Appeal from judgment of Court of Oyer and Terminer of Philadelphia County, Nov. T., 1955, No. 633, in case of Commonwealth of Pennsylvania v. Frank James Ellsworth.
John Rogers Carroll, with him Robert E. Gabriel, for appellant.
Charles Jay Bogdanoff, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Roberts.
Frank Ellsworth was indicted by the grand jury of Philadelphia County for the felony murder of one Lulubel Rossman which had taken place on July 3, 1955. He was tried before a court and jury, convicted of murder of the first degree and sentenced to life imprisonment. We reversed that judgment of sentence and granted a new trial because of error on the part of the trial court in admitting into evidence certain declarations made by one Raymond Wilson, an alleged coconspirator of Ellsworth, to a third party, in Ellsworth's absence and against Ellsworth, after the conspiracy had terminated (Commonwealth v. Ellsworth, 409 Pa. 505, 187 A.2d 640). Upon his second trial before a court and jury, Ellsworth was again convicted of murder in the first degree and sentenced to life imprisonment. Subsequent motions for a new trial and
arrest of judgment were overruled by the Court of Oyer and Terminer of Philadelphia County. From the judgment of sentence this appeal was taken.
"On July 4, 1955, Lulu Rossman, a 76 year old widow, was found dead in a hotel room in Philadelphia. Her death was due to a strangulation which occurred during the course of a robbery and the time of her death was fixed as the early evening of July 3, 1955. From her killing arose the events which later culminated in the arrests and subsequent convictions at separate trials, of Raymond Wilson, R. W. Thomas, Gus DeMoss and Frank Ellsworth . . . of murder in the first degree with the penalty fixed at life imprisonment.": Commonwealth v. Ellsworth, 409 Pa. 505, 506, 507, supra.*fn1
For the purpose of this appeal, we deem the following recitation of facts sufficient. It was the contention of the Commonwealth that Thomas, DeMoss, Ellsworth and Wilson, knowing that Mrs. Rossman was accustomed to carry on her person or have in her apartment large sums of money, conspired to rob her; that it was Ellsworth and Wilson who actually robbed and killed Mrs. Rossman; that, with the stolen money, most of which was in new $100 bills, in their possession, Ellsworth and Wilson then flew to Las Vegas, Nevada, via the circuitous route of Tampa, Florida, and Tulsa, Oklahoma. During the night of July 6, 1955 -- three days after the alleged robbery and homicide -- the activities of Ellsworth and Wilson, then engaged in making the
rounds of the gambling casinos in Las Vegas, aroused the curiosity of several of the security officers in the various gambling clubs.*fn2 Ellsworth and Wilson, very shabbily dressed, were buying gambling chips with new $100 bills and, after a brief time spent at the dice tables, were cashing their chips and moving on to another casino. Believing that they were engaged in exchanging counterfeit money for "clean money",*fn3 the security officers of the Sahara Hotel and the Dunes Hotel alerted the local police and the Federal Bureau of Investigation to watch and observe the activities of Ellsworth and Wilson; both police agencies responded by placing the two men under constant surveillance. The officers assigned to this task noticed immediately that Ellsworth and Wilson were pretending to be unacquainted by leaving a casino separately although rejoining each other a short distance from the establishment which they had left. At the Las Vegas Club, Ellsworth was observed purchasing $900 worth of chips with nine brand new $100 bills, all of "C" series with consecutive serial numbers.*fn4 After the club owner and its security officer had inspected the nine $100 bills and had satisfied themselves that they were not counterfeit, the owner directed the cashier to return to Ellsworth, when he cashed in his chips, the same bills that he had given the cashier when he purchased the chips. Shortly thereafter, Ellsworth handed to the
cashier more than $700 in chips and, upon noticing that she had returned to him seven of the $100 bills which he had used to buy the chips, he became visibly disturbed and hurried out of the club. Sergeant Dunn, of the Las Vegas police force, who had witnessed this chain of events, then followed Ellsworth outside and placed him under arrest "for suspicion or investigation of robbery." Within a few minutes, Wilson appeared, having just exited from the Westerner Club. Wilson tried to walk past Ellsworth but Sergeant Dunn called him back and took him into custody. The time was then approximately 12:15 A.M., July 7, 1955.*fn5
At the scene of the arrests, Sergeant Dunn made an initial brief search of both suspects (Search No. 1) to determine if they were carrying any weapons. According to Sergeant Dunn, this initial search consisted only of a "patting" of the clothes of the suspects. It was not until Ellsworth and Wilson arrived at the police station -- approximately two minutes after their arrest -- that their pockets were searched and the contents removed (Search No. 2): "Q. . . . Now, after you took these two men, after you told these two men they were under arrest for . . . suspicion of robberies did you say? A. Yes, sir. Q. Investigation of robberies. What did you do with them? A. Put them in the police car after I made a search for weapons, just patting them. Q. You were patting them? A. Just to feel them to see if they had any knives, guns. Q. Did they have any weapons? A. No, sir. Q. What did you do with them then? A. Took them down to the Police Department two blocks away in the police car . . . ." . . . . "Q. By the time you got them to the police station what time was it? A. I would say about -- it's only about two minutes from the place of arrest. Q. It would be between 12:15 and 12:20? A. Yes. Q. And then you went through the searches? A. Yes."
The search at the police station (Search No. 2) of Ellsworth's pockets produced $6868 -- most of which was in new $100 bills of the "C" series --, a key to room 266 of the Dunes Hotel, some gambling chips and miscellaneous papers consisting of cards of attorneys and bail bondsmen. The concomitant search of Wilson's pockets resulted in the discovery of $9686 which included several thousand dollars in new $100 bills of the "C" series.
After Ellsworth and Wilson were questioned and "booked", three Las Vegas policemen, two F.B.I. agents and three deputy sheriffs, without a warrant, searched Room 266 of the Dunes Hotel. This search (Search No. 3) took place at approximately 2:30 A.M., July 7, 1955, which led to the discovery -- in shoes, suitcases and a sock -- of $69,000 in currency of which $66,200 was in new $100 bills mostly of the "C" series. The serial numbers of the currency discovered on the persons of Ellsworth and Wilson in their hotel room were duly recorded and a list kept thereof.
Shortly after his arrest, Ellsworth requested and received permission to call a lawyer. This lawyer, by an order of court, obtained the release of both Ellsworth and Wilson on July 7, 1955, and the court further directed that the money seized from them be returned through their attorney. Approximately a week later, both Ellsworth and Wilson were ...