Commonwealth v. Dorazio

• Citation: 365 Pa. 291,74 A.2d 125
• Parties: COMMONWEALTH v. DORAZIO.
• Decision Date: 26 June 1950
• Court: United States State Supreme Court of Pennsylvania

74 A.2d 125

365 Pa. 291

COMMONWEALTH v. DORAZIO.

Supreme Court of Pennsylvania

June 26, 1950

Argued May 22, 1950

Appeal, No. 184, Jan. T., 1950, from judgment of Court of Oyer and Terminer of Philadelphia County, Feb. T., 1949, No 763, in case of Commonwealth of Pennsylvania v. Gustav Dorazio. Judgment affirmed; reargument refused August 16 1950.

Indictment charging defendant with murder. Before LEWIS, J.

Verdict of guilty of murder in the second degree and judgment of sentence entered thereon. Defendant appealed.

The judgment is affirmed and the record is remitted to the court below so that the sentence imposed may be carried out.

Francis T. Anderson, with him Gray, Anderson Schaffer &amp Rome, for appellant.

John F. Kane, Assistant District Attorney, with him John H. Maurer, District Attorney, for appellee.

Before DREW, C.J., STERN, STEARNE, JONES and BELL, JJ.

OPINION

MR. JUSTICE ALLEN M. STEARNE

The appellant, Gustav Dorazio, appeals from the judgment and sentence entered against him on a verdict of guilty of murder in the second degree.

On Friday, January 7, 1949, the appellant and Albert Blomeyer, the deceased, were both employes of C. Schmidt & Sons Brewing Company of Philadelphia, employed in different departments. They were members of rival unions, each of which sought to represent the brewery workers. The deceased and two other employes had for some time been circulating a petition seeking an election supervised by the National Labor Relations Board to determine Union representation.

At about 9:30 A.M. on the day of the killing the defendant complained to the vice-president of the company that a petition was being circulated by a man named Hornung, that if Hornung were not stopped he (defendant) "was going to let [him] have it." At about 10 A.M. the defendant approached Hornung and threatened him "to lay off taking up this petition, to stop taking it around, and if [he] didn't [defendant] was going to send [him] home in an ambulance." Defendant also spoke to another employe, Keehfus, at about 10 A.M., saying, "I just told Hornung I am going to send him to the hospital. You better watch out, I am going to send you home in an undertaker's wagon."

From the Commonwealth's evidence the jury could have found the following facts: shortly after 3 P.M. the victim and several other men went to the Sternewirt, a brewery tap room, where beer is gratuitously served to employes and guests of the brewery. The victim had several beers. He also was securing signatures to a union petition. Morton L. Smith, the business agent for the union to which defendant belonged, was also in the Sternewirt at this time. At about 4 P.M. the victim left the plant in the company of two men, Witt and Amberg, employed in the same department (the fermenting room of the brewhouse) and he was walking between them. As the victim and his companions were walking on a street adjacent to the brewery the defendant was standing alone behind a pillar near the brewery plant. The defendant came from behind the pillar and followed behind the three men. He overtook them and "started swinging" at the victim and struck him. The victim turned, apparently recognized the defendant, and said, "It's Gus Dorazio." In turn the victim started to run down Edward Street back towards the brewery. The defendant followed in close pursuit. As the victim ran up the street he passed Smith, the rival union's agent, who put his hand out, whether or not to stop the victim is not clear. The victim ran into a brewery building known as the brew house; he ran up a flight of steps and passed through a door into a corridor. The Commonwealth's witness stated that neither Blomeyer nor defendant fell as they went up the steps and passed through the door immediately fronting on these steps. Immediately thereafter eye-witnesses observed the victim on the floor of the corridor either "in a crouched position" or lying on his left side; the defendant was standing over Blomeyer punching him repeatedly in and about the head and body. Witt, one of the men who had been walking with the deceased had followed the flight and sought to pull defendant away from the victim. The defendant beat Witt, knocked him down several times and struck him until and after he said he had enough. The assistant brew master ran up to stop the defendant and the defendant struck him in the stomach and knocked him across the corridor, down on one knee, momentarily helpless and breathless. Two witnesses testified that defendant struck the victim, while he lay prostrate, at least ten to fifteen times. After this incident the defendant ran or was pursued a short distance by an increasing crowd of Brewery employes to a delicatessen store on Second Street, where he was apprehended and taken into custody by the police.

The victim washed, was taken to a neighborhood hospital and was discharged after a brief course of treatment. The victim became ill a short time later that day, passed into semi-conscious state, was removed from his home to a hospital where he died about 9 P.M. that evening.

The coroner's physician testified that death was "a result of hemorrhage with pressure against the brain resulting from a fracture of the skull"; that there was "a widespread comminuted fracture throughout the right temporal and parietal bones" with massive epidural hemorrhage pressing in and distorting the right anterior lateral surface of the brain. Under cross-examination the doctor testified that there were various lines of fracture as though the head either hit or was hit by a hard object. He stated "it is seldom that a fist -- a blow of a fist can cause a comminuted fracture like that, but I would not exclude that possibility." The doctor after looking at the defendant's hands testified he could have caused the injuries; he further stated that he did not believe that the kind of fracture deceased sustained could result from tripping and striking his head on a door, that it was a smash fracture. The doctor stated that it was his opinion that the injuries were the result of one powerful blow.

The defendant's version of this occurrence was that unnamed persons had been threatening him and calling him names; that on the night before the incident he received an anonymous threatening phone call. The defendant denied having made threats against anyone. He testified that he knew the three men were connected with the C.I.O. because he had seen them around the plant; that he had stopped the three men to ask them about the phone call; that he merely touched the victim on the shoulder to start a conversation and the victim punched him and ran. He stated that he did chase the victim into the corridor but what took place there was a general fight in which he was only defending himself. The defendant contends that the victim's head injury resulted not from any alleged beating but from a fall either at the top of the steps or in the corridor. Defendant testified, "As he was starting to go up the steps, he was stumbling up the steps, climbing up the steps and he squashed his head in the door, and as he squashed his head against one door, the other door opened." After the fall, defendant said he was picking the victim up when the victim and Witt started to punch him and he fought back.

The defendant had been a professional heavyweight prize fighter for about 8 years prior to 1944; he fought a "great many" times and had been a contender for the heavyweight championship of the world in 1941, being defeated by the then champion, Joe Louis. Defendant was about five feet nine inches tall and weighed about 190 pounds.

In reviewing a record of conviction for murder under the Act of February 15, 1870, P.L. 15, section 1, 19 PS 1186, it is our duty to determine whether the degree or elements of murder in the specified degree are present; whether there is sufficient evidence from which the jury could find beyond a reasonable doubt that the degree of murder was committed by the accused: Commonwealth v. Karmendi, 328 Pa. 321, 323-4, 195 A. 62. In the determination of such question we ordinarily confine ourselves to the commonwealth's evidence: Commonwealth v. Karmendi, supra; however, where the complaint is directed to the judge's charge we must assume the facts in their most beneficial aspect to the accused and determine how the charge may have governed those findings of fact by the jury.

The appellant contends that since he had no weapon of any kind in his possession the essential element of intent to kill or to do great bodily harm cannot be inferred "from the making of a mere assault, without a battery," with bare fists. Defendant concedes that under the Commonwealth's evidence the conviction may be sustained. But he complains that the trial judge erred in charging the jury that even if they believed that defendant struck no blows and that the deceased sustained a skull fracture in a fall, nevertheless, the could find defendant guilty if he was an unprovoked aggressor and caused the decedent to flee, fall and injure himself.

The portion of the charge of the trial judge and the colloquy which took place in the presence of the jury, of which appellant complains, is as follows: "Let me tell you something else about this fractured skull. It does not make any difference in this case as to the defendant's guilt or innocence whether Blomeyer's skull was fractured by his head hitting the door or was fractured by the blows of this defendant -- that is, if that fracture occurred when Blomeyer was running away from an attack by Dorazio, if he had sought to escape Dorazio and was running away and while running away he stumbled and fell on those steps and fractured his skull, this defendant is responsible for it. Let us assume that the...