Appeal, No. 202, Jan. T., 1959, from judgment of Court of Oyer and Terminer of Philadelphia County, Nov. T., 1955, Nos. 630 and 633, in case of Commonwealth of Pennsylvania v. Frank James Ellsworth. Judgment reversed.
Paul Yermish, for appellant.
Burton Satzberg, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
In this homicide trial did the trial judge commit reversible error in permitting the Commonwealth to introduce into evidence against the defendant Ellsworth declarations made, in Ellsworth's absence, by one Wilson, allegedly Ellsworth's co-conspirator, which declarations - in large part narrations of past events - implicated Ellsworth in the homicide and were made after both Wilson and Ellsworth had been arrested and incarcerated?
On July 4, 1955, Lulu Rossman, a 76 year old widow, was found dead in a hotel room in Philadelphia. Her
death was due to a strangulation which occurred during the course of a robbery and the time of her death was fixed as the early evening of July 3, 1955. From her killing arose the events which later culminated in the arrests and subsequent convictions at separate trials, of Raymond Wilson, R. W. Thomas, Gus DeMoss and Frank Ellsworth (the present appellant) of murder in the first degree with the penalty fixed at life imprisonment. The judgments of sentence against Wilson and DeMoss were affirmed on appeal to this Court: Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234; Commonwealth v. DeMoss, 401 Pa. 385, 165 A.2d 14. Thomas' judgment of sentence is presently on appeal to this Court.
The factual background and the events which preceded and succeeded the homicide are set forth at length in both Wilson, supra, and DeMoss, supra. Only such background as is necessary for a disposition of the narrow question before us will be related.
"The theory of the Commonwealth was that Thomas, through his relationship with Mrs. Rossman, became aware of her habit of having large sums of money on her person or in her living quarters at all times. Motivated by a desire to obtain this money, Thomas entered into a conspiracy with [DeMoss], a police officer in Tulsa, Oklahoma, [Ellsworth] and [Wilson] to rob Mrs. Rossman. In 1948, Thomas, then a Tulsa police officer, with DeMoss, had arrested and testified against both Ellsworth and Wilson when they were charged and convicted of 2nd degree burglary. In pursuance of the conspiracy, the Commonwealth contends, Ellsworth and Wilson went to Philadelphia and in the early ...