Com. v. Mussoline
| Decision Date | 16 April 1968 |
| Parties | COMMONWEALTH of Pennsylvania v. Anthony F. MUSSOLINE, Appellant. |
| Court | Pennsylvania Supreme Court |
Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appellant, Anthony Mussoline, was tried before a judge and jury and convicted of malicious mischief in connection with the dynamiting of a scrap yard owned by one Salvatore Gaudiano. Relying entirely on circumstantial evidence to prove Mussoline's guilt, the Commonwealth was permitted to establish, inter alia, that three small droplets of blood found 60 feet from the scene of the explosion were of the same type, 'A', as that of appellant. It is uncontradicted that type A is the second most common blood type, appearing in approximately 30% Of all human beings. Appellant has advanced several reasons for the inadmissibility of this evidence, including the argument that it was legally irrelevant to the issue of whether appellant was present at the scene of the crime.
In order to place the blood type evidence in its proper perspective, we shall review the Commonwealth's case in some detail. Three witnesses testified that early on the morning of February 10, 1965, at about 2:30 A.M., they heard a loud explosion in the area of Gaudiano's scrap yard. No one, however, saw anybody at the scene of the blast at that time. An expert witness testified as to the cause of the explosion and its origin. He concluded that dynamite had been placed under a davenport in the scrap yard office. In order to link appellant to this dynamite, testimony was introduced to show that Anthony Mussoline and his brother Barney were engaged in the business of strip mining (appellant apparently pursued this business as a side line, for his main occupation was that of police officer), that this business made use of high explosives, and that Barney had purchased some dynamite, in the name of the business only, about three weeks before the scrap yard explosion. No attempt was made to link the dynamite actually used in the blast with that purchased by appellant's brother.
The Commonwealth next sought to show motive. Salvatore Gaudiano, owner of the demolished yard, testified that on the day before the explosion he and appellant had inadvertently met in a local garage, whereupon a conversation ensued concerning a debt owed Gaudiano by appellant. No harsh words were exchanged, nor were any blows struck by either man. Gaudiano did tell Mussoline, however, that if appellant did not pay the money by the end of the week he (Gaudiano) would have Mussoline arrested. Gaudiano concluded his testimony by stating that the debt has since been paid, that he and Mussoline are still friends, and that they continue to do business with each other.
With the exception of the evidence recited above (evidence tending to show only that appellant had some possible motive for the crime, and that he had access to dynamite), the balance of the Commonwealth's case consisted entirely of an attempt to place Mussoline at the scene of the crime by the use of blood-type evidence. Viewing this evidence in a light most favorable to the Commonwealth, it appears that in 1960 Mussoline entered the Hazleton State General Hospital for surgery, pursuant to which his blood was then typed as Landsteiner A, Moss 2, Rh positive. The blood spots found near the scene of the crime were also of this type. A nurse at the Hazleton Hospital testified that on the morning of the crime, at approximately 3:15 A.M., Mussoline came to the accident ward with a two inch long laceration on the inside of his right forearm. He explained to the nurse that he had sustained the injury about two hours before (well prior to the time of the explosion) when he slipped on We think it clear that under our own case law, as well as that of other jurisdictions, mere proof that a criminal defendant shares a blood type with that of samples found near the crime scene is legally irrelevant to show that the defendant was in fact present at the scene of the crime without Some additional, independent evidence Tending to show either (1) that the man who committed the crime did lose blood in the process or (2) that the defendant was present at the scene. In short, blood-type evidence such as this can only be used to Corroborate other evidence of the defendant's whereabouts at the crucial time.
some ice in his driveway while putting his car into the garage. According to Mussoline, he cut his arm on a piece of jagged concrete. When asked why he had waited so long before coming to the hospital, appellant told the nurse that he first believed the wound to be minor, and only after his wife urged him to obtain treatment did he finally come to the accident ward. The story told by the nurse was in all material aspects corroborated by a police officer who had interviewed appellant the following day while investigating the case. In addition to the nurse, the Commonwealth called to the stand the doctor who actually treated Mussoline's wound. He stated that the bleeding had substantially stopped by the time he saw the wound, and that it was probably caused by a sharp object such as a piece of glass. On cross examination, however, the doctor admitted that the cut could also have been caused by a piece of jagged concrete. Finally, a police detective related that he had conducted an investigation of the blast area which indicated that no one knew of or saw anyone injured on the night of the crime.
Pennsylvania's leading case in this area, Commonwealth v. Statti, 166 Pa.Super. 577, 73 A.2d 688 (1950), presents a classic example of how blood-type evidence may be used to corroborate other testimony. In Statti, defendant was indicted for rape. Not only did the prosecutrix positively identify Statti as her assailant, but she also told of how she bit his finger during their struggle. In charging the jury, the trial judge carefully warned that 166 Pa.Super. at 585, n. 5, 73 A.2d at 692, n. 5. (Emphasis supplied.) Similar language appears in the body of the Superior Court opinion itself at page 584, 73 A.2d at 692, where it is said: 'Evidence of the result of these tests * * * was properly admitted as a circumstance bearing on the identification of the defendant, in corroboration of the testimony of the prosecuting witness that he was her assailant.'
By comparison, the Commonwealth's evidence in the present case offers no corroboration whatsoever. Even the other bits of circumstantial evidence presented go only to Motive and Ability to commit the crime. This evidence in no manner indicates that Mussoline was in fact near the scrap yard on the night of the explosion. Any inference of That fact must come solely from the blood spots and appellant's lacerated arm. Since mere guess and conjecture would have to underpin such an inference, the evidence of blood-type cannot be deemed legally relevant to this case.
A study of cases from other jurisdictions also supports the conclusion that a mere similarity between a defendant's blood and blood samples found at the crime scene, or, as is frequently the case in rape prosecutions, a similarity between the blood type of the victim and blood samples found on defendant, his car, or his clothing, is not relevant evidence of defendant's presence at the scene unless supported by something else. In Shanks v. State, 185 Md. 437, 45 A.2d 85, 163 A.L.R. 931 (1945) evidence that the accused's coat had blood stains whose type matched that of his alleged rape victim was In State v. Alexander, 7 N.J. 585, 83 A.2d 441, cert. denied, 343 U.S. 908, 72 S.Ct. 638, 96 L.Ed. 1326 (1951), the defendant in a murder case admitted presence at the scene, but claimed self defense. Thus, the prosecution was permitted to introduce evidence that the defendant's blood type matched blood found on the handle of the murder knife as support for its theory that defendant had become enraged when the decedent cut defendant's hand with the knife. Other cases where blood-type evidence has been used to corroborate separate testimony include State v. Tipton, 57 N.M. 681, 262 P.2d 378 (1953), a rape case in which the blood-type identity between samples found in defendant's car and prosecutrix's own blood was used to substantiate the victim's eyewitness identification, and Davis v. State, 189 Md. 640, 57 A.2d 289 (1948), a murder prosecution wherein the blood-type evidence was used in conjunction with the fact that defendant had stolen decedent's car and was apprehended in it. Cf. State v. Thomas, 79 Ariz. 158, 285 P.2d 612 (1954), cert. denied, 350 U.S. 950, 76 S.Ct. 326, 100 L.Ed. 828 (1956).
held competent evidence After defendant had explained the blood stains as being the result of a fight with a third party whose blood turned out to be a different type than that found on the coat. Thus, the evidence was used to impeach the defendant's testimony rather than to place him at the scene of the crime. There was also, in Shanks, eyewitness identification by the prosecutrix.
Baney v. People, 130 Colo. 318, 275 P.2d 195 (1954) presents an excellent example of the irrelevancy of uncorroborated blood-type evidence to place a defendant at the crime scene. In this case the...
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