Com. v. DeJohn

• Decision Date: 17 August 1979
• Citation: 403 A.2d 1283,486 Pa. 32
• Parties: COMMONWEALTH of Pennsylvania v. Jill V. DeJOHN, Appellant.
• Court: Pennsylvania Supreme Court

Page 1283

403 A.2d 1283

486 Pa. 32

COMMONWEALTH of Pennsylvania v. Jill V. DeJOHN, Appellant.

Supreme Court of Pennsylvania.

Argued Sept. 19, 1978.

Decided May 17, 1979.

Rehearing Denied Aug. 17, 1979.

Stanley W. Greenfield, John W. Murtagh, Jr., Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Appellant, Jill V. DeJohn, was convicted by a jury of murder of the third degree. In a subsequent nonjury trial, she was also convicted of attempted theft by extortion. Post-verdict motions were denied and appellant was sentenced to concurrent prison terms of ten-to-twenty-years for the murder conviction and one-to-three-years for the attempted theft by extortion conviction. This direct appeal followed. ¹

I

Appellant first claims that the evidence is insufficient to sustain her conviction for murder of the third degree. The facts are as follows.

At approximately 1 a. m., on February 12, 1976, appellant discovered the body of her husband, Michael DeJohn, in the garage of their suburban Pittsburgh home. Death was caused by a single gunshot wound to the back of the head, fired from a distance of no greater than eighteen inches. The victim had been shot by a .25 caliber pistol. A pathologist was unable to set an exact time of death, but estimated that death occurred between 6:15 p. m. and 1:04 a. m. on the evening of February 11 and the early morning hours of February 12, 1976. The pathologist did opine that death appeared to be closer to 6:15 p. m. rather than the later time. The victim had been shot near the door between the garage and the downstairs gameroom and then was dragged about fifteen feet in a series of movements to a spot between the rear of his car and the garage door. A recent bloodstain consistent with the trail of the victim's blood was found on the lip of the trunk of the victim's car, indicating that someone had tried to place the body in the trunk of the car. A sliding glass door to the outside, off the downstairs gameroom, was open approximately eight to eighteen inches with no signs of forcible entry. No footprints were found on the ground outside the open door. According to appellant, the only items missing from the home were $40 or $50 in poker money and a .25 caliber automatic pistol. The victim's ring, watch and wallet, containing $46, were found untouched on his person.

Mr. DeJohn had left his home at 7:00 a. m. on February 11 for a business trip to Washington, D. C. Appellant had a luncheon date with John Lindemulder, a Pittsburgh area radio personality, at the Sewickley Holiday Inn. Appellant's two children, Dawn, age twelve, and "Cricket," age nine, had been waiting outside the locked home approximately fifteen minutes when appellant arrived home from her lunch date at 4:00 p. m. Appellant told her daughters that Lindemulder was a man from the parking garage who drove her home because her car had broken down. Appellant later admitted that she left her car at Allegheny Center, in the northside of Pittsburgh, where she had met Lindemulder, and returned home without her car because Appellant testified that the victim called her at their home after 5:00 p. m. from Greater Pittsburgh Airport. She also testified that the victim told her that he had a business meeting, after which he would return home so that the family could go to dinner to celebrate appellant's birthday. According to appellant, her husband told her that should he be late, he would meet her and the girls at the HuKeLau Restaurant. Gilmore Wheeler, the other party to the business meeting, testified that he was unaware of the late night meeting. According to appellant, when her husband had not returned by 7:00 p. m., she called a cab and left for the restaurant with her daughters. The trio returned home at 9:40 p. m. Appellant stated that Mr. DeJohn's absence did not worry her, as he had been late in the past because of business meetings. Before going to bed, appellant went to the garage to turn on the spotlight in the driveway, when she discovered her husband's body.

she knew the girls would be locked out of the house.

Appellant's neighbor and the paperboy both testified that they saw the victim's car pull into the DeJohn driveway shortly after 6:00 p. m. on February 11. The time was verified because the neighbor was involved in a toll call on the telephone when he noticed Mr. DeJohn's automobile pull into the driveway. Telephone company records indicated that the neighbor's telephone was in use between 6:07 p. m. and 6:11 p. m. Further, a parking ticket was found on the victim's body which indicated he had left the airport parking lot at 5:23 p. m. An Allegheny County Detective later made the same drive from the airport to the DeJohn residence, leaving at 5:23 p. m., and arriving at 6:05 p. m.

Appellant was in charge of managing the family finances, as the husband had no interest in monetary matters. As it turned out, appellant was doing a poor job, having missed the last two house mortgage payments, with other indebtedness of $9,000 to $10,000. To obtain money, appellant had signed her husband's name on a loan application at a local bank, to obtain money to pay back $3,000 she owed to an employee of their home builder. The employee testified that he threatened to go to Mr. DeJohn before appellant repaid the loan. Further, appellant admitted attempting to extort $5,000 from a neighbor. Moreover, Mr. DeJohn had submitted a letter of resignation from his job and appellant knew of this. ² It was stipulated that Mr. DeJohn was insured for $201,000, with appellant being the primary beneficiary.

Appellant and her two children testified that appellant did not go downstairs after 6:00 p. m. The children were watching television in the first floor family room between 4:30 p. m. and 6:30 p. m. Appellant testified that the garage door, when being opened, could be heard throughout the house. Dawn DeJohn testified that she did not hear her father enter the house. The children, however, did not hear the paperboy both knocking on the door and ringing the doorbell, ³ despite the fact that the chimes were located immediately outside the family room.

Testimony showed that Mr. DeJohn was an officer in the "Green Berets," an elite Army unit, and had been decorated for bravery in Viet Nam. Patty Marie DeJohn Boyle testified that, in her opinion, because of his background, someone would have had to be familiar with Mr. DeJohn in order to get within pointblank range before shooting him in his own garage. Further, a neighbor testified that appellant had told her she had access to a gun and knew how to use it. ⁴

As we recently stated in Commonwealth v. Long, 470 Pa. 204, 206, 368 A.2d 265, 266 (1977) " 'It is true that circumstantial evidence, in itself, may be sufficient to establish the commission of a crime and the accused's connection therewith. . . . It is equally true that in evaluating the sufficiency of the evidence after a guilty verdict, all of the evidence, be it direct or circumstantial, must be read in a light most favorable to the Commonwealth, and the Commonwealth must be given the benefit of all reasonable inferences arising therefrom. . . . But before a conviction will be sustained, "the facts and circumstances proved must be of such a character as to establish guilt beyond a reasonable doubt. " . . . And, where a conviction is based entirely on circumstantial evidence, "the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all. " . . . If the conviction is based wholly on inferences, suspicion and conjecture, it cannot stand. . . .' " (Citations omitted.)

". . . Since all of the evidence produced by the prosecution to support its theory was circumstantial and the issue before us is the sufficiency of that circumstantial evidence, we note initially what we have said about circumstantial evidence in the past. In Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970) we said:

We believe that the entirely circumstantial case against appellant was sufficient to establish her guilt beyond a reasonable doubt.

Testimony of two individuals indicated that the victim's car was seen pulling into his driveway shortly after 6:00 p. m. the day of the killing. After having been away all day and intending to go out to dinner to celebrate a birthday, the jury could find it incredulous that Mr. DeJohn would remain in the garage almost an hour while his wife and two children left for dinner. Further, witnesses testified that because of DeJohn's background in the military, a stranger would not have been able to shoot DeJohn from pointblank range in the back of the head.

While the defense argued that DeJohn possibly confronted a burglar or a robber, the jury may have rejected this theory as implausible for three reasons. First, there was no sign of forced entry anywhere in the house. Second, it is unlikely a burglar or robber would delay his flight after killing DeJohn to drag his body across the garage floor. Third, the victim's watch, ring and wallet, containing $46, were untouched.

Thus, the evidence, read in a light most favorable to the Commonwealth, and the logical inferences therefrom indicate that the victim arrived home shortly after 6:00 p. m. The pathologist testified that DeJohn died between 6:00 p. m. and 1:00 a. m., but in his opinion closer to 6:00 p. m. Appellant had a motive, as she had mismanaged the financial affairs of the family. In an attempt to raise some money, appellant had attempted to extort money from a neighbor and had signed her husband's signature on a bank loan application. Appellant also knew her husband was thinking of quitting his job. As the victim's life was insured in appellant's favor for $201,000, appellant certainly had a motive to kill her...