Commonwealth v. Ross

Decision Date12 November 1963
Citation195 A.2d 81,413 Pa. 35
PartiesCOMMONWEALTH of Pennsylvania v. Bernard ROSS, Appellant.
CourtPennsylvania Supreme Court

Utterback & Brown, Thomas A. Harper, Pittsburgh, for appellant.

Edward C. Boyle, Dist. Atty., Samuel Strauss, Martin Lubow, Asst Dist. Attys., Pittsburgh, for appellee.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN, and ROBERTS, JJ.

BELL, Chief Justice.

Bernard Ross the appellant was indicted for the murder of Mrs. Eva Mae Boston. He was convicted of murder in the first degree and sentenced to death. He then filed a motion for a new trial which was denied. Thereafter he appealed to this Court.

Appellant contends that the lower Court committed three reversible errors: (1) the admission of certain parts of the pathologist's testimony, (2) failure to require the jury to hear and consider 'penalty' evidence immediately after finding a verdict of murder in the first degree, and (3) charging the jury as to the factors to be considered in fixing the penalty.

The Evidence.

The evidence considered in the light most favorable to the Commonwealth, may be summarized as follows:

The appellant and the decedent, Mrs. Eva Mae Boston, commenced living together in 1954, although each was married to someone else. Their meretricious relationship continued until at least September of 1961 when the appellant left their common abode. At the time the appellant and the decedent began living together, Mrs. Boston had three sons. Subsequently she had two daughters, of whom appellant was apparently the father. After 1961 appellant continued to visit Mrs. Boston nearly every morning, although he no longer resided with her. Violent quarrels frequently occurred during these visits. On a number of these visits appellant threatened to kill Mrs. Boston and some or all of her children. Russell Boston, aged 14, one of decedent's sons, testified that on one occasion his brother, Daniel, aged 17, stepped between his mother and appellant when they were fighting and the appellant threatened him with a knife. On another occasion when appellant was fighting with Mrs. Boston, Daniel threatened to call the police. At that time appellant pulled out a gun and threatened Daniel with it.

Edward Alford testified that appellant told him three or four months prior to the shooting that he was going to kill Mrs. Boston. Marion Hamons testified that she saw appellant the night before the murder and he showed her a loaded gun which he said he carried all the time. Blanche Nash testified that the night before Mrs. Boston was killed, the appellant pulled out a gun and said, 'I got something to do with this gun and it will be sooner than they think.'

On November 10, 1962, the night before the murder, defendant threatened to kill Mrs. Boston and displayed a loaded pistol. On the morning of November 11, appellant came to Mrs. Boston's apartment and began quarreling with her. Daniel told appellant to leave. Appellant then said, 'I am going to kill all of you.' Thereupon appellant pulled out a gun and shot Daniel Boston in the chest, when he was only three feet away. Appellant then wheeled around and shot Daniel's brother, Russell, in the side near the heart.

John Gressen, aged 16, who was a friend of the Boston children, witnessed the two shootings. He testified that he saw defendant go into Mrs. Boston's bedroom and he then ran for help. When the police arrived, they found Mrs. Boston's dead body on the floor in the bedroom. She died of a bullet would which went through her left forearm and pierced her heart and lungs. Although Russell miraculously recovered, Daniel died on the way to the hospital. When the police arrested appellant he freely admitted that he shot Mrs. Boston as well as her two sons.

The Commonwealth called a pathologist who was permitted, over objection, to testify that he performed an autopsy upon Daniel Boston and that Daniel died as a result of a gunshot wound. Defendant contends that although it was proper to prove that Daniel was shot just before his mother was shot, it was prejudicial and reversible error to permit any testimony that Daniel died as a result of this shooting.

Admissibility of the Pathologist's Testimony.

The law is well settled that evidence of the commission of a crime other than the one for which a defendant is being tried is not generally admissible. However, like most rules there exist certain well defined exceptions--for example, when more than one person is killed by the accused either as part of a common plan, design, or motive, or as part of the res gestae or as part of a sequence of acts related to the crime or as part of a chain of criminal acts. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693; Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334; Commonwealth v. Williams, 307 Pa. 134, 160 A. 602; Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150; Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193; Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348; Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317; Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398.

In Commonwealth v. Williams, 307 Pa. page 148, 160 A. page 607, supra, the Court said:

'There are, however, many well recognized exceptions where the commission of another offense by the defendant may be received in evidence. Prior convictions can be admitted in evidence to show intent, scienter, motive, identity, plan, or the accused to be one of an organization banded together to commit crimes of the sort charged, or that such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts; [1] also to prove the mental condition when the defense was insanity, or to rebut the inference of mistake, or to show a guilty knowledge. Com. v. Coles [265 Pa. 362, 108 A. 826], supra; Com. v. Cicere, 282 Pa. 492, 128 A. 446; Com. v. Dorst, 285 Pa. 232, 132 A. 168; Com. v. Quaranta, 295 Pa. 264, 145 A. 89.'

In Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693, supra, the defendant was tried for and convicted of the murder of Smith. Smith and Mrs. Klein disappeared from their respective homes in Reading in March of 1960, but their disappearance was not noted until July of 1960. Defendant testified that Mrs. Klein and Smith came to his home in March of 1960 and lived there together for a few days. At the end of the third day Smith took defendant to another bedroom and showed him Mrs. Klein's dead body and informed him that Mrs. Klein had died of natural causes. Defendant further testified that he then got into an argument with Smith in the course of which Smith threatened him with a shotgun and while he and Smith were struggling for possession of the gun it was accidentally discharged, killing Smith. The Commonwealth was permitted to prove that the body of Smith and of a woman (evidently Mrs. Klein) were found in a common grave [2] on defendant's property.

We pertinently said (411 Pa. pages 450-451, 192 A.2d page 700), 'The only evidence of another crime which was admitted in evidence was that pertaining to the death or killing of Mrs. Klein and the relationship between her and Smith and the appellant. Even if the evidence as to the death of Mrs. Klein and the relationship between her and Smith and her connection with the defendant had not been part of defendant's confession, such evidence was an inseparable, indispensable and inextricable part and parcel of this case, and because of this fact could not possibly have been separated or eliminated. Brown v. Commonwealth, 76 Pa. 319, 337; Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334. Commonwealth v. Wable is on its facts similar to the instant case and aptly states the controlling principle of law. * * *

'There was no error in the admission of evidence concerning the death and burial of Mrs. Klein.'

In Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334, supra, defendant was indicted and tried for the murder of Pitts and was found guilty of murder in the first degree and the penalty fixed at death. The Commonwealth proved that on July 25, 1953, Lester B. Woodward, a truck driver, was murdered while asleep in the cab of his truck on the Pennsylvania Turnpike at a point in Westmoreland County. Three days later, on July 28, 1953, Pitts likewise a truck driver was similarly murdered while asleep in the cab of his truck at a point on the Pennsylvania Turnpike also in Westmoreland County. Three days later, on July 31, 1953, Shepard, another truck driver, was shot while asleep in the cab of his truck on a highway in Ohio at a point approximately 15 miles from the Pennsylvania Turnpike.

Defendant contended that the Court erroneously admitted evidence relating to the murder of Woodward and the shooting of Shepard. Shepard did not die. Woodward and Shepard were robbed; Pitts was not. Defendant was arrested in New Mexico. The bullets that were fired into the three victims were shown to have been fired from the defendant's gun, and Shepard identified defendant as the man who had shot him. This Court held that the testimony relating to the murder of Woodward and the shooting of Shepard was properly admitted and affirmed the judgment and sentence. The Court, speaking through Mr. Chief Justice Horace Stern, said (382 Pa. pages 84-85, 114 A.2d page 336):

'It is true, of course, that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime, because the fact of the commission of one offense is not proof of the commission of another. * * * But it is also true that sometimes there exist the 'special circumstances' which operate as exceptions to the general rule, and bring ...

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