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decided: November 11, 1969.


Appeal from order of Court of Oyer and Terminer of Bucks County, Dec. T., 1950, No. 55, in case of Commonwealth v. Harry Walter Chapasco.


I. Leonard Hoffman, and Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellant.

Stephen B. Harris, Assistant District Attorney, and Ward F. Clark, District Attorney, for Commonwealth, appellee.

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

Author: Pomeroy

[ 436 Pa. Page 145]

In 1950 Harry Walter Chapasco, appellant herein, was jointly indicted with Martin Joseph Pearson and Walter John Lowry for the unlawful killing of one David Sklar during the perpetration of an armed robbery. Each of the defendants was separately tried. Each was convicted of murder in the first degree and sentenced to life imprisonment. Chapasco was convicted by a jury on June 13, 1951; in rendering its verdict the jury fixed the sentence at life imprisonment and recommended that parole should never be considered. Judgment of sentence to that effect was entered on June 18, 1951.

On July 26, 1967, Chapasco filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq., in which he alleged that the admission in evidence of his prior criminal record during his 1951 trial constituted a denial of due process. After a hearing, the court below dismissed the petition on March 19, 1968. This appeal followed.

As set forth by the hearing judge (who was also the trial judge) in his opinion dismissing appellant's PCHA petition, the facts of the case are as follows:

"On the night of May 19, 1950, two men were seen prowling in the shadows behind the Safe Food Store in Croydon, Bucks County. They were requested to withdraw from the shadows by the owner of the store, whereupon each pulled his gun, forcing the owner and two other men to line up with their hands against the back of the store. One of the gunmen struck David Sklar, the decedent on the head causing him to fall. The same gunman apparently pulled the trigger of his pistol, which misfired. Thereupon the second gunman shot and killed Sklar. The two gunmen then ran

[ 436 Pa. Page 146]

    around the building to a waiting automobile which, with two passengers, sped toward Philadelphia. One of the three men who was held up behind the store was one Allen Ostroff, who at trial, said that he had a close view of the defendant and identified Chapasco as one of the gunmen. Some hours after the crime, a pistol was found near the site where the gunmen entered the automobile. The cartridge clip in the pistol was found to have a thumbprint, which thumbprint was identified at trial as being that of Chapasco. The second gun said to have been involved was later discovered in the home of Chapasco, and a ballistics expert, testifying on behalf of the Commonwealth, stated that the fatal bullet was discharged by the gun so found. After surveillance by the police for a period of time, Chapasco and Pearson were taken into custody by the police for questioning. Pearson made a lengthy written statement describing the events preceding the killing, the killing itself, and the activities of Pearson and Chapasco following the shooting. The confession states that he was the gunman who killed Sklar, that Chapasco was the other gunman and that Chapasco had pulled the trigger of his pistol, which had misfired. He then described in his statement how he and Chapasco went 'up state' and proceeded to burn the wallets which they had taken during the holdup, and then proceeded to take a hotel room in Reading, Pennsylvania. The Commonwealth's witnesses testified that Pearson's statement was read by Chapasco and also read aloud to him by the Assistant District Attorney. Following this, and after conferring with the District Attorney, Chapasco made a brief written statement in which he confirmed all of the acts set forth in the statement of Pearson . . .

"The petitioner repudiated his statement at the time of trial but the statement is not now under attack."

[ 436 Pa. Page 147]

Prior to the adoption of the Split-Verdict Act, Act of December 1, 1959, P. L. 1621, § 1, 18 P.S. § 4701, the Commonwealth was permitted to introduce evidence of a defendant's prior criminal record during its case-in-chief against a defendant on trial for murder. This procedure was sanctioned by this Court in Commonwealth v. Parker, 294 Pa. 144, 143 Atl. 904 (1928), and was followed in numerous cases. Under the so-called Parker rule, prior conviction evidence was not to be considered by the jury either in its determination of the fact of guilt or the degree of guilt. Rather, this evidence of a defendant's past record was admitted only "for the purpose of showing the jury the manner of man he was to aid it in fixing the penalty" in the event he was found guilty of first-degree murder. Commonwealth ex rel. Sprangle v. Maroney, 423 Pa. 589, 593, 225 A.2d 236 (1967). Under the Parker rule, the trial court was required to instruct the jury with care as to the limited relevance of the admitted evidence.

The difficulty of requiring jurors to dismiss a defendant's prior criminal record from their minds when deciding the issue of guilt while permitting them to consider such evidence for some other purpose is clear. Even with careful instructions from the trial court, allowance of such evidence may lead to a confusion of issues. Jurors may be over-persuaded by evidence of past criminal conduct, prejudge a defendant with a bad general record, and deny him a fair opportunity to acquit himself of a particular offense. Indeed, Judge Biggs has called the jurors' need to put knowledge of a defendant's extensive record out of mind while considering his guilt or innocence "a feat of psychological wizardry [which] verges on the impossible even for berobed judges." United States ex rel. Scoleri v. Banmiller, 310 F. 2d 720, 725 (3d Cir. 1962), reh. denied,

[ 436 Pa. Page 148310]

F. 2d 736 (3d Cir. 1962), cert. denied, 374 U.S. 828 (1963). And Judge Learned Hand in a similar case termed the task of jurors instructed to consider evidence for one purpose while disregarding it for another "a mental gymnastic which is beyond, not only their powers, but anybody's else." Nash v. United ...

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