Commonwealth v. Moyer. Same

CourtUnited States State Supreme Court of Pennsylvania
Citation53 A.2d 736,357 Pa. 181
Decision Date30 June 1947

357 Pa. 181
53 A.2d 736


Supreme Court of Pennsylvania.

June 30, 1947

53 A.2d 737


Appeals Nos. 123, 124, January term, 1947, of the defendants from the Judgment and Sentence of the Court of Oyer and Terminer and General Jail Delivery of Delaware County, Pa., as of Nos. 330, 331, December Sessions, 1946; Albert Dutton McDade, President Judge.

Charles Frederick Moyer and William Paul Byron were convicted of murder in the first degree and they appeal.


53 A.2d 738


Samuel M. Tollen, J. Harold Hughes, Jacob Sapovitz and Anthony G. Kapourelos all of Chester, for appellants.

R. Paul Lessy, Asst. Dist. Atty., of Chester, Raymond R. Start, Asst. Dist. Atty., of Upper Darby, and C. William Kraft, Dist. Atty., of Media, for appellee.

MAXEY, Chief Justice.

Charles Frederick Moyer and William Paul Byron were jointly tried for the murder of Harvey Zerbe, which occurred during the perpetration of a robbery. The jury convicted them of murder in the first degree and imposed the death penalty. On the night of July 13, 1946, the defendants while in a taproom in Chester, Pa., ‘decided to go out and rob a filling station or someplace.’ Byron, armed with a .32 caliber Smith & Wesson revolver and Moyer, armed with a .32 caliber Royal automatic pistol, cruised along MacDade Blvd., Delaware County, in a car which they had previously stolen, with the specific intent of carrying out their conspiracy. At or about 11 p. m. they selected as a suitable site to rob, a gasoline station located on MacDade Blvd. and Sylvania Ave., Delaware County, which was owned and operated by one Earl Shank. They drove their stolen car into the gasoline station, between the curb and the ‘island’, where they were approached by Harvey Zerbe, who was employed as a gasoline attendant. Byron was behind the wheel and Moyer was slumped in the front seat beside Byron so that he was unobserved. When Zerbe inquired of their needs, Moyer pushed open the car door, pointed his weapon at Zerbe and informed him it was a ‘hold-up’. Moyer got out of the car and put his loaded gun against Zerbe's person and ordered him to advance toward the building. Byron remained in the car. At the time, Earl Shank, the owner of the station, was leaning in front of the doorway of the building on the permises. He was not immediately observed by Moyer whose vision was obscured by a large Panama hat which he wore pulled down over his eyes.

As Moyer was marching Zerbe toward the building, Zerbe moved sidewise to the left. Moyer then looked up and saw Shank. Moyer immediately fired at Shank but missed. Shank who had a .38 caliber revolver in his left pocket, which he obtained from Zerbe five minutes prior to the perpetration of the robbery, 1 fired at Moyer five times. Two of the shots hit Moyer, one in the shoulder and the other in the chest. Moyer then shot twice at Shank and retreated to the automobile. When he reached the car he shot again and about that time Byron shot. Moyer's last shot was aimed at Shank but it was alleged by the Commonwealth that the bullet hit Zerbe, who was then in the line of fire. Zerbe fell mortally wounded. Shank testified that while the exchange of shots took place, he ‘picked up a three-pound maul, and as I did a shot came in the doorway * * * I dropped the maul and grabbed the telephone.’ He was asked: ‘When you picked up the telephone had you seen Zerbe go down?’ He replied: ‘No, sir.’ He stated: ‘Before I completed the call, when I was telephoning the police, Mr. Zerbe was looking in the window at me when I started to make the telephone call to the police.’ When he was asked what happened after he finished making his call, he answered: ‘I went to go out the door and Mr. Stauffer was standing in front of the door and he said: ‘* * * Are you hurt, are you hurt?’ I said to him: ‘No.’ * * * I didn't know he [Zerbe] was hit yet. Just then someone said there was a man shot.' I looked over to see who it was and telephoned to get the Milmont ambulance.' It was ‘Harvey Zerbe * * * lying on his back.’ After the shooting, Byron and Moyer escaped in the stolen car.

Zerbe faced Shank throughout the shooting. Zerbe was shot in the back from the direction of Byron and Moyer. The bullet passed completely through his body. An eyewitness, Marion Stauffer, saw Moyer's arm drop immediately after the shooting (as

53 A.2d 739

having just completed the shot) and saw Zerbe then fall to the ground. After Zerbe was shot, a bullet that was identified as having come from Moyer's gun was found underneath Zerbe's prostrate body. Shank did not shoot in Zerbe's direction.

In Moyer's confession he said that when he was at the gasoline station and saw Zerbe approach the car, he [Moyer] said ‘Put your hands up; this is a hold-up.’ This man ‘was sweeping up or doing something like that.’ Moyer said he ‘pointed the gun at him’ and told him he ‘wanted his money.’ Byron was then at the wheel of the car. The man that came whom Moyer had addressed, replied ‘all right’ and then Moyer marched him towards the building and he told him to get the money. Moyer said, ‘I was walking behind him with the gun on him * * * then the other fellow started to shoot.’ By ‘the other fellow’ he evidently meant Shank, who was ‘in the doorway.’ He said he [Shank] shot twice and hit him both times, once in the shoulder and in the chest. Zerbe who had been ahead of Moyer started to run toward the left hand corner of the building. Moyer then started shooting. He fired four times in rapid succession. He said he ‘was aiming at the fellow in the doorway.’ He was asked: While you were firing what did you notice happen if anything?' ‘A. I saw the fellow that was hit falling. Q. That is the fellow that you had been marching along with the gun pointed at him? A. Yes.’ Moyer was also asked: ‘Then what happened?’ He answered: ‘I turned around, ran around, jumped up, got inside of the car, and we pulled away.’ As he pulled away, he heard the man who had been shot and who was then lying on the ground ‘moaning.’

The Commonwealth claims that it proved beyond a reasonable doubt that the bullet which killed Zerbe was fired by the defendant, Moyer. After Zerbe was shot down and these two defendants escaped from the scene, a .32 caliber bullet was found beneath Zerbe's body. The inference was legitimate that this was the bullet that passed through Zerbe's body. M. E. Williams, special agent of the F.B.I., testified as follows: ‘Of the three weapons I examined, this bullet, State's exhibit 9 [the .32 caliber, Royal bullet found beneath Zerbe's body] could only have been fired in the automatic pistol, State's exhibit 11 [Moyer's gun].’ Defense counsel asked: ‘Could you tell us whether or not the laboratory of the Federal Bureau of Investigation is equipped to test bullets that have gone through objects?’ He answered: ‘Certainly.’ ‘Q. Such as wood? A. Yes, sir. Q. And bodies? A. Yes, sir.’ As we hereafter point out in this opinion, it is quite immaterial in the question of the guilt of these defendants whether or not the fatal bullet was fired by Moyer or by Zerbe's employer in repelling Moyer's murderous attack upon him and Zerbe in the attempted perpetration of a robbery.

Dr. John H. Turner testified for the Commonwealth that an examination of Zerbe's body disclosed ‘a bullet wound on his back and penetrating through the abdomen on the left side; it went in on the right and came out on the left.’ He was asked: ‘Will you tell us there the point of entrance was?’ He answered: ‘The point of entrance was two inches to the right of the fourth lumbar vertebrae on the right side.’ He distinguished the entrance ‘because of the dark area on the skin’ which was ‘in the back on the posterior surface, and on the front there was none at all.’ He also testified that the powder burns indicated that the victim was not at ‘close range’ and that the revolver shot in relation to the object shot was ‘from a distance’. The witness further stated that a ‘reflected bullet’ could not have caused the victim's mortal injury. John Daniel Stauffer a resident near the gasoline station, testified that he had heard the exchange of shots and saw the defendants' car ‘coming out of the...

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