Robert Lee Williams and George Lee Rivers, the appellants herein, were
arrested and indicted for the murder of Viner. All three, confessing to their participation in the crime, entered pleas of guilty to murder generally, whereupon the trial court adjudged each to be guilty of murder in the first degree... After deliberation upon the entire record, the trial court sentenced each defendant to death in the electric chair."
Upon appeal, a majority of this Court found certain "factual errors" in the opinion of the lower court wherein that court assessed its reasons for the imposition of the death sentences upon Cater and Rivers, and we were unable to determine whether "any or all of these factual errors influenced the court below in its decision to impose the death sentence upon both Cater and Rivers." While we affirmed the judgment and sentence as to Williams,*fn1 as to Cater and Rivers we vacated the judgment of sentence of death and remitted the record to the court below for the purpose of resentencing them. The court below then heard additional testimony and, after deliberation, again sentenced Cater and Rivers to death. From such judgments of sentence these appeals were taken.
Appellants present two contentions: (1) that the court which imposed the sentences was improperly constituted and (2) that under the instant circumstances the imposition of death sentences constitutes an abuse of discretion.
In respect to appellants' first contention certain factual data is pertinent. Appellants entered pleas of guilty before a three-judge court composed of Judges WATERS, MACNEILLE and SPORKIN, and this court determined the degree of the crime to be murder of the first degree and imposed the death sentences. While appellants' ...