Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1958, No. 1323, in case of Commonwealth of Pennsylvania v. Jack R. Myers.
Dante Mattioni, for appellant.
Martin H. Belsky and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice O'Brien.
On February 5, 1958, appellant, Jack R. Myers, beat his former employer, Edward Scheel, and took approximately eight dollars from him. A few days later, Edward Scheel died, and appellant was indicted for murder. On January 22, 1959, appellant, while represented by his two court-appointed attorneys, pleaded guilty to
murder generally. A three-judge court, after hearing testimony, found appellant guilty of first-degree murder, and sentenced him to life imprisonment. No appeal from the judgment of sentence was taken.
On March 28, 1968, appellant filed a petition under the Post Conviction Hearing Act, alleging, inter alia, that his plea of guilty was involuntary, that he was represented by incompetent counsel, and that an unconstitutionally obtained confession was used at his degree-of-guilt hearing. After an evidentiary hearing, appellant's petition was denied. This appeal followed.
In challenging a finding of guilty of first-degree murder, appellant emphasizes his contention that he believed that his victim, Mr. Scheel, owed him money from the time, ending three weeks prior to the night of the beating, when appellant worked for Mr. Scheel. He also emphasizes the court's finding that the assault by appellant, which was entirely by fist, would ordinarily not have resulted in death. From these facts, appellant concludes that the homicide was not a first-degree murder, unless it was a felony murder, committed in the perpetration of a robbery, and, since appellant believed he was owed money by the victim, he had no intent to rob. Unfortunately for appellant, two witnesses testified at trial that appellant had admitted to them that he beat Mr. Scheel and took money, and appellant had also made a statement to the police which included the following details of his confrontation with Mr. Scheel: "He walked over towards the door and opened the door for me to leave. Then I hit him behind the head with my fist. When he was going down to the floor, I hit him about three times more with my fist, then I kicked him once on the leg. Then I went in his right trouser pocket and took his money, which was eight dollars. . . . Q. When did you first have the thought to hit Ed? A. When I was ready to leave. I didn't have no intentions
of doing it. Q. Why did you hit Ed? A. I don't know. When I was ready to leave, my mind kept on saying go on, hit him, and no, no, don't hit him. And then my hand just hit him, and for the names he called me. Q. Why do you think your mind kept telling you to hit Ed? A. Because of the names he called me. Q. Did he call you names on that night? A. Yes, he did, and when I first started to work there. He called me a bastard and a son-of-a-bitch that night and the first night I started working there because I didn't know too much about it. Q. What caused him to call you these names that night, Wednesday, February 5, 1958? A. After I came out of the men's room, we started a conversation about him selling the place. So then we got into the subject of robbery and burglaries going on. Then I said to him I wouldn't do nothing like that to him, and he said, 'You're a lying bastard.' . . . Q. When did you first get the idea to take Ed's money? A. I didn't have no intention of taking his money, but I did it. Q. When you only had, as you stated, intentions of hitting Ed for calling you names, why did you take his money? A. I had money. I didn't need no money. I had five dollars. I saved it when I was working there."
Apparently, the court believed the confession and not his testimony at trial, which went as follows: "Q. How did this argument with Mr. Scheel start? A. About money. Q. What about money? A. He owed me money for working there. Q. What did you say to him? What did he say to you? A. I asked Mr. Scheel if I could have my money, and he said no. And he started arguing and called me all kinds of names, said, 'Your mother must be a pig,' and all that. I said, 'Are you going to give me my money or ain't you?' And he said, 'No.' I was ...