Appeal from judgment of Court of Oyer and Terminer of Clearfield County, Sept. T., 1963, No. 12, in case of Commonwealth v. Kenneth Aljoe.
Joseph J. Lee, with him Carl Belin, Jr., for appellant.
John K. Reilly, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell.
This is an appeal from a conviction of murder in the first degree. The jury fixed the penalty at death.
Defendant was convicted of the brutal and senseless slaying of Eugene Conway, a twelve-year-old neighbor, whom he killed on September 7, 1963, with two shots from a .30 calibre rifle. The victim was almost completely decapitated. Several hours after the killing, defendant was arrested and taken to the State Police Barracks where he was questioned. He was provided with fresh clothing and asked to remove the clothing he wore that day. Defendant complied. Tests were performed on the stains found on his trousers. These tests indicated the presence of traces of human brain tissue. After a petition to suppress this evidence was denied by the trial Court, the evidence was used against defendant at his trial.
During the trial the District Attorney voluntarily reported that it had come to his attention that one of the jurors had been convicted of the crime of embezzlement in 1923 -- over 40 years before. Defendant's motion for the withdrawal of a juror was denied by the trial Court.
After the jury had rendered a verdict of guilty of murder in the first degree, the District Attorney argued on the issue of penalty as follows:
"Your choice will be, as the Judge will instruct you, between life imprisonment and death. Life imprisonment does not mean that he will be in jail for the rest of his natural life. One day he will become eligible for parole; and if the Parole Board grants him parole, can you be sure that this will not happen again? Can you be sure that what time he spends in jail will sufficiently deter him from this -- from committing this all over again?"
During the course of the jury's deliberations on the question of penalty, the jury submitted to the Court the following questions:
"If a verdict of life imprisonment should be returned: How many years imprisonment will this mean? How soon can he expect to ask for a parole? Or in how many years will he be eligible for parole?" To which the Court replied: "Jurors: Unfortunately, the Court is not in position to supply the answers to the above questions. It would be improper to do so."
Defendant alleges the following errors: (1) Denial of the petition to suppress the above mentioned evidence; (2) Denial of the motion to withdraw a juror; and (3) Prejudicial error (a) in permitting the District Attorney to discuss parole, (b) in the refusal of the trial Judge to answer the jury's questions concerning parole, (c) in merely stating that it would be ...