Commonwealth v. Scoleri

Dissenting Opinion by

Me. Justice Musmanno :

The jury in this case found the defendant guilty of murder in the first degree and fixed the penalty at death. The defendant has appealed, alleging trial errors.

During the trial, the question arose as to whether the defendant was physically and mentally able to understand what was transpiring in the courtroom at the time. Instead of resolving this question with the scientific impartiality of a thermometer lowered into water to ascertain its temperature, the judge became impatient and ruled in a manner which suggested that his decision was being guided by anger rather than by cool intellectual processes.

The facts are as follows. In the early morning of November 24, 1958, being the seventh day of the trial, the defendant Anthony Scoleri was discovered by a prison guard to be suffering from many lacerations to his arm, apparently self-inflicted. Surgical attention was required and 24 stitches closed the wounds. In order to prevent infection he was given 600,000 units of penicillin and so as to induce sedation there were administered to him 100 milligrams of thorazine.

The trial judge, learning of what had happened, ordered the day’s session to begin at 2 p.m., but at that hour the police surgeon, Dr. Carideo, reported that the defendant was still suffering from the effects of the medication to which he had been subjected and that intermittently he lapsed into drowsiness. The judge, who *138 had watched the doctor as he examined the defendant, made his own medical observations:

“The Court: Doctor, I noticed you were talking to him and he made no response, and then you asked him to take a deep breath. What was it you put up to him?

Dr. Carideo: Aromatic spirits.

The Court: Which he fought, and he threw his head violently to the right and left, and when his head was held and he. was restrained, you forced him to smell it, and he did take á deep breath, and then a moment thereafter you asked him how he felt and he answered, ‘All right.’ ”

The judge postponed proceedings until 7:30 that evening. At that hour the trial was resumed. Four at-, tendants carried Scoleri into the courtroom on a collapsible stretcher which was placed on the floor. With the defendant prostrate on the floor the trial proceeded until 9:15 when the police surgeon examined him and reported to the court that his condition was “better” and that “he is more responsive to stimuli and beginning to speak spontaneously.” Also, that “his condition is essentially normal otherwise; his pressure, respiration and pulse are all normal.”

The fact that the doctor used comparatives, namely, that the defendant was “more” responsive to stimuli, plainly denotes that he had not been completely responsive to stimuli prior to that time. The fact that the doctor said that the defendant was “beginning to speak spontaneously” clearly implies that from 7:30 until 9:15 he could not speak spontaneously and therefore could not communicate with his attorney while evidence was being presented in his case. The fact that the doctor used the word “otherwise” indicates that Scoleri could have been lacking complete awareness. The doctor emphasized this concept when, in answer to the judge’s question as to whether the defendant was *139 capable of understanding, the doctor replied: “More so than he was possibly five hours ago.”

“More so” speaks for itself.

Thus, there can be no doubt that some time during the previous five hours, one hour and forty-five minutes of which transpired in the active courtroom, the defendant lacked complete understanding of what was transpiring and was therefore unable to confront the exigencies and demands of the trial.

, At 2 p.m., the judge had himself admitted that the defendant was incapable of understanding everything. The record shows the following colloquy between the judge and Dr. Carideo at the time:

“The Court: In view of that, the Doctor thinks he is still under enough of this sedation or tranquilizer—

Dr. Carideo : Tranquilizer, that is correct, sir.

The Court: —to make him capable of understanding what goes on, but perhaps not understand everything. , Is that correct, Doctor? , .

Dr. Carideo : That is correct, sir.”

However, all this is merely prelude to the serious happenings which occurred later. At 10:20 p.m., Mr. McClain, one of defense counsel, made the categorical statement that the defendant’s condition was such that it was impossible for counsel and co-counsel to talk to him. These are Mr. McClain’s words: “If the Court please, I object to any rebuttal being produced by the Commonwealth in the present condition of this defendant. Neither my colleague, Mr. King, nor myself are able to consult with him or talk to him about the evidence which is now to be offered. Therefore, I object to any further testimony on behalf of the Commonwealth until he is able to consult with his counsel.”

The judge, however, instead of having the doctor (who was present and prepared to give service) resolve *140 the problem by examining the defendant, chose to enter into a wordy one-sided debate about the matter. The judge said: “I have been advised before we brought him in that he was able to consult. I have been advised by the doctors. A doctor is here in attendance, and he has stated that since that time he is better able than he was five hours ago, which antedated the time we started this session by two hours, and you notice this, he asked for water, and he asked for a blanket, and inasmuch as some of the testimony has been taken within his presence and within his hearing, I do not propose to have this case interrupted any longer. Your objection is overruled.”

The fact that the doctor told the judge that the defendant was “better able than he Avas five hours ago” certainly cannot be accepted as evidence as to what his present condition was. A fever patient who has a temperature of 104% degrees at 5 o’clock and a temperature of 104 at 10 o’clock is certainly better off than he Avas before, but not very much.

After his objection had been overruled, defendant’s counsel asked to be heard on the matter. He pointed out that the advice referred to by the judge came from a police surgeon and that he wished to have the privilege of calling in a physician of his own selection to examine the defendant. Instead of passing upon this reasonable request, the judge took counsel to task. He said that he had given defense counsel an opportunity to get a doctor. The defense counsel replied: “We have had no opportunity to consult the doctor.”

The judge then censured defense counsel: “You had opportunity all day. I gave you that opportunity all day long to do that, and you haven’t done it, and now at this time, twenty minutes past ten at night, after this jury has been held up all day with nothing to do, you come in and ask for that. Objection OArerruled.”

*141 This lecture by the judge turned a serious murder trial into a checker game. Whether defense counsel did or did not find an opportunity to obtain a doctor during the day was entirely irrelevant to the issue the judge should have decided, namely: Was the defendant in condition to go on with the trial at that time? Defense counsel could have been a hundred per cent improvident in attending to his duties, but such improvidence should not become a yoke to fasten on the defendant. You may not hang an accused because of the fault of the attorney, assuming that there was fault, which certainly does not appear in this case.

The judge here was unreasonable in more ways than one. The crisis occurred at night, not during the day. Examining the defendant in the daytime would not determine whether he was to be unconscious at 10:20 p.m. You can’t set the bone of a man’s leg before it is broken. Many doctors could have found Scoleri well throughout the entire day, and he could still have collapsed at 10:20 p.m.

I repeat that the only issue before the judge was whether Anthony Scoleri was mentally aware of what was taking place, whether he was able to consult with his attorney, and whether he was mentally able to grasp the evidence moving him toward his death. This issue the judge refused to meet and, in that refusal, he denied the defendant due process.

As far as the history of the case shows, the defendant at this point could have been entirely unconscious. He lay on the floor like a stray dog that had slipped by the guard at the door and was either dazed by what was happening around him or did not move for fear he might be kicked out. Regardless of what the defendant’s antecedents may have done, he was still a human being on trial for his life and he was entitled to the solicitude of the judge, who was charged with the responsibility of seeing to it that the accused’s consti *142 tutional- rights were protected. It cannot he pretended that a defendant who is bereft of his senses while evidence is being presented, is receiving a fair trial. .

The judge may have been annoyed because Scoleri’s wounds, had possibly been self-inflicted, but, regardless of the defendant’s actions in that respect or in any respect, the judge should not have allowed his temper to gain an upper hand over the equanimity which is always expected of a judge; A judge, of course, is a human being like everyone else, but when he mounts the bench he must leave behind the frailties and passions which are sheddable. Anger is one of them. A judge may react like any other human being and he would not be a good judge if he did not, but he must control the outer expression of his inner feelings so that his pronouncements will express cold neutrality and not his past experiences as a “fighting district attorney” or as a “battling criminal lawyer;”

No judge should ever be visibly wrought up in the presence of the jury. He should never hurl thunderbolts of -Olympian judgment when there is always the danger that one of them may strike the constitutional rights of the accused. When a judge becomes wrathful on the bench, the fury of his ire may sweep into the jury box and, in consequence, the jury may generate against the target of his rage a resentment which is not kindled from the evidence.

The Majority Opinion argues valiantly to support the position taken by the trial judge in this case, but it is to be noted that it does not controvert, because it cannot, the following grave and momentous fact. Defense counsel, who, of course, is an officer of the court, made the categorical and definitive statement that the defendant was in such condition that he could not consult with his lawyer to discuss the Commonwealth’s evidence aimed at sending him to the electric chair. Neither the Commonwealth nor the judge disproved *143 defense counsel’s statement in this regard. Thus, considering defense counsel’s unimpeachable standing at the bar, his statement must be accepted as true. And this brings us to the horrifying conclusion that the Commonwealth produced evidence against one standing trial on a capital charge during the time that he could not hear, could not understand, and was entirely unaware of what was being said. If this is not a. good reason for a new trial, then no judicial usurpation or lapse is ground for a new trial.

Nor can it be said that the error was a harmless one. The evidence presented by the Commonwealth against the defendant when, according to the undenied statement of defense counsel, the defendant was incapable of comprehending what was taking place, was of an extremely vital character. The defendant, whose defense was that of an alibi, had testified that he could not have been the person seen running from the locale of the crime because an injury had compelled him to walk with a limp.

Whether he walked normally or limped, on or about the day of the crime, became, therefore, a matter of supreme importance in determining identity of the actual criminal. While Scoleri lay unconscious, at the very brink of an eternal judgment, on that crucial night of his trial, the Commonwealth produced a witness, Franklin M. Caraker, parole officer, who testified that two days before, and a day after, the murder, he had seen Scoleri walking and had detected no limp or abnormality in his stride. Another witness, John Santarpio, also testified in behalf of the prosecution. The testimony of both witnesses covers 36 pages in the trial transcript and consumed about thirty minutes, during which time the defendant lay inertly on the floor like a log.

The trial judge could easily have cut the Gordian knot of indecision, indefiniteness, and ambiguity at *144 10:20 p.m., by simply having the doctor examine Scoleri on the spot. Why didn’t he do this? If Dr. Carideo had examined Scoleri then and had found that the defendant was malingering, as the judge evidently assumed he was, he could have so stated. Instead, however, of requesting and obtaining reliable medical revelation, the judge embarked on a course of disputation, fault-finding, and uncalled-for berating of defense counsel.

And then there was another pass out of the canyon of controversy as to the defendant’s physical condition. The judge could have adjourned court. As stated, it was already 10:20. There was no urgency for driving toward midnight. There is always the possibility and even probability, and certainly at least the hope, that with the passing of the dark hours the perplexities which defy present solution will be considerably simplified after rest and sleep. The dawn often reveals in the dust at our feet the key for which we gropingly and vainly searched during the blackness of the night.

The judge compounded the contretemps of the night of November 24th when he came to his charge. He said to the jury: “Before we start, I want you to know that under professional medical advice this defendant’s trial continued, notwithstanding what you have witnessed here in the courtroom. The professional medical advice was that he was competent to hear everything intelligently, his pulse was normal, there was no high blood pressure, no distress, and there Avas no medical reason for this particular condition, an obvious condition, and the physicians say there was nothing wrong with him whatsoever. Had it been that he Avas incapable of hearing what was going on here, Ave could not have proceeded. We would have just had to continue the case. We continued it for one day, as you knoAV.”

The judge had acted somewhat as a medical assistant when he stood by as Dr. Carideo examined the de *145 fendant during the day of November 24th. Now he acted more or less as a witness. He told the jury that the “professional medical advice was that he was competent to hear everything intelligently.” This is the judge testifying, because no one else said that the defendant could “hear everything intelligently.” And to say that there was “nothing wrong with him whatsoever” was gross exaggeration. A man who within the previous twelve hours had to have surgical attention to the extent of 24 stitches in his arm and who was fed 100 milligrams of thorazine to tranquilize him, could scarcely qualify as the perfectly healthy man the Government is seeking as the first passenger to travel through space to the farflung planets.

The judge said that if Scoleri had been “incapable of hearing,” he would have continued the case. How did he know that Scoleri was not incapable of hearing? He conducted no test for hearing. The record reveals that during the period involved the defendant was mute. Whether he heard or not during this time is something the judge could not possibly be certain about.

It might be relevant to observe that at least one person, impartial and coldly neutral in the proceedings, believed that Scoleri could not hear. Burton A. Chardak of the Philadelphia Bulletin wrote of the session of the morning of November 25, 1958, as follows: “Scoleri, feet dragging, eyes closed, was ' carried into court at 10:20 a.m. by court officers. He didn’t seem to hear as he was admonished to keep his head up.

“At one point in the Commonwealth rebuttal testimony, the defendant slumped down in his seat. His head fell to one side. It seemed he would have fallen had not a court officer caught him.

“Dr. Louis Carideo, one of two police surgeons in attendance, broke an ampule of smelling salts under his nose. Scoleri shook his head as if still dazed.

*146 “Judge Vincent A. Carroll said: 'Let it be noted in the record that the defense asked the doctor to examine him in the presence of the jury.’ ” (Emphasis supplied.)

In his charge to the jury the judge said in scarcely veiled language that Scoleri was malingering. The jury could well have believed that, despite Avhat their eyes told them, the judge had superior knowledge on the defendant’s physical condition and that, therefore, they could dismiss from their minds what they saiv, and accept, instead, the judge’s conclusion that the defendant Avas indeed malingering. But whether the defendant was feigning an incapacity which did not exist was a question of fact for the jury to determine, since it was directly tied up with the question of credibility. And credibility Avas all an all-decisive factor in appraising Scoleri’s defense.

Scoleri testified that he was elsewhere at the time of murder. He testified to an alibi. If the jury believed that Scoleri Avas counterfeiting his apparent inability to understand, they could believe that he coined the story of his alibi in the same mint of mendacity. Thus, when the judge took away from the jury the right to determine credibility on that particular phase of the case, the defendant’s constitutional rights Avere directly invaded. He did not receive a trial by jury as it has come down to us through the centuries and he is, therefore, entitled to a new trial.

But the case is even more disturbing than I have indicated. The jury did not hear the statements of the doctors regarding the defendant’s condition. They were entirely in the dark as to what had occurred and thus were compelled to follow the lantern held up by the judge, even though its fuel was supplied didactically and not evidentially.

On the morning of November 25th, Dr. Phillip Ingaglio, after examining the defendant, informed the *147 judge, outside the presence of the jury: “At the present time he [the defendant] is going to be like a log, and he would benefit very much if he had a little bit of psychiatric care now, I think — now that he isn’t going to be needed so much for testimony.”

Then the following ensued:

“The Court: You mean after the case is over?

Dr. Ingaglio : Eight at this particular time?

The Court: Do you agree with that, Dr. Carideo?

Dr. Carideo : I think it is something that is worthy of more observation. It would seem to me if he is in a psychiatric condition which would require care, it would certainly be something to antedate this, or precede this, which would take a considerable time hereafter to resolve.

Dr. Ingaglio : That is true.

Dr. Carideo: I would think his present mood or disposition is something he is going to maintain as long as he is under the same set of circumstances.”

After all this, the judge observed: “It follows a pattern. This is not the first time we have seen a situation like this. There is no change, so we will go right ahead.”

Here, it would almost seem that the judge had put away his robe and strapped on a stethoscope. He had become a medical consultant. He listened to one doctor say that the defendant’s receptivity was equal to that of a log, and he had heard another doctor say that more observation was in order. Then, weighing these scientific findings he concluded, as a diagnostician, that there was “no change.” No change from what? No change from normality or no change from abnormality? He based his diagnosis, he said, on the fact that he had seen other situations like this one, and that this one followed “a pattern.” Was he referring to a medical pattern, a disease pattern, an evidential pattern, a procedural pattern? But, regardless *148 of type of pattern, are cases involving life and death to be decided according to diagnostic patterns?

If the jury believed, and they hardly could have believed otherwise from what the judge told them, that Scoleri was malingering, this belief could well have been the additional weight thrown into the scales of deliberation which earned for Scoleri the penalty of death instead of that of life imprisonment, assuming that they Avould have found him guilty of first degree murder in any event. On this basis alone, justice demands a new trial for the defendant.

And I don’t think there can be any question that he is entitled to a neAV trial as the result of our decision in Commonwealth v. Bonomo, 396 Pa. 222 , and because of the recent legislation of our General Assembly —Act No. 594 of December 1, 1959, P. L. 1621.

I dissent.