Com. v. Fletcher

• Decision Date: 12 November 1956
• Citation: 128 A.2d 897,387 Pa. 602
• Parties: COMMONWEALTH of Pennsylvania v. James Morris FLETCHER, Appellant.
• Court: Pennsylvania Supreme Court

Page 897

128 A.2d 897

387 Pa. 602

COMMONWEALTH of Pennsylvania v. James Morris FLETCHER, Appellant.

Supreme Court of Pennsylvania.

Nov. 12, 1956.

Petition for Reargument Dismissed Feb. 18, 1957.

A. J. Waychoff, Waynesburg, for appellant.

Glenn R. Toothman, Jr., Dist. Atty., Waynesburg, for appellee

Before STERN, C. J., and JONES, BELL, CHIDSEY, MUSMANNO, and ARNOLD, JJ.

BELL, Justice.

Defendant was found guilty of murder in the first degree and sentenced to life imprisonment for the slaying of Gerald Tanner. Defendant did not take the witness stand. He filed a motion in arrest of judgment and a motion for a new trial. He contended (1) that there was not sufficient evidence to prove the corpus delicti; (2) that the verdict was against the evidence and against the weight of the evidence and against the law; (3) that a new trial should be granted for the additional reason that two jurors should have been disqualified, and (4) that a new trial should be granted for alleged prejudicial remarks made by the District Attorney during his closing argument to the jury. We shall consider the first two contentions together.

The jury could have found from the Commonwealth's evidence and from the reasonable and legitimate inferences therefrom that the Commonwealth proved beyond a reasonable doubt the following facts:

Defendant and Gerald Tanner, the deceased, on the evening of June 11, 1954, had a fist fight outside a barroom over a married woman, Elsie, with whom each had been having relations. As a result of this fight Elsie and the defendant were arrested and put in jail. The same evening they were released, and they returned to Bobtown, Greene County. Later Elsie left defendant to go to her home with Tanner.

During the fight between the defendant and the deceased, the defendant said, 'I'll get you if it's the last thing, I'll show you.' After the defendant returned to Bobtown late that evening, he was seen by several witnesses at a beer garden known as Nassar's. There he discussed the fight and said: 'Someone is going to pay for this.' The Commonwealth then proved that the defendant returned in his automobile to his store at Bobtown about four A. M.

In the early hours of June 12th, Tanner returned from Elsie's home to his home at Cabbage Flats in Monongahela Township, Greene County. While standing before his kitchen door at about four A. M., Tanner was shot and killed from ambush by a shot gun. Mrs. Alice Tanner, his mother, saw him alive, heard a gunshot, saw him fall and held him in her arms as he died. Mrs. Jean Tanner, widow of the deceased, heard the shot, placed a pillow under her husband's head and immediately called a doctor.

Bernice Fletcher, the defendant's wife, testified that the defendant first came home at about four A. M., got the keys for the store, left his home, and returned again about four-thirty A. M. Defendant was arrested at eight A. M. on the morning of June 12 1954, at his home at Bobtown, Greene County, which was approximately three miles from Tanner's home. At the time of his arrest he gave vague as well as contradictory accounts of his whereabouts and actions prior to and about the time of the shooting.

Elsie Mahoney testified that after she began working for the defendant, he gave her a gun and a box of shells for her protection, and that sometime later the defendant took the gun and hid it, and that she did not again see the gun. A shotgun owned by the defendant was offered in evidence at the trial. John Laskody testified that he saw the defendant when he was at Nassar's take three shotgun shells from his pocket, and state: 'Someone is going to pay for this.' The defendant made several contradictory statements as to where the gun and shells were located, but later showed the officers where the gun was. One of the officers testified that when he opened the gun it smelled as if it had been freshly fired.

Dr. D. L. Avner pronounced Tanner dead. He testified that he bared Tanner's chest in the position he had fallen, and there were multiple penetrations over his chest and shoulders, and a large quantity of blood had been emitted from mouth and nostrils. John Rock obtained four pellets identified as four shot gun pellets from inside the body of the deceased in the Lucas funeral home as they were removed from the body by Doctor Ramsey. Michael Lucas, the undertaker, who was deputy coroner, testified that there were one hundred penetrations over Tanner's body, his ribs were broken, and his lungs and heart were lacerated. He also testified that after the autopsy had been performed by Doctor Ramsey, at which he was present, he prepared the certificate of death, offered in evidence as Commonwealth's Exhibit No. 13, which he identified. When this certificate of death was offered in evidence by the Commonwealth, it was admitted to show that Gerald Tanner died on June 12, 1954, of shotgun wounds on the left chest. Counsel for defendant made no objections to the offer of the death certificate except to request that the words 'shot to death from ambush' be not read to the jury. This was granted. Lucas further testified:

'Q. As the autopsy progressed, were you aware or did you find out of what Mr. Tanner died? A. Yes.

'Q. What was it? A. His heart was punctured by shot gun pellets.

'Q. Causing what? A. Hemorrhages.'

There was overwhelming evidence from which the jury could have properly concluded that death resulted from a criminal act, namely, the unlawful shooting. The Coroner, because of his physical and mental condition, could not be produced as a witness at the trial, but as the Court said in Commonwealth v. Haley, 359 Pa. 477, 479, 59 A.2d 62, 63, 'The corpus delicti in homicide cases may be established without aid of testimony pertaining to a coroner's autopsy.'

The Court's opinion in Commonwealth ex rel. Lagana v. Day, 385 Pa. 338, at pages 340, 341, 123 A.2d 172, on the subject of corpus delicti is particularly applicable:

'In Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, the head of Anna Homeyer, which was severed from her body and encased in concrete, was found in the cellar of defendant's home. We held that that was sufficient evidence without any confession and without any further evidence of the corpus delicti. The Court said, 373 Pa. at pages 156, 157, 94 A.2d at page 746:

'* * * The Commonwealth in such a case, in order to establish the corpus delicti, must prove (1) that the alleged victim is dead, and (2) that the death occurred as a result of a felonious act. The corpus delicti, like other facts, may be shown by circumstantial evidence; it is sufficient if these circumstances are consistent with crime even though they are also consistent with suicide or accident; if it were otherwise it would be impossible in many cases, where there were no eye witnesses, to convict a criminal. Commonwealth v. Gardner, 282 Pa. 458, 128 A. 87; Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401; Commonwealth v. Johnson, 162 Pa. 63, 29 A. 280; Commonwealth v. Coontz, 288 Pa. 74, 135 A. 538; Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657; Commonwealth v. Jones, 297 Pa. 326, 146 A. 905; Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155, 158.

"In the leading case of Commonwealth v. Gardner, 282 Pa. at page 462, 128 A. at page 89, supra, the Court said: 'In all criminal proceedings it is incumbent on the commonwealth to establish beyond a reasonable doubt three elements: (1) the occurrence of an injury or loss--in homicide, a person deceased; (2) a criminal agency--in homicide, for example, that the death was caused by a beating, gunshot, or circumstances indicating a felonious act (these two combined show a crime has been committed by someone); (3) that the defendant is the responsible party. Defendant contends that the crime for which he is charged was not committed. * * * The person for whose death a prosecution is instituted may be alive, so evidence that he or she is in fact dead is imperative. As death may have resulted from a cause other than a felonious act, there must be evidence that it occurred under circumstances which point to the commission of a crime. In this manner the corpus delicti is shown. * * * 4 Wigmore, Evidence (2d Ed.) § 2072, pp. 410, 412; Grant v. Commonwealth, 71 Pa. 495, 505; Johnson v. Commonwealth, 115 Pa. 369, 391, 9 A. 78; Cox v. Commonwealth, 125 Pa. 94, 102, 17 A. 227; Commonwealth v. Bell, 164 Pa. 517, 30 A. 511; Commonwealth v. Russogulo, 263 Pa. 93, 108, 106 A. 180. * * * It sometimes happens the circumstances attending the act may be consistent with crime, suicide, or accident. In such cases, the corpus delicti is proven where the circumstances attending the death are consistent with crime, though they may also be consistent with accident (Commonwealth v. Johnson, 162 Pa. 63, 29 A. 280), or suicide (Zell v. Commonwealth, 94 Pa. 258), and it is not necessary to show by affirmative proof that the latter two possibilities do not exist before evidence as to who did the act is admitted. Commonwealth v. Puglise, supra, 276 Pa. 235, 238, 120 A. 401.'"

We are convinced (1) that the evidence was sufficient to justify a conviction of murder in the first...