Commonwealth v. Barnak.
| Decision Date | 03 October 1947 |
| Parties | COMMONWEALTH v. BARNAK. |
| Court | Pennsylvania Supreme Court |
357 Pa. 391
54 A.2d 865
COMMONWEALTH
v.
BARNAK.
Supreme Court of Pennsylvania.
Oct. 3, 1947.
Appeal No. 231, January Term, 1946 from the judgment and sentence of the Court of Oyer and Terminer for the County of Lehigh at No. 17, April term, 1946; James F. Henninger, President Judge.
John Barnak was convicted of murder in the second degree, and he appeals.
Judgment affirmed.
DREW and JONES, JJ., dissenting.
Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, STEARNE, and JONES, JJ.
Daniel Sherman, of Philadelphia, and Richard W. Iobst and Iobst, Getz & Twining, all of Allentown, and W. Bradley Ward, of Philadelphia, for appellant.
Theodore R. Gardner, Dist. Atty., James C. Lanshe and M. Jack Morgan, Asst. Dist. Attys., all of Allentown, for appellee.
MAXEY, Chief Justice.
On December 20, 1945, about 10:45 p. m., Lieutenant Benjamin Clifford Bowman, Jr., who had recently served in the United States Army and was then a student at Lehigh
University, was introduced by Gladys Fisher, at the Colonnade Club in Bethlehem, to Mrs. Madeline Barnak. Sixty-five or seventy minutes later he was dying in front of the home of Mrs. Barnak's parents, Mr. and Mrs. Charles Schiffner, 211 South Carlisle Street, Allentown, with a thirty-two caliber bullet in his head.
Mrs. Barnak had not been living with her husband since October 18, 1945, and Lt. Bowman, after meeting her and dancing with her until 11:15 p.m., offered to escort her to her parents' residence. She and he, accompanied by Miss Fisher, left the club at 11:20 p.m., in a car driven five miles by Anthony Brichta, directly to 211 South Carlisle Street.
Lt. Bowman and Mrs. Barnak got out of the car. As the night was cold, Miss Fisher suggested that they close the door so that the driver could go up half a block and turn the car around and pick up Lt. Bowman and return him to Lehigh University. As the car made the ‘U’ turn, Miss Fisher and the driver heard two shots and saw a man running two houses north from the home of Mr. and Mrs. Schiffner, toward Hanover Avenue. The driver, with Miss Fisher, tried to folllow the man who was running, but the latter quickly disappeared from view. The man they saw was described by them as short in stature, with broad shoulders, broad hips, and a narrow waistline. ‘He wore a broad brim hat and a dark overcoat; he ran very awkwardly.’ This description in its entirety fits John Barnak. Because of an injury to his leg when he was seven years of age, his left leg was three quarters of an inch shorter than his right leg.
Both Mrs. Barnak and Lt. Bowman had been fatally shot. The former died in a few minutes, and the latter died almost instantly. The time of his death was officially recorded as being at 11:55 p.m., December 20, 1945.
Mrs. Barnak's father, Charles Schiffner, was that night at his home at 211 Carlisle Street, Allentown, with his wife and two daughters. He heard the machine stop and heard two shots fired. He ran out and saw a man with a brown overcoat and brown hat running down the street. The man turned at the corner and looked back. At the corner there was an electric arc light, 18 1/2 feet above the street. Schiffner said: ‘I recognized him as John Barnak. I recognized him the minute he turned his face that I could see him.’ At that time the moon was shining. 1 There was snow on the ground.
Mrs. Barnak was carried into her father's house. She was still breathing. The police were summoned. An hour later Schiffner saw Barnak at police headquarters and positively identified him as the man who ran away from the scene of the homicide. He said he first saw Barnak when he was three doors away. At the corner when Barnak turned his head around ‘the machine lights' from Brichta's car ‘shone right in his face.’ Barnak then had an overcoat on.
Raymond L. Higgins testified that he resided at 211 1/2 Carlisle Street, Allentown, and that he was a ‘next-door neighbor’ to Schiffner and was at home at 10:30 to 10:45 p. m. on December 20, 1945, and that he saw a man going away from Higgins' cellar window. The man had on an overcoat and slouch hat, and he said the man was five feet five or six inches tall. When Barnak's hat, Commonwealth's Exhibit F, was shown him, he said it resembled the hat the man had on the night of the homicide; that the overcoat he was shown, Exhibit G, also looked like the coat he saw on the man that night.
Marguerite M. Dennis testified that on December 20, 1945, she was at 116 South Carlisle Street, where her mother-in-law resided. That is the corner of East Hickory and Carlisle Streets. She said that she heard two shots fired, that she stepped outside at the corner, and that she saw a man running down the street toward her, that he was about a quarter of a block away, the he continued running toward
her, and that he was about 10 or 12 feet away from her when she run back inside. She said that she got a look at his face; that he had an overcoat and slouch hat on.
Gladys Fisher testified that after hearing shots she saw a man running about ‘two houses away from the home of Mr. and Mrs. Schiffner,’ and that she, in Brichta's car, followed this man about a block. ‘He had gone down an alley.’ She said the man was ‘short of stature, had a broad brim hat, dark in color, broad shoulders, broad hips, and a narrow waistline, and ran very awkwardly.’ When shown Commonwealth's Exhibit G, John Barnak's overcoat, she said: ‘That looks exactly like what I've seen the night of the murder, December 20th.’ When asked if she could now identify the man she had seen running from the scene of the crime, she answered: ‘Yes.’ Question: ‘At the time you saw him, was he wearing a slouch hat and an overcoat?’ Answer: ‘Yes.’ She said: ‘At police headquarters I was told to identify a man, if I had ever seen him before, wearing a topcoat, broad-rimmed hat. I could not identify him right clearly because he was right in front of me, but the minute they took him away from me I could just picture that was the same image I seen running December 20th, a few houses from Mr. and Mrs. Schiffner's home.’
The Commonwealth also offered in evidence two empty cartridge shells, one found on the porch at 211 South Carlisle Street shortly after the homicide, the other found at 103 South Bradford Street, a block and a half away from the scene, after the shells had been identified by a ballistics expert as having been discharged by the same firearm, and after it was shown that a person fleeing from 211 South Carlisle Street would travel past 103 South Bradford Street in gaining access to the Hamilton Street bridge, and after there was testimony that the defendant was seen running up an alley toward South Bradford Street. To go from 211 South Carlisle Street to the home where Barnak was found one would cross the Hamilton Street bridge.
R. A. Wolf testified that on November 26, 1945, he saw a man, wearing a large coat and a large hat, walking with a limp, prowling around in the neighborhood of 217 South Carlisle Street.
William F. Granitz testified that he had known Barnak for a long time; that he saw him on November 9, 1945; that he asked Barnak if he, Barnak, knew where he, Granitz, could get a girl friend, in a ‘kidding’ way. Barnak said: ‘Yes.’ Barnak then gave him a slip of paper and wrote down the name of Madge, 211 South Carlisle Street, evidently referring to Barnak's wife. Granitz said he came back to Barnak in about three quarters of an hour and Barnak asked him, Granitz, ‘if he was over.’ Granitz, in a ‘kidding’ way replied: ‘Yes.’ He said that Barnak told him, ‘It's lucky you didn't go over. That's my wife. I'd beat you up, and beat anybody else up that goes with her.’ When Barnak was asked on cross-examination whether he had said that he'd punch anybody on the nose that he saw with his wife, he said: ‘One man.’ When asked who that was he stated: ‘I don't remember his name, but he was on this witness stand.’
Mrs. June Blank, a widow, whose husband, an American soldier, was killed in France, is a sister of Mrs. Barnak and testified that between 11 and 12 o'clock on the night of December 20, 1945, she was at her father's and mother's home at 211 South Carlisle Street. She said Madeline Barnak, her sister, left the house at quarter of nine to meet some friends, and that she did not return until approximately ten minutes of twelve. She said that her mother and father and ‘my one sister and I were sitting in the living room’; that a car pulled up outside; and that her sister said: ‘Madeline's coming.’ She said she looked at the clock and it was ten minutes of twelve, and just a short time after that there were two shots. When Mrs. Blank got outside her sister was staggering across the pavement and said: ‘Oh, daddy, come and help.’ She said: ‘This figure caught my eye, approximately two doors down from our home, he wasn't standing and he wasn't running, he was sort of hesitating, and he was turned around more to the front, and I recognized him as John Barnak, and he started to run immediately,
and as he neared the corner he turned to the side, and I saw him again. My father went to this boy that was lying in the street, and I said, ‘Here's Madeline,’ she was right by the steps-he went off the side and I went directly down-and he came over and started to pick her up, and I said, ‘I'll help you,’ so we both carried her in and laid her on the davenport.'
She testified that her sister and John Barnak had been living apart for two months. When asked further about the identification of Barnak she said that she ‘recognized everything about him’; that she had the aid of headlights of an automobile coming down the road. The automobile was the automobile of Brichta, which had turned around at the corner.
E. C. Sperling, Captain of Police at Allentown, testified that he left city hall ‘at twelve o'clock midnight,’ December 20, 1945, after receiving a call to go to 211 South Carlisle Street; that he found Lt. Bowman on the street dead, and that...
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