Commonwealth v. Scoleri

Dissenting Opinion by

Me. Justice Bok :

I dissent on the one ground that we should, in the interests of justice, require a neiv trial because of the Act of December 1, 1959, Act No. 594, P. L. 1621, summarized in the Majority opinion and providing for a double verdict in first degree murder cases.

I quarrel with the Majority’s argument because I think that it thrusts in the wrong direction. The Legislature has unfalteringly since 1911 turned its face against the introduction of evidence of independent, unconnected crimes, and hence it cannot be said that the Act of 1959 has either a retroactive or a prospective effect. It was passed to correct a bad decision of this Court in Commonwealth v. Parker, 294 Pa. 144 (1928), 143 A. 904 , which we have followed until now, and hence the Legislature has only repeated what it said in 1911 and has stood for ever since.

The Act of March 15, 1911, P. L. 20, 19 P.S. §711, provided that the defendant in a criminal trial could *149 not be asked in cross-examination,- or required to answer, any question tending to show that he had committed, been charged with, or convicted of any unrelated or unassociated offenses, or tending to show that he was of bad character unless either (1) he had sought to establish his good reputation or (2) had testified against a co-defendant charged with the same offense. This Act was copied after the English Criminal Evidence Act of 1898, but with the significant omission of a third exception, namely, if the evidence of prior offenses went to show the defendant’s guilt of the offense for which he was on trial. See the present Chief Justice’s dissent in Commonwealth v. DePofi, 362 Pa. 229 (1949), 66 A. 2d 649 .

By the Act of Miay 14, 1925, P. L. 759, power was given to juries to fix the penalty in capital cases at death or life imprisonment. Nothing was said in that Act about evidence of other crimes. Because there was no way to permit double or split verdicts and the law as it then stood required a single verdict, this Court, although the Act of 1925 said nothing on the subject, reasoned in Parker that the jury should have before it the same evidence that the judge had in order intelligently to fix the penalty.

By the Act of July 3, 1947, P. L. 1239, no evidence of unrelated crimes might be admitted at the trial of anyone charged with crime, with the two exceptions present in the Act of 1911 plus the third which had been omitted from that Act. In DePofi the Act of 1947 was held unconstitutional because the exceptions were vague and indefinite and because the title was defective. For present purposes, however, the flat prohibition against admitting evidence of unrelated crimes clearly repeated the Legislature’s intention expressed in the Act of 1911.

The Act of 1959 again repeats the Legislature’s will on the subject by making procedure for it.

*150 With this unbroken line of legislative purpose from 1911 to 1959, the argument that the Act of 1959 should not be construed retroactively is irrelevant, since the legislative will was the same when Scoleri committed his crimes and at his trial as it Avas Avhen the Act of 1959 was passed. All that the Act has done is to supply procedure which at last makes realistic the old unreality of telling a jury to forget with one side of its head what it might remember with the other.

The Parker case is really all that the Majority has to rely on, granted the Legislature’s consistency of purpose since 1911. It is a feeble reed to stand against the reiteration of that purpose in the Act of 1959, Avhich was passed to abolish Parker , as the Majority opinion says.

Besides, there is as yet no final judgment here. The case is still in gremio legis, and I am not impressed by the notion that if we unAvind this tentative judgment we must also unwind the final judgments of all persons now serAdng life imprisonment for murder in the State. At least they have their lives, which Scoleri soon won’t have, and it seems to me reasonable and substantial justice to insist that litigation end Avith final judgment.

I think that all of the imponderables, plus the ponderable will of the people, consistent since 1911, should compel a new trial, and that we should not be astute in letting a man go to his death after the Legislature, in furtherance of its 49-year-old policy, has again expressed itself as clearly as it did less than four months ago.

Mr. Justice Cohen joins in this dissent.

*151 Opinion Sur Petition for Reargument, by Mr. Chief Justice Jones, April 19, 1960:

The appellant’s petition for reargument erroneously deduces that our decision with respect to the legislative intent of the so-called Split Verdict Act of December 1, 1959, was by six members of the Court who were evenly divided. Such is not the case. Our decision that the statute was not retroactive and, therefore, had no bearing on the Scoleri appeal, was by a vote of four to three of the full membership of the court on the question of a new trial because of the statute. However, on the merits of the defendant’s appeal the Court was divided six to one—a fact which the petition for reargument understandably does not stress.

The appeal was first argued on October 15, 1959, before the full court of which Mr. Justice McBride, who was serving an appointive term to expire December 31, 1959, was then a member. The appeal not having been disposed of during Mr. Justice McBride’s tenure, a re-argument was ordered on January 2, 1980, in order that Mr. Justice Eagen, who was sworn in that day as a member of the court for a full elective term could participate in the disposition of the appeal on the merits. The order directing a reargument was as follows: “And now, January 2, 1960, reargument of the above entitled appeal is ordered at the session commencing January 4, 1960, at Philadelphia.” In communicating to counsel the substance of this order for reargument, our clerk informed them that the order contemplated a full reargument of the appeal on the merits and that the Court also invited an expression of counsels’ views with respect to the intended effect of the Act of December 1, 1959, supra.

*152 When the appeal was reached for reargument on January 14, 1960, Mr. Justice Bell was unavoidably absent. He had, however, heard the appeal fully argued on the merits on October 15, 1959; he had studied the briefs of counsel; and he had participated in the Court’s conference discussions on the merits of the appeal. For him, as well as all other members of the Court (except for Mr. Justice Eagen) a reargument of the appeal was unnecessary and would not have been ordered had Mr. Justice Eagen heard the original argument. With the expressed approval of all of the other members of the Court, Mr. Justice Bell participated in the voting on the merits of the appeal with the result that the Court stood six to one for affirmance on the merits.

Because Mr. Justice Bell also voted on the question of the legislative intent of the Split Verdict Act, on which he had not heard counsel orally, the petitioner argues that he was thereby denied due process. The complaint is patently groundless. Mr. Justice Bell read the supplemental briefs of counsel on the question of the statute; he considered the Act itself; and he participated in the Court’s conference discussions relative to the statute’s intended purview — a pure question of law that had arisen subsequent to and dehors the Scoleri appeal. The solution of that question by the Court required no oral argument of counsel and the members of the Court, who heard counsel’s oral argument on the Act, are unanimous that it contained nothing beyond what the supplemental briefs of counsel set forth.

The participation by Mr. Justice Bell in the consideration and decision respecting the legal effect of the Split Verdict Act was with the unanimous approval of the members of the court. The suggestion that the Scoleri appeal should be argued again so that the Court could hear further unnecessary oral argument of coun *153 sel concerning the new statute, if acceded to by us, would make a mockery of due criminal procedure.

This opinion represents the unanimous view of the members of the Court with respect to the procedural question raised by the petition for reargument. The petition for reargument is denied.