Appeal, No. 199, Jan. T., 1961, 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 affirmed; reargument refused August 9, 1961.
J. Charles Short, with him Israel Stiefel, for appellant.
Arlen Specter, Assistant District Attorney, with him William H. Wolf, Jr., and Richard A. Sprague, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
Gaetano Sabelli, the owner of a grocery store in Philadelphia, was shot and killed by the defendant, McCoy, during the course of his armed robbery on the premises on July 1, 1957. McCoy was indicted for murder for the felonious killing and was tried under the so-called "Split-Verdict Act" of December 1, 1959, P.L. 1621, amending Section 701 of The Penal Code of June 24, 1939, P.L. 872, 18 PS § 4701 (Pocket Part).*fn1 At the trial of the issue of the defendant's guilt or innocence of murder, the jury returned a verdict of guilty of murder in the first degree. As required by the "Split-Verdict Act", the court then entered upon a hearing with respect to the penalty to be imposed on the verdict, at which hearing the jury received additional evidence on the question of the penalty to be imposed on the convict, as between death and life imprisonment. The jury fixed the penalty at death. Following denial by the court en banc of defendant's motion for a new trial, judgment of sentence was entered on the verdict, from which the defendant took this appeal.
That the appellant is guilty of murder in the first degree is conceded and no trial error on the question
of his guilt or innocence is assigned. He alleges, however, that on the question of penalty the trial was infected with prejudicial error because the victim of a prior armed robbery, to which the defendant had pleaded guilty, was permitted by the court to testify concerning the circumstances of that crime and, also, because the trial judge, in his charge on the question of penalty, instructed the jury to consider the possibility of defendant's rehabilitation.
The "Split-Verdict Act" provides in material part as follows: "In the trial of an indictment for murder, the court shall inform the jury that if they find the defendant guilty of murder in the first degree, it will be their further duty to fix the penalty therefor, after hearing such additional evidence as may be submitted upon that question. Whenever the jury shall agree upon a verdict of murder of the first degree, they shall immediately return and render the same, which shall be recorded, and shall not thereafter be subject to reconsideration by the jury, or any member thereof. After such verdict is recorded and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received in the trial as may be relevant and admissible upon the question of the penalty to be imposed upon the defendant, and shall permit such argument by counsel, and deliver such charge thereon as may be just and proper in the circumstances. The jury shall then retire and consider the penalty to be imposed and render such verdict respecting it as they shall agree upon."
The Commonwealth's evidence on the question of penalty included a reading of three bills of indictment based on an armed robbery committed on June 15, 1950, to all of which indictments the defendant had pleaded guilty. This evidence was followed by the oral testimony of the victim of the prior and unassociated robbery which had taken place in an Army-Navy store
where the witness was then working. The witness described in detail the defendant's conduct as to how he had posed as a customer desiring to purchase gloves and, while being waited upon, had drawn a gun on the witness whose hands he had tied together and that the defendant then proceeded to empty the cash register; thereafter, in an effort to get more money, he gave the victim rough physical treatment by knocking him over a bed standing in an upstairs ...