Appeals from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1966, Nos. 190-93, inclusive, in case of Commonwealth of Pennsylvania v. John Sullivan.
A. Charles Peruto, for appellant.
J. Bruce McKissock and Carl B. Feldbaum, 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, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Chief Justice Bell and Mr. Justice Eagen would reverse the judgment and discharge the appellant for the reason that there is insufficient evidence to support the conviction. Mr. Justice Cohen took no part in the decision of this case. Opinion in Support of Order by Mr. Justice Pomeroy. Mr. Justice Jones and Mr. Justice O'Brien join. Opinion by Mr. Justice Roberts in Support of Reversal of the Order.
Judgment of sentence is affirmed by an evenly divided Court.
Judgment of sentence affirmed by an evenly divided court.
Opinion in Support of Order by Mr. Justice Pomeroy:
Defendant-appellant Sullivan was convicted of first degree murder and sentenced by the Philadelphia Common Pleas Court, Criminal Division, to life imprisonment for the slaying of two persons, John Gorey and Rita Janda. The case is before this Court by way of appeal from the denial of motions in arrest of judgment and for a new trial.*fn1
We adopt the lower court's statement of the facts as an accurate and adequate summary as follows:
"John Gorey, a union official of Teamster's Union, Local 107, and his girl friend, Rita Janda, were the victims of an assassination-type homicide carried out in Gorey's office on the second floor of the local's union hall and office building in Philadelphia, Pennsylvania, on the evening of June 17, 1966. Two firearms were used in killing each of the victims, and shots from both weapons were found in each of the bodies. The weapons were never found. No felony other than the homicides was involved, and there were no witnesses to the killing, so that the Commonwealth's case was basically presented and predicated upon circumstantial evidence.
". . . All of the circumstances considered by the jury and described by the witnesses covered a short period, roughly between 5:55 p.m. and 7:13 p.m., on the evening of the killing. The defendant offered no evidence, so that the testimony presented by the Commonwealth was submitted to the jury without contradiction.
"The Commonwealth's principal witness, Francis McGrath, a member of the local, had been employed by the union as janitor in the building involved at the time of the homicides, and had held official positions in the union in the past. McGrath testified that he arrived on the premises at about 5:55 p.m., at which time the building's parking lot was vacant except for two automobiles; the defendant's and that of another member of the union, Gregory Carchidi, who was also employed by the local as a janitor. The defendant, Sullivan, an official of Local 107, was then sitting at a desk beside a window in the second story office of another union official. From the window Sullivan had a view
of the parking lot, and his position at the window was maintained while McGrath entered the building, went up to that office on the second floor and began his janitorial work there. The switchboard for the telephone lines had been arranged for the night so that the line listed and used for incoming calls having to do with regular union business was plugged in to ring the extension telephone in the room where Sullivan was sitting. Another line with a different call number had been set up by the switchboard operator to ring in Gorey's room, by prearrangement with Gorey's knowledge, so that Joseph Vernick, who wished to speak with Gorey, could reach him by calling that number after 7 p.m. that evening. As McGrath started his cleaning work, Sullivan asked him why he was cleaning the building on this night, which was a Friday, and suggested that he wait until Sunday night to do the cleaning, pointing out that a union meeting was scheduled for Sunday during the daytime, so that the place would require cleaning after that meeting. The victims, Gorey and Janda, arrived between 6:10 and 6:15 p.m., and went to Gorey's office on the second floor. The witness continued emptying trash baskets and working his way from one room to the next around the second story, going from the office in which Sullivan was sitting to the conference room which was next, but for an areaway, to the office in which the victims then were.
"While McGrath was in the conference room the following things happened: John Gorey came in and had a conversation (which is not relevant), and left. 'In a matter of seconds, a half a minute' after Gorey left the conference room, Sullivan entered and said again, 'Why don't you let it go until after the meeting', speaking of the cleaning work that McGrath was doing. There followed a conversation with Sullivan about something that John Gorey had said, during which
Carchidi came into the conference room at a time estimated to be a matter of a minute or two after Sullivan had made his entrance.
"Upon Carchidi's entrance no greetings were exchanged between him and Sullivan. In fact, neither of them made any comment to the other. Instead, Carchidi spoke directly to McGrath, stating in Sullivan's presence just about what Sullivan had just said: '. . . leave the cleaning go until Sunday after the meeting.' Sullivan then left the conference room. McGrath testified that Sullivan's departure was 'from three to five minutes, approximately', after Gorey had left; that he then continued his cleaning, and that Carchidi 'reminded me again to let the cleaning go until after Sunday.' It was at this point that McGrath heard 'what I believed to be firecrackers . . . I heard a lot of noise, loud reports, which I thought were firecrackers . . . just like I said, Your Honor, it was a bunch of noises simultaneously. Don't know how to say the word, but if you light a whole pack of firecrackers and throw them on the floor and they would go off one right after another.' In this charged atmosphere McGrath turned to Carchidi who was seated in the chair behind him and exclaimed, 'What was that?' Whereupon Carchidi stated, 'Get out of the building and don't say nothing'. McGrath got out of the building and noticed that the cars that had been on the parking lot previously, Gorey's, Sullivan's and Carchidi's, were still there, but at this time there was another car also on the lot. McGrath fixed the time of his departure as between 7:05 and 7:15 p.m. He testified that, because of his hasty departure, doors to the rooms on the second floor where he had been working had been left open and the lights were left on when he left the building. He returned 15 to 20 minutes later and observed that the automobiles
of Sullivan and Carchidi, and the third car, had vacated the parking lot, leaving only the automobile of John Gorey; in addition, all of the doors inside the building had been closed, and all of the lights had been turned off. The door to the conference room which had been left open was now closed and locked.
"Other witnesses gave testimony which served to add important threads and details in the fabric of circumstantial evidence. For example, when Irene Glenn telephoned, dialing in on the principal telephone line of the union (which line, as previously noted had been set up to ring at the desk where Sullivan was then sitting), the call was answered by one who stated that he was Gorey. Her recollection was that this recipient of her call gave his name as 'Bill' Gorey; and, while she was not sure which first name he gave, she was quite positive that the last name given was 'Gorey'. It was uncontested that Sullivan had written her name and telephone number on a certain yellow sheet of paper which was found in the waste basket in that office. Coupled with this was the fact that her call was at 6:15 p.m., just shortly after the victims had arrived.
"Joseph Vernick, trying to reach Gorey, made his call to the number which was given to him by the union's telephone switchboard operator, Esther Snyder. She testified that she had plugged this line into Gorey's office with his knowledge, so that, presumably, he was expecting the call which remained unanswered that evening, apparently after his and Rita Janda's deaths. Vernick rang through on this line to Gorey's telephone several times, receiving no answer, over a period from 7:15 to 8:15 p.m."
We move now to a discussion of appellant's principal contentions of error in the dismissal of his post trial motions.
I. Denial of Pre-Trial Rights
Four and one-half months after the killings, a Medical Examiner's Inquest was held to inquire into the circumstances surrounding the deaths of Gorey and Janda. Sullivan was subpoenaed and was present throughout, with counsel; he declined the opportunity to testify. The Medical Examiner determined that death was caused by gunshot wounds and that the manner of death was unlawful homicide. He held Sullivan, together with Carchidi and DiPasquale, without bail for the grand jury on the charge of murder and conspiracy. The three men were indicted for murder, and motions to quash the indictments were denied. They were tried separately, and this appeal concerns Sullivan's case only.*fn2
A. Sullivan claims that the initiation of this case by the vehicle of the Medical Examiner's hearing was contrary to Rules 102 and 116 of the Pennsylvania Rules of Criminal Procedure as they existed at the time of the initiation of this proceeding. Rule 102 declared that "except as otherwise provided in these rules, all proceedings shall be initiated by a written complaint, sworn to or affirmed, and subscribed by an affiant." Rule 116 mandated that an accused receive a preliminary arraignment and a preliminary hearing.*fn3
In 1967, in Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), this Court decided that the holding over of an accused ...