Appeal, No. 91, Jan. T., 1963, from judgment of Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace of Philadelphia County, June T., 1959, No. 671, in case of Commonwealth of Pennsylvania v. John J. Coyle. Record remanded and final decision reserved.
Mary Alice Duffy, for appellant.
William H. Wolf, Jr., Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, William D. Harris, Chief 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, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE EAGEN
The appellant-defendant, John J. Coyle, was convicted by a jury in the court below of first degree murder. Punishment was fixed at death. Motions in arrest of judgment and for a new trial were denied. Following imposition of sentence in accordance with the jury's verdict, the issue was brought to this Court by an appeal from the judgment.
A brief summary of the facts incident to the killing involved and the events leading to its occurrence as established by the evidence is as follows:
On December 26, 1958, John Coyle and his brother, William Coyle, committed an armed robbery of a store in Buzzard's Bay, Massachusetts. Shortly thereafter,
fearing detection and arrest, they decided to leave Buzzard's Bay where they had been residing, traveled to Bangor, Maine, and eventually to Philadelphia, Pennsylvania, to hide out.
On January 29, 1959, they rented a furnished apartment at 1539 Erie Avenue, Philadelphia, under fictitious names. Although they had relatives and close friends in the city, they continuously concealed their real identity and refrained from contact with persons who knew them.
On April 3, 1959, being in need of money, they decided to rob again. At ten o'clock that morning, they took at gun point an automobile and its owner (one Ralph Gallagher) from the parking lot of La Salle College, Philadelphia. Gallagher was later forced into the trunk of the automobile where he remained imprisoned for several hours. The Coyles then drove around the city to find "an easy job to rob." About eight-thirty o'clock that evening, they committed an armed robbery of a Philadelphia taproom known as the Wistar Tavern. They fled the scene in the Gallagher automobile, later abandoning it in another section of the city, with the owner left in the locked trunk. They then returned to their apartment.
Following this episode, their fear of apprehension increased and they both armed themselves with concealed, loaded revolvers every time they ventured forth from the apartment.
In the month of May, 1959, their money ran out again. They began sneaking out of the apartment in the early morning hours and stealing milk from porches of residences nearby. The method of operation was for one of the brothers to approach the residence to get the milk while the other would stand armed nearby to "cover him." If anyone tried to apprehend them, it was agreed that they would shoot their way out if necessary.
Before dawn on the day in question, June 5, 1959, they both armed themselves with revolvers and again went out in the neighborhood seeking food. At a nearby residence on Sydenham Street, William was engaged in stealing milk from the front porch when James Kane, a uniformed officer of the Philadelphia Police Department, who was patrolling a beat in the area, came down the street and caught him in the act.*fn1 John, armed, was out in the street nearby The police officer pulled his gun and yelled to William: "What are you doing there? Halt or I'll shoot." Someone else then said, "I'll kill you." Before the officer fired a shot, one of the two Coyle brothers fired five shots from a .38 caliber revolver, three of which entered Kane's body killing him instantly.
Motion in Arrest of Judgment
One eyewitness to the occurrence definitely identified John Coyle as the actual killer. This evidence, in itself, is sufficient to sustain the verdict. See, Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157 (1963); Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963).
Other testimony indicates that William Coyle fired the fatal shots.*fn2 However, if this is correct, the evidence was also sufficient to establish that John Coyle was present on the scene aiding and abetting his
brother in the commission of the crimes. Under these facts, both were equally guilty and John, as a principal in the second degree, would be subject to the same punishment as if he were the principal felon. See Act of June 24, 1939, P.L. 872, § 1105, as amended, 18 P.S. § 5105; Perkins, Parties to Crime, 89 U. of P. Law Review 581 (1941); Herz, Principals and Accessories to Crime under Pennsylvania Law, 30 Temple Law Quarterly 180 (1957); 1 Wharton's Criminal Law and Procedure, Parties, § 115 (1957); Commonwealth v. Klose, 4 Kulp 111 (1886); Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75 (1937); Commonwealth v. Parmer, 364 Pa. 11, 70 A.2d 296 (1950).
The motion in arrest of judgment was, therefore, properly overruled.
One of the many assignments of error alleges that the evidence was insufficient to warrant a finding that John Coyle "aided and abetted" his brother, William (assuming the latter was the actual killer), in the murder of Officer Kane, and that the trial court, therefore, erred in submitting this question to the jury. With this, we do not agree.
If the jury concluded that William fired the fatal shots, the evidence was also sufficient to warrant the jury in finding that John Coyle was present nearby as a "lookout"; that he was armed with a deadly weapon; that in accordance with a previous agreement with his brother, he was prepared and ready to shoot and kill any person who tried to apprehend either one. Thus, he was present aiding, encouraging and sustaining his brother, not only in the stealing of the milk but in any effort necessary to prevent arrest. It, therefore, was a concerted action. This constitutes "aiding and abetting." See, Commonwealth
language on several occasions that this evidence was not to be considered in resolving the question of guilt.*fn3
The trial was conducted and concluded prior to the effective date of the Split-Verdict Act of December 1, 1959, P.L. 1621, 18 P.S. § 4701. Under the rules of procedure, then in existence for determining penalty in such cases, it was not error to admit this evidence for penalty purposes: Commonwealth v. Dague, 302 Pa. 13, 152 A. 839 (1930); Commonwealth v. Thompson, 389 Pa. 382, 133 A.2d 207 (1957); Commonwealth v. Rucker, 403 Pa. 262, 168 A.2d 732 (1961); United States v. Myers, 311 F.2d 311 (1962), cert. den. 347 U.S. 844 (1963).
The Split-Verdict Act was not retroactive: Commonwealth v. Scoleri, 399 Pa. 110, 160 A.2d 215 (1960). Nor has it application in the present case, even though the judgment of sentence was entered after the legislation went into effect. See, Commonwealth v. Rucker, supra, which presents a similar situation. The Split-Verdict Act merely changed the method or procedure to be employed in fixing the penalty in subsequent relevant trials: Commonwealth v. McCoy, 405 Pa. 23, 172 A.2d 795 (1961). It did not invalidate prior trials conducted in accordance with procedural rules then proper and valid.
Nor is there merit to the contention that appellant's pretrial admissions of these prior crimes were inadmissible because he had not been previously convicted and sentenced thereon. A statement or confession of an accused admitting the actual commission of other crimes, if relevant, is admissible even though no prior convictions had been effected. See, Commonwealth v. Jones, 355 Pa. 594, 50 A.2d 342 (1947);
That this is and has always been the law in Pennsylvania is beyond argument. See, Commonwealth v. Morrison, 266 Pa. 223, 109 A. 878 (1920); Commonwealth v. Luccitti, 295 Pa. 190, 145 A. 85 (1928); Commonwealth v. Edwards, 318 Pa. 1, 178 A. 20 (1935); Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287 (1952); Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960); Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693 (1963); Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 (1963), cert. den. 377 U.S. 999 (1964).
The evidence of the commission of these other related crimes was, under the circumstances presented, also relevant and admissible to establish the intimacy, confederacy and concerted actions of the brothers, an important factor in the present case. Hester v. Commonwealth, 85 Pa. 139 (1878); Commonwealth v. Biddle (No. 2), ...