Appeal from judgment of Court of Oyer and Terminer of Cambria County, Sept. T., 1966, No. 10, in case of Commonwealth v. Theodore Austin Swanson.
James R. DiFrancesco, with him DiFrancesco & DiFrancesco, for appellant.
Ferdinand F. Bionaz, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones concurs in the result. Mr. Justice Musmanno did not participate in the decision of this case.
This is an appeal from a Judgment of sentence entered after the Court had denied defendant's motion for a new trial.
In December 1966, defendant was convicted by a jury of first degree murder. The jury then fixed the penalty at life imprisonment.
Ronald Webb, the only witness to the killing, testified for the Commonwealth. Defendant had been involved with Webb and Robert David Herdman, the victim, in several burglaries in or near the city of Johnstown. Webb testified that on March 10, 1966, he and the defendant were in the latter's automobile waiting for Herdman to come out of the Utopian Club in Johnstown. When Herdman left the club they followed his car and both cars finally stopped in the Coopersdale area. Defendant and Webb left defendant's automobile and got into Herdman's automobile. Webb got in the front seat on the passenger side and defendant got into the rear seat with Herdman remaining behind the wheel. Defendant accused Herdman of informing the police about certain burglaries, but Herdman denied this and accused Webb of being the informer. Webb said he became drowsy but was wakened by a shot and looked at defendant, who had in his possession a .38 automatic pistol which defendant said he purchased from his father-in-law. Webb testified he saw Herdman's head fall and that defendant then said he was sick of Herdman's lies. Defendant then told Webb to drive the car, which Webb did after pushing the victim's body over to the right side of the front seat. At defendant's direction, Webb drove out Cooper Avenue and along the Cramer Pike. They then turned and started back towards Johnstown, stopped on the berm of the highway, pulled the victim's body out of the automobile and pushed it down over a bank. The following day, defendant telephoned Webb, telling him that he had disposed of the gun. Later, while defendant and Webb were in the Allegheny County Jail, defendant told Webb that he had thrown the gun in the
Windber area on the road to the Peacock Mine and that after this he had asked his mother to locate the gun, which his parents unsuccessfully attempted to do. The Commonwealth produced a State Forester who testified that he saw defendant's parents raking over leaves in that area. Defendant's father-in-law testified that he owned a .38 automatic pistol, that he saw it in his own home a month or two before defendant was arrested, and that he had not given or sold it to defendant, although the latter had offered to buy it.
On March 17, 1966, defendant and Webb committed an armed robbery at the St. Michael Branch of the United States National Bank in Johnstown. They were apprehended the same day and later both pleaded guilty.
Defendant's first contention is that the trial Court erred in failing to grant a change of venue, and his second contention is that a new trial should be ...