Com. v. De Moss

• Decision Date: 11 October 1960
• Citation: 165 A.2d 14,401 Pa. 395
• Parties: COMMONWEALTH of Pennsylvania v. Gus Alfred DE MOSS, Appellant.
• Court: Pennsylvania Supreme Court

Page 14

165 A.2d 14

401 Pa. 395

COMMONWEALTH of Pennsylvania v. Gus Alfred DE MOSS, Appellant.

Supreme Court of Pennsylvania.

Oct. 11, 1960.

Rehearing Denied Nov. 23, 1960.

Donald J. Goldberg, Albert S. Oliensis, Philadelphia, for appellant.

Juanita Kidd Stout, Domenick Vitullo, Asst. Dist. Attys., F. Emmett Fitzpatrick, Jr., Second Asst. Dist. Atty., Paul M. Chalfin, First Asst. Dist. Atty., Victor H. Blanc, Dist. Atty., Philadelphia, for appellee.

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

BENJAMIN R. JONES, Justice.

At approximately 10 A.M., July 4, 1955, a chambermaid discovered the dead body of Lulubel Rossman, a 76 year old widow, in her room in the Adelphia Hotel, Philadelphia. Mrs. Rossman's death ¹ was caused by strangulation at the hands of some unknown person or persons who had bound her arms and legs with two-inch adhesive tape and had gagged her mouth. The appearance of the room--disorder, open pocketbooks and handbags, personal effects strewn about--suggested that a robbery had taken place, although there was no evidence that the room had been forcibly entered.

For this homicide the Commonwealth subsequently indicted and tried, separately, Paymond Wilson, Frank Ellsworth, Robert Thomas and Gus A. DeMoss, the present appellant. Wilson's conviction of murder in the first degree was considered by this Court (Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234) and we affirmed his conviction and sentence. In February, 1956, DeMoss was tried in the Court of Oyer and Terminer of Philadelphia County and he was convicted of murder in the first degree and sentenced to life imprisonment. From this judgment and sentence DeMoss has appealed.

On this extremely voluminous record with its complicated set of facts DeMoss presents one narrow question: is the evidence sufficient to sustain his conviction of murder?

DeMoss contends that the Commonwealth failed to show any actual connection on his part with the robbery and homicide and that the only evidence presented by the Commonwealth was that he had been in association, prior to and subsequent to the happening of the robbery and homicide, with the persons who did participate in both crimes. DeMoss argues that, absent any evidence in proof of his actual participation in the robbery and homicide, his conviction cannot be sustained on a theory of 'guilt by association'.

The Commonwealth's theory is that DeMoss, acting in concert with Thomas, Ellsworth and Wilson, conspired to rob Mrs. Rossman and in the course of such robbery, Mrs. Rossman met her death at the hands of Ellsworth and Wilson. In determining the sufficiency of the evidence to sustain DeMoss' conviction it is our duty to examine and scrutinize in detail all the evidence in this record and to attempt to place in juxtaposition each act, scene and character in this macabre drama. In so doing, we review the evidence and the inferences reasonably arising from such evidence in the light most favorable to the Commonwealth. Commonwealth v. Scoleri, 399 Pa. 110, 115, 160 A.2d 215; Commonwealth v. Moore, 398 Pa. 198, 202, 157 A.2d 65.

Palen Rossman, deceased's husband, at the time of his death on September 7, 1953 left the deceased an estate valued in excess of $400,000. The deceased was eccentric in many respects: among her eccentricities were a fetish for new $100 bills and a custom of having either upon her person or in her living quarters large sums of money, mostly new $100 bills.

In the spring of 1954, the deceased, vacationing in Florida, became acquainted with a Reverend Ridgeway and his mother, the former then engaged in evangelistic work in Florida and Jamaica. Interested in the Reverend Ridgeway's work, the deceased, over a short period of time, contributed approximately $20,000 toward his personal comfort and ministry. Sometime later, the friendship of the deceased and the Reverend Ridgeway having ended, the deceased claimed that he had taken from her approximately $20,000 and, through a mutual acquaintance, the deceased prevailed upon Paul Huizenga, a Dade County [Miami] deputy sheriff, to investigate her claim against the clergyman. Huizenga and his colleague, Thomas, then a deputy sheriff, after an investigation of the matter became convinced and so advised the deceased that she had no criminal action against the clergyman. However, the deceased persisted in her complaint and, during the early part of 1955, she engaged Huizenga, in a private capacity, to keep the clergyman under surveillance. A short time later Huizenga abandoned his work for deceased and turned her over to Thomas. From that time until the date of her death the deceased and Thomas were in close contact. On various occasions Thomas and the deceased communicated by telephone and, shortly before her death, she posted a $250 money order to Thomas for the services rendered by Thomas and Huizenga. ²

Under the Commonwealth's theory, it was this close association of the deceased and Thomas during the first six or seven months of 1955 which set in motion the chain of events and the interaction of a host of circumstances and characters which led directly to Mrs. Rossman's death. It is the contention of the Commonwealth that Thomas, through his close association with the deceased, learned that she customarily carried about on her person or in her living quarters large sums of money and that Thomas conspired with DeMoss, his former colleague on the Tulsa, Oklahoma, police department, to obtain the aid of two persons with criminal records, Ellsworth and Wilson, to rob the deceased. Wilson's complicity and role in the events which led to the deceased's death and the part played therein by Ellsworth and Wilson are discussed at length in Commonwealth v. Wilson, supra. While the Commonwealth concedes that Ellsworth and Wilson actually robbed and killed the deceased, yet it contends that Thomas and DeMoss actively participated in a conspiracy to commit the robbery. It is our task to determine whether there is sufficient evidence of record to justify a finding that DeMoss took part in a conspiracy to rob the deceased.

DeMoss had become acquainted with Wilson in April, 1945 when, as a Tulsa detective, he arrested Wilson in connection with the commission of a burglary. Even though he was the arresting officer, at Wilson's trial DeMoss attested to Wilson's good character and volunteered a recommendation to the trial court that Wilson be paroled in his custody. When this arrest was made, DeMoss was assisted by Thomas with whom he worked on the police force from January 1940 until April 1949, at which time Thomas moved to Miami and found employment as a deputy sheriff. Both DeMoss and Thomas knew Wilson and his criminal inclination.

For almost six years--April 1949 to the early part of 1955--DeMoss and Thomas were virtually strangers. In the early part of 1955--when Thomas began his close association with the deceased--suddenly Thomas began to make telephone calls from Miami to the radio Dispatcher's room in the Tulsa police department wherein DeMoss worked and almost every Sunday for approximately six months prior to June 4, 1955 Thomas made such calls. ³ DeMoss claimed that these calls were made because Thomas was 'lonesome'. The renewal of this friendship between Thomas and DeMoss, at the initiative of the former, after the friendship had been dormant for almost six years is highly significant in view of later events.

Sometime prior to June 2, 1955, Thomas went to Tulsa. Thomas had requested his superior officers to be permitted to return a prisoner held in Miami to police authorities in Muskogee, Oklahoma, a departure from the usual procedure which called, for the return of a prisoner by the demanding, not the holding, authorities. While in Oklahoma, Thomas visited DeMoss. ⁴ Upon Thomas' return to Miami, DeMoss on June 24, 1955 telephoned him, ⁵ allegedly to persuade him to repay $500 which Thomas had borrowed six years previously. It is to be noted that throughout this period both Thomas and DeMoss were deeply in debt.

DeMoss had known Ellsworth for approximately a year but there is no evidence that Thomas had previously known Ellsworth. Ellsworth was involved, in April, 1954 in the burglary of a Tulsa fur store and, whenever he returned to Tulsa, he was obliged to report to the police. Although his testimony was seriously discredited in this respect, DeMoss advanced two explanations for his association with Ellsworth: that he used Ellsworth, as an informer, and that, in the event DeMoss' superiors were unavailable, Ellsworth was directed to report to him. The record clearly reveals that DeMoss knew Ellsworth, had introduced him to a fellow police officer ⁶ and had used his unlisted telephone number on May 5, 1955 to call Ellsworth in Omaha, Nebraska. ⁷ Furthermore, Ellsworth, using the assumed name of 'Magee', telephoned DeMoss from a night club in Tampa, Florida, at 3 A.M. (EST) on June 26, 1955, seven days before the homicide. ⁸ No reason for the latter call was advanced by DeMoss.

Within several hours of this call to DeMoss, Ellsworth, alias 'Harry Stokey' and Wilson, alias 'Ray Cox', arrived in Miami, driving a 1955 Cadillac automobile bearing an Illinois license plate numbered 1924234, and registered at a motel at 5:30 A.M. (EST) June 26, 1955. ⁹ While in Miami Ellsworth and Wilson were visited by Thomas. ¹⁰ So far as the record indicates, this was the first direct contact between Thomas and Wilson. There is no explanation of record for this meeting between Thomas, a police officer, and these two men, each possessing a criminal record, a meeting which took place within 48 hours after DeMoss had called Thomas and within 24 hours after Ellsworth had called DeMoss.

During the time that Ellsworth and Wilson were in Miami, the deceased, with Thomas' knowledge, started by car for Miami on June 26 but, due to a misunderstanding with her chauffeur, she returned...