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July 1, 1964


Appeals, Nos. 148 and 165, Jan. T., 1964, from orders of Court of Oyer and Terminer of Philadelphia County, Sept. T., 1958, No. 839, in case of Commonwealth of Pennsylvania v. Anthony Scoleri. Order staying execution affirmed; order denying withdrawal of guilty plea reversed, and new trial ordered. Petition for modification of order of Supreme Court dismissed.


Arlen Specter, Assistant District Attorney, with him Burton Satzberg, Richard A. Sprague and Thomas M. Reed, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth.

Thomas D. McBride, with him Alan J. Davis, and Wolf, Block, Schorr and Solis-Cohen, for defendant.

Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 415 Pa. Page 221]


These appeals arising from the second trial of Anthony Scoleri for murder,*fn1 reveal a record (a) that is so unusual and (b) professional conduct which is so indefensible as to jeopardize the public's respect

[ 415 Pa. Page 222]

    for the Law and confidence in their trial Courts. Although there is no contention that Scoleri is innocent, and although the testimony in this case went far, far afield into irrelevant matters, the basic and ultimate question for this Court's decision is whether Scoleri should be permitted to withdraw his guilty plea.

This case, for reasons which will hereinafter clearly appear, requires lengthy analysis and discussion of the 559 page record, as well as of the important legal points involved.

The Commonwealth proved that Scoleri and a companion named Woods held up at gun point, Max Gordon, his wife, his daughter and her friend, Dinerman, in Gordon's home and store. Gordon was hit on the head by Scoleri with a gun and knocked to the floor. Although bleeding and in terrible agony, he was forced to get up and go behind the counter to turn over to Scoleri his money and other valuables. While behind the counter Gordon grabbed his pistol from a drawer and shot Woods.*fn2 During the gunfire Scoleri shot Gordon three times, twice in the chest and once in the stomach. Gordon died shortly thereafter from one of these gunshot wounds. The holdup and robbery, which were planned*fn3 by Scoleri, who produced a gun for himself and one for his brother, were brutal. Three persons,*fn4 including two eye-witnesses to the shooting, identified Scoleri. Furthermore, the Commonwealth produced a great deal of corroborating evidence, plus a statement by Scoleri

[ 415 Pa. Page 223]

    to his landlady-friend that he shot Gordon. Scoleri, although invited by the Court before it announced that it had fixed the penalty at death, refused to take the witness stand or make any statement in his own behalf.

Scoleri's conviction at his first trial of murder in the first degree with penalty of death, was set aside by the United States Court of Appeals for the Third Circuit for reasons which will be hereinafter fully discussed.

When Scoleri was retried, i.e., in the present case before Judge SPORKIN, the drawing and selection of a jury became a long drawn out process covering four or five days. During the course of selecting the jury, Mr. von Moschzisker, counsel for Scoleri, asked several times for the withdrawal of a juror and a continuance because of newspaper publicity allegedly unfavorable to his client. Each request or motion was refused. He never asked for a change of venue. Thereafter, at side bar, von Moschzisker asked Judge SPORKIN whether he would give Scoleri a life sentence if Scoleri pleaded guilty. Judge SPORKIN said he would make no promises.

During recesses, von Moschzisker went to see Judge GOLD, Judge ULLMAN,*fn5 Judge HAGAN*fn6 and Judge CARROLL, with each of whom he discussed his feelings about death sentences, intending if he had confidence in his feeling against the death penalty to ask him whether, in the event of a guilty plea, he would sit in the Scoleri case. Von Moschzisker testified that Judge CARROLL and Judge GOLD (and as above noted,

[ 415 Pa. Page 224]

Judge SPORKIN) refused to make any commitment as to the sentence he would impose; Judge ULLMAN testified that he was asked for no commitment and gave none.

Judge SPORKIN then announced that the two Judges who would sit with him in the event of a guilty plea would be chosen by the Court from a list of six or seven whom he named, and that von Moschzisker could not select the two Judges who would sit. It is important for the administration of Justice for all lawyers to remember that it is solely the function and province of the Administrative Judge or the trial Judge or the appropriate Court, and not that of defense counsel, to select a Judge or a 3-Judge Court to hear guilty pleas and, after hearing all the evidence, determine the question of guilt and the penalty and sentence.

Judge SPORKIN then selected Judge KELLEY and Judge REIMEL to sit with him - if there was a guilty plea - to determine Scoleri's guilt, and the penalty and sentence which should be imposed. After von Moschzisker learned which Judges would sit in the event of a guilty plea, Scoleri, upon the advice of von Moschzisker, changed his plea to guilty.

What follows is so important and so shocking that we shall quote the relevant portions thereof:

(At 4:58 p.m. the defendant was brought into the Courtroom.)

"MR. SPRAGUE: At this time I am advised that the defendant, Anthony Scoleri, desires to enter a plea? May he stand up at the bar of the Court? I desire to ask him some questions before we proceed.

"Mr. Scoleri, you are represented by counsel, Mr. von Moschzisker? THE DEFENDANT: Yes, sir. MR. SPRAGUE: Have you discussed the entry of a plea with your counsel? THE DEFENDANT: Yes. MR. SPRAGUE: You understand that no promises of any sort have been made concerning the entry of a plea by

[ 415 Pa. Page 225]

Judge SPORKIN in this matter because we understand that you changed your plea yesterday and entered a plea of guilty; is that right? A. That is right. Q. You understand the nature of the charge that faces you? A. I do. Q. Although guided by your counsel, this is of your own volition that you have entered this plea? A. Yes, sir. BY JUDGE KELLEY: Q. You understand what all this means? A. Yes, I do.

The three-Judge Court, after carefully hearing and reviewing the evidence and the vigorous arguments and sympathetic pleas of counsel for Scoleri, and having taken into consideration the crime and the man (Scoleri) who committed it, unanimously agreed to impose a sentence of death. The record then shows the following: "MR. SPRAGUE: May the defendant first be asked, sir, if he has anything to say before the Court fixes penalty? Mr. VON MOSCHZISKER: He has been asked that repeatedly. JUDGE SPORKIN: Have you anything to say, Mr. Scoleri, before we fix the penalty? THE DEFENDANT: No, your Honor. JUDGE SPORKIN: ... Proceeding to the fixing of the penalty, we have unanimously concluded that the murder of Max Gordon on August 28, 1958, in the course of an armed robbery, demands the death penalty. The Court, therefore, having adjudged the defendant, Anthony Scoleri, guilty of murder in the first degree, fixes the penalty as death. Mr. Scoleri, is there any reason why the sentence of death should not now be imposed upon you?"

Mr. von Moschzisker - who had stood beside Scoleri when he falsely said no promises of any sort had been made concerning the entry of a guilty plea - then said: "I have an unpleasant duty to perform. For the reason that I had a flat promise from Judge REIMEL that he would impose life and for the reason that I had an additional indication that if the Court was not unanimous life would be imposed, I must move

[ 415 Pa. Page 227]

    to withdraw the plea of guilty. MR. SPRAGUE: Sir, I oppose any withdrawal. JUDGE REIMEL: Mr. von Moschzisker, of course I think your statement is incorrect. However, we will entertain what Mr. Sprague has to say. MR. SPRAGUE: May I say, sir, I oppose any withdrawal of the plea. Any discussions that I had with counsel and any discussions that I had with Judge SPORKIN prior to the entry of this plea of guilty, there was never an indication that there was any commitment made of any sort and at the time when this defendant changed his plea and entered a plea of guilty the defendant was asked whether there was any commitment or whether there was any understanding of any sort. From the Commonwealth's standpoint there is no commitment. We stated what we were seeking from the beginning and we oppose any withdrawal of any plea at this time."

"THE DEFENDANT: Your Honor, it was most reluctantly that I agreed to change my plea. It was only on the assurance that there had been some prior agreement, and I certainly would not have changed my plea if I did not have this assurance. [This was diametrically opposite to his prior statement that no promises of any kind had been made concerning the entry of a plea of guilty. Obviously Scoleri lied in one of these two statements.] MR. SPRAGUE: Now may I say in answer to that, this Court, Judge SPORKIN first individually and then the Court en banc I asked the defendant prior to taking any testimony in this case whether he understood the significance of his plea, whether it was voluntarily, whether there was any understanding, and I say what you have before you is now another desperate attempt to escape his just punishment. I would ask this Court to decide that matter now."

"JUDGE REIMEL: I think I should make a statement here, because I think Mr. von Moschzisker's remarks

[ 415 Pa. Page 228]

    are not only most unusual but not becoming a member of our Bar. You know for many years, not only with Michael von Moschzisker but others, since I have taught in law school, I have discussed with attorneys different problems, and the Scoleri case was just a name to me when he and I discussed the facts which he gave to me, which were not as stated here today, but were such that I said, "Well, of course in my opinion with a plea entered if a plea of not guilty were withdrawn it would seem to me to be life." He asked me if I were called upon to sit in the case based upon those facts would I be so inclined and of course I said I would.

"Now, as we heard the testimony in this case with no explanation forthcoming from this defendant, the facts in this case were not as stated by Mr. von Moschzisker's hypothetical question to me. I think it is most unusual and I think it is to be regretted particularly in a case of such seriousness as this, but in any event, if there is some insinuation that some deal was made or some commitment as to a decision before one has heard the facts, I think it is ridiculous.

"MR. SPRAGUE: May I say this one response and that is all before asking your Honors to rule on this motion? Frankly I am very, very shocked to hear my good friend Mr. von Moschzisker, and also mention his associate, MR. MCBRIDE, indicating that in a capital case about to proceed that they in effect had it fixed before it goes ahead. It would be highly irregular for the Commonwealth to have spoken to any judge and ask him, 'Would you vote for the death penalty under any circumstances,' and I am frankly shaking with the shock to think that Mr. von Moschzisker, including in his statement the name of Mr. McBride, would think as reputable attorneys they would go on and have in effect fixed a case beforehand. I think that is highly shocking, and I think that is what

[ 415 Pa. Page 229]

    and splendid*fn10 thing for Judge REIMEL to have given the assurance. ..."

The petition further avers: "This created a situation in which [von Moschzisker] firmly believed that petitioner would receive life imprisonment if he entered a plea of guilty. This resulted from the facts that Judge REIMEL had stated that he would vote for life imprisonment; that Judge REIMEL still appeared to feel that way about the matter since he had accepted the Court Administrator's invitation to sit on the case; and the fact that under the three-judge rule as construed, Judge REIMEL'S vote was enough to require a sentence no more severe than life imprisonment.

"Accordingly, [von Moschzisker] after ascertaining that Judge SPORKIN would still have Judge KELLEY and Judge REIMEL sit with him on a guilty plea immediately conferred with petitioner, told him everything that had happened, advised him that there had been no inducement to plead guilty and there had been no promise from the court itself of a life sentence but that in the opinion of defense counsel petitioner's life would be almost absolutely safe if he changed his plea to guilty, the one qualification to this, as expressed by defense counsel to petitioner, being that if Judge REIMEL did not stand by what he had said to defense counsel, petitioner might receive the death penalty."

The petition concluded with the prayer that if the facts recited therein were not agreed to, petitioner requested a hearing with testimony on the disputed facts.

[ 415 Pa. Page 231]

The Commonwealth filed an answer in which it denied virtually all the material facts averred in the petition of which it had knowledge, but also averred it had no knowledge of what transpired at the secret conferences between von Moschzisker and any Judge. The answer incorporated an affidavit of Judge REIMEL. REIMEL'S affidavit stated, inter alia, "I did not volunteer that if I sat on the case I would vote for life imprisonment, and I gave no promise to Michael von Moschzisker that I would do so. The reason for this is quite obvious, as I could not and would not render a decision in this or any matter until I have ...

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