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decided: May 9, 1969.


Appeal from judgment of Court of Oyer and Terminer of Dauphin County, Sept. T., 1966, No. 2, in case of Commonwealth v. Leon Ernest Rightnour.


William H. Nast, Jr., with him Carl B. Stoner, Jr., for appellant.

Jerome T. Foerster, Assistant District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell in Support of Affirmance. Justice Eagen and Mr. Justice O'Brien join in this opinion. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Jones joins in this dissent.

Author: Per Curiam

[ 435 Pa. Page 107]

The Court being equally divided, the judgment of sentence is affirmed.


Judgment affirmed.

Opinion by Mr. Chief Justice Bell in Support of Affirmance, May 9, 1969:

Defendant-appellant was convicted of murder in the first degree and sentenced to life imprisonment. On this appeal he raises three questions which will be discussed after a brief summary of the facts, considering as we must, the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth: Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301; Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728.

Defendant killed his wife in their apartment on Boas Street in Harrisburg, either after dinner on May 13th or in the early morning hours on May 14th, 1966. They had been having marital trouble for several years, each blaming it on the other. Defendant left their home and went to Phoenix, Arizona, to obtain employment. While in Phoenix, he heard that his wife had sought to have him arrested for desertion. As soon as he could borrow sufficient funds, he returned to Harrisburg,

[ 435 Pa. Page 108]

    and for the next several weeks attempted a reconciliation.

On the night of the murder, defendant went to his wife's apartment. They had dinner together, which she prepared, discussed their marital problems, and agreed upon a reconciliation. Then they went to bed and had sexual intercourse. After that, she got up and got some soft drinks. Upon her return, she asked defendant for some money and he gave her $40, which she took and hid. She then returned to their bed, whereupon, according to defendant's testimony, he "went wild." He reached for a screwdriver which was on a night stand next to their bed and admitted that he stabbed her three times with the screwdriver -- once in the lung, once near her rib, and one superficial wound. When she was dying she said, "Leon, I love you." He testified that he could not recall when she said that, or whether "it could have been my own mind telling me this." Although her death was caused by strangulation and not by the stabbing, defendant testified that he does not remember strangling his wife at all.*fn1

The next thing defendant remembered after picking up the screwdriver was standing in the hallway and seeing his wife lying dead on the bed. He then wrote a note saying he loved her and cut his arms in three places. He testified that he then returned to their bed and hugged his dead wife.

He next recalls standing in the rain at the corner of Third and Foster Streets, Harrisburg. He hailed a cab which took him to the home of Mr. Archie Moore,

[ 435 Pa. Page 109]

    his minister, who lived in Middletown, Pennsylvania. He arrived at his minister's home at approximately 4:30 A.M. on May 14, 1966 and told Mr. Moore that he had killed his wife, whereupon Mr. Moore called the police.

Defendant further testified at his trial that he loved his wife very much and did not intend to kill her.

Patricia A. Metz, a witness for the Commonwealth, testified that in February, 1965, defendant told her "One of these days I am going to kill her [the victim], I am going to kill her." She further testified that approximately two to four weeks before the killing defendant said to her, "Pat, . . . I am going to get rid of her and make her so that no other guy would ever want her."

Mrs. Marie Weber, who is the victim's aunt, and who had raised her from childhood, testified that defendant made threats to kill his wife just a month before the killing. She further testified that the defendant, who was living at her home in Phoenix in Arizona, stated "If he didn't get the money from his wife, he said he was going back east and kill her." Mrs. Weber and her husband then took defendant to the Catholic Church in Phoenix to attempt to obtain money for him to return to Harrisburg. When defendant was not able to obtain the money from the Catholic Church, ". . . then he said 'I'm going back east to kill my wife. I'm going back and finish her off.'"

Defendant contends that all this evidence was insufficient to support a verdict of first-degree murder. Of course, this contention is ridiculous.

Defendant's two other contentions are that the trial Judge committed reversible error when he (1) sustained three challenges for cause made by the Assistant District Attorney and (2) refused to permit a psychiatrist

[ 435 Pa. Page 110]

    to testify as to defendant's state of mind at the time of the victim's death.

Challenges for Cause

A jury of 63 prospective jurors and nine prospective alternate jurors was impaneled for this case. Appellant contends that a new trial should be granted because the trial Judge improperly exercised or abused his discretion in sustaining the District Attorney's challenges of three prospective jurors for cause. The Court has a wide discretion in such cases, which will be reversed only for palpable abuse or error of law. Commonwealth v. Gelfi, 282 Pa. 434, 438, 128 Atl. 77; Commonwealth v. McGrew, 375 Pa. 518, 526, 100 A.2d 467; Commonwealth v. Pasco, 332 Pa. 439, 445, 2 A.2d 736; Commonwealth v. Fletcher, 387 Pa. 602, 611, 128 A.2d 897; Commonwealth v. Bentley, 287 Pa. 539, 135 Atl. 310; Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 140, 149 A.2d 434.

Elizabeth Wagner's examination on her voir dire covered six pages of the notes of testimony. The trial Court stated: "Well, she has twice indicated that she would not vote for a death penalty under any circumstances. . . . The sum total of her testimony on that point doesn't convince me that she would vote for the death penalty if the circumstances justified it. I sustain the challenge for cause."

The Commonwealth's challenge of Mrs. Gornick for cause was likewise sustained by the Court. Mrs. Gornick pertinently said: "Well, as I said, my religion does state that I should not take another man's life and, therefore, I do not think that I would vote for the death penalty."

The Commonwealth's challenge of Mrs. Graeff was likewise sustained for cause. Defendant's attorney

[ 435 Pa. Page 111]

    asked: "Q. Mrs. Graeff, do I understand that you, in response to Mr. Schaffner's questions, indicated that you could not render a death verdict even if the circumstances warranted it, in any case? Is that what your answer is? A. I believe that's what my answer would be."

Until a few months ago, the law was well settled both in this Court and in the Supreme Court of the United States that a juror could be challenged for cause if he has conscientious scruples or religious beliefs which would prevent him from returning the death penalty or if he has a fixed opinion about the case and the defendant's guilt. Commonwealth v. Lopinson, 427 Pa. 284, 296, 234 A.2d 552; Commonwealth v. Bentley, 287 Pa., supra; Commonwealth v. Gelfi, 282 Pa., supra; Commonwealth v. Pasco, 332 Pa., supra; Logan v. United States, 144 U.S. 263, 298. However, appellant relies upon Witherspoon v. Illinois, 391 U.S. 510, and Bumper v. North Carolina, 391 U.S. 543, which drastically changed the long established law concerning the test for challenges for cause and limited it to cases where a juror had a fixed opinion against the death penalty.

In Witherspoon v. Illinois, the Court held (pages 522-523): "Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No ...

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