The sordid and revolting nature of the appellant's conduct attending the commission of the crime whereof he now stands convicted was so violative of ordinary standards of decency and morality that, in reviewing his trial, one must be on guard lest revulsion displace reason and, so, blind one to the possible presence of harmful error. It, of course, goes without saying that, insofar as crimes may be expiated by penalties imposed upon the guilty by judgments at law, it is essential at all times that such judgments truly reflect impartial administrations of the law regardless of the baseness of the particular offenders. The integrity and permanence of the social order require as much; and no criminal can be such a pariah that less can suffice.
It is my opinion that there was error in the trial of this case so fundamental that the ensuing sentence of death, under which the appellant now abides, stands tainted with disqualifying legal fault which can be obviated only by a re-trial conducted in strict compliance with established principles of law.
The defense was insanity. Obviously, anything relevant and material to that issue that would go to support the defense or contradict or minimize the testimony *Page 524 contra produced by the Commonwealth should have been received in evidence. And, yet, because of a certain situation, whereof the district attorney was fully cognizant and which he could have readily corrected, pertinent matter favorable to the defense did not get in evidence. Because of that and other errors, to which I shall refer, the trial, to my mind, was less than fair and impartial.
The majority opinion states the facts with marked fairness to the defendant. But, I think it is also important to add that the defendant's combat fatigue, which the majority opinion mentions, developed into a definite psychoneurosis and that either on account of that mental condition or the malaria, which he had also contracted in the southwest Pacific, or both, he had been hospitalized in Wellington, New Zealand, in the United States Marine Hospitals at San Diego and San Francisco, California, and in the United States Naval Hospital at Philadelphia. He was invalided out of the Navy in August 1943 and received at that time an honorable discharge with notation of disability of forty per cent for neuropsychiatric disorder and ten per cent for malaria.
On the issue of the defendant's sanity, the Commonwealth called in rebuttal two eminent psychiatrists, Dr. Ornsteen and Dr. Keyes. Under order of court, obtained by the district attorney, these doctors were employed to examine the defendant's mentality, which they did on two different occasions in Moyamensing Prison a month prior to the trial. Following these examinations, they made an extensivewritten, and signed, report of their findings to the district attorney. The existence of such a report was unknown to defendant's counsel throughout the trial. He did not discover it until he happened to come upon it among the file of papers, constituting the record on this appeal, sent up by the clerk of courts pursuant to our certiorari. Defendant's counsel *Page 525 then had the report printed in a separate paper book for our information. The crucial materiality of the report to the issue raised by the defense and the defendant's right to its production at trial for introduction in evidence, I shall endeavor to show.
Dr. Ornsteen, being asked on cross-examination when he had formulated his opinion as to the defendant's sanity, answered, — "A conclusive opinion, at the end of the testimony I heard." The cross-examination then continued as follows: "Q. Did you render any previous opinion? A. I did not, except in conferences, verbally. Q. With whom? A. Mr. Beloff [district attorney]. Q. Was that before the trial? A. Yes, after examination. . . . Q. You did have a conference with Mr. Beloff prior to the trial, and at that time did you render an opinion? A. A verbal opinion, during the conference, several days after the visit to Moyamensing Prison." (Emphasis supplied.) The import of the doctor's testimony to the effect that his report to the district attorney of the results of his examination of the defendant in Moyamensing Prison, a month prior to the trial, was verbal was not in accordance with the facts. Yet, the district attorney neither then nor later made any effort to have the error corrected although, as he conceded at the bar of this Court, he was present throughout the cross-examination and "must have heard" the interrogation by defendant's counsel in such connection and the witness's misleading implication as to the form of all of his reports to the district attorney. I agree that it is not incumbent upon a district attorney to make out a defense for an indictee, but I do not agree that he can sit by silently and virtually suppress matter material to the issue and helpful to the defendant on trial which is in his possession and control. Had the existence of the written report been developed in the course of Dr. Ornsteen's cross-examination, as it should and would have been had the district attorney been punctilious to correct the doctor's evident misintendment, the existence *Page 526 of the written report would have at once become known and defendant's counsel could then have called for its production; the relevancy and materiality of the written report to the defense of insanity and, at least, to the penalty in case of a first degree conviction would have immediately become apparent.
Thus, under the heading "Opinion" in the written report, Doctors Ornsteen and Keyes attested that, — "It is the opinionof Dr. Ornsteen and Dr. Keyes that George A. Neill, although ofnormal average intelligence, manifests a profoundpsychoneurosis with marked emotional instability colored bysevere chronic malaria.
"It is further the opinion of the examiners that although George A. Neill, at the time of the commission of the murder on September 6, 1947, to which he has confessed, was in possession of his intellectual faculties, was not insane, knew right from wrong, and was therefore responsible before the law for his act.
"However, it is also the opinion of the examiners that thecommission of this act of violence can be explained as animpulsive act on the basis of his profound psychoneurosis,marked emotional instability and severe chronic malaria, whichfactors can be considered therefore as extenuatingcircumstances." (Emphasis supplied.)
When these doctors testified at trial, the sum and substance of their testimony was that, at the time of the commission of the crime, the defendant was in possession of his mental faculties, knew the difference between right and wrong, was capable of acting on that knowledge and was not insane. In other words, their opinions at trial embraced, in substance,only the unitalicized portion of the above-quoted opinion as contained in their report. Not once did they allow for any effect from the "profound psychoneurosis, marked emotional instability and severe chronic malaria" upon the *Page 527 defendant's mentality in its relation to the commission of the offense as they had done in the above italicized portions of their formal written report.
With reference to the written report of the doctors, the majority opinion, after quoting certain excerpts from the portions hereinabove italicized, dismisses the possibility of any harm to the defendant from the fact that the report was not made known to defendant's counsel appropriately and timely or received in evidence. The majority consider the matter not to have been harmful to the defendant because these witnesses expressed an opinion in the written report as to the defendant's sanity. Of course they did, — the same as they testified to at trial, as already stated; it is quoted in full in the above unitalicized portion of the report. But, it is my opinion that whether the report would have been helpful to the defendant in fact was for the jury, and not for a court, to determine. Nor was the harm, which resulted from the very effective, even though unintentional, suppression of the doctors' report, atoned, as the majority opinion suggests, by the fact that the matters therein contained ". . . in regard to defendant's drinking, headaches, malaria, maladjustment, nervousness and psychoneurosis were brought out at length, partly in his own testimony, partly in that of his witnesses, and partly from portions of public records admitted in evidence." It takes but slight realism to appreciate that the persuasive effect of the evidence from such sources, which the defendant produced, was nil compared with the weight the above-quoted italicized portions of the opinion of the Commonwealth's learned experts would have had with the jury.
A further serious error consists of the following. The defendant called as a witness, in his own behalf, his brother, William, for whom he had formerly worked. In cross-examination, the district attorney asked William whether he had not told Mr. and Mrs. Mallon (his brother-in-law and sister) that he had gotten rid *Page 528 of George (the defendant) because of certain then specified moral delinquencies. William flatly and categorically denied that he had ever told the Mallons anything of the sort. In rebuttal, the district attorney called Mr. and Mrs. Mallon for the purpose of contradicting William in the premises. The proffered testimony was, of course, hearsay as to the defendant; and, as it bid to introduce collateral matter highly prejudicial to him, his counsel properly and strenuously objected to its admission. Yet, the trial judge permitted the witnesses to testify to the things which they said William hadtold them and which William had denied. In objecting to Mr. Mallon's testimony in this regard, the following colloquy took place between defendant's counsel and the court: "Mr. Berkowitz [defendant's counsel]: If your Honor please, I don't wish . . . The Court: Don't interrupt the witness. Mr. Berkowitz: This is in his absence. The Court: Where is the defendant? He is here. Mr. Berkowitz: The statement was made in the absence of the defendant. The Court: The brother William testified in your case. Mr. Berkowitz: That is right. The Court: This is rebuttal. Mr. Berkowitz: Rebuttal, contradicting William? The Court: That is right."
With it thus apparently settled that the effect of the refutation went no further in any event than to contradict the witness William, observe the erroneous use to which this testimony was put by the trial judge in his charge to the jury as follows: "Then we had the other witnesses who were brought in to refute some of the testimony of the defendant [sic] in which he denied certain things that had been testified to with regard to, for instance [the alleged indecencies of the defendant, recited by the Mallons as having been told them by William], and one thing and another, which he had denied. All those things were brought to your attention, and also the fact that he admitted he had lied on the stand in a number of instances, and the fact that he *Page 529 undoubtedly had lied on a number of occasions. For instance, he must have lied, of course he lied to his sister when he came back from the lot when he told her the last time he saw the little girl was on Kensington avenue when, as a matter of fact, he had left her strangled on the lot. There were many instances of lying that he admitted." (Emphasis supplied.) Aside from the very obvious error in allowing refuted hearsay to go to the jury as substantive proof of the matter therein contained, an even more egregious error lies in the fact that the trial judge submitted the hearsay of the Mallons to the jury as impeachment of denials by the defendant of the lewd and lascivious conduct attributed to him by the hearsay. The plain and ineradicablefact is that the defendant was never interrogated, nor did hetestify, throughout the trial, either in direct orcross-examination, in regard to such matters; nor were theMallons called to refute him. This error is so palpable as not to require further comment. Yet, the majority opinion appraises it as harmless.
The trial judge also erred in excluding the defendant's hospital records which the Veterans' Bureau in Philadelphia produced pursuant to a subpœna issued by defendant's counsel. Such records embraced the defendant's hospitalization in New Zealand and in the government hospitals in this country already mentioned. Those records contained matter pertinent to the defendant's mental condition at various times in the years immediately preceding the commission of the crime. The trial court mistakenly ruled out the records produced by the Veterans' Bureau on the ground that they had not been certified as required by Act of Congress (49 Stat. 1105, 38 USCA § 11g.) as a prerequisite to their competency in evidence. What defendant's counsel had actually offered were the original records (not copies) from the office files of the Veterans' Bureau in Philadelphia. The Act of Congress, cit. supra, presupposes the *Page 530 admissibility of original records; when copies are certified, they become equally admissible with the originals. With the authenticity of the proffered records as originals, they were especially admissible on the basis of the competency afforded by our own Uniform Business Records as Evidence Act of May 4, 1939, P. L. 42, 28 P. S. § 91b. The majority opinion concedes that "These records might well have been admitted . . .", but, here again, excuses their exclusion as harmless error "because all the material portions of their contents were brought out in the testimony of defendant himself or of other witnesses." It indeed taxes one's imagination to suppose that anything the defendant or his witnesses testified to concerning his mental impairment could possibly approach in weight and persuasiveness the excluded official government records. To my mind, the court's action wrongfully deprived the defendant of a substantive right; and the matter consequently involved more than a mere exercise of judicial trial discretion.
There is one further matter to which I shall refer and which the majority opinion concedes was error but holds that it was absolved by action of the trial judge to that end. I do not think that the harm was so facilely eliminated. All of the facts concerning the occurrences in the field where the unfortunate little girl met her untimely and tragic death came from the defendant himself in statements he gave police officers, the examining doctors and on the witness stand. Nonetheless, the district attorney, in his cross-examination of the defendant, imputed to him a dastardly act of perversion for the support of which there was not a single word of producible proof. The district attorney had prefaced his question with "I suggest" in the apparently mistaken belief that an attorney may insinuate anything into a case in cross-examination so long as he introduces his improprieties by "suggesting". The majority opinion appropriately condemns such misconception of an advocate's *Page 531 proper role. The defendant's counsel made timely and vigorous objection which the trial judge overruled with remarks designed to substantiate that there was argumentative basis in the record for the suggestion. Thus, in the first instance, the court actually aggravated the district attorney's offense. But, on the succeeding day, at the close of the defendant's case, the court, after a side-bar conference with counsel, again took up the matter with the jury by referring to what had transpired in such regard the previous day and, then, by reading to the jury from the two-page colloquy between the court and counsel the day before.
The court opened the matter by saying, — "Members of the jury, at the session yesterday, while the defendant, George Neill, was on the stand under cross-examination by Mr. Beloff, the District Attorney, Mr. Beloff addressed himself to the defendant as follows." The court then reread the district attorney's admittedly improper question of the day before. Immediately following that, the court assumed to interpolate the following gratuitous observation: "That question was not answered. You will recall the witness sat with bowed head, with his head in his hands, for quite a long time, and then the question was not pressed, but Mr. Berkowitz then . . . [moved for the withdrawal of a juror]." The court resumed reading from the transcribed colloquy, including his own unwarranted recapitulation of the day before of the evidence which he had then thought justified the improper question, and concluded the reading of the record as follows: "Then Mr. Beloff said: — no, Mr. Berkowitz said: 'I except to your Honor's recapitulation of what the District Attorney said and I ask for the withdrawal of a juror.' The Court said: 'It is refused.' Mr. Berkowitz then asked for an exception which was granted." When the reading of the long colloquy with interpolations had thus been concluded, the court told the jury, — "That part of the record I now *Page 532 direct to be stricken from the record, and I am instructing you to disregard that part of it in coming to any conclusion in this case. You should expunge it from your minds entirely and give no credence to it in any way, shape or form, in coming to any conclusion you may come to in this case. You are to excludeit from your consideration." (Emphasis supplied.) In the maze of what had gone before over two days of trial, it requires more naïvete than judges or lawyers normally display in order to believe that the jury had any idea of what the court meant by "that" and "it" or what was to be eliminated from the record; and it requires still more credulity to believe that the jury could honestly accomplish the required metaphysical feat, especially after the court's repetition of the, now conceded, harmful matter of the day before.
I would reverse the judgment and sentence and remand the case for a re-trial.