Com. v. Morrison

• Decision Date: 16 November 1955
• Citation: 180 Pa.Super. 121,118 A.2d 258
• Parties: COMMONWEALTH of Pennsylvania v. Karl E. MORRISON, Appellant.
• Court: Pennsylvania Superior Court

Page 258

118 A.2d 258

180 Pa.Super. 121

COMMONWEALTH of Pennsylvania v. Karl E. MORRISON, Appellant.

Superior Court of Pennsylvania.

Nov. 16, 1955.

Application for Allocatur Denied Jan. 31, 1956.

S. Thaddeus Kwiat, Erie, for appellant.

Damian McLaughlin, Dist. Atty., Erie, for appellee.

Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

ERVIN, Judge.

Karl E. Morrison, an architect, 67 years of age, was convicted in the court below upon each of four indictments, consolidated for the purpose of trial, charging him with sodomy committed upon four boys ranging between 12 and 17 years of age. After his conviction the defendant's motion for a new trial was refused and he was sentenced on each bill to pay the costs of prosecution and to undergo imprisonment for an indefinite term, the minimum of which was three and one-half years and the maximum seven years, all suntences to run concurrently. He thereupon took this appeal. The court below directed that defendant's appeal should operate in each case as a supersedeas.

The evidence of the Commonwealth consisted principally of the testimony of each of the four boys against whom the offenses had been committed. Jack Russell, 17 years of age, testified he had known the defendant approximately three years, that he had been at the defendant's home at 233 Shenley Drive, Erie, Pennsylvania, various times during the three years he had known him and that he had slept at the defendant's home for about a year during that three year period. He testified that on one occasion when he was staying at the home of the defendant he and Roger Sampson had slept one night on a day bed and the next morning he learned from Roger that the defendant had made improper advances during the night. He stated that the following night when he was awake the defendant committed sodomy upon him by taking his private parts into his mouth. He also testified that during the period he had stayed at the home of the defendant there had been about 10 or 12 similar occurrences, the last time being on March 29, 1954. Lloyd Stiffey, also 17 years of age, testified he had known the defendant for about three years and that he had stayed overnight at the home of the defendant. He stated the defendant had committed sodomy upon him; the last time being in September, 1952 at the defendant's home. Richard Russell, 14 years of age, testified he had known the defendant for four or five years. He stated he had slept at the defendant's home 20 times and that the defendant had committed sodomy upon him on four different occasions, all at the defendant's home. He testified the last such occurrence was about eight or nine months prior to the trial. Arthur Russell, 12 years of age, testified he had known the defendant for four years, had slept at his home about 20 times and that on five occasions the defendant committed sodomy upon him.

There was no denial of the offenses by the defendant who did not testify in his own defense. The defense, however, presented 16 witnesses, some of whom testified they had been at the home of the defendant during some of the times when the Russell boys were there and had neither seen nor heard anything improper. Other defense witnesses testified that Jack Russell had stated the police kept a bright light on him for a long period of time until he signed a statement for them. Still other defense witnesses testified they had known the Russell boys but had never heard them make any complaint about the defendant's conduct.

Appellant contends he was denied a fair trial and his legal rights were violated by the refusal of the trial court to withdraw a juror and discharge appellant on the basis that the indictments set forth a March, 1954 date and sundry other times whereas the Commonwealth failed to prove any date in three of the four cases, and in the fourth case established a March 29 date but the year was not determined. This contention is clearly without merit. The Commonwealth is not restricted to proof of the crime on the exact date stated in the indictment. In Commonwealth v. Levy, 146 Pa.Super. 564, 569, 23 A.2d 97, 99, we said: 'It may be conceded that in the prosecution of crimes of the kind here involved the Commonwealth is not required to prove their commission on the date laid in the indictment, but, failing in that, we think it has the burden, in order to sustain a conviction, of proving their commission upon some other date, fixed with reasonable certainty and being within the prescribed statutory period * * *.' See also Commonwealth v. Mourar, 167 Pa.Super. 279, 281, 74 A.2d 734; Commonwealth v. Gipe, 169 Pa.Super. 623, 626, 84 A.2d 366. In the instant case the indictments were presented to the grand jury and true bills found on August 31, 1954. The jury could properly consider and convict upon any evidence that showed commission of the crime or crimes charged within two years prior to August 31, 1954. Reference to the testimony of the four complaining witnesses summarized supra clearly shows there was sufficient evidence to convict the defendant of the commission of the crime of sodomy on reasonably specific dates within the two year period preceding the exhibition of the bills of indictment to the grand jury on August 31, 1954. See Commonwealth v. Dixon, 179 Pa.Super. 1, 115 A.2d 811.

Appellant also contends he was deprived of a fair trial because of the improper manner of selecting the jury and the refusal of the court below to allow questioning of prospective jurors individually. This contention is without merit. The jury was properly called and impaneled. Twelve jurors were called, seated in the box and questioned by counsel as a group. This procedure was followed without objection. The practice of calling jurors in a group is proper in noncapital criminal cases. See Commonwealth v. DiFilippo, 176 Pa.Super. 608, 109 A.2d 224. As stated by the learned judge of the trial court: 'The record indicates clearly that the jury was selected in accordance with the long accepted practice in our courts and without objection.' Moreover, the record does not reveal that any request for an oral examination of jurors was made by counsel for defendant. The record does show that counsel for the defendant was permitted to ask questions of the jurors and that the only question he asked was whether any juror was related to the victims in these cases.

Appellant also contends the trial court erred in refusing to continue the cases until an alleged important witness for the defense, who had been subpoenaed and for whom a bench warrant had been issued, could be brought into court. The witness was subpoenaed and directed to appear on September 13, 1954. The trial began on September 14, 1954 and no complaint was made when it was first apparent the witness had not appeared. It was not until the third day of the trial that the absence of the witness was brought to the attention of the trial court, and a bench warrant was then issued. However, the defendant was not prejudiced by the absence of this witness. The record reveals the absent witness was only present at one of the many acts of sodomy which occurred in the home of the defendant and could not have been a material witness in the case on which sentence was imposed. An application for a continuance is addressed to the sound discretion of the trial court, whose action will not be disturbed in the absence of a manifest abuse of discretion. Commonwealth v. Niemi, 365 Pa. 105, 73 A.2d 713. Where, as here, the ground upon which a continuance is sought is the absence of a witness, whose testimony, if produced, would, at most, amount to a denial of the occurrence of one of several acts of sodomy alleged to have occurred in the presence of the absent witness, involving only one of four victims and such testimony would not be material in the case on which sentence was imposed, the defendant was not prejudiced and the refusal of a continuance was not an abuse of discretion.

Appellant also contends that the remark made by the district attorney to the jury in his summation that: 'There has been no denial of these acts, there has been no denial in any manner, shape or form, by anyone, of these acts' constitutes prejudicial error. Appellant considers the above quoted remarks prejudicial error because the crimes charged against appellant could have been denied or contradicted only by the appellant himself, and under the Act of May 23, 1887, he does not have to take the witness stand and his failure to do so may not be treated as creating any presumption against him, nor be adversely commented on by court or counsel during the trial. This contention is also without merit. As stated by Justice Bell in Commonwealth v. Bolish, 381 Pa. 500, 522, 113 A.2d 464, 475: 'We have recently decided this very question, adversely to the defendant, in Commonwealth v. Kloiber, 378...