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COMMONWEALTH v. SCATENA (11/27/68)

decided: November 27, 1968.

COMMONWEALTH
v.
SCATENA, APPELLANT



Appeal from order of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, Jan. T., 1958, No. 13, in case of Commonwealth v. Vincent Scatena.

COUNSEL

Malcolm Anderson, with him Griggs, Moreland, Blair & Anderson, for appellant.

Charles B. Watkins, Assistant District Attorney, with him Edwin J. Martin, Assistant District Attorney, and Robert W. Duggan, 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 Musmanno did not participate in the decision of this case. Concurring Opinion by Mr. Justice Roberts.

Author: Bell

[ 432 Pa. Page 537]

On March 15, 1958, Vincent Scatena was convicted by a jury of murder in the first degree. He was subsequently sentenced to a term of life imprisonment. Although no direct appeal was taken from the judgment of sentence, Scatena now seeks a new trial by way of a Post Conviction Hearing Act petition. The petition was denied by Judge Weiss of Allegheny County, who, incidentally, presided at Scatena's trial.

Appellant Scatena's petition is based solely on the ground that he had been deprived of his Constitutional right to a fair trial by prejudicial publicity which existed prior to and during his trial.

Scatena was convicted of the felony murder of Elizabeth Ensinger, an 84-year-old lady. The Commonwealth proved that Scatena planned and made the arrangements, with Frank Zaffina, Michael Popovich, William Garrison and his wife, Ann Garrison, for the burglary of Mrs. Ensinger's home in Pittsburgh. When Zaffina and Popovich entered Mrs. Ensinger's home for the purpose of robbing her, Popovich put his hand over the victim's mouth; she bit him, whereupon he struck and stabbed her, as the result of which she died.*fn*

Scatena was the first of the accomplices to be brought to trial. At this trial both Zaffina and Popovich testified as Commonwealth witnesses. Subsequent to Scatena's conviction, Zaffina and Popovich pleaded guilty to murder, and were then adjudged guilty of murder in the first degree and sentenced to life imprisonment. Ann Garrison, after pleading guilty to murder, was adjudged guilty of murder in the second degree and sentenced to the Industrial Home for

[ 432 Pa. Page 538]

Women at Muncy. William Garrison, who denied his guilt, was tried and convicted of murder in the first degree and sentenced to life imprisonment on March 22, 1958.

The prejudicial pretrial newspaper reporting which Scatena complains of in his petition was as follows:

"(a) The November 22, 1957 issue of the Pittsburgh Press carried this headline, 'Scatena Held in $20,000 Bail'. Under this headline was a news story in which the prosecutor says that Scatena is a very dangerous risk and that ...


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