Commonwealth v. Ballem

• Decision Date: 25 June 1956
• Parties: COMMONWEALTH of Pennsylvania v. Francis X. BALLEM, Appellant.
• Court: Pennsylvania Supreme Court

123 A.2d 728

386 Pa. 20

COMMONWEALTH of Pennsylvania v. Francis X. BALLEM, Appellant.

Supreme Court of Pennsylvania

June 25, 1956

Argued May 24, 1956

Appeal, No. 160, Jan. T., 1956, from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace for Delaware County, June T., 1954, Nos. 482 and 483, in Case of Commonwealth of Pennsylvania v. Francis X Ballem. Judgment affirmed.

Indictment charging defendant with murder. Before TOAL, J.

Verdict of guilty, with penalty fixed at death; petition of defendant to be psychiatrically examined refused and judgment of sentence entered on verdict. Defendant appealed.

Judgment affirmed.

William H. Turner, with him Robert W. Mills, for appellant.

Paul R. Sand, Assistant District Attorney, with him Raymond R. Start, District Attorney and Ernest L. Green, Assistant District Attorney, for appellee.

Before STERN, C.J., JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

OPINION

MR. JUSTICE BELL

Defendant was found guilty of murder in the first degree and sentenced to death. The evidence was sufficient to prove that on or about April 23, 1954, defendant lured John Dopirak to his home for the purpose of robbing him, and that when Dopirak discovered he was trying to steal his money and accused him of it, he, Ballem, shot and killed Dopirak.

On April 27, 1954, a few days after the murder, the police at Sharon Hill found a trunk in a trolley station within the Borough. It contained two packages wrapped in plastic raincoats, each of which contained parts of a human body. Two days later defendant was arrested hiding in the attic of his home in Upper Darby Township.

Ballem contends that his second confession was coerced and therefore inadmissible. Ballem made two confessions. The first confession was a lengthy one consisting of questions and answers. For reasons which will hereinafter appear, defendant does not object to the admission of this confession. Ballem stated therein that he killed in self defense in his home a man whose name he did not know; that the killing occurred on the Thursday or Friday of the week preceding April 30, 1954; that he met the deceased either at the Essex Bar or Deway's in Philadelphia; that they drank together; that he took the man to his (Ballem's) home where they drank some more; that the deceased went upstairs to the toilet and when he came down he had Ballem's ring on his finger; that he then told deceased to drop everything and get out. Deceased shot at him and Ballem then shot deceased in the abdomen, and the deceased fell on the floor and some time thereafter died. Ballem dragged the body to his basement and removed and burned the clothing in the furnace. He then got drunk and decided to dispose of the body. He purchased lye and placed it on the hands and over the face, but it did not destroy the features. He then applied a torch. After several hours he decided the torch was not working successfully and he went upstairs and got drunk all over again. After he sobered up, he cut up the body with a saw. He tried unsuccessfully to burn the cut up portions of the body, piece by piece, in the furnace. He burned successfully some parts of the body; then he took sheets and newspapers, put the ashes therein and flushed them down the drain or sewer with a hose. The drain was located in his basement. He then bought plastic raincoats and wrapped therein other portions of the body, some of which he placed in a trunk which he bought and brought home in a taxicab. Other parts he placed in a suitcase which he hid on the third floor of his home. He took other parts of the body, with the raincoats wrapped around them, and rolled them into a creek known as Naylor's Run, Upper Darby, which is four or five blocks from his home. He cleaned and re-loaded his gun so that if it was found no one would know it had been recently fired. He confessed that the gun which was found in his home was the one with which he shot and killed the deceased; he confessed that the torch and the saw which were found in his basement were the torch and saw with which he burned and subsequently dismembered the body of the deceased; and he stated that the gloves found in his home were the gloves which he used so that no finger marks would be found.

Defendant's answers were highly intelligent and gave in great detail his account of the killing and in particular the details concerning the burnings, dismemberments and hidings of deceased's body; the stores where he bought the trunk, the raincoats, etc. which he used to conceal the crime. There could not be the slightest doubt in the world from the detailed explanation and answers given that Ballem was a very intelligent person, and that he had shot and killed and dismembered a man. There is, we repeat, no claim by Ballem that this confession was not free and voluntary, or that it was in any way or in any degree coerced. It was witnessed by six persons who were present when the confession was made. Probably the reason why no objection was or is made to the admission of this confession is that Ballem stated therein that he shot and killed in self defense.

Ballem made a second confession, after hearing read to him his first confession. With reference to this second confession, the questioning of defendant began about 12:25 p.m. on April 30th and ended a half hour later. It was read by defendant and signed by him at about 2:30 p.m. the same day, namely, April 30th, and was witnessed by five witnesses, all of whom testified that it was made freely and without any coercion.

In this second confession Ballem stated that there was an additional explanation which he wished to offer concerning the actual killing at the time he shot the man in his house, and that he was giving this extra information of his own free will. He then said in question and answer form, that after hearing the man talk about big money he intended to get him drunk, take him back to his home, and after he had gotten him sufficiently stupefied with liquor to rob him of his money, and after he had robbed him to put him in a taxicab and get him out of the house. He then stated that after he arrived home with this man he supplied him with more liquor and attempted to stupefy him further by putting cigar ashes in the liquor. He then saw the man with his, Ballem's, ring on his finger, which made him all the more anxious to rob the man. "I started going through his brown coat which was on the chair in the living room, for the purpose of finding his wallet which he had given me the impression was full of money. I was very drunk but I knew what I was doing with reference to robbing this man of his money." Just at that time the man walked into the room, and said: "I am going to kill you, you thieving - ." Ballem then offered to call it quits. He had gone out of the room when he heard the man coming downstairs, and had gotten his gun. When the man attempted to cock Ballem's revolver which he had stolen from a room in Ballem's house Ballem said: "Well, you asked for it"; fired into his abdomen and killed him. Ballem was standing 4 1/2 to 6 feet away from him when he shot him. This is the statement which counsel for Ballem contends was coerced and therefore inadmissible.

The Court appointed counsel to represent defendant even before he was indicted. Counsel had conscientiously raised and ably argued every point which conceivably could be raised, in order (a) to free his client, or (b) to secure a new trial, or (c) to have him committed to a mental hospital. We shall discuss only those contentions which have any substantial merit.

1. There is no merit in defendant's contention that the corpus delicti and all the ingredients of murder in the first degree were not proved by the Commonwealth. The evidence was sufficient to justify the jury in finding that the defendant killed Dopirak while he was engaged in the commission of a robbery and not, as defendant contended, while attempting to commit larceny, or in self defense. The jury did not have to believe that part of defendant's confession which stated that he shot and killed Dopirak in self defense. In Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, where the defense was suicide and then dismemberment, the Court said (page 153): "Defendant, like most defendants, proceeds on the assumption that you must believe all of his statements or confessions; of course, that is erroneous; a jury can believe all or a part of or none of a defendant's statements, confessions or testimony ...."

All the necessary ingredients of first degree murder were proved by the Commonwealth: Commonwealth v. Homeyer, 373 Pa., supra; Commonwealth ex rel. Lagan v. Day, 385 Pa. 338 123 A.2d 172. Indeed, the jury could have found a specific intent to kill and therefore first degree murder from "the offender's use of a deadly weapon, for while an intention to kill may be shown by the defendant's express words or declarations or other conduct, such intent may be just as effectively inferred from the deliberate use of a deadly weapon upon a vital part for a manifest purpose: Commonwealth v. Iacobino, supra, ... Commonwealth v. Troup, 302 Pa. 246, 253, 153 A. 337; Commonwealth v. Green, 294 Pa. 573, 584, 144 A. 743. ...": Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317. See also to the same effect Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d 805.

2. Defendant contends it was reversible error to exhibit to the jury on a screen a magnified picture of a severed human hand which clearly showed a scar on the burned right hand of the victim severed above the wrist joint. Dopirak had such a scar on his wrist. The original photograph was introduced in evidence without objection; the original...