*1 oc- as the (such be towards third parties liability if Borzik negligent. cupants Pontiac) em- his his “It is true under arrangement their Borzik entitled use automobile, ployers, as his car. But personal which was demonstrator, of the car for personal meant use merely of contract with not breach wrongful business was mean that did not became respect them; they for his negligent to his personal driving, liable guests defamatory liable for than be more would any their office telephone made him over statements it for calls.” personal him use permitted the car for the personal pleasure Plaintiff was there is not the slightest evi- Borzik and herself, car at her in defendants’ the time presence dence that in furtherance employers’ the collision was business. affirmed.
Judgment Bok Justice dissents.
Mr. Appellant. v. Boden, *2 Before October C. Argued Jones, J., Bell, 1959. JJ. and McBride, Cohen, Bok, Jones, Musmanno, *3 F. Coffroth, him Frederick Robert M. with Keim, appellant. for for Com- Jr., A. District
Frank Orban, Attorney, appellee. monwealth, by
Opinion
April
18, 1960:
Mr. Justice Bell,
the first
in
a
of murder
returned
verdict
A jury
Defendant
of life imprisonment.
with penalty
degree
alleg-
sentence thereon,
a
and
judgment
from
appealed
trial
a
(b)
for
trial,
reasons
new
usual
(a)
ing
refusal of
defendant’s
the Court’s
(c)
errors,
instructions.
for binding
point
for arson and for murder.
indicted
Defendant was
from the
the indictment
jury
trial
withdrew
Judge
The
“to
a
requires
person
wilfully
for
arson,
a
house or other
set
burn
dwelling
maliciously
the trial
lower
Judge
However,
building.”
Commonwealth had
agreed
Court
a reasonable doubt
defendant had
proved beyond
mur-
and premeditated
deliberate
committed willful,
his wife.
fire to and thereby killing
der by setting
ar
in
of defendant’s motion
dispose
shall
We
first
as
law
considering
evidence,
of judgment,
rest
in the
most' favorable
light
us to
requires
do,
Defendant Burawski and his Growall Mary victim, were married in 1957. lived August They Boden, Pa; her home in Eockwood Somerset Borough, County, D. saw George neighbor defendant, Sterner, smoke from the of the Boden second coming story home at 11:15 a.m. on approximately Sunday morning, November 1957. another neigh- Shortly thereafter, John M. entered the smoke, Boden bor, Barclay, seeing home to determine whether was inside and im- anyone floor went the second the Boden’s mediately believing bedroom was located there. He testified: “There was a tremendous amount of smoke in fact upstairs, you couldn’t too have there at one stayed long after a time, short of time I came period down again went back out on ...” porch
When informed another neighbor who was alarmed smoke, bedroom was on the first re-entered the floor, Barclay Boden house with another Charles Hostetler. neighbor, smoke was so thick on the first floor proceeded on their .that *4 hands and knees bedroom at approxi- where, 11:55 a.m. discovered Mrs. mately still Boden, on the floor between the lying two living, smolder- beds, and blankets bedclothing under ing covered her, by to a housecoat looked be what around the lower part Moments later of her firemen body. arrived and re- from the body premises moved the Somerset at Hospital Community Somerset, Pennsylvania, where Dr. treated Harold E. by she was Musser. She was unconscious but still living. She suffered severe burns in her right groin so was burned that a deeply fist could be thrust into it. She also suffered intense on her entire burns foot right right and to a leg, lesser extent on the left There leg. was no practically burn- of her or and ing most of her face, head, neck, upper back.
The objected which was not estab- testimony, to, lished that the victim had extensive wounds and mark- on her ings for at least one whole month body prior her death. The victim seen on Fred E. Gary November with blood down her In running face. October this same witness defendant saw strike the victim with such force that he knocked her off a stool. Defendant in his admitted this. On testimony November 16, 1957, Gary saw victim a cut above her right eye and cut below her lip. The photographic exhibits show gaping wound above the in the On eye eyebrow. another occasion Gary saw her awith swollen ankle and a black In eye. explaining these marks and the victim wounds, stated to Gary were caused struck having her. of the house burning was limited to a section of the flooring immediately around her located at her feet principally and legs. The entire burned scorched area of the flooring linoleum 5.748 square feet. A small very part this area was burned entirely through flooring.
Several witnesses testified that defendant said had he hoped “his kick wife would off and had ex- soon”, plained how he would inherit her estate. The Com- monwealth further proved Mrs. Boden had rein- stated after her a life marriage insurance policy had made it payable one défendant; witness testified that defendant told him he would about get $65,000 if his wife died. *5 had
Several tnat Boden witnesses testified Melvin fire to demonstrated the manner of setting previously expert The also wit- called whiskey. a chemist and who nesses, particularly marshal, that an the bed testified accelerant was used to ignite clothing with which victim sur- carefully was rounded. con- who attending physician surgeon
ducted the examination testified that post-mortem death was caused extensive of Mrs. burning Boden.
Carl response defendant’s Hileman, telephone to the went Boden home that call, be- Sunday morning tween 10:30 and 10:50 parked truck a.m., pick-up in front of the remained in the house, sounded truck, his horn few minutes later defendant and his came out of the brother, Harry Boden, into house, got the truck and went home Paul Boden several miles distant. Defendant did not to his home return that until after he was summoned to day the hospital. It that was admitted defendant and his brother, Harry Boden, except persons, Mrs. Melvin in that home Boden, during Saturday night on November morning Sunday, 17th, prior entry firemen and neighbors, others after smoke had been observed neighbors. who an
Anthony Aurigemma, undercover man for 32 for United States years Government and for an undercover man for the many years National Board Fire placed in the Underwriters, same cell with in the Somerset County jail. He testified he had of conversations with defendant. In particular that defendant he testified told him that Mrs. Boden the night drank excessively; before the murder he and his sat and his brother wife all up night drinking smoking cigarettes; whiskey next morning he and his morning) wife had a (Sunday fight; that he lying gave whiskey; she Ms two drinks wife *6 that he her unconscious; beat on the floor drunk and cigarette ashtray up got some of an and then hold with together put some book matches, butts it, ashtray, rubbing Vitalis, into the mixed with alcohol put bedclothing, the ash- á lot of his covered wife with lighted cigarette put it in tray and a stomachy on her ashtray and matches; fire to the book and set home. then left Ms he and his brother and denied stand Defendant took witness incriminating making any killing. state denied He also Aurigemma. testimony, very In his which was ments spent he his said that and brother brief, morning night Sunday Saturday at his on home; whiskey; gave drinks of and he his two he wife Harry* left his home 10:30 between and his brother to their Paul’s and brother home. and 10:50 a.m. went being anything about wife’s burnt He never knew hospital Sunday later that he called until afternoon. unquestionably clearly sufficient
The evidence is degree justify first murder. verdict in law corpus by eyewitnesses, evidence or direct Proof by identity, or of the commission delicti, necessary. charged is not Few the crime defendant of eyewitnesses caught “red-handed”, are criminals arsonists necessary few murderers, crime clearly set burglars convicted. It is ever be could may evi on circumstantial convicted that a man be tled may intent be inferred a criminal dence alone, circumstances are facts and from beyond guilt prove defendant’s nature as to such a Pa. v. 390 doubt: Sauders, Commonwealth reasonable * Harry pleaded guilty accessory as an the fact Boden after 1939, Section 1105 of Penal Code of June the murder. See: 24, P. L. §872.
305 134 A. 2d v. 379, 890; Commonwealth 385 Pa. Nasuti, 123 A. 2d 436, Commonwealth 435; v. 373 Homeyer, Pa. 94 A. 2d 150, 743; Commonwealth v. 378 Kloiber, Pa. 106 A. 2d 412, 820; Commonwealth v. 374 Lowry, Pa. A. 98 2d 594, 600, 733; v. Danz, 211 Pa. 60 A. Commonwealth v. 507, 1070; 368 Carey, Pa. A. 82 2d Commonwealth ex 240; rel. 157, Garrison 378 Pa. Burke, A. 2d 344, 348, 587; Common wealth v. 381 Pa. 113 A. 2d Bolish, 464; Com monwealth v. 187 Pa. Superior Ct. A. Hooe, 580. 2d
Trial Errors Defendant’s statements as to the insurance he would *7 or the he if his recover, would receive money wife died, are admissible as clearly evidence of motive; statements defendant he (a) die, wished his wife would that he (b) beat her or at up morning, any other time not too are remote, admissible. clearly
In
Patskin,
Commonwealth v.
93
A. 2d
this Court said:
“In almost
situation—
37,
any
the fact of
whether
is
or
killing
whether self-
denied,
defense
or
is
is
whether it
contended
pleaded,
that by
reason of provocation the
is reduced to
killing
man
of
relations of
slaughter
proof
previous
the pris
—
oner and the
whether
or hostile or
deceased,
friendly
”
is
.
competent.”
relevant and
. .’
See
whatnot,
also:
v.
Commonwealth
341 Pa.
19 A. 2d
Giacobbe,
187,
71;
Del
v.
303
Commonwealth
Pa.
154 A.
Giorno,
509,
786;
Commonwealth,
Hester v.
Commonwealth, v. Minoff, 9 Commonwealth 878; 114 A. 300, 306, Pa. in cases cited and other A. 2d 145, Pa. 69 363 287, A. 2d 85 Pa. 72, 81, 90, 369 Truitt, Pa. 135 v. Marshall, and Commonwealth A. 301. to allow that it error contends was
Defendant respect expert evidence with introduction qualities burning testing by and to the prior approximately to his whiskey three weeks theory Com- It not wife’s death. (if Aurigem- proved the Commonwealth but monwealth, him) have believed as the must is believed, ma only set beyond not that defendant a reasonable doubt ac- an death, but used fire to and burned his wife produce the fire caused wife’s celerant ordinary clearly fire. The not an death. This was less than scorched area of the room was entire burned square yet that one the fire so intense feet through completely the floor. small area was burned parts Only and the burned; of the victim’s burning deep groin so in that there the area large awas crevice so be inserted in it. fist could testimony According to of Herbert C. Dixon, an experience expert chemistry extensive investi- suspicioxxs origin, gating this fire been had fires *8 merely smoldering cigarettes, length of caused the point required of the smoke to travel from its time for upstairs origin in the floor to the window first bedroom longer by neighbors, be much it seen would where was singly case. These circumstances than occurred ixi this expert together evidence concern- demonstrate ing fire of the admissible. the nature 385 Pa. 123 A. 2d Nasuti, 436,
In Commonwealth quali- testimony sustained the of two this Court experts incendiary origin. of fied through Mr. Justice Speaking Chief Court Stern, said : in all (page 443) “Expert is admissible testimony cases, civil and criminal it ex- when involves alike, planations and inferences not within the of range ordinary intelligence experi- training, knowledge, ence. could to Certainly expected be laymen hardly have in knowledge regard of fires and types various the difference in the violence and nature, intensity flames from the of inflammable resulting burning liquids or other as materials contrasted burning wooden counter or hair . . .” This conten- upholstery, tion of defendant is devoid of merit. objected
Defendant also of the introduction There is photographs. likewise no merit in this con tention. When a defendant not no one pleads guilty, knows a crime has whether been or committed what defense will be. In such cases it is important especially to admit of the photographs victim to aid the in jury their of the understanding alleged whether crime, was accidental or the kind of crime it felonious, was, what caused exactly the victim’s if death, what, connection defendant any, had with it. The admission is photographs within discretion largely trial Court and not will be except reversed for a flag rant abuse of discretion. photographs are not However, admissible for the purpose exciting inflaming emotions of the the trial jury, must ad Judge monish the jury against permitting photographs prejudice them defendant: against Commonwealth v. Novak, 395 Pa. 150 A. 199, 212, 2d and numerous cases cited therein. In this case it was wise especially for trial to admit Judge not photographs, because were an aid understanding crime explained as to them witnesses re who ferred to the but in photographs, addition thereto the aided the this photographs whether determining an accidental from Mrs. Boden’s burning cigarette, she have might dropped or a drunk, planned *9 308 defendant of his with
and deliberate wife burning by to kill the intent her. has question raised defendant which contention that it was error possible merit is his
any
and Fred Gary
admit
of Frances Gary
the testimony
Mrs. Boden cut and
that after
had seen
bruised
on
occasion one
on
about her face and ankle
one
day,
three
on another occasion
another occasion
weeks,
Boden
them
one month
to her
Mrs.
told
prior
death,
had
inflicted
her husband.
In the
been
of
objection
no
made to this
first
was
testimony
place,
if her
even
testimony
Frances Gary
consequently,
it
as
on
be considered
point
hearsay,
may
this
as
evi
same
value
direct
probative
fully
dence
v.
Street
384 Pa.
Railway
: Stevens
Reading
Co.,
2d
Foulkrod v.
Accident In
128;
121 A.
Standard
390,
23 A.
surance
343 Pa.
2d
Commonwealth
505,
430;
Co.,
v.
A.
Poluski v.
Alden
264 Pa.
Glen
676;
Brown,
85, 107
A.
Coal
Pa.
133
v.
819;
286
Co.,
473,
Superior
Pa.
At conclusion of the trial with Judge the consideration indictment jury drew from contends that therefore for arson. Defendant the trial to likewise instruct Judge duty all evidence of Defendant disregard burning. provisions Penal Code has misconceived arson a crime. make and murder respectively of 1939* the Penal “Who- provides: Code 905 Section * 24, 1939, §4905. PS June P. Act of L. *10 . fire to or burns . and sets .
ever, maliciously, willfully is other ... house ... dwelling any building any the instant case the intent arson.” In guilty .... not to the dwelling house; the defendant burn pre- to commit a deliberate and willful, intent was of his to her by setting meditated murder wife her. the blankets enclosing all the other contentions We considered made have find no merit them. any defendant and by and sentence affirmed. Judgment by Opinion Dissenting Mk. Musmanno: Justice of murder, this defendant The found guilty can only I the verdict. justifies record amply of evidence Com- deplore that, quantity to substan- did present could present monwealth introduced it should have tiate the of murder charge at all needed evidence which was not improper Ias introduction, but whose support prosecution rights of the defendant’s constituted violation view it, him due process to that extent denied and, therefore, and thus vitiated verdict. called to the witness stand
The Commonwealth
a month
testified that
before
Frances
who
Gary
marks on
revealed to her some
the victim
homicide
the result of
that
the marks were
and said
her body
her
the defendant.
testi-
inflicted
This
upon
blows
it
hear-
of order because
was distinctly
was out
mony
the occurrence
far removed from
and it was so
say
could not pos-
death,
caused
victim’s
the res
as
final
part
gestae
be regarded
sibly
crime.
In Commonwealth within the rule of coming statements Court, discussing sole feature is distinguishing “Their said: res gestae, should be the the liti- necessary incidents of gated. in this act, necessary, are a sense, — part of the immediate preparations or emanations for, such are of, not act, produced calculating of actors.” Mr. policy did not Gary’s testimony qualify under this rule.
I believe that the Trial also Court erred in allowing the introduction of photographs murder victim’s dead body. had no photographs probative value and could serve inflame jury against defendant. Even the trial had doubts Judge as to whether the exhibits had evidential any but he value, *11 that knew they arouse might for the sympathy deceased and hatred against the defendant. He said: “There are the exhibits in among this case five pictures showing the charred condition of the body Mrs. Melvin Boden after her demise. Let not those pictures prejudice you in any way, they admitted after the doctor and those familiar condition in which she was found after the fire all testified, they testified represented they substantially condition, they are given you and admitted into this record with the caution that shall in they nowise prejudice but you use you them what evidential may value they may for have.” (Emphasis supplied.) exhortation to the Judge’s should not allow the gruesome pictures prejudice them against is reminiscent of Marc Antony’s speech in which he told the Roman populace that he must not let them see dead Caesar’s or hear body dead “it Caesar’s will because will inflame it will make you, mad.” you And after then, conjuring up terrible things might do populace saw body heard the he proceeded show them the Avill, to read to them the will.