Com. v. Schmidt

Citation263 A.2d 382,437 Pa. 563
PartiesCOMMONWEALTH of Pennsylvania v. Ross Omer SCHMIDT, Appellant.
Decision Date20 March 1970
CourtUnited States State Supreme Court of Pennsylvania
William J. Myers, Huntingdon, for appellant

Newton C. Taylor, Dist. Atty., Huntingdon, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

On December 6, 1963, a jury found Ross Omer Schmidt guilty of murder in the second degree. Defendant's post-trial motions were dismissed and he was sentenced to imprisonment for not less than eight nor more than sixteen years. An appeal was filed with this Court, but it was withdrawn by defendant after a Certificate of Discontinuance was filed by defendant on October 15, 1964. On July 31, 1968, this Court allowed defendant to appeal nunc pro tunc. On this appeal, he raises several important questions which will be discussed after a brief summary of the facts.

The Commonwealth called three witnesses to testify--Dr. Dickinson Lipphard, a pathologist who examined the deceased; Howard R. Parlett, Pennsylvania State Trooper, who was one of the troopers called to the scene shortly after the murder; and Vickie Schmidt, the sixteen-year-old daughter of defendant and his wife, and an eyewitness to the murder. From this testimony, the jury could have found the following facts.

Defendant and the deceased, Marjorie Alice Schmidt, were married and lived in Spruce Creek, Huntingdon County, although for several weeks prior to June 3, 1963, defendant had not been living with his family. On the evening of June 3, 1963, defendant came home around 7:30 P.M. and spoke with his children for a few minutes about their Mother, picked up a few tools and then left. Defendant's wife returned home at approximately 11:30 P.M. 1 and told Vickie that she was going out with 'Duke' Isenberg. She then left her home, and Vickie went to bed.

Vickie was awakened at approximately 12:30 A.M. by her Mother 'yelling' for Vickie 'to call the police.' Defendant and his wife were arguing in the front yard about 'Duke' Isenberg. Vickie and her Aunt, Catherine Mae Zimmerman, who was living at the Schmidt home, came downstairs and stood in the hallway and watched defendant and his wife arguing in the front yard and on the front porch. Vickie testified that 'Dad was hitting Mom,' and that defendant 'had hold' of her Mother's arms as they came into the house. They continued to argue for another ten or fifteen minutes, when the defendant suddenly pulled out a gun. Vickie grabbed defendant's arm and he pushed her back. Catherine (the Aunt) attempted to grab defendant's arm, but he pushed her back, which caused her to fall over a couch. Defendant then shot and killed his wife and turned and pointed the gun at Vickie, who ran out the back door screaming. Vickie testified that she heard her Aunt Catherine scream and another gunshot.

Defendant was subsequently indicted and found guilty of the murder of his wife, Marjorie Schmidt.

Defendant first contends that the evidence was not sufficient to convict him of murder in the second degree. It is hornbook law that the test for the sufficiency of evidence--irrespective of whether it is direct or circumstantial, or both--is whether, accepting as true all the evidence and all reasonable inferences therefrom, 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 of which he has been convicted. Commonwealth v. Commander, Pa., 260 A.2d 773 (filed 1--9--70); Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644; Commonwealth v. Frye, 433 Pa. 473, 252 A.2d 580; Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884; Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85; Commonwealth v. Burns, 409 Pa. 619, 634, 187 A.2d 552.

Defendant bases his first contention upon the fact that the District Attorney used improper trial methods in failing to call All the witnesses he had subpoenaed and who were present in the courtroom, particularly Catherine Zimmerman, who was the other eyewitness to the killing. When the Commonwealth concluded its case, the District Attorney announced in open Court that three other witnesses named on the bill of indictment--Detective Sergeant Eugene Wegemer, and Trooper Thomas Ruegg (the prosecutor), both with the Pennsylvania State Police, and Catherline Zimmerman--were present in the courtroom and several other witnesses who had been subpoenaed were also present and available to the defendant or the Court. Defendant 2 did not call any of these witnesses who were present and available, but instead requested the Court to release and discharge them from further attendance. From these facts, defendant contends that he did not receive a fair trial. Defendant's contention is completely devoid of merit.

In Commonwealth v. Horn, 395 Pa. 585, 150 A.2d 872, the Court pertinently said (page 589, 150 A.2d page 874): 'There is no duty on the Commonwealth to call witnesses whose names appear on a bill of indictment or even eye witnesses, if it believes after examination or investigation that their testimony is unreliable, or unworthy of belief, or surplusage or irrelevant. The law in such a case merely requires a District Attorney to notify the Court and defense counsel that he does not intend to call certain persons whose names appear on the bill of incident as Commonwealth witnesses. Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540; Commonwealth v. Deitrick, 221 Pa. 7, 14, 15, 70 A. 275. See also Commonwealth v. Danz, 211 Pa. 507, 522, 60 A. 1070; Commonwealth v. Giacobbe, 341 Pa. 187, 195, 19 A.2d 71.

'In Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540, supra, the Court sustained the refusal of the District Attorney 'to * * * call the only eye witness to the shooting'. The Court said (368 Pa. at pages 32--33, 81 A.2d page 542): 'It is a settled principle of law that the Commonwealth must try a case fairly and that the district attorney is not a 'vindictive seeker for vengeance.' Commonwealth v. Karamarkovic, 1907, 218 Pa. 405, 408, 67 A. 650, 651. However, it is equally well established that the district attorney is not obliged to call all of the eye witnesses, 'nor a particular eye witness where he has reason to believe that the witness is unreliable.' Commonwealth v. Thurman, 1950, 167 Pa.Super. 642, 647, 76 A.2d 483, 485. The calling of witnesses is within the discretion of the district attorney under the general supervision of the trial judge: Commonwealth v. Karamarkovic, supra; Commonwealth v. Deitrick, 1908, ...

To continue reading

Request your trial
45 cases
  • Commonwealth v. Owens
    • United States
    • Pennsylvania Supreme Court
    • November 12, 1970
    ... ... presented at defendant's trial, viewed, as it must be in ... the light most favorable to the ... Commonwealth--Commonwealth v. Schmidt, 437 Pa. 563, ... 263 A.2d 382; Commonwealth v. Commander, 436 Pa ... 532, 260 A.2d 773; Commonwealth v. Rightnour, 435 ... Pa. 104, 253 A.2d ... ...
  • Commonwealth v. Carroll
    • United States
    • Pennsylvania Supreme Court
    • June 28, 1971
    ... ... Commonwealth v. Chasten, 443 Pa., 29, 275 A.2d 305 ... (1971); Commonwealth v. Schmidt, 437 Pa. 563, 263 ... A.2d 382; Commonwealth v. Commander, 436 Pa. 532, ... 260 A.2d 773 ... Appellant ... contends that the only direct ... ...
  • Com. v. Buehl
    • United States
    • Pennsylvania Supreme Court
    • April 30, 1986
    ... ... The scope and limits of cross-examination are largely within the discretion of the trial court and its actions pertaining thereto will not be reversed in the absence of a clear abuse of its discretion or error of law. Commonwealth v ... Page 1180 ... Schmidt, 437 Pa. 563, 263 A.2d 382 (1970). Appellant wished to show that La Motte had lied and had provided him with an alibi at a 1978 trial in which Appellant was convicted of arson. La Motte denied lying at the prior trial, and he has never been prosecuted for perjury following the 1978 trial. The ... ...
  • Com. v. Stinnett
    • United States
    • Pennsylvania Superior Court
    • August 19, 1986
    ...absent a clear abuse of discretion or mistake of law. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Schmidt, 437 Pa. 563, 263 A.2d 382 (1970). We find no such error or abuse in the instant The trial judge sustained the Commonwealth's objections to the following que......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT