Com. v. Kravitz

• Citation: 400 Pa. 198,161 A.2d 861
• Parties: COMMONWEALTH of Pennsylvania v. Ethel KRAVITZ, Appellant.
• Decision Date: 18 April 1960
• Court: United States State Supreme Court of Pennsylvania

Page 861

161 A.2d 861

400 Pa. 198

COMMONWEALTH of Pennsylvania v. Ethel KRAVITZ, Appellant.

Supreme Court of Pennsylvania.

April 18, 1960.

Rehearing Denied June 27, 1960.

William L. O'Hey, Jr., Norristown, Morton Witkin, Philadelphia, Elkins Wetherill Henderson, Wetherill & O'Hey, Norristown, for appellant.

Bernard E. DiJoseph, Dist. Atty., J. W. Ditter, Jr., Asst. Dist. Atty., Norristown, for appellee.

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

BELL, Justice.

Max Kravitz, husband of the defendant, was killed in their home, 1250 Knox Road, Wynnewood, Pennsylvania, on July 4, 1958. The jury on December 12, 1958, after a trial lasting 12 days, found the defendant guilty of murder in the second degree, with a recommendation of mercy. Four days later defendant filed a motion in arrest of judgment and a motion for a new trial, assigning customary reasons. More than two months later, ¹ defendant filed 21 additional reasons to support her motion in arrest of judgment and 45 additional reasons for a new trial.

The next day defendant filed another motion for a new trial containing additional reasons based on after-discovered evidence, which alleged that a tipstaff, who had the jury in charge, discussed the case with certain jurors on numerous occasions during the trial. The lower Court (with four Judges sitting en banc) dismissed defeendant's motions in an exceptionally able 40 page opinion. The Court then sentenced defendant on July 17, 1959, 'to the State Industrial Home for Women at Muncie, Lycoming County, Pennsylvania until the sentence of the Court has been complied with.'

The most important question in this appeal is whether the lower Court erred in dismissing defendant's motion in arrest of judgment.

The test of the sufficiency of the evidence--irrespective of whether it is direct or circumstantial--is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, i.e., the murder of Max Kravitz. Commonwealth v. Sauders, 390 Pa. 379, 134 A.2d 890; Commonwealth v. Boden, 399 Pa. 298, 159 A.2d 894; Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743; Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A.2d 587; Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Bolish, 381 Pa. 500, 113 A.2d 464; Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733; Commonwealth v. Blanchard, 345 Pa. 289, 26 A.2d 303, 27 A.2d 48; Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070.

In Commonwealth v. Phillips, 372 Pa. 223, at page 227, 93 A.2d 455, 457, the Court said: 'It has become customary for a defendant in his argument before an Appellate Court to base his claims and contentions upon his own testimony or that of his witnesses even after a jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, 'we accept as true all of the commonwealth's evidence upon which, if believed, the jury could have properly based its verdict. Com. v. Blanchard, 1942, 345 Pa. 289, 296, 26 A.2d 303, 306, 27 A.2d 48. See also Com. v. Karmendi, 1937, 328 Pa. 321, 324, 195 A. 62, 63; Com. v. Watkins, 1929, 298 Pa. 165, 168, 148 A. 65, 66; Com. v. Carelli, 1925, 281 Pa. 602, 605, 127 A. 305, 306; Com. v. Priest, 1922, 272 Pa. 549, 550, 116 A. 403; Com. v. Diaco, 1920, 268 Pa. 305, 306, 111 A. 879, 880.' Commonwealth v. Logan, 361 Pa. 186, 192, 63 A.2d 28, 30, supra.'

We shall summarize the 1,500 pages of circumstantial evidence produced by the Commonwealth upon which the jury could properly have based its verdict that defendant had murdered her husband, Max Kravitz.

Max Kravitz was murdered on the afternoon of July 4, 1958. He was alive at 12:15 p. m. on July 4th when he telephoned a friend about swimming, and at lunchtime when defendant brought him a chicken sandwich. At approximately 2:45 p. m. on July 4th, Mr. and Mrs. Paul MacMurray were on their lawn approximately 305 feet away from the Kravitz residence. Three times they heard the noise of breaking and falling glass in the Kravitz residence. Believing a burglary was being committed, MacMurray ran to the Kravitz home and noticed a tear in a window screen and a broken windowpane behind the screen; these were later described as being in the marital bedroom. MacMurray saw no one about the premises or entering or leaving it. Hearing a man's loud voice, he ran back to his home and called the Lower Merion Township police, who arrived in police cars at approximately 3 o'clock at the Kravitz home. They surrounded the house and saw no one enter or leave.

Patrolman Mould heard a man's loud voice in the house. He rang the front doorbell and Mrs. Kravitz appeared within a minute. He asked her if everything was all right and she said it was. She was then asked about the broken glass and she replied 'We know about it'. Defendant was calm, cool and collected. She was wearing a multi-colored dress which she changed before other witnesses saw her at 4 p. m.

Defendant came to the residence of her in-laws, Mr. and Mrs. Morris Passon, without telephoning and without being expected. This was the first time she had ever come to the Passon home alone, without her husband. She was wearing a different colored dress than when she was seen by the police officers. She told them that she had been gardening; that she was putting Bovung on the rosebed in their garden; that she had to carry buckets of water to the rosebed because there was no outside water faucet close by. After gardening she took a shower and changed her dress. Contrary to her statements, Bovung was not placed in the rosebed; there was an outside water faucet close by, and the rosebed was absolutely dry.

The Passons testified that defendant was anxious to get Morris Passon to come back to her home under the pretext of giving him some gardening equipment which turned out to be insignificant and which he refused. She then invited Passon to come up and see her husband. As they came up the cellar stairs the defendant screamed and said 'He is in there', meaning their bedroom. When Passon saw decedent lying on the floor he immediately called the police.

Kravitz was found about 4:50 p. m. by the police who came in response to Passon's telephone call. He was lying on the floor on his right side, clad in underwear and shorts. There were deep lacerations around his head. He had been shot in the back, in the left shoulder, and in the left wrist. The testimony disclosed that the bullets must have been fired by a person other than the deceased and that the 16 lacerations about the head were caused by a blunt instrument. The defendant's bent and twisted hand mirror was under the victim's body and small pieces of glass were found in the immediate vicinity which had come from the broken hand mirror. The rug was splattered with blood; blood was on the bed sheet; broken glass was around the window; three panes were broken from the inside; a broken bloody statuette was by the window. A chair which was in front of the window contained defendant's multi colored blouse which was later found to have three drops of blood on it. An intact statuette with blood on it and two red shoes belonging to defendant were found near the chair; the left shoe had blood on the toe and soles. Defendant's plum-colored pedal pushers with blood on the left leg, were lying on the floor in front of the chair. There was a bed sheet and blanket on the floor with blood on them. There were fragments of gun grips found on the floor, one of which was under defendant's pedal pushers. No gun was found in the room, but the next day, by brilliant police work, a gun was found in a culvert along the route which defendant told the police she had taken on her way to the Passon home. The fragments of gun grips found in the Kravitz bedroom fitted this gun from which the gun grips were missing. There was a wallet on the bureau containing $43 and neither it nor anything valuable was stolen, thus indicating that robbery was not the cause or motive of the murder. Except for the victim's bedroom, the house was in good order.

A pair of red shoes belonging to the defendant were found under the kitchen table and these had drops of blood on them. Defendant kept repeating 'Oh God help me'. Five witnesses saw defendant at different times crying, but never shedding a tear. To nearly every question asked, the defendant replied that she did not know what happened.

Dr. Shoemaker examined the deceased at 5:20 p. m. and testified that his death occurred approximately two hours prior to his arrival. He testified with respect to the bullet wounds and to the multiple lacerations of the scalp, some of which were very deep. He and Dr. Simpson testified that a man could have lived 30 minutes after being shot as Kravitz was shot, and during that time could have shouted or cried out and could have moved around the room. Dr. Simpson, the coroner, examined the body at 8 p. m. and was of the opinion that death took place about 3 o'clock p. m.

According to the police and the detectives, there was no evidence of a forcible entry in or out of the house; all the doors except the front door, were locked when the police arrived around 4:50 p. m. Defendant had been gardening until lunch time. After making a chicken sandwich for her husband she said that she went outside the house and did not see her husband again until she and Mr. Passon went to the bedroom.

It is important to note that defendant told different versions of the route she took to the Passon home, which is only a short distance away. At 12:20 p. m., July 5th, detective Loughran discovered a gun in a storm sewer opening on Morris Road, which is about 12 to 15 feet below the surface of the road. It was a 32 U. S. nickelplated revolver which was...