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COMMONWEALTH v. MOSLEY (07/15/71)

decided: July 15, 1971.

COMMONWEALTH
v.
MOSLEY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of York County, Jan. T., 1970, No. 25, in case of Commonwealth of Pennsylvania v. John Mosley.

COUNSEL

Gerald E. Ruth, Public Defender, for appellant.

J. Patrick Clark, First Assistant District Attorney, with him Harold N. Fitzkee, Jr., District Attorney, for Commonwealth, appellee.

Bell, C. J., Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Chief Justice Bell. Mr. Justice Jones and Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Bell

[ 444 Pa. Page 136]

On April 10, 1970, appellant entered a plea of guilty to murder generally. On June 29, 1970, a hearing was held before one Judge to determine the degree of guilt. The Judge found the appellant guilty of murder in the first degree. On July 13, 1970, appellant, before sentence, requested permission to withdraw his guilty plea, and the next day filed motions for a new trial and in arrest of judgment. A hearing before the Court en banc was held on November 9, 1970, and that Court denied appellant's petition to withdraw his guilty plea and also denied his motions for a new trial and in arrest of judgment. On November 30, 1970, appellant was sentenced to life imprisonment and thereafter took this appeal. At all these proceedings, defendant was represented by counsel.

[ 444 Pa. Page 137]

Appellant alleges four errors. Appellant first contends that under Rule 1115(b) of the Pennsylvania Rules of Criminal Procedure, the trial Judge had a duty to secure two other Judges to sit with him to hear the evidence and determine the degree of guilt. We disagree. The pertinent part of Rule 1115(b) reads as follows: "(b) If, after the presentation of the Commonwealth's evidence, the judge is of the opinion that the case may constitute murder in the first degree, he Page 137} may secure*fn1 the assignment of two other judges of like jurisdiction and power to sit with him to hear the evidence and decide all issues of law and fact." The express language of this rule makes it crystal clear that the trial Judge can, at his discretion, impanel two other Judges to sit with him and decide all issues, including the degree of guilt and sentence. There is nothing in the wording of the rule which mandatorily requires a three-Judge panel. As this Court recently stated in Commonwealth ex rel. Duncan v. Rundle, 424 Pa. 385, 227 A.2d 659 (pages 388-389): "Appellant's next contention, viz., that his conviction of murder in the first degree is invalid because the determination as to the degree of guilt was made by one Judge rather than by a three-Judge Court, is likewise devoid of merit. There is no Constitutional or statutory or decisional requirement of a three-Judge Court in such circumstances, although a local rule of Court requires a three-Judge Court in Philadelphia. Commonwealth v. Cater, 402 Pa. 48, 166 A.2d 44, cert. denied, 366 U.S. 914.

"In Commonwealth v. Cater, the Court said (page 53): 'In the absence of such a rule, a single judge can receive a plea of guilty of murder, fix the degree and impose sentence: Commonwealth v. Shawell, 325 Pa. 497, 191 A. 17; Commonwealth v. Garramone, 307 Pa. 507, 161 A. 733. The requirement for a three-judge court is imposed by a local rule of court in Philadelphia County; there is no constitutional*fn2 requirement of a three-judge court in such circumstances.' Accord: Commonwealth ex rel. Rook v. Myers, 402 Pa. 202, 167 A.2d 274 (Per Curiam); Commonwealth ex rel. Pickwell v. Burke, 372 Pa. 450, 93 A.2d 482 (Per Curiam), cert. denied, 345 U.S. 958; Commonwealth v. Shawell, 325 Pa. 497, 191 Atl. 17; Commonwealth v. Garramone, 307 Pa. 507, 161 Atl. 733."

[ 444 Pa. Page 138]

Although all the foregoing cases were decided prior to the effective date of Rule 1115, on August 1, 1968, the rule does not change the principles or the law set forth in the aforesaid cases.

Appellant's second contention is that the first degree murder verdict was against the weight of the evidence and contrary to law.

As the Court said in Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (page 91): "'However, under the decisions of this Court, a plea of guilty to an indictment for murder constitutes or amounts to an admission of the crime of murder in at least the second degree, and therefore the burden is upon the Commonwealth, if it believes the crime amounted to murder in the first degree, to produce testimony legally sufficient to raise the crime to first degree. Commonwealth v. Kurus, 371 Pa. 633, 637, 92 A.2d 196; Commonwealth v. Samuel Jones, 355 Pa. 522, 525, 50 A.2d 317.'" Accord: Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699; Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561; Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852. The evidence offered by the Commonwealth at the degree-of-guilt hearing established that appellant was living with the deceased victim, Ruth Drayden. Earlier in the day of the killing, appellant and Ruth went shopping, had a couple of drinks and returned home. At home, appellant watched television and drank vodka and orange juice with Ruth and her son Cyrus. A dispute arose between Ruth and the appellant over a pack of cigarettes and Ruth slapped the appellant. Appellant thereupon said that ...


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