Commonwealth v. Statti

• Decision Date: 20 May 1950
• Citation: 166 Pa.Super. 577,73 A.2d 688
• Parties: COMMONWEALTH v. STATTI.
• Court: Pennsylvania Superior Court

73 A.2d 688

166 Pa.Super. 577

COMMONWEALTH v. STATTI.

Superior Court of Pennsylvania

May 20, 1950

Argued March 13, 1950.

Appeal, No. 36, April T., 1950, from judgment and sentence of Court of Oyer and Terminer of Lawrence County, June T., 1949 No. 2, in case of Commonwealth of Pennsylvania v. Eugene Henry Statti.

Indictment charging defendant with rape, assault and battery with intent to commit rape, assault and battery, assault and indecent assault. Before Braham, P. J.

Verdict of guilty of assault and battery with intent to commit rape assault, and indecent assault, and judgment of sentence entered thereon. Defendant appealed.

James M. Keller, for appellant.

Leroy K. Donaldson, Assistant District Attorney, with him Sherman K. Levine, District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross and Arnold, JJ. Dissenting opinion by Ross, J.

OPINION

HIRT, J.

This is an appeal from the judgment of sentence imposed upon the defendant, following his conviction of assault and battery with intent to commit rape. He seeks a new trial notwithstanding, under the evidence, the jury well might have convicted him of common law rape charged in the first count of the indictment.

Hope Ann Savicky lived with her husband on Jamison Avenue in the Borough of Ellport. On her way home alone in her automobile about four o'clock in the morning of April 30, 1949, she noted that a man in an automobile was following her. There was but one headlight on his car. When she drove into the driveway of her home he followed her and when she was about to alight he placed a hand over her mouth and with threats to kill her dragged her into his car. He then drove to a lonely church yard and there raped her, according to her testimony. In the struggle, while being forced from one car to the other she bit the middle finger of the left hand of her assailant causing it to bleed. He then in anger put his hand to her face and tore the tissues of the inside of her mouth with his fingers. Blood flowed from this laceration also. She had ample opportunity to observe her assailant and she later unhesitatingly identified him from a group of several hundred workmen as they were entering the plant of the Babcock & Wilcox Company in Beaver Falls, on a change of shifts. Her description of the automobile, including the defective headlight, also identified the car of the defendant. Defendant on the trial admitted that he had driven from New Brighton to Ellport on the night in question but contends he was home in bed before 3 a.m. The wound on the middle finger of his left hand he attributed to a cut incurred while repairing an automobile. The testimony by which he attempted to set up an alibi was not impressive and the jury did not accept it.

The defendant here for the first time charges error in the instruction on reasonable doubt. He complains especially of the language of the trial judge in charging on reasonable doubt as ". . . that state of doubt . . . as would cause you to hesitate and refrain from action in your own affairs . . ." without referring such doubts to affairs of importance or of the highest importance. In Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398, Mr. Justice Stern, commenting on the language of prior decisions of our courts on reasonable doubt, said: "It may be doubted if the ordinary juror would appreciate the significance of these distinctions, and whether he would have the capacity to understand and the mental ingenuity to apply them. As a standard and approved form of charge, however, we are of opinion that the jury should be told either, as in the Andrews case, ^[1] that they should not condemn unless so convinced by the evidence that they would venture to act upon that conviction in matters of the highest importance to their own interests, or, as in the Green ^[2] and Jermyn ^[3] cases, that a reasonable doubt was one that would cause them to hesitate to act in any of the important affairs of their own lives."

There was a reversal in the Kluska case but it may be noted that though the instruction there did not meet the suggested standard, the reversal was not on that ground. Here the clear and instructive charge on reasonable doubt, quoted in full in the margin, ^[4] adequately meets the standard of the Kluska, Green and Jermyn cases, and that is all that can be required. This excerpt from the language of the trial judge to the jury: "Let us suppose that in some way the guilt or innocence of the defendant of these charges were involved in your own affairs; . . ." in considering the question of reasonable doubt, seems to be but another way of saying to the jury that they should not condemn unless they would act upon the conviction in matters of importance to themselves.

But in any view if the defendant considered the charge on reasonable doubt inadequate it was for him, when opportunity was afforded, to ask for amplification. At the close of the charge the trial judge inquired: "Are there now any matters which counsel would like to have called more specifically to the attention of the jury? Have there been any inadvertent mis-statements of the law or the evidence?" In response, defendant's counsel asked for clarification of certain factual issues but did not question the charge on the law. Only a general exception was taken and in the absence of a request for amplification, error, under the circumstances, cannot now be asserted to the charge on reasonable doubt. Commonwealth v. Glickstein, 151 Pa.Super. 421, 426, 30 A.2d 147; Commonwealth v. Kohl, 164 Pa.Super. 630, 634, 67 A.2d 451.

An examination of defendant's automobile disclosed blood stains on the right side of the front seat cover, and there were similar blood stains on Mrs. Savicky's clothing. Samples of the blood of defendant and of Mrs. Savicky were taken and these specimens, together with the stained clothing and seat cover from the automobile, were examined by a specialist of the Federal Bureau of Investigation. Defendant's blood was found to belong to International Blood Group O and Mrs. Savicky's blood to Group A. Evidence of these findings was admitted in evidence over defendant's objection that the taking of defendant's blood from his person was in violation of his privilege against self-incrimination. Although defendant did testify that the sample of blood was taken without his consent, there is no evidence that he protested or that it was taken against his will.

Even if this evidence were unlawfully obtained it is no objection to its admission (Commonwealth v. Dugan et al., 143 Pa.Super. 383, 18 A.2d 84) unless defendant's constitutional privilege against self-incrimination was violated. The controlling principle in this case under the Pennsylvania rule, is thus discussed in Commonwealth v Musto, 348 Pa. 300, 306, 35 A.2d 307: "While the exact question thus presented [in that case, whether defendant charged with crime must submit to an examination as to his sanity] has apparently not been ruled upon by either of our appellate courts, it has arisen in many other jurisdictions, and these have quite uniformly held that the constitutional immunity from self-incrimination does not apply to a compulsory examination to determine the prisoner's physical or mental condition for the purpose of testifying in regard thereto, provided, of course, that he be not compelled to answer any questions propounded to him by those making the examination. The purpose of the constitutional provision is to prohibit the compulsory oral examination of the prisoner either before or at trial, -- to prevent his being required to incriminate himself by speech or the equivalent of speech: Commonwealth v. Valeroso, 273 Pa. 213, 219, 220, 116 A. 828, 830. 'The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material': per Mr. Justice Holmes in Holt v. United States, 218 U.S. 245, 252, 253, 54 L.Ed. 1021, 31 S.Ct. 2. 'Not compulsion alone is the component idea of the privilege, but testimonial compulsion . . . Unless some attempt is made to secure a communication, written or oral, upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one': 8 Wigmore on Evidence (3rd ed.) 375, sec. 2265". (Emphasis ours.) The distinction may rest upon practical grounds, but certainly one lawfully arrested may not refuse to submit to finger printing, nor to a search of his person. So also the constitutional privilege does not allow a defendant to refuse a witness the opportunity of seeing him and hearing his voice, for the purpose of identification. Cf. Johnson v. The Commonwealth, 115 Pa. 369, 395, 9 A. 78. The privilege did not prevent the Commonwealth from requiring some of the defendants to stand in the presence of the jury, as they were identified by a witness in Commonwealth v. Safis et al., 122 Pa.Super. 333, 186 A. 177. Wigmore on Evidence, (3rd ed.) VIII contains a discussion of the subject and in § 2263 it is stated that historically the object of the privilege was to prohibit "the employment of legal process to extract from the person's own lips an admission of his...