Appeal, No. 164, Jan. T., 1962, from judgment of conviction and sentence of the Court of Oyer and Terminer of Philadelphia County, June T., 1959, No. 366, in case of Commonwealth v. James Vento. Judgment reversed.
Charles S. Schermer, for appellant.
Burton Satzberg, Assistant District Attorney, with him Michael D. Battaglini and Arlen Specter, Assistant District Attorneys, 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 EAGEN
Frank Agnello suffered an untimely death due to thirty-one stab wounds deliberately inflicted by one Rudolfo Dominquez. The defendant, James Vento, whom the Commonwealth charged "aided, abetted, procured and assisted" Dominquez in the commission of the crime, was arrested and jointly indicted with him on the charge of murder. The Commonwealth requested and obtained a severance and then elected to proceed to trial against the defendant, Vento, alone.*fn1 At trial, a jury returned a verdict of guilty of murder in the first degree and fixed the punishment at life imprisonment. Motions for a new trial and in arrest of
judgment were denied. The defendant appeals from the judgment of conviction and sentence.
A reading of the record readily manifests more than ample evidence to sustain the guilty verdict and to establish the defendant's active and important role in this brutal and premeditated killing. The motion in arrest of judgment was, therefore, properly overruled and need not detain us. Unfortunately, however, substantial and prejudicial trial error demands the grant of a retrial.
At trial, Dominquez testified as a Commonwealth witness implicating the defendant in the killing. A statement or confession given by Dominquez to the police after his arrest was also admitted into evidence over objection of defense counsel.
As a general rule, a confession is evidence only against the person who made it and should not be admitted to affect the question of the guilt of others who participated in the crime: Commonwealth v. Epps, 298 Pa. 377, 148 A. 523 (1930); Commonwealth v. Martin, 124 Pa. Superior Ct. 293, 188 A. 407 (1936); Commonwealth v. Lennon, 124 Pa. Superior Ct. 47, 188 A. 84 (1936). If the confessor is a defendant in a joint trial, the confession may be admitted against the party making it, although its contents may implicate others. However, in such a case, the trial judge should carefully protect the co-defendant's rights by proper cautionary instructions to the jury and the failure to do so constitutes reversible error. See, Commonwealth v. Novak, 165 Pa. Superior Ct. 576, 69 A.2d 186 (1949); Commonwealth v. Berman, 119 Pa. Superior Ct. 315, 181 A. 244 (1935); Commonwealth v. Hudson, 269 Pa. 176, 112 A. 434 (1921).
The instant case was not a joint trial; Dominquez was not a party defendant; and, further, there was not an iota of cautionary instructions given to the jury as to the ...