Com. v. Gomino
| Decision Date | 19 March 1963 |
| Parties | COMMONWEALTH of Pennsylvania v. Peter GOMINO, Appellant. |
| Court | Pennsylvania Superior Court |
H. David Rothman, Pittsburgh, for appellant.
Edward C. Boyle, Dist. Atty., Martin Lubow, Asst. Dist. Atty., Pittsburgh, for appellee.
Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.
The indictment in this case charged that the appellant Peter Gomino, on the 22nd day of August, 1960, did deal in, dispense, sell, deliver, distribute, prescribe, traffic in and give away a quantity of a certain drug, compound, substance and preparation commonly known as morphine, being and containing a compound and derivative of opium. He was tried by a jury and found guilty. After the dismissal of his motions in arrest of judgment and for a new trial, a life sentence was imposed. The defendant appealed.
At about 3:30 p. m. on August 22, 1960, Eugene Pietosi, a known drug addict, was observed by certain Federal and city officers entering the home of the appellant. Five or ten minutes later Pietosi came out of the appellant's home carrying in his hand a cellophane packet containing two capsules or pills, which he dropped when the officers approached him. He was arrested and he informed the officers that the pills were supposed to contain morphine and that he had just bought them from the appellant, Peter Gomino. One of the officers testified that they had heard, from a source which had proved to be reliable in the past, that the appellant Gomino was selling morphine illegally. Pietosi was approximately 75 to 100 feet from the appellant's door when he was arrested. Some of the officers immediately entered the home of the appellant and made a search of the premises and arrested the appellant. In the search the officers found two bottles of morphine tablets, obviously purchased under prescriptions and similar to those contained in the packet which Pietosi had dropped to the ground. The officers also found spoons, hypodermic needles and other paraphernalia customarily used by addicts. The cellophane wrapper which contained the pills dropped by Pietosi was similar to the cellophane wrapper around a spoon found in the appellant's apartment. The printed matter on the two cellophane wrappers was similar.
The appellant and Pietosi were taken to police headquarters. It took about 15 to 20 minutes to go from the appellant's home to police headquarters. At the police headquarters Pietosi, who was seated next to the appellant and not more than five or six feet from him, gave the officers a statement, which was reduced to writing and signed by Pietosi, and he stated that daily during a period of four months he had purchased from the appellant two morphine tablets, each containing one-quarter grain of morphine, for the sum of $3.00 each. The appellant made no denial thereof. A criminalist was presented by the Commonwealth who testified that he examined the contents of the packet thrown to the ground by Pietosi and also the pills in the bottles found in the appellant's apartment and that they contained more than one-quarter grain of morphine per averdupois ounce. In fact, he stated that they contained approximately a thousand times more than one-quarter of a grain of morphine per averdupois ounce.
Officer Raugh testified that at the time of the arrest of the appellant he asked him who was prescribing the narcotics for him, for what reason and where he was having these prescriptions filled, and that the appellant answered him, giving names, addresses and dates. Raugh said that he talked to the appellant at his home for about five or six minutes.
Counsel for the appellant argues that the court erred in admitting into evidence what purported to be appellant's tacit admission of guilt when there was no evidence of corpus delicti or independent corroboration of appellant's guilt. Extra-judicial admissions or confessions of one accused of crime may not be received in evidence until the corpus delicti has first been established by independent proof, but as was said in Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, '* * * this does not mean, as appellant contends, that the Commonwealth must preliminarily and independently establish all the elements of the charge, i. e. (1) the occurrence of an injury or loss--in homicide, a person deceased, (2) somebody's criminality as the source of the injury or loss--in homicide that the death was caused by a beating, gunshot or other circumstances indicating a felonious act, and (3) the accused's identity as the responsible party or one of the responsible parties. 'By this view, the term 'corpus delicti' would be synonymous with the whole of the charge and the rule would require that the whole be evidenced in all three elements independently of the confession, which would be absurd'. At page 135, 16 A.2d at page 405 the Court further said: "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. Com., 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.' Com. v. Gardner, supra, 282 Pa. at page 464, 128 A. at page 90. See also Com. v. Coontz, 288 Pa. 74, 79, 135 A. 538; Com. v. Marshall, 287 Pa. 512, 519, 135 A. 301; Com. v. Bishop, 285 Pa. 49, 53, 131 A. 657.
In the case of Commonwealth v. Eng Chuing, 150 Pa.Super. 445, 28 A.2d 710, a case which is quite similar to the present case, two city detectives were parked in an automobile across the street from 712 South 11th Street, Philadelphia, watching that building wherein a Chinese laundry was conducted; the defendant Eng Chuing came to the door and looked up and down the street, went back into the store, put out the electric light in front of the laundry and closed the door; about ten minutes later the other defendant Narcise walked south on the west side of 11th Street and stopped at the door of 712 South 11th Street; he knocked on the door and was admitted; in about two minutes Narcise came out of the laundry and walked toward his LaSalle automobile parked at the southeast corner of 11th and Bainbridge Streets, where he was placed under arrest by the detectives; he had in his possession two packets of smoking opium; about 11:30 the same evening the city detectives returned to the laundry and arrested Chuing; the laundry was searched but no drugs were found therein; the detectives questioned the defendant Chuing, who stated Narcise had come to the laundry the night before and asked him to get him a couple of packages of hop, the name for smoking opium; Chuing stated to the police that he procured the opium after having advised Narcise to return for it on the next night; Chuing stated to the police that he then sold the two packets of opium to Narcise for $6.00; that Narcise gave him a $10.00 bill and got two packets and $4.00 in change; a $10.00 bill with other money was found in the possession of Chuing, who admitted that he had gotten the $10.00 bill from Narcise, and four $1.00 bills were found in the possession of Narcise at the time of his arrest. At the trial no evidence was introduced in behalf of the defendant Eng Chuing. From the above it is clear that all the evidence introduced prior to the defendant's statement to establish corpus delicti was that Narcise had entered the establishment of the defendant and emerged with the smoking opium. We held that this officially established the corpus delicti of an unlawful sale of narcotics.
In the present case, Pietosi, a known drug addict, was seen to enter the appellant's apartment and to emerge therefrom in five or ten minutes, carrying a cellophane packet in his hand. The packet was dropped to the ground by Pietosi upon the approach of the police. This was apparently an effort on the part of Pietosi to get rid of the incriminating evidence. It was similar to flight, which has often been considered as some evidence of the commission of a crime. The packet dropped by Pietosi was wrapped in cellophane similar in marking to the cellophane found in appellant's apartment. The officers, upon entering the apartment, found two bottles containing pills which were similar to those found in the packet, together with other paraghernalia used by dope addicts. The Commonwealth proved by its criminalist that the pills coming from both sources were...
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