Commonwealth v. Bell
Commonwealth v. Bell
Opinion of the Court
Opinion by
The appellant, Darryl A. Bell, was convicted by a jury of murder in the first degree. Punishment was fixed at death. Following the denial of a new trial and imposition of sentence in accordance with the jury’s verdict, this appeal was filed. It is urged that serious trial errors were committed which require the grant of a new trial.
The undisputed evidence established that on December 22, 1960, Bell entered a grocery store in the Germantown section of Philadelphia, operated by one Herman Rosenberg, with the intention of committing a robbery. He had a loaded P-38 German Walther automatic pistol concealed in the pocket of his overcoat. When caught in the act of stealing money from, the cash register, he shot Rosenberg in the right forehead
Bell was arrested by the police on April 20, 1961, for a crime separate and apart from the Rosenberg killing. In searching his apartment, the police found the gun which ballistic tests eventually proved was the Rosenberg death weapon. During the questioning that immediately followed his arrest, Bell admitted to the police that he committed the Rosenberg robbery and killing.
The first assignment of error concerns two statements made by Bell to the police which were recorded on a typewriter. When written, they were given him to read. He initialed every page and signed his name at the end of each statement. The first was made on April 20, 1961, and the second on April 26, 1961. It is admitted that both statements were given voluntarily, and their truthfulness was not refuted or questioned in any manner at trial.
In the statement of April 20th, Bell not only recited the facts concerning the Rosenberg crime, but also told of his participation in other crimes after that occurrence. Therein, he admitted robbing another grocery store, operated by one David KLeeman, with one Bobby Cross on April 7, 1961. In the course of this robbery, KLeeman was hit over the head with a revolver and shot in the arm by Cross. In this statement, Bell also admitted and described his participation in a third armed robbery on April 17, 1961, wherein the owner of a grocery store, Max Kanal, was shot and killed by the same Bobby Cross, with a gun supplied by Bell. The second statement of April 26th dealt only with the Rosenberg case and covered it in greater detail.
Bell’s attorney then persisted in this line of questioning to secure from the witness an explanation as to the necessity for the second statement. Finally, the witness answered, “Because I wanted a separate statement concerning the robbery and homicide of Herman Eosenberg.” Then to the question, “Why?” the witness answered, “Because in his original statement in which he admitted his guilt in the Herman Eosenberg killing he also admitted his guilt in the Max Kanal homicide.”
Following this last answer, Bell’s attorney moved for the withdrawal of a juror which the court denied.
A reading of the record is convincing that the answer referring to the Kanal homicide was invited by
Bell’s counsel admits that his client was guilty of murder in the first degree. He did not contest this finding at trial. His sole aim and hope was to save Bell from the sentence of death. Neither is it now maintained that the answer complained of influenced the jury’s determination of guilt or the degree thereof, but rather that it unfairly prejudiced them against him in their decision fixing the penalty for the crime. That it did not do so is evidenced by the fact that, in that portion of the trial for the determination of the penalty, statements of the defendant, admitting his participation in the Kanal homicide and other crimes, were admitted in evidence for the jury’s consideration as an aid in fixing the penalty. Obviously, if these admissions were correctly admitted at this stage of the proceedings, the reference to the Kanal homicide during the first stage of the trial was of little moment.
This brings us to the final assignment of error. Did the trial court err in admitting in evidence, solely for penalty purposes, the statements of the defendant describing and admitting his guilt and participation in the other crimes, particularly since these other crimes were committed subsequent to the crime on trial? Our conclusion is definitely not.
This case was tried in accordance with the procedure prescribed in the so-called “Split-Verdict Act” of December 1, 1959, P. L. 1621, §1, 18 P.S. §4701. As we have stated on two prior occasions, this statute did not change the law with respect to the character of the evidence that can properly be introduced on the question of penalty. It merely changes the method or
How must the commission of these other crimes be proved?
In Commonwealth ex rel. Norman v. Banmiller, 395 Pa. 232, 149 A. 2d 881 (1959), following previous decisions of this Court cited therein, we held that such could be shown by the record of his convictions for these crimes or by his confessions and admissions of his. guilt therein made before trial. In Norman, we specifically held that the record of convictions of other crimes committed before and after the crime on trial was proper evidence for this purpose. We see no good reason to limit the use of the defendant’s admissions to crimes which were committed prior to the crime on trial, particularly where these admissions were admittedly freely made. That no such limitation should be imposed is dictated by solid and cogent reasons.
When a convicted defendant is called for sentence before a judge or judicial tribunal, every fact that will aid in passing a proper judgment is relevant and should be taken into consideration. And this includes not only the facts of the crime involved, but every bit of available trustworthy and pertinent information that will aid the court in determining the type of individual to be sentenced. And this is mandatory when the decision involves a determination of whether or not the imposition of death is the proper penalty. See, Commonwealth v. Green, 396 Pa. 137, 151 A. 2d 241 (1959). In Green, this Court specifically held that before the
Judgment affirmed.
However, the court did instruct the jury to disregard the answer complained of and not to permit it to influence them in determining the defendant’s guilt in the case on trial.
Dissenting Opinion
Dissenting Opinion by
■I have always maintained that it is unfair to hang the client because of the fault of the attorney, and I still so maintain. The Majority Opinion states that the improper statement made by a witness, as to a homicide other than the one for which the defendant was being tried, , “was invited by Bell’s counsel and he cannot now complain about that for which he was res
I dissent for another reason. Tbe so-called “Split Yerdict” Act of December 1, 1959, was never intended to make of tbe jury a conclave of St. Peters, to decide whether a defendant should live or die on tbe basis of all tbe sins in bis life, including those which happened after tbe only offense for which be is on trial. Tbe Act of 1959 was intended to leave to tbe jury whether, after finding tbe defendant guilty of murder in tbe first degree for one specific homicide, tbey believe, in their best judgment and according to their conscience, tbe punishment should be life imprisonment or death. Bell was tried for only one murder, tbe Rosenberg murder. Tbe Majority in its opinion speaks as if be bad also at some time been found guilty of murder in tbe Kanal homicide. Tbis, of course, is not so. Bell’s admission of “participation in tbe Kanal homicide” did not make him guilty of tbe Kanal killing. It is hornbook law that a confession, without other corroborating evidence, is worthless in tbe establishing of guilt. Thus, tbe jury were allowed to pass on tbe life of tbe defendant, not because be killed one man, but because he killed two men. And there was no proof at all that be killed a second man,
Going back to tbe error of allowing a reference to tbe Kanal homicide during tbe trial on tbe Rosenberg murder, tbe Majority says that “if these admissions
It becomes more and more of a perplexity to me why prosecuting officials insist on jeopardizing a perfectly good case, by introducing irrelevant evidence. It is equally an enigma why a presiding judge, when improper evidence, of a serious and grave character (as the reference to the Banal homicide unquestionably was), is introduced, does not declare a mistrial right then and there. And start de novo. As horrible as was the initial crime in this case, it does not help society to deny the defendant due process of law and to let him go to his death with a hovering doubt as to whether he was not denied the fair trial, which our institutions, our laws, and our Constitutional guarantees demand.
Reference
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- Commonwealth v. Bell, Appellant
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