Commonwealth v. Gates
Supreme Court of Pennsylvania
May 2, 1958
392 Pa. 557
If this Court intends to repudiate and overrule the established law on the subject of alibi, it has the authority and the power to do so. I do not see the necessity for such a change; I do not see the wisdom of such a change; I do not see how it can justify such a change in the case at bar without committing the sin of ex post factoism, and I do see here a definite harm to the guarantees of liberty; I see here a deprivation of rights under trial by jury as it has come down through the centuries; and I accordingly energetically Dissent.
Commonwealth v. Gates.
G. S. Parnell, Sr., with him G. S. Parnell, Jr., and Parnell and Parnell, for appellant.
OPINION BY MR. JUSTICE ARNOLD, May 2, 1958:
The defendant was indicted and tried for the murder of his neighbor and landlord, Louis Turk. The jury returned a verdict of murder in the first degree and fixed the penalty at life imprisonment. After refusal of his motion for new trial, he now appeals from the judgment and sentence.
Defendant assigns numerous reasons in support of his appeal, raising the following questions: (1) Was the evidence sufficient to justify the verdict? (2) Were there reversible errors in the admission and rejection of testimony? (3) Was the alleged after-discovered evidence sufficient to require grant of a new trial?
“Under the
The victim‘s son and daughter-in-law, John and Dorothy Turk, lived next door to the double house owned by the victim and occupied on one side by George Horn and on the other side by the defendant. At approximately 5:15 defendant approached the victim‘s son, John Turk, who was then working in his garden, and proceeded to be quarrelsome and abusive toward him and his wife, Dorothy Turk. Particularly he bitterly complained about the victim raising his rent. This colloquy ended by the Turks entering their home. At approximately 8:15 P.M., according to Mary Turk, wife of the victim, defendant came again to their home and talked for several minutes about an argument which he had had with their son and daughter-in-law. When admonished by Mary Turk that he should not engage in such arguments, he took a pistol from his pocket and declared that he was “so mad I pretty near kill them.” When she again told him to refrain from bothering them, he then pointed the pistol toward her and, in her words, declared “I kill you.” Thereupon the victim requested him to leave, and after defendant repeated his displeasure over the increased rent, he walked out, followed by the victim. Upon arriving at the berm of the road at the end of the walk leading thereto from the house, he turned and shot the victim in the arm. The victim turned his back upon him, calling for help, and at this point defendant shot
Defendant was arrested but denied at the trial that he had committed the crime. He also produced several witnesses who testified to seeing him at a point several miles away at about the time of the killing, i.e. testimony as to an alleged alibi.
Defendant urges that the Commonwealth did not prove all of the elements of murder in the first degree,—that it did not prove guilt beyond a reasonable doubt, did not establish malice or premeditation. But to sustain this position is to disregard the Commonwealth‘s testimony. Premeditation was definitely and affirmatively established by the testimony of Mary Turk; and malice is reasonably inferred from the circumstances. “Legal malice may be inferred and found from the attending circumstances“: Commonwealth v. Bolish, 381 Pa. 500, 511, 113 A. 2d 464. In Commonwealth v. Watkins, 298 Pa. 165, 148 A. 65, where the evidence was that defendant had struck his wife five blows on the head with a blunt instrument, this Court, at page 168;
Defendant strenuously urges that the court also erred in refusing to admit testimony “about the members of the Turk family except as to their truth and veracity or prior conviction of crime.” His offer was to show that Mary Turk had operated a “speakeasy,” had had quarrels in times past with her husband, and that a number of years prior to this occurrence she had lived with another man. The court was under no right or duty to admit such testimony. It could have served no proper purpose either in establishing the guilt or innocence of defendant or in attacking the credibility of the witnesses. Cf. Commonwealth v. Bednorciki, 264 Pa. 124, 107 A. 666, and Commonwealth v. DePalma, 268 Pa. 25, 110 A. 756. In the Bednorciki case it was held inadmissible to offer to prove that four months before the homicide another man had threatened “to fix” the victim and was also seen near decedent‘s residence a few days before the killing.
The defendant also urges that the court erred in its charge as to alibi. After a very strong and lengthy charge on the burden imposed upon the Commonwealth to prove guilt beyond a reasonable doubt, the court charged: “Now the theory of the defense in this case is that the defendant was not there; that he had nothing to do with this shooting. We say to you that that type of defense is known as an alibi. An alibi is a perfect defense if you believe it. It is designed to prove that the defendant during the whole of the time was away from the place where the crime was committed, and that he could not have participated in it. Evidence of this kind should be carefully scrutinized and weighed by the jury as in all cases, which requires frequently very great nicety as to the recollection by
The remaining contention to be considered is the court‘s refusal to grant a new trial on the basis of after-discovered evidence. This consisted of affidavits of two brothers, August Bertig, Jr. and Ellio Bertig, that they had talked for about ten minutes to John Turk, the victim‘s son, within several hours after the shooting; that he had not stated that he saw the shooting; that
There is no merit in other reasons given by defendant in support of his appeal. He received a most fair and impartial trial; the charge of the court was complete; and, as we have stated, the evidence was wholly sufficient to sustain the verdict. We have carefully reviewed both the law and the evidence, as it is our duty to do, and have found all the essentials of murder in the first degree.
Judgment and sentence affirmed.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
It happens occasionally that a trial judge will be so convinced of the guilt of the accused defendant on trial before him that he charges the jury with such ease of manner and looseness of phraseology that he overlooks constitutional guarantees and legal requirements which, however, should not admit of any relaxation whatsoever, regardless of the judge‘s feelings in the matter. Then, when the defendant is convicted and he appeals to this Court, pointing a complaining finger at glaring lapses in the judge‘s charge and demands a new trial, this Court occasionally, after scanning the record, concludes that the defendant is guilty and it affirms the conviction, although the record shouts of
One phase of the law which some trial judges have recently been treating with growing insouciance is the one which pertains to the defense of alibi. At this session of our Court, the Majority is approving convictions in two cases where the respective trial judges wore their robes so relaxedly that their utterances bore little resemblance to the tight and precise language dictated by the supreme law of the Commonwealth.
In the case here under consideration the defendant, Harry Gates, pleaded not guilty to the charge of murdering one Louis Turk in Young Township, Indiana County. In his defense, Harry Gates introduced evidence to the effect that when the killing of Louis Turk was taking place, he was four-tenths of a mile distant from the locale of the murder in a little town called McIntyre. The killing was done by a .32 S. & W. revolver which precludes the possibility that Gates could have aimed at and hit Louis Turk from a gun emplacement almost a half mile away.
In his charge to the jury, the trial judge began his discussion of the accused‘s defense by saying: “Now the theory of the defense is that the defendant was not there.” But the defense of alibi is not a theory. It is a brute geographical fact. The defendant insisted at the trial that he could not possibly have committed the crime because he was at a place other than the place of the crime when it occurred; and he was thus entitled to have this physical evidence presented to the jury without the judge attaching to it the dangling, derogatory exhibit tag of “theory.” However, standing alone, the judge‘s lapse in this regard would not be serious, but it did not stand alone. After characterizing the defense as a theory, the trial judge said: “An alibi is a perfect defense if you believe it.” While
I am aware that one could say that I am being unduly meticulous and that it is not fair to throw a spotlight of meaning on individual words. A court‘s charge should be taken as a whole. True. And it is, taken as a whole, that the charge in this case reveals its woeful deficiency. I here quote in its unabashed entirety all that the trial judge had to say on the important law of alibi: “Now the theory of the defense in this case is that the defendant was not there; that he had nothing to do with this shooting. We say to you that that type of defense is known as an alibi. An alibi is a perfect defense if you believe it. It is designed to prove that the defendant during the whole of the time was away from the place where the crime was committed, and that he could not have participated in it. Evidence of this kind should be carefully scrutinized and weighed by the jury as in all cases, which requires frequently very great nicety as to the recollection by witnesses of particular dates and events, of particular hours or half hours or even minutes of the day on which the offense to which it relates was committed. The setting up of an alibi as a defense does not change the burden upon the Commonwealth by the plea of not guilty of the prisoner, or waive his right to demand from the Commonwealth, before he can be convicted,
It will be noted that the judge said that alibi was designed to prove that the defendant was away from the place where the crime was committed “during the whole of the time.” There was no obligation on the part of the defendant to prove that he was absent from the scene of the crime “during the whole of the time.” What is meant by “the whole of the time“? Does that mean that if the murder occurred in the evening, the defendant must show that he was nowhere near the scene of the crime during the entire evening? The shooting in this case occurred at 8:30 p.m. One of the defendant‘s witnesses said she saw the defendant at McIntyre, four-tenths of a mile away at 8:30. It was enough for Gate‘s defense that he prove that he was not at the Turk home, where Louis Turk met his death, when, and only when, the fatal shot was fired.
But all these observations are mere scratches on the drinking glass as against the total breakage of the pitcher containing the full content of the instruction on the law of alibi. The judge said that the defendant had to prove his alibi “to the satisfaction of the jury.” What would satisfy the jury? The judge mentioned only one standard of proof in the entire charge, namely, proof beyond a reasonable doubt. In referring to proof beyond a reasonable doubt he equated it in one instance with satisfying the jury. He said: “The law says that the burden of proof of guilt of a defendant is upon the Commonwealth, and goes to the extent of requiring the Commonwealth to produce before the jury, that is this jury in this case, evidence and testimony of such a type and character as will
Would not the jury, since no other criterion was submitted to them, conclude, when the judge said the defendant had “the burden of proving his alibi to the satisfaction of the jury” that he meant the defendant had to prove his alibi beyond a reasonable doubt? And isn‘t such an instruction dismally out of place in a criminal case?
The Majority makes no attempt to explain away this startling defect in the judge‘s charge. In fact it does not even mention the defect.
Another irreparable break in the vessel of the court‘s charge is the judge‘s failure to state that an alibi, may of itself raise a reasonable doubt which would work an acquittal. And then still another irremediable fissure in the charge is the neglect of the judge to state that the evidence of an alibi, even if not believed, may, in conjunction with the other evidence in the case, raise that reasonable doubt which would acquit the defendant.
The Majority says it is satisfied with the judge‘s charge on the law of alibi, but it can only register that satisfaction by ignoring the previous pronouncements of this Court on the subject. As far back as 1878, this Court said, speaking through Justice GORDON (Turner v. Com., 86 Pa. 54, 73): “Proof of an alibi is as much a traverse of the crime charged as any other defence, and proof tending to establish it, though not clear, may, nevertheless, with other facts of the case, raise doubt enough to produce an acquittal. We are inclined to think with Mr. Greenleaf (Ev. vol. 1,
Coming down to a more recent date, 1946, this Court said in the case of Commonwealth v. New, 354 Pa. 188, 213: “When a defendant sets up an alibi, it is not sufficient to tell the jury merely that the Commonwealth has (quoting from the charge) ‘to prove the guilt of the defendant beyond a reasonable doubt, and when the defendant sets up a defense in this case of alibi then it not only should receive your careful consideration but you must be satisfied by the weight of the evidence that he has made out his defense, not beyond a reasonable doubt as far as an alibi is concerned but satisfied by the weight of the evidence or the preponderance of the evidence that he was not present‘, but a trial judge must also, as we said in Com. v. Jordan, 328 Pa. 439, 196 A. 10, speaking through Justice STERN, fully advise the jury ‘as to the difference between the burden resting upon the Commonwealth to establish guilt, and that resting on the defendant with respect to the alibi set up’ so that the jury may be ‘furnished with a standard for determining the legal value of the evidence.’ The jury must also be instructed that ‘the evidence in support of the alibi may, with other facts in the case, raise the reasonable doubt of guilt which entitles a defendant to acquittal.‘” Of all this
Unless the Majority is prepared to jettison all previous law on the subject, it must be apparent that the requirements outlined in the cases here cited are not mere window dressing; they are not mere rhetorical embellishments. They constitute fundamental and irreducible elements in the charge, which cannot possibly be omitted without committing irreparable error. This Court seems satisfied to ignore its own rulings because it is convinced that the defendant is guilty, but what is to happen in future cases where the evidence may not be as convincing as the Majority believes the evidence is convincing in this case?
I fear for the future of the law on alibi in Pennsylvania. The decision of the Court in this case and the one in Commonwealth v. Richardson, 392 Pa. 528, also handed down today, go far to shroud the defense of alibi in such mists of ambiguity and indecisiveness that trial courts embarking on the sea of instructions to juries will find themselves armed with an erratic compass, studying a confused map, and looking for direction from a lighthouse which casts shadows instead of illumination.
And in such a navigational farrago, a judge seeking a conviction may charge almost anything or nothing and find some color of authority for his statements or omission from the two decisions on the law of alibi proclaimed today. I disassociate myself from such awesome responsibility and accordingly dissent.