Appeal, No. 295, Jan.T., 1963, from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1962, No. 297, in case of Commonwealth of Pennsylvania v. Charles Negri. Judgment affirmed.*fn*
Leonard. L. Ettinger, with him Manfred Landau, and Ettinger, Gallagher & Silverman, for appellant.
Edmund Pawelec, Assistant District Attorney, with him Richard A. Sprague 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, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
Charles Negri, the appellant, after trial was found guilty by a jury of murder in the first degree. The penalty was fixed at life imprisonment. Following the denial of post trial motions and imposition of sentence, an appeal to this Court was filed.
The facts established by the evidence may be fairly briefed as follows:
On November 11, 1961, Negri and one James Lenahan escaped from Leeburg Prison Farm in New Jersey,
where they were under penal confinement. They traveled to the City of Philadelphia, Pennsylvania, rented an apartment under fictitious names and went into hiding. Shortly thereafter, they devised a plan to rob a bank in Westville, New Jersey. To help carry out the plan, the services of others were obtained, namely, Ethel Nielsen, Vito Belfiore and Romeo Mercantini. The details were discussed and rehearsed.
On December 4, 1961, by prearrangement, Negri, Lenahan, Belfiore, Nielsen and Mercantini met on a parking lot behind a diner located near the bank. According to plan, Nielsen and Mercantini remained on the lot in two separate automobiles which they were to drive in the getaway. Negri and Lenahan, well armed, proceeded to the bank in a third car driven by Belfiore. They held up the bank and seized a substantial sum of money. When they arrived back at the parking lot, it was discovered that Mercantini, for some unknown reason, had disappeared. The four others in on the job then fled from the area in the Nielsen car, to the Nielsen home located only minutes away. There, the loot was counted and its division discussed. Lenahan insisted that Mercantini had run out on the gang, was a "weak link" and in order to prevent a double-cross should be liquidated. The defendant described the conversation in this way: "After we counted the money in Ethel's house ... Jimmy said to me ... that Goo-Goo [Mercantini] was the weak link and that if I didn't kill him that he would have to, and it was easier for me because I drove around with him. Later when I spoke with Jimmy on the phone I told him that I was going to meet Goo-Goo at seven o'clock and he told me to remember what I had to do. I knew what he meant, that I was supposed to kill him at seven o'clock when I met him at the apartment."
Later in the day, Negri talked to Mercantini by phone from the Neilsen home and arranged to meet him in the Philadelphia apartment at seven o'clock in
the evening. Nielsen then drove Negri to Philadelphia. When Mercantini arrived at the apartment, he demanded his promised share of the loot. Negri informed him that Lenahan was still in possession of the money and no division had been made. Negri then phoned Lenahan and arranged to meet him at a certain tavern in Philadelphia about 11:30 p.m. Negri told Mercantini to meet him around midnight on a back street nearby.
Around midnight, mercantini arrived at the appointed place and sat behind the wheel in his parked automobile. Negri joined him in the front seat, informed him he was not going to receive any of the bank money, and shot him twice with the gun he had used in the bank holdup.*fn1 He then ran back to the tavern where Lenahan, Belfiore and Nielsen were waiting and informed Lenahan, "that thing you wanted done, is done." It was then that Negri received his share of the robbery proceeds. He immediately left the tavern, with Belfiore entered an automobile driven by Nielsen, and was taken to New York City.
The shots were heard by two nearby residents. The police were notified, arrived on the scene within minutes and found the dead body of Mercantini slumped in the driver's seat of his automobile.
Later the same day, December fifth, Belfiore was taken into custody in New Jersey and detained in the Gloucester jail. That night about nine-thirty o'clock, while being questioned by police officers from Philadelphia, Pennsylvania, and Camden, New Jersey, he told of Negri's connection with ...