Com. v. Dessus
| Citation | 214 Pa.Super. 347,257 A.2d 867 |
| Parties | COMMONWEALTH of Pennsylvania v. Ronald J. DESSUS, Appellant. |
| Decision Date | 13 June 1969 |
| Court | Pennsylvania Superior Court |
Domenick Vitullo, Philadelphia, for appellant.
Benjamin Levintow, Asst. Dist. Atty., James D. Crawford, Asst. Dist. Atty., Chief, Appeals Division, Arlen Specter, Dist. Atty., Philadelphia, for appellee.
Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and CERCONE, JJ.
This was a homicide case. The defendant-appellant was found guilty of murder in the first degree on Indictment No. 290 and was sentenced to life imprisonment by the jury therefor. On all other indictments on which he was adjudged guilty by the jury, the defendant has appealed from the sentences imposed by the court as follows: Indictment No. 283, Rape, Sentence of 10 to 20 years; No. 284, Rape, Sentence suspended; No. 285, Rape, Sentence of 10 to 20 years, commencing at the expiration of sentence imposed on No. 283; No. 286, Burglary, Sentence of 10 to 25 years, commencing at the expiration of sentence on No. 285; No. 287, Conspiracy, Sentence suspended; No. 288, Assault and Battery and Aggravated Assault and Battery, Sentence suspended (The jury found defendant not guilty of assault and battery with intent to murder); No. 289, Assault and Battery, Assault and Battery with intent to Murder, Sentence suspended; No. 292, Aggravated Robbery, Sentence suspended; and No. 293, Aggravated Robbery, Sentence suspended.
The appellant, on this appeal, has preserved seventeen points of error, which were denied by the court below on its refusal to grant appellant's motions for a new trial and in arrest of judgment. No motions were filed in the homicide case. Appellant contends and advances seven alleged violations of his rights before trial, two violations during the trial, five errors on admittance of evidence, and two errors in the court's charge to the jury.
The events which ultimately led to the life imprisonment of this appellant and these appeals occurred between the hours of midnight and 4:00 a.m., April 3, 1966, in the City of Philadelphia. Appellant, age 20, John Burgess, age 23, and James Stukes, age 20, having conspired to commit burglary, broke into the household at 5120 Chester Avenue, Philadelphia, Pennsylvania. They tore from their slumber Mrs. Lena Alexandroff, 79 years of age, her daughter, Mrs. Natalie Tuchar, 44 years of age, and Paula Tuchar, daughter of Mrs. Tuchar, 14 years of age, beat, raped, and robbed them, and then murdered Mrs. Alexandroff, for she died on April 22, 1966 as a result of her injuries. A full description of the shambles created by these men need not be republished here; but because it is pertinent on this appeal, we narrate a portion of the decedent's ordeal and some events subsequent to these crimes.
Shortly after the three men left the house, the police were alerted and the area was carefully searched. Appellant and John Burgess were seen on the street about three blocks from the scene of the crimes. When a police car approached, appellant ran and was chased by an officer, who caught up with him within a block. During the chase, appellant dropped a radio and a raincoat. The radio was identified as one of the objects taken from the victims' home.
At about 4:00 a.m. Paula Tuchar was heard to shout for help from a third floor window. Shortly after she called out, Burgess came to the window, looked out, and shouted that somebody had called the cops. He dragged Paula downstairs to the kitchen. There she saw her mother, appellant, and Mrs. Alexandroff, who was lying on the floor in a pool of blood. She had blood all over her face and hair with remains of egg shells in her hair. The room was spattered with blood also. Paula and her mother were pushed into the cellar. The police arrived at about 4:20 a.m. and found Mrs. Alexandroff lying motionless on the kitchen floor. When she began to move a policeman assisted her into a sitting position. She stood briefly, then collapsed, and was carried into the living room and placed into a chair by an officer. They placed Mrs Alexandroff on a stretcher and took her, along with her daughter and granddaughter, to Mercy-Douglass Hospital, at 50th Street and Woodland Avenue, arriving there at about 4:40 a.m. Hospital records show that Mrs. Alexandroff was seen in the accident ward at 4:45 a.m. An intern who examined Mrs. Alexandroff testified that she was conscious but not fully alert, and complained of pain in her right thigh. There were multiple hematoma and contusions on her face.
Father Borichevsky arrived at Mercy-Douglass Douglass Hospital between 5:00 and 5:30 a.m. Mrs. Alexandroff and Mrs. Tuchar were lying on beds in the emergency room, side by side. As Father Borichevsky came into the emergency room, Mrs. Alexandroff was repeating, Her statements about being raped were made within ten to fifteen minutes later. During this time Mrs. Alexandroff was strapped to the litter and was being calmed and restrained from moving by Mrs. Tuchar, a nurse and a doctor. She was speaking mostly in Russian and Father Borichevsky, fluent in this language, had no difficulty in understanding what she was saying. The identification of appellant by Mrs. Alexandroff in the emergency room at the Mercy-Douglass Hospital was made after Father Borichevsky heard her first utterances, stated above, and immediately before she stated in response to questions that she had been raped.
At the trial Richard Brandon testified that on or about May 3, 1966, he was in a cell with appellant and approximately 20 other persons at the Detention Center. A man in the cell said to appellant, 'They are going to burn you for the rape and murder charge.' Appellant replied,
Prior to the trial of this case, which commenced on March 20, 1967, almost one year after the crimes were committed, the appellant presented several petitions. The bases for these petitions were alleged prejudicial publicity which his impending trial the impending trial of Stukes, 1 and the trial of Burgess 2 had received. He attached exhibits of newspaper articles to his brief in support thereof. He contends that the prior publicity was sufficient grounds to support his petition for continuance and his petition to have more funds to hire an investigator to investigate the grand jury for bias because of the prejudicial publicity. These petitions were denied by the lower court.
We shall first examine the appellant's contention that the trial judge abused his discretion in refusing to grant a continuance. A continuance or change of venue is not required merely because the case has received publicity from the press, Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959), but the question is whether publicity was '* * * so inflammatory and biased in factual presentation as to cause, or be evidence of, public prejudice or hysteria.' Commonwealth v. Capps, 382 Pa. 72, 77, 114 A.2d 338, 341 (1955). We have found that nearly half the newspaper articles submitted by appellant as exhibits were published during April, 1966, that they were not more inflammatory that the average news writing on such reprehensible crimes, and that his claim of bias emanating therefrom is unfounded. Furthermore, the trial of appellant was held nearly a year after the crimes were committed. In the Capps case, where the defendant was convicted of the rape-murder of a fifteen year old girl, the trial was held but three months after the crime was committed. There are little, if any, facts in this case similar to those in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) relied on by appellant. We conclude that the trial court did not abuse its discretion in this respect.
To support his petition for funds to have an investigator investigate the grand jury, appellant advanced the theory that, since he is not entitled to a voir dire examination of grand jurors, Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), he could effectively exercise his right under Rule 203 of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix of challenging the array of an individual grand juror, who '* * * may be challenged on the ground that he is not legally qualified or that a state of mind exists on his part which may prevent him from acting impartially,' only by having an out-of-court investigator to inquire into the possibility that any one or all of them had been biased by the adverse publicity his case received. We know of no precedent in Pennsylvania which allows a grand juror to be challenged for bias and we shall not here so enlarge the rule. The Federal Courts do not allow it. Estes v. United States, 5 Cir., 335 F.2d 690 (1964). In any case, the Act of March 22, 1907, P.L. 31, § 1, as amended by the Act of November 19, 1959, P.L. 1401, § 1, 19 P.S. § 784, provides only for the payment of investigators needed by counsel for an indigent defendant in a homicide case.
Before trial the appellant had failed petitions for more funds to hire a psychologist and for the suppression of evidence, which we shall consider in our discussion of alleged trial errors.
The remaining alleged pretrial errors advanced by the appellant concern the selection of the petit jury which heard his case. He raises three questions. First, the appellant moved for the withdrawal of a juror on the basis that one juror, Mrs. Riva A. Gordon, on voir dire examination testified that there had been some discussion of the case among the jurors in violation of the trial court's instructions to the jury panels. Upon further questioning, Mrs. Gordon revealed that the 'discussion of the case' consisted of remarks about whom had been selected to serve on the jury, who would be next, and...
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