Commonwealth v. Thomas
| Decision Date | 26 May 1947 |
| Citation | 53 A.2d 112,357 Pa. 68 |
| Parties | Commonwealth v. Thomas, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 24, 1947
Appeal, No. 52, March T., 1947, from judgment of O. & T Erie County, May Sessions, 1946, No. 2, in case of Commonwealth v. Mildred Thomas. Judgment affirmed.
Indictment charging defendant with murder. Before EVANS, P.J.
Verdict of guilty and judgment of sentence thereon. Defendant appealed.
The judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.
Edward E. Petrillo , for appellant.
Damian J. McLaughlin , District Attorney, for appellee.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES JJ.
This is an appeal of Mildred Thomas from a conviction of murder in the first degree, with life sentence imposed. Her brother, Mike Bubna, was at the same trial convicted of the same murder in the same degree, with the death penalty imposed. The defendants did not demand separate trials. The facts relating to the murder of Robert Fisher are set forth in the opinion this day filed in the case of Commonwealth v. Bubna , 357 Pa. 51, and it is not necessary to repeat them.
The proof that Mrs. Thomas was an accessory after the fact to Fisher's murder was overwhelming. One may be an accessory after the fact to a murder yet not be guilty as a principal. The circumstances that the murder of Fisher took place in her house and that she witnessed it did not in themselves make her guilty of the crime. See Com v. New , 354 Pa. 188, at 198, 47 A.2d 450.
Mrs. Thomas' actions in cutting the hair and eyebrows of Fisher before he was killed and her actions in resuming the cutting of his hair after he was killed and her actions in destroying his wallet and all papers found therein are, as testified to, set forth in the opinion this day filed in the case of Commonwealth v. Bubna , supra. The fact of her cutting Fisher's hair before the homicide would be as consistent with her claim that it was done as a joke as it would be with the Commonwealth's claim that its purpose was to make more difficult the identification of Fisher after he was done to death. But the fact that she immediately after the shooting of Fisher in the cellar resumed the cutting of his hair cancels her claim that the hair-cutting before the homicide was a "joke". When Fisher was murdered in her presence the joke phase of this case had ended. At that time there could have been no intention on her part to "make him the laughing stock of Erie" (as she testified she said when in the kitchen she cut his hair). The jury was justified in concluding that Mrs. Thomas' tonsorial treatment of Fisher was in its inception more homicidal than humorous.
The hair cutting and eyebrow shaving of Fisher were probably based on the assumption that Mike Dominic would do a much more thorough job than he did do in disposing of Fisher's body. It could not have been within the calculations of the conspirators that Dominic in executing the order to get rid of the body would merely place it on the ground in a not very secluded spot and cover it lightly with leaves and dirt. If Dominic had so disposed of the body as to delay its discovery there might have been such a change effected in Fisher's features that with his hair clipped and his eyebrows shaved he could not have been easily identified. Mrs. Thomas after Fisher's killing not only resumed the clipping of his hair but she also took his purse, removed papers from it, tore them up and threw them and the purse into the furnace. These papers probably contained identifying data. She also cast into the furnace the scissors with which she cut Fisher's hair and flushed that hair down the toilet. She also took off Fisher's stockings and when Dominic asked her why she did these things she replied: "So you don't find any identifications." When Dominic returned to the house after disposing of Fisher's body, Mrs. Thomas told him to "change his clothes." He did so and she later told him that she had taken the changed clothes "down and burned them in the furnace". Fisher's collar was cut off by Bubna and also burned.
Ordinarily the close clipping of a man's hair does not radically alter his appearance for his hair is usually thin. But we have the testimony of the victim's wife that his hair was "long and wavy" and that when she saw him in the morgue "his hair was viciously cut off -- it was just whacked off in hunks -- it was very short." Cutting the long and wavy hair of a man substantially alters his appearance and Mrs. Thomas obviously knew this. When Fisher's body was discovered only two days after his death his features were not spoiled but the plot was.
Furthermore, the zeal which Mrs. Thomas exhibited in covering up the traces of this crime, such as her promptness in washing the mud and blood off the car, indicates that she had advance notice of the murder scheme and approved of it. There is no allegation that she acted under duress. The evidence warrants the conclusion that Mrs. Thomas and her brother had planned the murder of Fisher when they knew he was coming to the former's home to air his grievances and to answer charges of "double-crossing" in the car stealing racket. The first act in the perpetration of this crime was stupifying Fisher with liquor. The second act was the alteration of his appearance.
When after the killing of Fisher, Mrs. Thomas resumed the cutting of his hair and burned the papers in his wallet, her purpose was no longer in doubt. These and other post -murder acts directed towards the concealment of Fisher's murder made her an accessory after the fact, but her clipping of Fisher's "long, wavy" hair and her shaving of his eyebrows before the murder so fitted into her subsequent criminal conduct as to reveal that the purpose of both the "before" and the "after" hair clipping was the same. The hair cutting and eyebrow shaving before the murder, with this purpose, made her a party to this murder plan. We said in Commonwealth v. Strantz , 328 Pa. 33, 195 A. 75: [1]
Another item of evidence which supports the verdict is the fact that when Mike Bubna ordered Eleanor Tarbell out of the kitchen and said: "She isn't used to anything like this and it is going to be messy"; and "there's things going on around here I wouldn't want you [Eleanor Tarbell] implicated", Mrs. Thomas did not inquire as to the warning's import. The legitimate inference is that she had already been apprised of the "messy", i.e., bloody, work which was afoot and that her brother's "blue print" for Fisher's murder had her approval. In that "blue print" the part assigned to her was to proceed without delay to make the victim's identification doubtful and both before and after the murder she showed promptness and zeal in carrying out her assignment. She even went in the cellar to witness her brother's performance of...
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