Commonwealth v. Stabinsky

• Decision Date: 27 November 1933
• Docket Number: 312
• Citation: 313 Pa. 231,169 A. 439
• Parties: Commonwealth v. Stabinsky, Appellant
• Court: Pennsylvania Supreme Court

169 A. 439

313 Pa. 231

Commonwealth v. Stabinsky, Appellant

No. 312

Supreme Court of Pennsylvania

November 27, 1933

Argued September 25, 1933

Appeal, No. 312, Jan. T., 1933, by defendant, from judgment and sentence of O. & T. Luzerne Co., Nov. Sessions, 1932, No 517, in case of Commonwealth v. Frank Stabinsky, alias Frank Stabinski. Judgment affirmed; record remitted for execution.

Indictment for murder. Before FINE, J.

The opinion of the Supreme Court states the facts.

Verdict of guilty of murder in first degree. Defendant appealed.

Errors assigned, inter alia, were to charge of court, quoting record.

Judgment affirmed and record remitted for purposes of execution.

Edward Darling, for appellant.

John H. Dando, Assistant District Attorney, with him Thomas M. Lewis, District Attorney, and Peter Kanjorski, Assistant District Attorney, for appellee.

Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE LINN:

In the perpetration of a burglary during the night of November 12, 1932, appellant, Stabinsky and an accomplice, Tetrosky (appellant in No. 313, the next case), brutally assaulted Mary Malinowski, inflicting injury resulting in death. Both were arrested shortly thereafter, and, taken to the Malinowski residence, described the crime in revolting detail. Statements by them to the police and assistant district attorneys were put in evidence. The jury found appellant guilty of murder of the first degree with the death penalty.

He complains of error in overruling a challenge for cause made on the ground that a juror's answers disclosed prejudicial opinion of appellant's guilt. The trial judge thought there was no basis for the criticism suggested. We have considered the subject in the light of the familiar rule (see Commonwealth v. Roddy, 184 Pa. 274, 39 A. 211, and cases considering the subject, down to Commonwealth v. Crow, 303 Pa. 91, 100, 154 A. 283) and must dismiss the assignment as without merit.

Complaint is also made of a portion of the charge stating that appellant struck the victim with an iron bar. If this was a misstatement of fact that might be considered prejudicial, counsel should have called the attention of the court to it for correction before the jury retired. But it is not clear that it was a mistake; the murderers broke their black jack on the head of the woman and then descended to the cellar and "found an iron down there," and, returning to the woman's room (in the words of the statement to the officers, put in evidence) "we socked the girl with the iron." At this point in the narrative, Tetrosky interrupted with, "You did not hit her with the iron," and appellant added, "I did not hit her with the iron." The jury was, however, specifically instructed that it must be governed by its own recollection of the evidence and not by that of the judge. Under all the evidence on the subject, of which we have quoted only part, the fact was for the jury; if a mistake was made, the error was harmless in the circumstances disclosed by the record.

Complaint is made of an instruction that, if appellant was found guilty of first-degree murder, he, "in the opinion of the court, deserves the maximum penalty under the law." But that was not all that was said on the subject; the jury was specifically instructed that the punishment was "a matter entirely for your discretion. You are not bound by any opinion the court may have expressed." An expression of opinion, so qualified, is not improper: Com. v. Nafus, 303 Pa. 418, 420, 154 A. 485.

There is no foundation for the assignment of error "in placing undue stress on the evidence of the Commonwealth and in minimizing the evidence for the defendant." The evidence included testimony of a number of members of the Malinowski household, the officers who arrested the murderers, the officers to whom they made their statements, and the stenographic report of the accounts of their crime. The only witness who testified for defendant was a physician. The court did not minimize the effect of this physician's testimony. He was called as an expert and testified concerning his examination of appellant, gave his sources of information, etc., and the opinion formed by him. He testified that appellant "began -- he is beginning to show a split personality, and I felt he was beginning to show evidences of an incipient schizophrenia, with the psychopathic tendency, and therefore I combined the two words, a schizophrenic-psychopath." He also said that disease is "not an insanity." The commission of the crime was not denied and it was not claimed that appellant was insane when the crime was committed or when arraigned and tried. The jury was instructed that the doctor testified "that this defendant could distinguish between right and wrong, but the defendant was only partially responsible." Two points for charge, presented on behalf of appellant, were affirmed, as follows:

"3. If the jury believe the testimony of Dr. Winkelman, they may take this testimony into consideration in fixing the degree of punishment, if they find defendant guilty of murder in the first degree."

"4. If the jury believe the testimony of Dr. Winkelman, they may take this testimony into consideration along with all the other testimony in the case, in fixing the degree of punishment, if they find defendant guilty of murder in the first degree."

Appellant also complains that the learned court excluded other evidence of mitigating circumstances that should have been received for the purpose of enabling the jury to determine whether, if found guilty, appellant should be sentenced to death or to life imprisonment, as provided for by the Act of May 14, 1925, P.L. 759, 18 PS 2222. This complaint is presented in the sixth assignment of error: "We offer to prove by this witness [appellant's mother] facts in the history and behavior of the defendant, on the basis of which facts, together with other facts which will be testified to by other witnesses, and together with an examination of the defendant, and an observation of his conduct in court, and after hearing all of the evidence presented here in court today, Dr. Winkelman will state that in his opinion the defendant, at the time of the alleged occurrence for which the defendant is now on trial, and for some time prior thereto, was and now is a schizophrenic-psychopath, and therefore irresponsible for his actions." The offer was so defective in substance as to justify the court in sustaining the Commonwealth's objection. What were the facts which it was proposed to prove? Instead of offering merely to prove facts "on the basis of which together with other facts which will be testified to by other witnesses . . .," there should have been a brief statement of the facts proposed to be proved so that the court could determine whether they were relevant, for, unless relevant, they could not be received. And it is to be noted, so far as the offer referred to Dr. Winkelman's "observation of [appellant's] conduct in court," that the appellant had the benefit of it, because the doctor testified that his opinion was in part based on his observation of the defendant in court. The doctor also stated that he had considered the history of the appellant as received from his parents. It was not an offer of evidence, in part relevant and in part irrelevant, which, in a prosecution for homicide, might require the judge to separate the good from the bad (cf. Com. v. Colandro, 231 Pa. 343, 348, 80 A. 571) but an offer that gave no indication of relevance. The record appears to show that the judge thought that counsel proposed to submit lay evidence of insanity, although the defense of insanity was not made, and suggested that the lay witness be called after the doctor had testified. The doctor testified that appellant was suffering from the mental disease described but was not insane within the rule applied in criminal prosecutions in this State. Counsel for appellant said: "We do not rely upon the testimony of Dr. Winkelman to excuse the crime, but we do rely upon it -- we do think it ought to be submitted to the jury for the purpose of measuring the punishment that might be imposed upon -- they might in fact impose upon the defendant, in fairness and mercy. The court: Then the sole purpose of Dr. Winkelman's testimony is for mitigation of penalty? Mr. Walsh: Yes. The court: And for no other purpose. Mr. Walsh: No."

The Commonwealth then moved to strike out the evidence of the doctor on the ground that it should not be received but the court refused the motion and affirmed the points for charge quoted above, submitted on appellant's behalf.

In refusing a new trial, the learned trial judge said that the doctor's evidence was "presumably offered to show mental irresponsibility [by which we understand that he meant insanity]. When admitted, it failed to approximate the legal standard which prompted defendant's counsel to oppose its exclusion on the basis of its competency in mitigation of punishment. . . . As it is our firm opinion that such an independent inquiry is not permissible under the Act of 1925, we did not allow the Commonwealth to offer rebuttal evidence on the defendant's...