Appeal, No. 126, March T., 1962, from judgment of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, March T., 1959, No. 121, in case of Commonwealth of Pennsylvania v. Leo J. Chester. Judgment affirmed; reargument refused March 9, 1963.
J. I. Simon, with him James A. Danahey and Harry A. Kramer, for appellant.
William Claney Smith, Assistant District Attorney, with him George H. Ross, Assistant District Attorney, and Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Keim, JJ.
OPINION BY MR. JUSTICE COHEN
At approximately 10:00 a.m. on January 24, 1959, Harold Walker was found dead lying in bed in his second-floor apartment at 1104 Sheffield Street, Pittsburgh. The pathologist attributed death to shock following contusions of the head, face, neck, back, and chest with multiple fractures of the ribs. He testified that the injuries producing the shock could have come from repeated blows to the body.
Charles Ross, James Houlihan, and Leo Chester were indicted for the murder of Walker. The Commonwealth's theory was that the three men had participate
in a plan to rob Walker, a known bookie, and had inflicted a beating upon him during the attempted felony which resulted in his death. After separate trials, Ross was found guilty of first degree murder and sentenced to life imprisonment. His conviction was affirmed by this court.*fn1 Houlihan was convicted of voluntary manslaughter but did not appeal. Chester was found guilty of first degree murder and sentenced to life imprisonment. His appeal from the lower court's denial of his motions in arrest of judgment and for a new trial is now before us.
At Chester's trial, the Commonwealth relied heavily upon the testimony of Albert Tschudie who occupied an apartment down the hall from Walker. Tschudie testified that about 7:30 p.m. on January 23, he saw three men coming up the stairs to the second floor with Chester in the lead. Chester asked him if a party named Hale lived in the rooming house. Upon receiving a negative response, the three men and Tschudie walked down the stairs and out onto the porch where Tschudie asked Chester if one of the other men was not Charlie Ross. Chester said no and the three men departed.
Tschudie returned to his apartment twenty minutes later and was aroused by a noise in the hallway. He looked out into the hallway and saw Chester and Ross standing outside of Walker's door with a third man standing at the top of the stairs. Tschudie stated that Chester was carrying what looked like a gun in his hand and that he pulled a handkerchief over his face. Tschudie closed the door and a few minutes later heard things being thrown around in Walker's room. Tschudie thereupon ...