Commonwealth v. Brooks

50 Pa. D. & C.2d 356, 1970 Pa. Dist. & Cnty. Dec. LEXIS 157
CourtPennsylvania Court of Common Pleas, Mercer County
DecidedJuly 10, 1970
Docketno. 23
StatusPublished

This text of 50 Pa. D. & C.2d 356 (Commonwealth v. Brooks) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Mercer County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Brooks, 50 Pa. D. & C.2d 356, 1970 Pa. Dist. & Cnty. Dec. LEXIS 157 (Pa. Super. Ct. 1970).

Opinion

ACKER, J.,

The matter for determination comes before this court upon a motion for a new trial and a motion in arrest of judgment. In addition to the usual contentions, i.e., that the verdict was against the law, the weight of the evidence, and the charge of the court, defendant contends that the court erred in permitting the witness, Officer Murrman, to testify as an expert and in charging the jury that they could find defendant guilty of attempted burglary inasmuch as the facts clearly indicate that defendant did, or did not, commit a burglary.

The jury found defendant guilty of an attempt to commit burglary. The defense was that of alibi. The prosecution’s evidence disclosed that a young couple, Mr. and Mrs. James Meirer, who had an apartment at 130 Stambaugh Avenue, Sharon, Pa., returned from a football game late in the evening of September 19, 1969. The husband shut and locked the back door and retired to their bedroom upstairs. Nine dollars and some cents were left on a desk downstairs. The husband left his watch on the sink and a pair of pants with $5 and a wallet were left in another upstairs room. Some time later, during the course of the night, the husband heard a bang, which did not cause him much concern because of living in an apartment where such noises were common. The next morning the items mentioned above were missing. Paint chips were found on the floor inside a diningroom window and cafe-type curtains were caught inside the bottom of the window. Fingerprints were seen around the area of the lock and the ground was trampled underneath the window where flowers had been planted. The window [358]*358screen was replaced inside out and upside down. Although placed back on the window, the hooks were facing out. The only evidence connecting defendant with the scene of the crime were the fingerprints. Although the police had been at the home the day following the burglary and on several other occasions, the prints were not lifted until October 15th, a period of 25 days. On other occasions, no one was home and they did not desire to do this unless the victims were present. Two prints were lifted and were turned over to the Pennsylvania State Police for analysis. The victims had been instructed not to touch the window until the prints were lifted. It was acknowledged that prints do deteriorate over a period of time. The home was not checked elsewhere for prints, nor was the inside of the window or window sill.

Trooper James Murrman had worked one and one-half years in the Records Identification Section of the Pennsylvania State Police at Butler. He had read some literature published by the FBI dealing with fingerprinting and was presently reading a book entitled, “Fingerprinting.” He had had two weeks formal training upon the subject of fingerprinting by the State Police at Harrisburg and on-the-job training of one and one-half years with a superior who had had many years of experience in fingerprinting. He testified that the fingerprinting taken by the Sharon Police were of the right ring finger and the middle finger of the right hand and that they did match that of defendant. There were no points of dissimilarity. There were certain impurities on the prints, however, due to raindrops which had struck the prints before they were lifted, but that they were insufficiently contaminated to prevent a true and correct reading. Twelve points of similarity were, found as to one print and 14 as to the other. The occupants testified that the identical prints seen the day after the burglary were, in [359]*359fact, the prints removed by the city police 25 days later.

Mr. and Mrs. James Meirer became married on May 31, 1969, and moved in and lived in this apartment continuously down to the time of trial. The wife had washed the windows on several occasions between May 31, 1969, and September 19, 1969. The last occasion was prior to the opening of school in September of 1969. The husband, James Meirer, was asked by defense counsel, “These prints on the window were made approximately when? Answer: Between the dates of the 19th of September, of September 19th and 20th.” The effect of the last answer is somewhat nullified, however, by the court inquiring shortly thereafter in an effort to explain a misunderstood question whether the witness had an opportunity to look at the window to see whether the smudges might have been there previous to that day. The answer was no. However, the witness added, “I think I might have noticed them because there were quite a few marks on the window.” In addition, the marks on the window were seen in relation to the paint scrapings on the floor and the curtains being caught in the bottom of the window. Therefore, the prints on the window are not unrelated to other pieces of physical evidence bringing the entire matter to the attention of the occupants.

I. Did the court err in permitting Trooper James Murrman to testify as an expert on fingerprinting?

The well-recognized rule is that whether a witness shall be permitted to testify as an expert and whether his qualifications have been sufficiently established is largely within the discretion of the trial judge: Commonwealth v. Johnson, 265 Pa. 491, 109 Atl. 218 (1920); Commonwealth v. Snyder, 123 Pa. Superior Ct. 523, 187 Atl. 254 (1936); Commonwealth v. Samson, 130 Pa. Superior Ct. 65, 196 Atl. 564 (1938).

[360]*360In Commonwealth v. Ametrane, 205 Pa. Superior Ct. 567, 210 A. 2d 902 (1965), affirmed 422 Pa. 83, 221 A. 2d 296 (1966), a county detective testified as an expert that defendant was a “bookie.” He had had several years of experience investigating gambling activities. The court concluded, page 575, that he was “. . . admirably suited to interpret the evidence and circumstances involved in this case.”

In Commonwealth v. Howard, 212 Pa. Superior Ct. 100, 239 A. 2d 829 (1968), the witness was a worker in the police laboratory. She was not formally educated in her field, but, page 106, “. . . had a wealth of practical experience.” In both the Ametrane and Howard cases, the court held that there had not been an abuse of discretion in permitting the expert to testify.

In this case, the expert, in addition to two weeks formal training by the Pennsylvania State Police at Harrisburg, had done certain reading upon the subject and had worked with another police officer who had many years of experience in the field. Although the trooper was not as impressive as a college graduate might have been, he certainly had sufficient experience, knowledge and background to express an opinion in this case.

II. Does the fact that the jury found defendant not guilty of burglary and larceny, but guilty of an attempt to commit burglary, require the granting of a motion in arrest of judgment or a new trial?

It has long been held in Pennsylvania that consistency between verdicts on several counts of an indictment or information is unnecessary and that defendant may be acquitted of some crimes and convicted of others, even though under the evidence a jury could convict defendant of all crimes. There are numerous examples of the application of this principle. In Commonwealth v. Procopio, 200 Pa. Superior Ct. 226, 188 [361]*361A. 2d 773 (1963), a defendant convicted of burglary, but acquitted of possession of burglary tools, where the only point of entry was a broken window and tools were found in the immediate vicinity. Commonwealth ex rel. Davidson v. Rundle, 198 Pa. Superior Ct. 610, 184 A. 2d 599 (1962), per curiam opinion of 27 D. & C.

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Bluebook (online)
50 Pa. D. & C.2d 356, 1970 Pa. Dist. & Cnty. Dec. LEXIS 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-brooks-pactcomplmercer-1970.