Commonwealth v. McCoy

Opinion by

Mr. Justice Eagen,

Frank McCoy, after trial, was convicted by a jury of murder in the first degree, with the penalty fixed at death. The court below denied a motion for a new trial and this appeal is from the judgment and sentence, imposed in accordance with the verdict.

That the facts warranted the finding of guilt returned by the jury is not questioned by counsel and an examination of the record definitely discloses all the essential ingredients of murder in the first degree. It is clear beyond question that the victim’s death re-suited directly from violence inflicted upon him by the ■defendant while he was engaged in the perpetration of a robbery and that during the course thereof the defendant, according to the Commonwealth’s witnesses, cruelly shot and killed the proprietor of a small business establishment, a man by whom he had previously ■been employed. However, basic prejudicial errors occurred during the trial which render a retrial necessary.

The trial judge, in part, said to the jury: “I say to ■you, if there is any doubt about this man’s guilt, if there be any reasonable doubt about any fact upon which the ultimate verdict of guilt may rest, give him ■the benefit of that doubt and send him out that way; but if you have no doubt, and you find from all the evidence, beyond a reasonable doubt, that this is first degree murder, in that a decent citizen was brought to his death without a chance perhaps to repent, by a bullet from a gun in the hands of a man whose reputation before you is one that is steeped in crime, vicious crime — and at the commission thereof, beating, striking and ill using, on a previous 'occasion — you may then give consideration to that, and then, and then only, do you exercise the discretion the law not only ■gives you, but imposes upon you, to say whether or ■not in your judgment the penalty should be life imprisonment or death.”

The evidence did not justify this characterization of the defendant as a “man whose reputation before you is one that is steeped in crime, vicious crime.” The only previous criminal record disclosed is that the defendant in the year 1950, at the age of twenty-five years, plead guilty to the charge of armed robbery. One such conviction, even of so serious a nature, did not warrant the use of the words employed in the charge. But what is more important, the instruction above quoted could not help but have the effect of causing the jury to consider the previous record of the defendant in determining his guilt on the present indictment, rather than of restricting its use to a determination of the penalty to be imposed after guilt of murder in the first degree had been first resolved. What influence this imprudent language had on the jury in arriving at its verdict as to the defendant’s guilt is impossible to say. When this case was tried, Act of December 1, 1959, P. L. 1621, not being retroactive, did not apply: Commonwealth v. Scoleri, 399 Pa. 110, 160 A. 2d 215 (1960). But, even as of then, the sole and only purpose for the admission into evidence in this casé of the record of the defendant’s prior convictions was to aid the jury in fixing the penalty, after the jury found the defendant guilty of murder in the first degree: Commonwealth v. DePofi, 362 Pa. 229, 66 A. 2d 649 (1949) ; Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733 (1953). Its purpose and scope were strictly limited and it was most incumbent upon the trial judge in such an instance to make certain that the jury clearly so understood. For the instructions to lead to the impression, even to the slightest degree, that this evidence should influence the jury’s determination of the defendant’s guilt was substantial and prejudicial error.

In this case, it also appears to us that the trial judge took an unduly active participation in the trial of the case. Numerous pointed questions, directed to the defendant from the bench, exhibited an extended and aggressive cross-examination not conducive to a fair trial or proper judicial demeanor. While, “It is always the right and sometimes' the duty of a trial judge to interrogate witnesses, . . . questioning from the'bench should not show bias or feeling nor be unduly protracted”: Commonwealth v. Watts, 358 Pa. 92, 96, 56 A. 2d 81 (1948); also, Commonwealth v. Myma, 278 Pa. 505, 508, 123 Atl. 486 (1924). We can well appreciate the high sense of moral indignation the presiding jurist experienced in listening to the account of the heinous crime involved. Yet, under such circumstances, it is more imperative than ever that one charged with such a great responsibility should preside with calmness and equanimity to make sure that the right of the defendant to a fair and impartial trial is constantly kept inviolate.

Judgment reversed, with a venire facias de novo.