Appeal, No. 37, Jan. T., 1962, from judgment of sentence of Court of Oyer and Terminer of Delaware county, Dec. T., 1958, Nos. 330 and 331, in case of Commonwealth of Pennsylvania v. John Mason Sutton, alias Gene Hurley. Judgment reversed.
Albert Blumberg, with him McClenachan, Blumberg & Levy, for appellant.
Ernest L. Green, Assistant District Attorney, with him J. Harold Hughes, Assistant District Attorney, Ralph B. D'Iorio, Frist Assistant District Attorney, and Jacques H. Fox, District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE EAGEN
The defendant, John Mason Sutton, alias Gene Hurley, was tried and convicted in Delaware County, Pennsylvania, of first degree murder for the gunshot killing of one Ina Persinger. His punishment was fixed at life imprisonment. He appeals from the judgment of conviction and sentence.
There were no eyewitnesses to the killing, which occurred on June 1, 1957. The Commonwealth's case depended entirely upon circumstantial evidence plus testimony of certain admissions allegedly made by the defendant to a fellow prisoner, one Wasyl Towber, in the month of September, 1958, in the Delaware County Prison where they were both incarcerated while the defendant was awaiting trial. The motive for the killing, according to the Commonwealth's theory, was that the victim had rejected the defendant as her lover, which he bitterly resented. The defendant demurred to the evidence offered by the Commonwealth, which was overruled by the court. The defense offered no testimony.
Without the testimony of the witness, Towber, there is serious question that the evidence presented was sufficient to sustain a conviction. The Commonwealth had no other available testimony to fix defendant's presence at, or near, the scene of the killing within hours of the pertinent time. In short, Towber's testimony was vital to the Commonwealth's case. He testified, inter alia, that the defendant told him, while they were in prison together, that on the night of the killing the defendant had visited the victim's apartment; that they got into a quarrel and he "messed her up." Also, that the defendant had tried to secure Towber's services in obtaining an alibi witness to be used at the trial on his behalf.
Towber had a long and unsavory criminal record, the details of which the district attorney properly attempted
to bring to the attention of the jury during his direct examination in order that they might consider his background in determining the credibility of the witness. It included convictions of serious felonies, such as burglary, armed robbery and prison break.
At the time Towber testified in the present case, he was awaiting sentence in Delaware County upon a conviction for the crime of burglary. He was originally convicted of this crime by a jury and given a sentence of from five to ten years in a state penal institution. However, this conviction was set aside by the Pennsylvania Superior Court and a new trial ordered. When subsequently arraigned on this indictment for the second time, he elected to plead guilty and not stand trial. That occurred on January 11, 1960, and his sentence was deferred. He had not as yet been sentenced upon this conviction when he ...