Commonwealth v. Giacobbe

• Decision Date: 24 March 1941
• Docket Number: 83,84
• Citation: 341 Pa. 187,19 A.2d 71
• Parties: Commonwealth v. Giacobbe, Appellant
• Court: Pennsylvania Supreme Court

19 A.2d 71

341 Pa. 187

Commonwealth v. Giacobbe, Appellant

Nos. 83, 84

Supreme Court of Pennsylvania

March 24, 1941

Argued January 21, 1941.

Appeals, Nos. 83-84, Jan. T., 1941, from judgment of O. & T Phila. Co., June Sessions, 1939, Nos. 672 and 673, in case of Commonwealth v. Carmella Giacobbe, alias Millie Giacobbe. Judgment affirmed.

Indictment for murder. Before LEVINTHAL, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder in the first degree with penalty of life imprisonment and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, related to various rulings on evidence and to excerpts from the charge of the trial judge.

All the assignments of error are overruled, and the judgment and sentence thereon are affirmed.

William Langton Rubin, of Belmont, Benedetto & Rubin, for appellant.

Charles C. Gordon, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.

Before SCHAFFER, C.J., MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.

OPINION

MR. STERN, JUSTICE.

A multiplicity of assignments of error is usually an indication of weakness. ^[1] Here they are thirty-one in number, nearly all of them either trivial or so ruled by previous decisions as to be removed from the realm of the debatable. The one important question is whether the evidence, which was wholly circumstantial, is sufficient to support the verdict, -- that of guilty of murder in the first degree with penalty of life imprisonment, -- having regard to the well-established principle that "when a charge of crime is sought to be sustained by circumstantial evidence, the hypothesis of guilt should flow from the facts and circumstances proved, and be consistent with them all. The evidence must be such as to exclude to a moral certainty every hypothesis but that of guilt of the offense imputed; the facts and circumstances must not only be consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence": Commonwealth v. Benz, 318 Pa. 465, 472, 178 A. 390, 392; Commonwealth v. Bardolph, 326 Pa. 513, 521, 192 A. 916, 920; Commonwealth v. Gabriel, 130 Pa.Super. 191, 195, 196 A. 866, 868.

According to the Commonwealth's case, defendant was for twenty-five years the wife of Antonio Giacobbe, but there were admissions on her part that her married life was not a happy one. Giacobbe died on April 2, 1933. His body was exhumed in May, 1939, and some of the vital organs were extracted and turned over to the city chemists, Drs. Burke and Lampert, for analysis. Dr. Burke testified as to large quantities of arsenic which he found in the liver, stomach and kidneys, and which, he declared, were "far in excess of the usual amount of arsenic found in poisoning cases." Dr. Wadsworth, the coroner's physician, stated that, on the basis of Dr. Burke's report, it was his opinion that Giacobbe had died of arsenic poisoning. There was evidence that no arsenic had been prescribed for the deceased by any physician, and also that the embalming fluid used on his body contained none.

A number of industrial insurance policies in varying amounts had been placed on Giacobbe's life, in nearly all of which defendant was named as beneficiary, and after his death she collected on them a total of approximately $3,800, including the proceeds of a policy of the John B. Stetson Company where the deceased had been employed. Not only did defendant participate largely in the negotiation of these policies, but some of them were taken out on her own initiative. On one occasion she requested the insurance agent not to mention the matter to her husband because he "didn't care much for insurance and I [the agent] would spoil it if I spoke to him about it." This agent prepared the application and asked Giacobbe to sign it without informing him as to its nature or even showing it to him, and, upon Giacobbe saying that he could not write, the agent himself signed Giacobbe's name and made a cross-mark. Later defendant asked this same agent "if she could get more insurance on her husband," and another policy was taken out, the application again being executed by the agent by making a cross-mark and signing Giacobbe's name. Two policies were also written on Giacobbe's life at the request of one Paul Petrillo upon his false representation that Giacobbe was his uncle; they named Petrillo as beneficiary, the applications being executed by the agents signing Giacobbe's name. Petrillo, who conducted a tailor shop in the immediate neighborhood of the Giacobbe home, was an intimate friend of defendant; she admitted that she had meretricious relations with him both before and after her husband's death.

In a signed statement made by defendant in the office of the district attorney, where she had been surrendered by her attorney for questioning, she stated that about two months before her husband died Petrillo had told her he was going to "fix" him, and would marry her upon the death of his wife, who was an invalid. She admitted that by "fix" she understood he was going to kill her husband, but at the trial testified that she "thought it was a joke."

Giacobbe suffered from diabetes for many years, but on or about March 23, 1933, he became acutely ill. It was not until a week later, on March 30th, that defendant sent for a physician, Dr. Pescatore. The doctor found Giacobbe in great distress, gave him a hypodermic of morphine "to quiet him down," and told defendant he thought he ought to come back the following day because her husband "looked very ill." She told him not to return, that she would call him if she thought it necessary. Three days later, on April 2nd, he and several other physicians received emergency calls, but upon arrival at the house they found Giacobbe dead. As Doctor Pescatore emerged from the room where Giacobbe lay, defendant took him aside and asked for a death certificate. On that very night she notified one of the insurance agents of her husband's death, and shortly thereafter the necessary proofs were executed and the insurance money was collected by her and Petrillo on their respective policies. Although by that time, at least, she had knowledge that Petrillo, pretending to be a nephew, had placed insurance on her husband's life, she made no objection or comment.

A couple of weeks after Giacobbe's death Petrillo brought to defendant's house one Morris Bolber, a self-proclaimed faith healer who professed having the power to drive away evil spirits. Defendant told Bolber that she could not sleep at nights as she always saw her husband "coming after her." Bolber said: "He is not coming; he is dead. The only thing, your conscience bothers you and therefore you think he is coming," to which she made no reply.

Defendant testified that the first time Petrillo told her he had killed her husband was about two months after Giacobbe's death. When asked as to the means he had employed she said she "thought he must have given him something."

Before defendant was formally arrested or charged with murder, but after being interrogated in the office of the district attorney, she was granted, at her request, permission to visit her home. While there she twice tried to commit suicide, once by swallowing creolin and immediately thereafter by trying to shoot herself.

Although some of the testimony hereinbefore summarized was, of course explained or denied by defendant, the evidence in its totality was such as to prevent the withdrawal of the case from the jury. Facts which individually are not of controlling importance may, when cumulated, lead to probable or even well-nigh inevitable inferences, since each incriminating fact brings not merely additional but often multiple weight to the conclusion which it tends to establish. Here we have a variety of motives for the murder arising from defendant's lack of affection for her husband, her relations with Petrillo, his desire to marry her, and the insurance which they carried on Giacobbe's life. We have also the element of constant opportunity for the commission of the crime by Petrillo and its facilitation by defendant. We have Petrillo's announced intention of "fixing" Giacobbe and his subsequent statement that he had carried out that intention. We have the fact that, although defendant was told by Petrillo of his purpose, she continued her association with him; also that, while she had every reason to believe or at least gravely suspect that her husband's acute pains and distress were due to Petrillo's handiwork and not to the chronic diabetes, she not only did not procure medical aid until a week after his serious illness began, but even then, in disregard of the doctor's advice, would not permit him to call again, and it was not until her husband finally collapsed that physicians were summoned. We have also her subsequent incriminating conduct, such as her callous behavior (see Commonwealth v. Karmendi, 328 Pa. 321, 337, 195 A. 62, 68), her immediate request for a death certificate, her unseemly haste, manifested on the very day of Giacobbe's death, to collect the insurance, her sleeplessness and delusional fears regarding the "coming" of her dead husband, and her silence when charged by Bolber with having a guilty conscience. We have the further fact that when, some two months after her husband's death, Petrillo expressly told her that he had murdered him, she made no attempt to notify the authorities or to bring Petrillo to justice. Finally, we have her suicidal attempts six years later when discovery occurred and prosecution was imminent. While none of these facts was, of course, conclusive, the jury could properly conclude that, in combination, they were not only "consistent with and pointed to the...