Commonwealth v. Scoleri

160 A.2d 215, 399 Pa. 110, 1960 Pa. LEXIS 433

Opinions

Opinion by

Mr. Justice Benjamin' R. Jones,

Anthony “Tony” Scoleri, the appellant, and his brother, Joseph “Eddie” Scoleri,¹ were charged in a bill of indictmént by the grand jury of Philadelphia County with the murder on August 28, 1958 of one Max Gordon. After a.trial before Judge Vincent A. Oar-roll and a jury the appellant was found guilty of murder in the first degree and the penalty fixed at death. On Juue 23, 1959, — appellant’s new trial motion having been denied, — ¿ppellant was sentenced to death; from that judgment of sentence this appeal was taken.

On August 28, 1958, Max Gordon operated a “notions” store at the southwest corner of Newkirk and Reed Streets, Philadelphia, This store was located on the first floor of the premises and in the rear thereof was a kitchen; in the basement was a recreation-living room; on the second floor were the living quarters of the Gordon family which consisted of Max Gordon, his wife, Rose Gordon, and their 17 year old daughter, Sheila Gordon.

At approximately 8:40 o’clock in the evening of that date, two men, both armed and masked,² entered Gordon’s store through the front door. Gordon and his wife were then in the kitchen; Sheila Gordon and her friend, Jack Dinerman, .were watching television in the basement recreation room. Gordon was struck with a blunt instrument on the head, the blow causing him to fall to the kitchen floor although hé was not rendered unconscious; Mrs. Gordon fainted and fell to the floor. The “taller” man guarded Mr. and Mrs. Gordon with a gun while the “shorter” man went down to the recreation room and ordered Sheila Gordon and Dinerman to the first floor. The “taller” man guarded both Gordons and Dinerman in the kitchen with a gun while the “shorter” man forced Sheila Gordon to accompany him co the second floor where he searched for money or other valuables. Upon their return to the kitchen both Dinerman and Sheila Gordon were ordered to lie or crouch on the floor while the two men forced Max Gordon at gunpoint from the kitchen into the store. While in the store a g-un battle ensued during the course of which appellant — at trial identified as the “shorter” man — ivas observed shooting at Max Gordon; Max Gordon received three gunshot wounds in his body³ and Richard “Ricky” Woods — identified at trial as the “taller” man — received a stomach wound.⁴ Both holdup men then ran from the premises..

During the course of the hold-up the men removed a ring from Mrs. Gordon’s finger, some items of jewelry from the second floor bedroom, $14 from Dinerman’s wallet and a small amount of money from the store’s cash register. In addition to operating a “notions” store, Max Gordon also cashed checks and issued money orders for the American Express Company and several American Express Company orders were found missing.⁵

. There was definite and certain identification of both men who took part in this affair.⁶ Dinerman identified the “shorter” man as “Tony” Scoleri and testified that it was he who removed the money from his (Diner-man’s) wallet and it was he who was observed shooting at Max Gordon in the store. From a photograph Dinerman also identified the “taller” .man, — a “light skinned negro”- — as Richard “Ricky ” Woods. Sheila Gordon confirmed Dinerman’s identifications. Dr. Norman Kushner, standing outside his office, — located directly across the street from Gordon’s store — observed the two hold-up men leave the store and identified “Tony” Scoleri as one of the men. David Tupper and Joseph Sannasardso, two youngsters who pursued the two men in their flight down the street subsequent to the hold-up, identified “Tony” Scoleri as one of the men.

After these men left Gordon’s store they ran south along the westerly side of Newkirk Street until they reached Dickinson Street; at that point they turned right and ran to 29th Street — less than a city block west of Newkirk Street — where they entered a 1955 Chevrolet two door sedan operated by “Eddie” Scoleri. Woods, the wounded “taller” man who had fallen several times en route to this point, was helped into the car by appellant. A number of youngsters who happened to be in the neighborhood pursued the two men until they drove away in the car; during this pursuit, “Tony” Scoleri fired his gun at the youngsters.

Both Scoleris and Woods went directly to the apartment of one Ida Iocco, “Tony” Scoleri’s girl friend, arriving there at approximately 9 o’clock p.m. Denise Devonshire and Harry Shinock, who were in the Iocco apartment at that time, saw Woods carried into the apartment by the Scoleris and placed in the bedroom where he subsequently died, no medical care having been summoned. Several days later Scoleris took Wood’s body to New Jersey where they buried it in a shallow trench.

On August 30, 1958 the Scoleris and Ida Iocco went to New Jersey; after arranging for “Eddie” Scoleri’s 1955 Chevrolet sedan to be repainted, they took an automobile belonging to Pat Scoleri, a brother of “Tony” and “Eddie”, and went to West Virginia where they stayed with some friends. Prom one of these friends,— John Loving- — they borrowed an automobile and proceeded to Cleveland where they stole another automobile. While in Cleveland, at “Tony” Scoleri’s direction, “Eddie” Scoleri and Ida Iocco had their hair dyed and “Tony” Scoleri, who ordinarily wore eyeglasses, ordered contact lenses. They then went to Chicago and, while there, Ida Iocco was burned under mysterious circumstances and had to be hospitalized. Both Scoleris then left Chicago and went to Kansas City, Missouri, where they were apprehended at gun-point by Kansas City police officers.⁷ During the entire flight both Scoleris used fictitious names.

Shortly after the commission of the hold-up both Scoleris, in each other’s presence, related to Ida Iocco how “Tony” Scoleri and Woods had entered Gordon’s store and committed the hold-up and that “Eddie” Scoleri drove the get-away car, “Tony” Scoleri stating that he had “shot at Max Gordon”. The bullet which fatally wounded Woods was traced to Max Gordon’s gun. “Tony” Scoleri’s gun was never recovered; however, there was evidence that, prior to, during and subsequent to the hold-up, “Tony” Scoleri had in his possession a .32 calibre automatic gun and the autopsy on Max Gordon’s body revealed the presence of two .32 calibre bullets.

Appellant’s defense was an alibi supplemented by testimony that, as the result of an anlde injury sustained 10 days prior to the date of the hold-up, his ability to walk was so impaired .that he could not have run from Gordon’s store as testified by certain Commonwealth witnesses.

“Eddie” Scoleri testified that “Tony” Scoleri had not taken part in the hold-up. His testimony was that Joseph “Yogi” Santarpio and Woods were the two men who committed the hold-up and shot Max Gordon and that he, under compulsion of Woods and Santarpio, acted as the driver of the get-away car. After the holdup “Yogi” Santarpio left them, and “Eddie” Scoleri, while driving the wounded Woods, happened to see his brother “Tony” Scoleri on the street and persuaded him to drive them to the locco apartment.⁸

The Commonwealth, In rebuttal, called (1) F. M. Caraker, appellant’s parole officer, who testified that on two occasions- — -two days prior to and the day subsequfint to the hold-up — he had seen appellant and noticed nothing unusual in his manner of walking and (2) five witnesses all of whom testified that “Yogi” Santarpio⁹ was with them working in a garage at the time of the robbery.

Appellant contends that he is entitled to a new trial on three grounds: (1) that the trial court’s action in proceeding with the trial, in view of appellant’s physical and mental condition, was highly prejudicial; (2) that the trial court erred in its instructions to the jury on reasonable doubt and the defense of alibi; (3) that the passage by the General Assembly of Act 594 of 1959, approved December 1, 1959, which provides for a “split verdict”, trial in homicide cases, compels a new trial.

During the course of the trial¹⁰ — at approximately 5 :25 a.m. Monday, November 24th — a prison guard discovered that appellant had slashed his left arm in several places;¹¹ 24 sutures were. required to close tbe lacerations and, at approximately 7 a.m., appellant was given 600,000 units of penicillin and .100 milligrams of thorazine, a tranquilizer. The court was apprised of this situation and withheld resumption of the trial until 7:30 p.m. on that date. Throughout the morning and afternoon of November 24th the court received numerous medical reports concerning appellant’s physical and mental condition.¹² Dr. Carideo, a police surgeon, examined appellant at 11 a.m. and reported that he was then, under the influence of sedation but, in the doctor’s opinion, was malingering to some extent. After another examination of appellant at 2 p.m., Dr. Carideo again reported to the court and the following discussion took place:

“Dr. Carideo : He is still under the effect of sedation and medication that he had this morning. There is evidence of the sedative effects. He does respond to stimuli, but he lapses back into drowsiness, and he is uncooperative, and that is the large element of his pres-sent condition.

■ “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 a deep breath, and then a moment thereafter you asked him how he felt and he answered, ‘All right.’

“Dr. Carideo: You may have noted when I held the perle of aromatic spirits to his nose, he didn’t breathe. His breathing stopped at that point — He would not inhale. So there is a conscious element there that is coupled with his restraint and his unwillingness to cooperate.”

“The Court: . . . Doctor, do you anticipate within hours, when this so-called tranquilizer, the effect thereof, has worn off, that he will be capable?

“Dr. Carideo: I see no other reason for him not responding other than malingering after a reasonable period of time has elapsed so that this is out of his system.” (Emphasis supplied)

At 7:30 p.m., after another examination of appellant, Dr. Carideo reported, that, in his opinion, none of the physical effects earlier noted then existed, the effects of the drug thorazine should have been fully dissipated and appellant was then aware of his surroundings. At this point the trial was resumed without any objection on the part of defense counsel.

At approximately 9:15 p.m. the trial court ordered a trial recess. Again Dr. Carideo examined appellant and the following discussion took place:

“The Court: Doctor, you have just examined him during the recess period. Is your opinion the same now as it was when we started, or is he in a better condition to hear than he was ?

“Dr. Carideo: I think his condition is better. I think he is more responsive to stimuli and beginning to speak spontaneously, and he asked for a glass of water, and desired to use the toilet, and I think he is more responsive now than he was in the beginning. His condition is essentially normal otherwise; his pressure, respiration and pulse are all normal.

“The Court: Of course, that was his condition before we brought him in the first time?

“Dr. Carideo : Yes, that is correct.

“The Court: So that you think, as you did then, he is not only capable of understanding, but more capable of understanding?

“Dr. Carideo: More so than he was possibly five hours ago.” (Emphasis supplied).

After another examination by Dr. Carideo at 9:10 p.m. the trial was then resumed, again without objection by defense counsel. At 10:20 p.m., after the defense had completed its testimony and before the Commonwealth presented its rebuttal evidence, the following discussion took place:

“Mr. McClain : 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 Court : 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 has asked for water, and he has 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.”

“Mr. McClain : Will your Honor bear with me a moment? I say to you, your Honor, that examination comes from a police surgeon, and we should like the privilege of having a physician of our own selection make an examination of this man.

“The Court: Colonel, I asked you that before we started this session, and you told me you had a doctor with you, and I told the police • surgeon, Dr. CarideOj not to go in there without the other doctor.

“Mr. McClain : That was, your Honor—

“The Court : Pardon' me, -1 have not finished. I asked you and Mr. King, and I held the doctor back there, and you told me you did not wish or desire to have this man examined by another physician, and it was then, and then only, I permitted Dr. Carideo to go back there to make another examination.

“Mr. McClain : Perhaps there was a misapprehension, your Honor. That doctor who was in the elevator with us coming up was Dr. Rotman from the Southern Division of the Einstein Center.

“The Court : So I found out afterwards.

“Mr. McClain: Whom we were calling to testify to that slip that your Honor has not allowed in evidence.

“The Court: I understand that now, but I asked you when I learned that whether you were going to bring a doctor in to examine him, and both you and Mr. King said, no.

“Mr. McClain : We have had no opportunity to consult the doctor. ■

“The Court: 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 overruled. You have an exception and the record is protected.” •

The next morning both Dr. Carideo and a Dr. Ingaglio — the latter selected by defense counsel — examined appellant and reported to the trial judge. Dr. Ingaglio stated: “I haven’t found anything at all contrary to Dr. Carideo’s examination. The patient is evidencing no signs of blood loss, but he is evidencing signs of acute anwiety neurosis, which is probably secondary to the fact that he is being put on • trial, and I do not think it differs substantially at all from what Dr. Carideo stated.” (Emphasis supplied). Dr. Ingaglio added that defendant was “going to be like a log” and that he “would benefit very much if he had a little bit of psychiatric care” at that time. ■ Dr: Carideo, in answer to an inquiry by the court, responded that he thought “[appellant’s] mood or-disposition is something he is going to maintain as long as he is under the same set of circumstances.” -

Appellant’s counsel¹³ now contends that the trial court, in this connection, erred: (1) in directing that the trial resume after having been informed by defense counsel that they were unable to consult or talk with him about the evidence about to be offered by the Commonwealth; (2) in receiving evidence concerning appellant’s physical and mental condition in the absence of both appellant and the jury and-later instructing the jury concerning such evidence; (3) in permitting the trial to resume after receiving medical advice- as to défendant’s disability.

Certain facts in the background of this incident should be noted: (1) both “Tony” Scoleri and “Eddie”' Scoleri had fully completed their testimony prior to the week-end adjournment of the trial on November ,22nd; (2) when appellant Avas first examined after discovery of his injury, it was ascertained that the lacerations’ Avere minor —only skin deep Avithout any tendon or arterial involvement, — the loss of blood Avas slight, his blood pressure and pulse were good and, even though in a conscious state, appellant refused to cooperate Avith’ the medical examiner.

Appellant’s apathy, lethargy or drowsiness, if any existed, could be attributed to only one cause, i.e., the reception into Ms body of the tranquilizer thorazine, yet such drug was administered twelve hours prior to resumption of the trial. The record is clear that, from the time when first advised of appellant’s injury until the trial was resumed and thereafter, the trial judge was most solicitous and zealous in ascertaining the true status of appellant’s physical and mental condition and to that end engaged and employed the services of the admittedly qualified Dr. Carideo. In addition thereto, the trial judge made his own personal observations of appellant and his actions and suggested to defense counsel that they have a medical examination by a doctor of their own choice, a suggestion defense counsel did not accept. When trial was resumed appellant was continuously in the courtroom and the record does not reveal any evidence that appellant at any time lost consciousness hut, on the contrary, illustrated an awareness of his surroundings. The best available medical advice was that appellant’s mental and physical condition justified resumption of the trial; examination of the record leads to the conclusion that appellant was simply malingering. Not only does the record clearly negate appellant’s contention that the trial court did not exercise any discretion under the circumstances but it shows conclusively that the trial was resumed only after, by personal observation and upon competent medical advice, the trial judge was satisfied as to appellant’s fitness to stand trial. Resumption of a trial is within the trial court’s discretion; our independent review of the instant record satisfies us that the trial judge did not abuse his discretion in this respect.

Appellant next urges that appellant had the right to confront all the witnesses and be present at every stage of the trial; with that statement of the law there can be no disagreement: Commonwealth v. Ballem, 386 Pa. 20, 29, 123 A. 2d 728; Commonwealth ex rel. Tanner v. Claudy, 378 Pa. 429, 431, 106 A. 2d 401; Commonwealth v. Johnson, 348 Pa. 349, 352, 35 A. 2d 312; Commonwealth v. Corsino, 261 Pa. 593, 598, 104 A. 739. The issue in this capital case was “Tony” Scoleri’s guilt or innocence of the crime of murder charged in the indictment ; at every stage of the trial of this issue “Tony” Scoleri had the right to be present and the record clearly shows that this right was carefully preserved. The argument is now made that the resolution of the issue of Scoleri’s mental and physical condition as affecting his ability to stand trial requires the application of the same rule and that not only Scoleri but the jury had to be present when the trial judge received Dr. Carideo’s reports. Such a contention is without merit. Com. v. Iacobino, 319 Pa. 65, 69, 73, 178 A. 823, is apposite. In Iacobnino, after conclusion of the Commonwealth’s evidence, defense counsel moved for the appointment of a commission to inquire into defendant’s sanity at the time of trial and the court appointed a commission. After conviction, Iacobino contended that, since he had no opportunity to confront and cross-examine the witnesses who appeared before the commission and no opportunity to examine the commission in open court, he was deprived of his constitutional right. This Court, in affirming Iacobino’s conviction, declared that the commission’s inquiry was “for the determination of a fact apart, separate and distinct from that of guilt of the crime itself, . . . ‘and’ ... is directed to the conscience of the court, and the court . . . has a wide latitude in order to inform itself fully as to the prisoner’s condition.” See also: Commonwealth v. Bechtel, 384 Pa. 184, 190, 191, 120 A. 2d 295; Commonwealth v. Moon, 386 Pa. 205, 213, 125 A. 2d 594. Actually the trial court by receiving Dr. Carideo’s report outside the jurors’ presence avoided the possibility of likely prejudice to Scoleri; had the jury learned that Scoleri had endeavored to take his own life or Dr. Carideo’s opinion that he was malingering, Scoleri would in all likelihood have been seriously prejudiced in the jurors’ minds.

When the trial resumed the court stated 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 was 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 was incapable of hearing what was going on here, we could not have proceeded. We would have just had to continue the case. We continued it for one day, as you know.”

For obvious reasons this statement evoked neither objection nor unfavorable comment from defense .counsel. - The -trial court’s statement was fair to both Commonwealth and Scoleri; it allayed any possible suspicion of an. attempt by Scoleri at self-destruction as well as any sympathy which Scoleri’s obvious condition might have engendered in the jury.

Dr. Tugaglio, after he examined appellant, on November 25th, was of the.opinion, that psychiatric care would be helpful at that.time..: Defense counsel .made no objection .to resumption- of the -trial on that basis but it is now urged that, in the face of this suggestion, it "was error, for' the trial to be resumed. That “Tony” Scoleri at trial for murder, suffered from anxiety and apprehension was an essentially normal, not abnormal nor unusual, manifestation.- Freedom from worry and anxiety is yet to be recognized as a right guaranteed, by-the constitution or otherwise, to a defendant on trial for a crime, particularly the crime of murder. With eminent propriety the. trial court under the circumstances -herein presented resumed the trial. .

Challenge is made to several portions of the trial court’s charge on reasonable doubt. The thrust of this challenge is: “In the present case, the trial judge instructed the jury correctly in several portions of his charge on the principle of reasonable doubt. However, he twice instructed them erroneously to the effect that every fact upon which any verdict could be based had to be established beyond a reasonable doubt. Neither time did the trial judge add the qualification that he was talking only about guilty verdicts when he said the standard of reasonable doubt applied.”¹⁴ Similar arguments have been made and rejected by this Court: reversible error cannot and should not be predicated upon “isolated excerpts” taken out of context of the court’s charge if the charge as a whole and in its totality has adequately and properly covered the subject: Commonwealth v. Schurtz, 337 Pa. 405, 411, 10 A. 2d 378; Commonwealth v. Barnak, 357 Pa. 391, 406, 54 A. 2d 865; Commonwealth v. Holley, 358 Pa. 296, 302, 56 A. 2d 546; Commonwealth v. Kloiber, 378 Pa. 412, 418, 106 A. 2d 820; Commonwealth v. Thompson, 389 Pa. 382, 395, 133 A. 2d 207. Even if it be assumed, arguendo, that the challenged portions of the instant charge, standing alone, were erroneous, yet a scrutiny of the charge in its entirety on the subject of reasonable doubt makes evident its adequacy and propriety.. “Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the jury to the defendant’s prejudice. ■. . . Defendant’s rights were fully protected by the charge in its totality” : Commonwealth v. Malone, 354 Pa. 180, 184, 47 A. 2d 445. We have examined with care the entire charge of the court on reasonable doubt: such examination, clearly and unmistakably, indicates that that which the trial court stated to the jury on reasonable doubt and its applicability to the instant case could not in any manner have either misled or confused the jury. In this respect, we are mindful of the judicial admonition in Commonwealth v. Barnak, supra (p-419) : “Taking an appeal in criminal cases is not a game in which the appellant wins if he can show that the trial judge fell a few degrees short of perfection in the conduct of his trial . . . .”

On the defense of alibi the trial court stated: “What is an alibi? First of all, when an alibi is set up, it still requires the Commonwealth to prove every essential element of the case. The Commonwealth cannot be remiss, it still has to prove every element of'the case, notwithstanding the fact that an alibi is set up. The Commonwealth’s statements of fact must include the presence of the defendant at the time of the homicide, because that is the material factor or material element in the cáse . . .”. Further: “A defendant is not required to establish an alibi beyond a reasonable doubt. It is a strong defense, it is a full defense, it is a perfect defense — in fact, the most perfect defense a man can make, because, as I said to you, no- man can be in two distinct places at the same time, and even if he attempts to set up an alibi, tbe burden on tbe Commonwealth does not change.. The Commonwealth must continue to prove its case, because his plea of not guilty is still there. It is a general traverse to all the charges, including, of course, his participation.” Further: “You do not have to believe evidence of alibi beyond a reasonable doubt. The burden to prove it, however, is on the defendant. He must prove it, not beyond a reasonable doubt, but to your satisfaction, and if he does not do that, the whole thing collapses and he has no alibi. He must prove it to your satisfaction . . . .” (Emphasis supplied)

When given, these instructions were in full accord with the then existing principles of the law: Rudy v. Commonwealth, 128 Pa. 500, 507, 508, 18 A. 344; Commonwealth v. Barrish, 297 Pa. 160, 167, 168, 169, 170, 146 A. 553; Commonwealth v. Jordan, 328 Pa. 439, 446, 196 A. 10; Commonwealth v. Blanchard, 345 Pa. 289, 291, 26 A. 2d 303; Commonwealth v. Richardson, 392 Pa. 528, 544, 140 A. 2d 828; Commonwealth v. Gates, 392 Pa. 557, 564, 141 A. 2d 219; Sadler, Criminal Procedure in Pennsylvania, (2nd ed.), Vol. 2, 580. Cf: Commonwealth v. Barnak, 357 Pa. 391, pp. 406, 407, footnote, 54 A. 2d 865. On May 28, 1959 — six months subsequent to the appellant’s trial and conviction— Commonwealth v. Bonomo, 396 Pa. 222, 151 A. 2d 441, effected a change in the law on this subject. In Bonomo (p. 230), this Court stated: “Hence, whenever the prosecution relies upon proof that the defendant is present at the commission of the crime, it cannot be said with any show of reason that the defendant, who asserts he was absent, has any burden of proving it.” Appellant seeks a new trial because of the change in the law effected by Bonomo. As Mr. Justice McBride clearly and distinctly set forth in Bonomo, the Court established “the rule which shall be followed hereafter in this jurisdiction” :¹⁵ Bonomo furnishes the guide for future judicial instructions on the subject of alibi; by its unambiguous language, it is prospective, not retrospective, in operation and jury instructions given prior to tbe rendition by this Court of Bonomo remain unaffected thereby. The instructions given on .the subject of alibi by Judge Carroll were entirely proper when given and furnish no ground for the grant of a new trial.¹⁶

- Lastly, appellant contends that the passage — one year subsequent to appellant’s trial and conviction— by the 1959 legislature of the so-called “split verdict” statute¹⁷ compels the grant of a new trial. Although unexpressed in the statutory provisions, the real impact of the 1959 statute is upon a court-established- rule of evidence, a rule which sanctioned the. admissibility into evidence in a capital case of the defendant’s record of prior convictions. For over three decades — beginning with Commonwealth v. Parker, 294 Pa. 144, 143 A. 904 — this Court has approved the introduction into evidence by the Commonwealth in a capital case of the record of the defendant’s prior convictions for the sole purpose of aiding the jury in fixing the penalty in the event the jury finds the defendant guilty of murder in the first degree, but not for . the purpose of determining defendant’s guilt or innocence: Commonwealth v. Thompson, supra. The Parker rule has been the subject of severe criticism — even by members of the present Court¹⁸ — and the new statute was ■ passed to meet such criticism. The effect of the statute is to remove the rationale of the Parker rule and, thus to abolish it: henceforth, the Commonwealth cannot introduce into evidence in a capital case a defendant’s record of prior convictions until after the jury has .determined the defendant guilty of murder in the first degree and such verdict has been recorded. Granted the salutary effect of this new legislation, does it. necessarily follow that its provisions should be made applicable to capital cases where, prior to the passage of the legislation, a defendant has been tried, found guilty of murder in the first degree and judgment of sentence entered but, at the time of the passage of the statute, an appeal from such judgment of sentence is pending? The soundness of the legislation alone -does not impel a construction of this statute as retroactive or retrospective in its operation.¹⁹

For the ascertainment of the legislative intent in determining whether a statute.is retroactive or retrospective in operation the legislature itself has set up certain definite yardsticks for the guidance of the judiciary.

In the first place, Section 56, Art. IV of the Statutory Construction Act²⁰ provides: “No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature.” (Emphasis supplied). In the construction of statutes our courts have uniformly adhered to this legislative mandate: Commonwealth v. Rockwell Mfg. Co., 392 Pa. 339, 140 A. 2d 854; Creighan v. Pittsburgh, 389 Pa. 569, 132 A. 2d 867; Hirsch v. Bunker Hill Mutual Ins. Co., 389 Pa. 92, 132 A. 2d 212; Sawdey Liquor License Case, 369 Pa. 19, 85 A. 2d 28; Bowie Coal Company Petition, 368 Pa. 102, 82 A. 2d 24; Commonwealth v. Repplier Coal Co., 348 Pa. 372, 35 A. 2d 319; Farmers Nat’l Bank & Trust Co. v. Berks County Real Estate Co. et al., 333 Pa. 390, 5 A. 2d 94. See also: Barnet v. Barnet, 15 S. & R. 71, 72; Mullock v. Souder, 5 W. & S. 198, 199; Neff’s Appeal, 21 Pa. 243, 247; Taylor v. Mitchell, 57 Pa. 209, 211, 212. The instant statute not only lacks a clear and manifest expression of intent that it be construed retroactively, but it does not contain any such implication. In the second place, since the 1959 statute is amendatory, Section 73, art. V of the Statutory Construction Act applies: “Whenever a section or part of a law is amended, the amendment shall be construed as merging into the original law, become a part thereof, and replace the part amended and the remainder of the original law and the amendment shall he read together and viewed as one law passed at one time; but the portions of the law which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.” (Emphasis supplied) Hence amendatory statutes are construed retroactively only if such construction is clearly indicated under the provisions of the statute: Rupert v. Policemen’s Relief and Pension Fund, 387 Pa. 627, 129 A. 2d 487; Commonwealth v. Repplier, supra; Cavanaugh et al. v. Gelder, 364 Pa. 361, 72 A. 2d 85, cert. den, 340 U. S. 822, 71 S.C. 55. Under the above cited provisions of the Statutory Construction Act, a construction that this new legislation was intended to be retroactive in operation cannot properly be judicially declared.

Commonwealth ex rel. Lyons v. Day, 177 Pa. Superior Ct. 392, 110 A. 2d 871, Commonwealth v. Voci, 393 Pa. 404, 143 A. 2d 652 and Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657, are illustrative of a sound judicial refusal to apply criminal statutes retroactively. In Day, supra, the relator in a habeas corpus proceeding, convicted of burglary in 1946, had been sentenced to the Pennsylvania Industrial School under a statute which required him to serve a 20 year maximum term unless sooner released by the Pardon Board; in 1953 the legislature passed an amendatory statute limiting the duration of a sentence to the Industrial School to a 6 year term; the Superior Court rejected relator’s contention that the 1953 statute operated retroactively to reduce his duly imposed sentence. In Voci, supra, we did not apply retroactively a statute prohibiting the introduction of evidence secured by wiretap in any Pennsylvania court to proceedings then pending on appeal in which Yoci had been convicted on the basis of evidence obtained by wiretapping. The fact that the question was not directly raised in Yoci did not affect the result. In Bishop, supra, Bishop was tried and convicted of murder in the first degree and the penalty fixed at death; subsequently and during the pendency of an appeal to this Court, the legislature passed a statute which permitted a jury, after a conviction of murder in the first degree, to fix the penalty either at life or death, whereas when defendant was tried and convicted a verdict of murder in the first degree automatically carried with it the imposition of the death penalty. Even though the jury had requested leniency-in a note addressed to the court — this Court stated: “As this was prior to the Act of May 14, 1925, neither the court nor jury had any discretion in fixing the penalty for first degree murder.” (p. 59)

One hundred ten years ago in De Chastellux v. Fairchild, 15 Pa. 18, 20, Chief Justice Gibson stated: “If any thing is self-evident in the structure of our government, it is, that the legislature has no power to order a new trial, or to direct the court to order it, either before or after judgment. The power to order new trials is judicial; but the power of the legislature is not judicial.” Mr. Justice (later Chief Justice) Woodward in Commonwealth ex rel. Johnson v. Halloway, 42 Pa. 446, 448, 82 Am. Dec. 526, stated: “The whole judicial power of the Commonwealth is vested in courts. Not a fragment of it belongs to the legislature. The trial, conviction and sentencing of criminals are judicial duties, and the duration or period of the sentence is an essential part of a judicial judgment in a criminal record. ... If [the legislature] may authorize boards of inspectors to disregard judicial sentences, why may they not repeal chem as fast as they are pronounced, and thus assume the highest judicial functions? It is to be observed that these questions have no reference to the power of the legislature to prescribe a general rule of law that shall be inconsistent with a previous judicial decree. Such a rule, when it operates on future cases and not retrospectively, is quite legitimate. Their power to legislate in that manner is not to be doubted. . . . Any interference with [a judicial sentence], except by a court of superior jurisdiction, or by. the executive power of pardon, would seem to be a prostration of that distribution of governmental functions which the constitution makes among three co-ordinate departments. In this view the act would be highly unconstitutional.” To like effect: Pennsylvania Company etc. v. Scott, 346 Pa. 13, 16, 17, 29 A. 2d 328; Leahey v. Farrell et al. (Commonwealth, appellant), 362 Pa. 52, 55, 56, 66 A. 2d 577. (Emphasis supplied).

The appellant’s contention rests not upon a legal, but upon an emotional, basis for an .application of this statute in a retroactive manner. What appellant in effect says is that the method of procedure formerly recognized by this Court — the one under which appellant was tried and convicted — was an “unfair” method and that the opportunity has now arisen by virtue of the new procedure set forth in the statute for the Court, by the grant of a new trial, to direct that the appellant be tried under a form of procedure more “fair” in that the jury will not know, before reaching a verdict on the issue of guilt or innocence, of appellant’s past criminal record. Such argument would be applicable not only to the appellant but also to all other defendants under conviction of murder in the first degree whose cases are awaiting disposition either in the lower courts or in this Court as well as the hundreds of convicts now in prison or penitentiary for life for first degree murder whose cases have been concluded by the entry of a final judgment.²¹

This defendant has no right, vested or otherwise, to a new trial by a particular procedural process provided that the procedure under which his trial was conducted met the requirement of the due process clause: Agostin v. Pittsburgh Steel Foundry Corp., 354 Pa. 543, 47 A. 2d 680; Penelope Club Liquor License Case, 136 Pa. Superior Ct. 505, 512 et seq., 7 A. 2d 558, 562; Fleming v. Rhodes, 331 U. S. 100, 91 L. ed. 1368; Snyder v. Mass., 291 U. S. 97, 78 L. ed. 674; Luria v. United States, 231 U. S. 9, 58 L. ed. 101; Thompson v. Utah, 170 U. S. 343, 42 L. ed. 1061; Hopt v. Utah, 110 U. S. 574, 28 L. ed. 262; Gibson v. Mississippi, 162 U. S. 565, 40 L. ed. 1075; U. S. v. Papworth, 156 F. Supp. 842, 851, aff’d. 256 F. 2d 125.

We have carefully examined the entire record of these proceedings and are satisfied that appellant was given a fair trial. He was accorded the benefit of every right guaranteed by law to a defendant in a capital case; he was tried in a manner and under a form of procedure sanctioned by this Court on innumerable occasions ; he had able counsel who were given full opportunity to present in all its details appellant’s defense; his trial was free from error on the part of the court. His conviction was fully justified by the evidence; no other verdict would have been consistent under the circumstances of this case. That the 1959 statute provides for a fairer trial procedure for the future furnishes no legal reason for the grant of a new trial.

Judgment affirmed.

1 “Eddie” Scoleri entered a plea of guilty to murder generally; his crime was fixed as murder in the first degree and he was sentenced to life imprisonment.

2 One man, described as the “shorter” man, wore a “stocking” mask which partially covered his face; the other man, described as the “taller” man, held a white handkerchief in front of his face.

3 Gordon died as the result of these wounds shortly after his arrival at the hospital.

4 Max Gordon had a gun behind the store counter and it appears that it was he who shot Woods.

5 Denise Devonshire testified' that she saw appellant, after the hold-up, burn papers among which were some upon which the name “American Express” appeared

6 In this connection it is our duty to view thé evidence in the light most favorable to the Commonwealth: Commonwealth v. Gates, 392 Pa. 557, 559, 141 A. 2d 219; Commonwealth v. Wright, 383 Pa. 532, 536, 119 A. 2d 492.

7 “Tony” Scoleri drew a gun which he threw to the ground when “covered” by the officers’ guns.

8 In this respect “Eddie” Scoleri’s testimony was in direct conflict with appellant’s testimony that he was standing near the locco apartment when “Eddie” Scoleri drove up with Woods in the ear.

9 “Yogi” Santarpio died as the result of a stabbing by one Daly in October, 1958. It is significant that the two persons claimed by “Eddie” Scoleri to have been the participants in the robbery were “Yogi” and Woods, whose lips had been sealed by death at the time of trial.

10 The trial began November 17th and concluded November 26th, 195S.

11 Apparently, a broken mirror was employed for this purpose.

12 All medical reports received by the court during November 24th were received outside the presence of both appellant and the jurors but in the presence of defense counsel who were thoroughly conversant with the entire situation.

13 Appellant’s counsel on appeal was not the trial counsel.

14 The allegedly erroneous portions of the instructions were: “First of all when I speak to you about reasonable doubt, and I did, that reasonable doubt applies to every fact in the case. For instance, you must find beyond a reasonable doubt that the man was murdered, that there was such a man as Max Gordon, and it happened on that day or near that time. There is no statute of limitations on Murder, but you have to find all those facts; every fact upon which the ultimate verdict must rest must be established in your minds by credible evidence, evidence which you believe beyond a reasonable doubt”. ... “I am not going to begin to itemize all the facts, because it would take another day or two, but you must find every fact upon which a verdict is predicated to be in existence beyond a reasonable doubt, and when you find them all to exist beyond a reasonable doubt, .then the same rule of reasonable doubt applies to your final fact-finding, and that is your verdict”.

15 Emphasis supplied.

16 “This is a case where a court has refused to make its ruling retroactive, and the novel stand is taken that the constitution of the United States is infringed by the refusal. We think the Federal Constitution has no voice upon the subject. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none. the. less for intermediate transactions”: Mr. Justice Cabdozo, speaking for the Court, in Great Northern Railway Company v. Sunburst Oil & Refining Company, 287 U. S. 358, 364, 77 L. ed. 360, 366. See also: Von Moschzisker, “Stare Decisis in Courts of Last Resort,” 37 H. L. Rev. 409' et seq.

17 Act 594 of 1959, approved December 1, 1959. In substance this statute provides that in the trial of a murder indictment the jury shall be informed by the court that if they find the defendant guilty of murder in the first degree it will be their duty to fix the penalty after hearing additional evidence, if any, on the question of the penalty. If the jury agrees on a verdict of murder in the first degree and such verdict is recorded, “before the jury is permitted to separate the court shall proceed to receive such additional evidence not previously received in the,trial as may be relevant and admissible upon the question of the penalty to be imposed upon the defendant and shall permit such argument by counsel and deliver such charge thereon as may be just and proper in the circumstances.” The jury then retires and considers the penalty to be imposed: a failure of the jury to agree on the penalty does not invalidate the verdict of murder in the first degree; in the event the jury cannot agree the court in its discretion may discharge the jury and sentence the defendant to life, imprisonment.

18 Commonwealth v. DePofi, 362 Pa. 229, 251, 66 A. 2d 649 (dissenting opinion by tlie present Chief Justice) ; Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d. 733 (majority opinion^ Bell, J.) ; Commonwealth v. Thompson, supra, 417 et seq. (dissenting opinion, Musmanito, J.).

19 Appellant’s counsel studiously avoids the word “retroactive”, an avoidance no doubt wisely dictated by reason of the clarity of the legislative mandate concerning the construction of statutes as retroactive.

20 Act of May 28, 1937, P. L. 1019, 46 PS §556.

21 As to the latter category counsel for the appellant takes the position that if such persons presented writs of habeas corpus based upon the reason herein advanced their lot would be “hopeless”. In an analogous situation it has been stated: “Some of the reasons and explanations given for the rule under which pending prosecutions are abated by a repeal [of the statute under which such persons were tried and convicted] would seem to apply equally as well to the discharge of persons who have been convicted and sentenced prior to the repeal. If, as is sometimes said, the repeal operates as a legislative pardon, why should it not operate as a pardon just as much in the case of prosecutions in which a final judgment has been entered as in the ease where no such judgment has been entered? Can it be said that the legislature intended to pardon one class of offenders and not the other class? Occasionally the courts invoke the rule that a repealed statute is to be treated as if it had never existed. But if the statute is to be regarded as never having existed, surely it is wrong to keep incarcerated persons convicted under its provisions. . . .” 89 A.L.R. 1518.