Commonwealth v. Cater

Dissenting Opinion by

Mr. Justice Cohen :

After our disposition in Commonwealth v. Cater et al., 396 Pa. 172, 152 A. 2d 259 (1959), wherein we vacated the judgments of sentences of death as to *58appellants James Cater and George Lee Rivers and remitted the records to the court below for re-sentencing, a three judge court re-convened and pursuant to our decision in Commonwealth v. Green, 396 Pa. 137, 151 A. 2d 241 (1959), received additional evidence consisting of psychiatric reports, school records, and the report of a county detective who conducted a general investigation of the backgrounds of both appellants. The court, upon further deliberation, again imposed sentences of death upon both appellants. This appeal followed.

In Commonwealth v. Cater, supra at 180, we reiterated that the reviewing function of this Court is to see “in every capital case whether the trial court abused its discretion by overlooking pertinent facts or disregarding the force of evidence, or erred in its law.” In applying these criteria to the record in that proceeding, we found that the Court en banc had misapplied certain of the evidence in reaching its conclusion as to the sentences to be imposed. It was for that reason that we vacated the judgments of sentence and remitted the records.

I have once more scrutinized the entire record, for “in such a solemn and drastic proceeding there is no room for a scintilla of error,” and I am constrained to hold that the court en banc has again erred in arriving at its conclusion. The reasoning with which I find fault can best be indicated by quoting the following language from the lower court’s opinion, “Nor can it now be argued that Cater and Rivers were not, in the words of Mr. Justice Cohen, equally responsible with Williams for this homicide. . . . We must interpret the phrase ‘equally responsible’ to mean equally contributing to the result. What considerations would impel one to conclude that three men equally responsible for a criminal act are not equally culpable? If *59there be any such considerations, we conceive that they must arise from differences in the acts or attitudes of the individual participants in the commission of the crime (which, if they exist, would negative equal responsibility), or from differences in the personalities and backgrounds of the participants, aside from the criminal act itself, or from differences in the attitudes of the participants after the commission of the crime which might incline the sentencing authority in the direction of less severity towards one than towards another. We can find nothing in this case to cause us to regard Cater and Elvers as being less responsible than Williams, or less blameworthy.” (Emphasis supplied ). I considered it patently obvious that our reference to the fact that Cater and Eivers “were equally responsible with Williams” (396 Pa. 172, 176) in the context of discussing the appellants’ guilt of first degree murder under the “felony-murder” rule was not in the slightest way meant to have any bearing on the separate and distinct determination to be made as to the proper punishment to be imposed. Most apparently the court below seized upon this remark and from it derived the notion that this Court meant to indicate that the three participants were equally culpable and should thus receive equal punishment. Nothing could be further from the fact. Quite to the contrary, I had serious doubts (not since allayed) as to the propriety of the imposition of the death sentence under the circumstances surrounding these two boys.

As Mr. Justice Benjamin E. Jones well stated in Commonwealth v. Green, supra at 119-150, “Both the criminal act and the criminal himself must be thoroughly, completely and exhaustively examined before a court can exercise a sound discretion in determining the appropriate penalty. . . . An appropriate exercise of judicial discretion as required by the statute contem*60plates that the death penalty be imposed where all the facts surrounding the criminal act and the criminal actor have been exhaustively considered and where, after such consideration, no other conclusion can be justified than the extermination of the convicted criminal by death.” Desiring to give the court below the opportunity to make an independent determination free from error, we remitted the records for re-sentencing; but the studied and flagrant misinterpretation of our opinion in the first Cater case clearly indicates that the court entertained motives that are not consistent with the responsibilities required by a court in such a solemn and drastic proceeding. I would vacate the sentence of death and remit the record with instructions to sentence appellants to imprisonment for life.

Mr. Justice Musmanno and Mr. Justice Bob join in this dissenting opinion.