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COMMONWEALTH v. LOPINSON (09/26/67)

decided: September 26, 1967.

COMMONWEALTH
v.
LOPINSON, APPELLANT



Appeals from judgments of Court of Oyer and Terminer of Philadelphia County, July T., 1964, Nos. 469 and 470, in case of Commonwealth of Pennsylvania v. Jack Lopinson.

COUNSEL

Oscar Spivack, with him A. Charles Peruto, for appellant.

Richard A. Sprague, First Assistant District Attorney, with him William H. Wolf, Jr., Edwin Wolf, Benjamin H. Levintow and Alan J. Davis, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen dissents.

Author: Eagen

[ 427 Pa. Page 288]

Judith Lopinson and Joseph Malito were shot to death in the basement office of Dante's Restaurant in the City of Philadelphia about 3:30 o'clock a.m. on June 19, 1964. Dante's, at that time, was operated by Jack Lopinson, husband of Judith, and Malito under a partnership arrangement.

On July 15, 1964, following the conclusion of a three-day inquest conducted by the medical examiner

[ 427 Pa. Page 289]

    of Philadelphia, Jack Lopinson was charged with the murders and held for action by the grand jury. He was indicted the same day. Subsequently, Frank Phelan was arrested and also indicted for the murders.

On October 26, 1964, Phelan plead guilty to the indictments, and later, following a hearing before the court of Oyer and Terminer of Philadelphia County, was adjudged guilty of murder in the first degree and sentenced to death in each case. We have this day affirmed the judgments. See Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967).

Lopinson plead not guilty and elected to go to trial before a jury. On March 4, 1965, after trial, he too, was found guilty of murder in the first degree in each case and the penalty was fixed at death. Following dismissal of motions for a new trial and in arrest of the judgments by the court en banc, sentences were imposed by the trial judge in accordance with the jury's verdict. These appeals followed.

In accordance with our statutory duty,*fn1 we have studied the record and it fully supports the convictions and sentences.

The trial evidence was more than ample to establish these facts:

Lopinson requested Phelan to kill both his wife and Malito, to which Phelan agreed; Lopinson drove Phelan in his automobile to Delaware to secure the murder guns for which Lopinson paid the purchase price; the time and place for the commission of the killings were suggested by Lopinson; originally the crimes were planned for two nights prior but at the last minute were deferred; a few hours before the killings, Phelan and Lopinson discussed and finalized the plans in the former's automobile; at Lopinson's suggestion Phelan entered the basement of the restaurant through a rear

[ 427 Pa. Page 290]

    cellar door and secreted himself, while waiting for Judith Lopinson and Malito to come from the first floor of the restaurant after it closed to the basement office to count the day's receipts; upon their arrival Phelan entered the office with a gun in each hand and summarily shot each victim in the head twice; after Phelan went upstairs and reported the shootings to Lopinson, together they returned to the office and, upon discovering that death had not yet taken its toll, Phelan at the request of and in the presence of Lopinson, fired additional bullets into the heads of the victims. The two then returned upstairs and discussed the explanation previously agreed upon that Lopinson would give the police, namely, that the restaurant had been held up by two unknown men who had fatally shot Judith Lopinson and Malito, and also shot Lopinson. To fortify this story, Phelan, with consent, then shot Lopinson though the fatty tissue of his thigh, and after Phelan left the premises Lopinson fired a bullet from his own gun into a wall of the restaurant. When the police arrived, Lopinson told them the concocted story about the restaurant being robbed.*fn2

From the evidence the jury could also find that Lopinson wanted to get rid of his wife for another woman, his mistress; and killing Malito would help solve his financial troubles and render the false robbery story by two unknown intruders more plausible.

Lopinson's excellent counsel (court appointed) challenge the validity of the judgments on a multitude of grounds. It is asserted that a substantial number of rulings in the court below were erroneous, and while "many of the rulings taken separately may not constitute harmful error," the end result was to deny Lopinson a fair trial.

[ 427 Pa. Page 291]

We shall discuss a major portion of the assignments of error in detail.

Denial of a Preliminary Hearing

Following the conclusion of an inquest conducted by the medical examiner of the City of Philadelphia, Lopinson was held for action by the grand jury without the usual procedure of a hearing before a magistrate or a justice of the peace. This did not void the subsequent judgments.

The Philadelphia medical examiner possesses all of the powers of a coroner by virtue of the provisions of the Philadelphia Home Rule Charter, including jurisdiction to conduct an inquest when sudden, violent or unnatural deaths occur, and to act as a committing magistrate if the deaths are found to be the result of homicide. As correctly stated by the court below: "It has been the law in England and Pennsylvania, at least since 4 Edward 1 Statute 2 (A.D. 1276), that the Coroner has imposed upon him the duty 'to use prompt measures for apprehending persons so charged' (with responsibility for sudden death &c. of another) . . 'for which purpose he may direct his warrant to the Sheriff for arresting and securing them.'

"3 Henry VII Cap. 1 (A.D. 1486) states, 'The coroner (is) . . . the proper officer to take inquisitions super visum corporis.'

"Both of the above statutes of England are the law in Pennsylvania. Digest of Select British Statutes in Force in Pennsylvania, by Roberts (1847) p. 106, and XXI, XXXIV ('a coroner's duty after a murder committed').

"The Philadelphia Code of Ordinances, 2-102, enacted under authority of the Philadelphia Home Rule Charter, transfers all powers and duties of the Coroner to a Medical Examiner, particularly those 'relating to

[ 427 Pa. Page 292]

    the investigation of sudden violent and suspicious deaths and the determination of whether the person or persons responsible shall be charged with crime.'

"If the Coroner (here the Medical Examiner) finds a person responsible for a homicide, it is his duty to commit that person, without bail. Power of Coroner &c., 11 Phila. 387 (1875); Rentschler v. Schuylkill County, 1 Schuylkill Legal Record 289 (1880). When the Coroner returns his inquisition, an indictment may be found against the person charged. Com. v. Lafferty, 11 C.C. 513 (1892). See also Com. ex rel. Bandi v. Ashe, 367 Pa. 234 (1951); Marvin v. Monroe County, 154 Pa. Superior Ct. 75, 78 (1944)." See also, Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, 76 A.2d 210 (1950).

Refusal of Motion To Quash the Indictments

On the very same day he was arrested, Lopinson was indicted by a grand jury which had already been in session for a two-week period. Lopinson had no prior notice of the presentment of the bills to the grand jury, and it is argued he was completely denied the opportunity of investigating and challenging any member of the grand jury for cause or of challenging the array. A pretrial motion to quash the indictments on this ground was overruled below after hearing.

If Lopinson were denied all opportunity of entering a proper challenge to the grand jury or a member thereof, this would constitute a denial of due process of law and the indictments should have been quashed. See Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966). But such is not so.

As of the date Lopinson was indicted (July 15, 1964) under Pennsylvania law then controlling, a challenge to the grand jury could be entered either before or after an indictment was returned; the only time

[ 427 Pa. Page 293]

    limitation was that it be entered before the plea in court. See Commonwealth v. Weiner, 101 Pa. Superior Ct. 295 (1930); Commonwealth v. Magid & Dickstein, 91 Pa. Superior Ct. 513 (1927); and, 17 P.L.E., Grand Jury ยง 4. However, when such a challenge was entered, the burden was upon the complaining party to establish the facts to support the challenge. See Commonwealth v. Williams, 149 Pa. 54, 24 A. 158 (1892); Rolland v. Commonwealth, 82 Pa. 306, 22 Am. Rep. 758 (1876); Commonwealth v. Haines, 57 Pa. Superior Ct. 616 (1914); and, Commonwealth v. Carlucci, 48 Pa. Superior Ct. 72 (1911).

When Lopinson filed the motion to quash the indictments here, the lower court fixed a time for hearing and afforded him the opportunity of producing any pertinent fact desired. Nothing was produced to show that the grand jury was illegally impaneled, or any member thereof was unqualified to sit. Hence, Lopinson was given full opportunity to enter a proper challenge to the grand jury, but since he failed to meet his burden of proof the challenge and the motion to quash were properly overruled.

Commonwealth v. Dessus, supra, relied upon by Lopinson is inapposite. Dessus was indicted after the effective date (January 1, 1965) of Rule 203 of the Pennsylvania Rules of Criminal Procedure, and was, therefore, subject thereto. Under this Rule, a challenge to the grand jury must be made "before the [grand] jurors are sworn unless opportunity did not exist prior thereto; in any event a challenge must be made before the bill of indictment is submitted to the grand jury. . . ." (Emphasis added.) Since Dessus was arrested and indicted on the same day and could not under Rule 203, then controlling, enter a challenge after the indictment was returned, he was completely and effectively deprived of his rights in this regard. Again, this is not the case here.

[ 427 Pa. Page 294]

Refusal To Grant a Continuance

Because of the nature of the crimes and the surrounding circumstances, the case provoked extensive publicity in the Philadelphia newspapers immediately following the occurrence, when the arrests were made, and at the time of trial. Pretrial and during the period of voir dire examination of the prospective jurors, Lopinson moved the court for a continuance on the ground that the extent and nature of the publicity rendered it impossible to secure a jury in the case free from bias and prejudice. These motions were overruled.

There can be no question but that Lopinson was entitled to be tried by a tribunal free from prejudice, passion and bias: Sheppard v. Maxwell, 384 U.S. 333 (1966); and Chambers v. Florida, 309 U.S. 227 (1940). In short, he was entitled to a fair trial and this required that the jury's conclusions be induced only by evidence and argument in open court and not by outside influences. See Patterson v. Colorado, 205 U.S. 454 (1907).

While there is no claim made here that any particular petit juror was biased, it is urged that, in view of the publicity, any jury selected in Philadelphia at the time must be held to be presumptively biased. Of course, if Lopinson did in fact receive a fair trial by an impartial jury, this contention is devoid of merit. See ...


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