Com. v. Boden

• Decision Date: 18 April 1960
• Citation: 159 A.2d 894,88 A.L.R.2d 223,399 Pa. 298
• Parties: , 88 A.L.R.2d 223 COMMONWEALTH v. Melvin Leroy BODEN, Appellant.
• Court: Pennsylvania Supreme Court

Page 894

159 A.2d 894

399 Pa. 298, 88 A.L.R.2d 223

COMMONWEALTH v. Melvin Leroy BODEN, Appellant.

Supreme Court of Pennsylvania.

April 18, 1960.

Robert M. Keim, Frederick F. Coffroth, Somerset, Wade K. Newell, Uniontown, for appellant.

Frank A. Orban, Jr., Dist. Atty., Somerset, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and McBRIDE, JJ.

BELL, Justice.

A jury returned a verdict of murder in the first degree with penalty of life imprisonment. Defendant appealed from a judgment and sentence thereon, alleging (a) the usual reasons for a new trial, (b) trial errors, and (c) the Court's refusal of the defendant's point for binding instructions.

Defendant was indicted for arson and for murder. The trial Judge withdrew from the jury the indictment for arson, which requires a person 'to wilfully and maliciously set fire to or burn a dwelling house or other building.' However, the trial Judge and the lower Court agreed with the jury that the Commonwealth had proved beyond a reasonable doubt that defendant had committed a willful, deliberate and premeditated murder by setting fire to and thereby killing his wife.

We shall first dispose of defendant's motion in arrest of judgment, considering the evidence, as the law requires us to do, in the light most favorable to the jury's verdict: Commonwealth v. Wright, 383 Pa. 532, 119 A.2d 492; Commonwealth v. Brown, 184 Pa.Super. 494, 136 A.2d 138.

Defendant and his victim, Mary Growall Burawski Boden, were married in August 1957. They lived in her home in Rockwood Borough, Somerset County, Pa.

George D. Sterner, a neighbor of the defendant, saw smoke coming from the second story of the Boden home at approximately 11:15 a. m. on Sunday morning, November 17, 1957. Shortly thereafter, another neighbor, John M. Barclay, seeing smoke, entered the Boden home to determine whether anyone was inside and immediately went to the second floor believing the Boden's bedroom was located there. He testified: 'There was a tremendous amount of smoke upstairs, in fact you couldn't have stayed there too long at one time, after a short period of time I came down again and went back out on the porch * * *.'

When informed by another neighbor who was alarmed by the smoke, that the bedroom was on the first floor, Barclay re-entered the Boden house with another neighbor, Charles Hostetler. The smoke was so thick on the first floor that they proceeded on their hands and knees to the bedroom where, at approximately 11:55 a. m. they discovered Mrs. Boden, still living, lying on the floor between the two beds, smoldering bedclothing and blankets under her, covered by what looked to be a housecoat around the lower part of her body. Moments later firemen arrived and removed the body from the premises to the Somerset Community Hospital at Somerset, Pennsylvania, where she was treated by Dr. Harold E. Musser. She was unconscious but still living. She suffered severe burns in her right groin which was so deeply burned that a fist could be thrust into it. She also suffered intense burns on her entire right leg, right foot and to a lesser extent on the left leg. There was practically no burning of her face, head, or neck, and most of her upper back.

The testimony, which was not objected to, established that the victim had extensive woulds and markings on her body for at least one whole month prior to her death. The victim was seen by Fred R. Gary on November 14, with blood running down her face. In October 1957, this same witness saw defendant strike the victim with such force that he knocked her off a stool. Defendant in his testimony admitted this. On November 16, 1957, Gary saw the victim with a cut above her right eye and a cut below her lip. The photographic exhibits show a gaping wound above the eye in the eyebrow. On another occasion Gary saw her with a swollen ankle and a black eye. In explaining these marks and wounds, the victim stated to Gary that they were caused by the defendant having struck her.

The burning of the house was limited to a section of the flooring immediately around her body and was located principally at her feet and legs. The entire burned or scorched area of the flooring and linoleum was only 5.748 square feet. A very small part of this area was burned entirely through the flooring.

Several witnesses testified that defendant had said he hoped 'his wife would kick off soon', and had explained how he would inherit her estate. The Commonwealth further proved that Mrs. Boden had reinstated after her marriage a life insurance policy and had made it payable to defendant; and one witness testified that defendant told him he would get about $65,000 if his wife died.

Several witnesses testified that Melvin Boden had previously demonstrated the manner of setting fire to whiskey. The Commonwealth also called expert witnesses, particularly a chemist and the fire marshal, who testified that an accelerant was used to ignite the bed clothing with which the victim was carefully surrounded.

The attending physician and the surgeon who conducted the post-mortem examination testified that death was caused by extensive burning of the body of Mrs. Boden.

Carl Hileman, in response to defendant's telephone call, went to the Boden home that Sunday morning between 10:30 and 10:50 a. m., parked his pick-up truck in front of the house, remained in the truck, sounded his horn and a few minutes later defendant and his brother, Harry Boden, came out of the house, got into the truck and went to the home of Paul Boden several miles distant. Defendant did not return to his home that day until after he was summoned to the hospital. It was admitted that defendant and his brother, Harry Boden, were the only persons, except Mrs. Melvin Boden, in that home during the Saturday night and on the morning of Sunday, November 17th, prior to the entry of the neighbors, firemen and others after the smoke had been observed by the neighbors.

Anthony Aurigemma, who was an undercover man for 32 years for the United States Government and for many years an undercover man for the National Board of Fire Underwriters, was placed in the same cell with defendant in the Somerset County jail. He testified of conversations he had with defendant. In particular he testified that defendant told him that Mrs. Boden drank excessively; that the night before the murder he and his brother and his wife sat up all night drinking whiskey and smoking cigarettes; that next morning (Sunday morning) he and his wife had a fight; that he gave his wife two drinks of whiskey; that she was lying on the floor drunk and unconscious; that he beat her up and then got hold of an ashtray with some cigarette butts in it, put some book matches, together with rubbing alcohol into the ashtray, mixed it with Vitalis, covered his wife with a lot of bedclothing, put the ashtray on her stomach, lighted a cigarette and put it in the ashtray and set fire to the book matches; and that he and his brother then left his home.

Defendant took the witness stand and denied the killing. He also denied making any incriminating statements to Aurigemma. In his testimony, which was very brief, defendant said that he and his brother spent Saturday night at his home; that on Sunday morning he gave his wife two drinks of whiskey; and that he and his brother Harry ¹ left his home between 10:30 and 10:50 a. m. and went to their brother Paul's home. He never knew anything about his wife's being burnt until he was called to the hospital later that Sunday afternoon.

The evidence is clearly and unquestionably sufficient in law to justify a verdict of first degree murder. Proof by eye witnesses, or direct evidence of the corpus delicti, or of identity, or of the commission by the defendant of the crime charged is not necessary. Few criminals are caught 'red-handed', and if eye witnesses of the crime were necessary few murderers, arsonists and burglars could ever be convicted. It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt: Commonwealth v. Sauders, 390 Pa. 379, 134 A.2d 890; Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435; Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743; Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A.2d 733; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070; Commonwealth v. Carey, 368 Pa. 157, 82 A.2d 240; Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 348, 106 A.2d 587; Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464; Commonwealth v. Hooe, 187 Pa.Super. 330, 144 A.2d 580.

Trial Errors

Defendant's statements as to the insurance he would recover, or the money he would receive if his wife died, are clearly admissible as evidence of motive; statements by defendant that (a) he wished his wife would die, and (b) that he beat her up that morning, or at any other time not too remote, are clearly admissible.

In Commonwealth v. Patskin, 372 Pa. 402, at page 413, 93 A.2d 704, 710, the Court said: 'This evidence of beating his wife was admissible as showing, with other incidents, ill will, motive or malice which the defendant had toward his wife. Commonwealth v. Peyton, 360 Pa. 441, 62 A.2d 37; Commonwealth v. Jones, 269 Pa. 589, 113 A. 57.

'In Commonwealth v. Peyton, 360 Pa. 441, 452, 62 A.2d 37, 42, this Court said: "In almost any situation--whether the fact of killing is denied, or whether self-defense is pleaded, or whether it is contended that by reason of provocation the killing is reduced to manslaughter--proof of the previous relations of the prisoner and the deceased, whether friendly or hostile or whatnot, is relevant and competent.' * * *" See also: Commonwealth v. Giacobbe, 341 Pa. 187, 19 A.2d 71; Commonwealth v. Del Giorno, 303 Pa. 509, ...