Commonwealth v. Kravitz

161 A.2d 861, 400 Pa. 198, 1960 Pa. LEXIS 334

Opinions

Opinion by

Mr. Justice Bell,

Max Kravitz, husband of the defendant, was killed in their home, 1250 Knox Road, Wynnewood, Pennsylvania, on July 1, 1958. The jury on December 12, 1958, after a trial lasting 12 days, found the defendant guilty of murder in the second degree, with a recommendation of. mercy. Four days later defendant filed a motion in arrest of judgment and a motion for a new trial, assigning customary reasons. More than two months later,

Footnotes

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* defendant filed 21 additional reasons to support her motion in arrest of judgment and 45 additional reasons for a new trial.

The next day defendant filed another motion for a new trial containing additional reasons based on after-discovered evidence, which alleged that a tipstaff, who had the jury in charge, discussed the ease Avith certain jurors on numerous occasions during the trial. The lower Court (Avith four Judges sitting en banc) dismissed defendant’s motions in an exceptionally able 40 page opinion. The Court then sentenced defendant on July 17, 1959, “to the State Industrial Home for Women at Muncie, Lycoming County, Pennsylvania until the sentence of the Court has been complied with.”

The most important question in this appeal is whether the lower Court erred in dismissing defendant’s motion in arrest of judgment.

The test of the sufficiency of the evidence — irrespective of whether it is direct or circumstantial — is whether accepting as true all the evidence upon Avhich, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, i.e., the murder of Max Kravitz: Commonwealth v. Sauders, 390 Pa. 379, 134 A. 2d 890; Commonwealth v. Boden, 399 Pa. 298, 159 A. 2d 894; Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743; Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A. 2d 587; Commonwealth v. Kloiber, 378 Pa. 412, 106 A. 2d 820; Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464; Commonwealth v. Lowry, 374 Pa. 594, 98 A. 2d 733; Commonwealth v. Blanchard, 345 Pa. 289, 26 A. 2d 303; Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070.

In Commonwealth v. Phillips, 372 Pa. 223, 93 A. 2d 455, the Court said (page 227) : “It has become customary for a defendant in his argument before an Appellate Court to base his claims and contentions upon Ms own testimony or that of his witnesses even after a jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, ‘we accept as true all of the Commonwealth’s evidence upon which, if believed, the jury could have properly based its verdict: Com. v. Blanchard, 345 Pa. 289, 296, 26 A. 2d 303, 306 (1942). See also Com. v. Karmendi, 328 Pa. 321, 324, 195 A. 62, 63 (1937); Com. v. Watkins, 298 Pa. 165, 168, 148 A. 65, 66 (1929) ; Com. v. Carelli, 281 Pa. 602, 605, 127 A. 305, 306 (1925); Com. v. Priest, 272 Pa. 549, 550, 116 A. 403 (1922); Com. v. Diaco, 268 Pa. 305, 306, 111 A. 879, 880 (1920).’ Commonwealth v. Logan, 361 Pa. 186, 192, supra.”

We shall summarize the 1500 pages of circumstantial evidence produced by the Commonwealth upon which the jury could properly have based its verdict that defendant had murdered her husband, Max Kravitz.

Max Kravitz was murdered on the afternoon of July 4, 1958. He was alive at 12:15 p.m. on July 4th when he telephoned a friend about swimming, and at lunchtime when defendant brought him a chicken sandwich. At approximately 2:45 p.m. on July 4th, Mr. and Mrs. Paul MacMurray were on their lawn approximately 305 feet away from the Kravitz residence. Three times they heard the noise of breaking and falling glass in the Kravitz residence. Believing a burglary was being committed, MacMurray ran to the Kravitz home and noticed a tear in a window screen and a broken windowpane behind.the screen; these were later described as being in the marital bedroom. MacMurry saw no one about the premises or entering or leaving it. Hearing a man’s loud voice, he ran back to his home and called the Lower Merion Township police, who arrived in police cars at approximately 3 o’clock at the Kravitz home. They surrounded the house and saw no one enter or leave.

Patrolman Mould heard a man’s loud voice in the house. He rang the front doorbell and Mrs. Kravitz appeared within a minute. He asked her if everything was all right and she said it was. She was then asked about the broken glass and she replied “We know about it”. Defendant was calm, cool and collected. She was wearing a multi-colored dress which she changed before other witnesses saw her at 4 p.m.

Defendant came to the residence of her in-laws, Mr. and Mrs. Morris Passon, without telephoning and without being expected. This was the first time she had ever come to the Passon home alone, without her husband. She was wearing a different colored dress than when she was seen by the police officers. She told them that she had been gardening; that she was putting Bovung on the rosebed in their garden; that she had to carry buckets of water to the rosebed because there was no outside water faucet close by. After gardening she took a shower and changed her dress. Contrary to her statements, Bovung was not placed in the rose-bed; there was an outside water faucet close by, and the rosebed was absolutely dry.

The Passons testified that defendant was anxious to get Morris Passon to come back to her home under the pretext of giving him some gardening equipment which turned out to be insignificant and which he refused. She then invited Passon to come up and see her husband. As they came up the cellar stairs the defendant screamed and said “He is in there”, meaning their bedroom. When Passon saw deeedent lying on the floor he immediately called the police.

Kravitz was found about 4:50 p.m. by the police who came in response to Passon’s telephone call. He was lying on the floor on his right side, clad in underwear and shorts. There were deep lacerations around his head. He had been shot in the back, in the left shoulder, and in the left wrist. The testimony dis closed that the bullets must have been fired by a person other than the deceased and that the 16 lacerations about the head were caused by a blunt instrument. The defendant’s bent and twisted hand mirror was under the victim’s body and small pieces of glass were found in the immediate vicinity which had come from the broken hand mirror. The rug was splattered with blood; blood was on the bed sheet; broken glass was around the window; three panes were broken from the inside; a broken bloody statuette was by the window. A chair which was in front of the window contained defendant’s multi-colored blouse which was later found to have three drops of blood on it. An intact statuette with blood on it and two red shoes belonging to defendant were found near the chair; the left shoe had blood on the toe and soles. Defendant’s plum-colored pedal pushers with blood on the left leg, were lying on the floor in front of the chair. There was a bed sheet and blanket on the floor with blood on them. There were fragments of gun grips found on the floor, one of which was under defendant’s pedal pushers. No gun was found in the room, but the next day, by brilliant police work, a gun was found in a culvert along the route which defendant told the police she had taken on her way to the Passon home. The fragments of gun grips found in the Kravitz bedroom fitted this gun from which the gun grips were missing. There was a wallet on the bureau containing $43 and neither it nor anything valuable was stolen, thus indicating that robbery was not the cause or motive of the murder. Except for the victim’s bedroom, the house was in good order.

A pair of red shoes belonging to the defendant were found under the kitchen table and these had drops of blood on them. Defendant kept repeating “Oh God help me”. Five witnesses saw defendant at different times crying, but never shedding a tear. To nearly every question asked, the defendant replied that she did not know what happened.

Hr. Shoemaker examined the deceased at 5:20 p.m. and testified that his death occurred approximately two hours prior to his arrival. He testified with respect to the bullet wounds and to the multiple lacerations of the scalp, some of which were very deep. He and Dr. Simpson testified that a man could have lived 30 minutes after being shot as Kravitz was shot, and during that time could have shouted or cried out and could have moved around the room. Dr. Simpson, the coroner, examined the body at 8 p.m. and was of the opinion that death took place about 3 o’clock p.m.

According to the police and the detectives, there was no evidence of a forcible entry in or out of the house; all the doors except the front door, were locked when the police arrived around 4:50 p.m. Defendant had been gardening until lunch time. After making a chicken sandwich for her husband she said that she went outside the house and did not see her husband again until she and Mr. Passon went to the bedroom.

It is important to note that defendant told different versions of the route she took to the Passon home, which is only a short distance away. At 12:20 p.m., July 5th, detective Loughran discovered a gun in a storm sewer opening on Morris Road, which is about 12 to 15 feet below the surface of the road. It was a 32 TJ.S. nickel-plated revolver which was subsequently identified by an agent of the P.B.I. as the gun from which the fragments of the gun grips had been found in Kravitz’s bedroom. Even more important, the revolver was triple wrapped, with the outer covering being a woman’s blouse, which was later identified as belonging to the defendant', the second cover being' a blood-stained dish towel; and the innermost covering a man’s handkerchief. Harry Kravitz testified that his father owned a gun similar to the one found in the culvert on July 5th.

Moreover, an agent of the F.B.I. testified that a brush and comb on Mrs. Kravitz’s bureau contained hair similar to a strand of hair found on the sweater which was wrapped around the gun found in the culvert. The sweater also had a strand of dog hair on it which was similar to the hair of the Kravitz’s dog. The dish towel which formed the middle wrapping on the gun found in the culvert was similar to the dish towels found in the Kravitz’s residence. The lead bullet found in the Kravitz bedroom contained cotton yarn of similar texture and composition as the yarn which formed the undershirt of the decedent. The man’s handkerchief was similar in composition to handkerchiefs found in the decedent’s bedroom. Fragments of the gun grips found in the culvert and in the bedroom belonged, we repeat, to the gun found in the culvert* on July 5th.

Several officers who made a test, testified that the noise of breaking and falling glass which was heard by Mr. and Mrs. MacMurray at a distance of 305 feet from the Kravitz house, could have been heard at such a distance, although Mrs. Kravitz stated that she never heard the noise of any breaking glass or any revolver shots.

There is not the slightest doubt that all the ingredients of a first degree murder were present in this case. The Commonwealth’s evidence was amply sufficient from which the jury could properly find that Mrs. Kravitz was guilty of this murder. As the District Attorney states, the use of a hand mirror which inflicted 16 lacerations in the head, but were not strong .enough to cause a fracture of the skull, and the lack of ability to fire two bullets in the gun, indicated that this was a feminine crime. The jury could properly have found that the blood which was found on defendant’s pedal pushers was the blood of her husband, that the blood which was found on defendant’s red left shoe in the marital bedroom was the decedent’s; that the blood which was found on defendant’s shoes in the kitchen was decedent’s blood; that defendant at the time she answered the policeman’s door-ring was wearing a multi-colored dress which contained blood of the same grouping as that of her husband; that it was the defendant’s hand mirror (which was found under his back) which was used to bludgeon him about the head; that defendant in going to the Passon home after the killing, passed the culvert on Morris Road in which the gun with missing gun grips was found, and that the gun grips which were found on the floor in the Kravitz bedroom fitted this gun; that it was the defendant’s blouse which was wrapped around this gun; that the strand of Caucasian hair found on the blouse matched the hair found in her hair brush and comb in her bedroom; that the dark hairs found on the blouse were the same as the hair of her dog, Pedro; that the dish towel which was covered with blood and which was wrapped around the gun was covered with blood of the same group as her husband’s; that she lied when she said she did not hear the breaking glass which was heard by neighbors 305 feet distant; that she lied when she pretended she was gardening and covering the rosebed with Bovung and with water; that her husband could have broken the bedroom window with a statuette in an attempt to summon help; that defendant’s calmness and her wailing without tears were indicative of guilt; and finally, that she made a number of contradictory, conflicting statements which indicated an attempt to deceive the police and conceal her guilt.

Defendant’s principal contention is that the Commonwealth failed to exclude the possibility that the murder was committed by a third person and that its evidence was insufficient in law to prove that the atrocious murder was committed by Mrs. Kravitz. This contention is devoid of merit. All of the combined circumstantial evidence, considered as a whole, was amply sufficient to justify a jury in finding that defendant had murdered her husband.

All of the contentions of this defendant, sur her motion in arrest of judgment, have been made to and been rejected by this Court in many prior cases. In Commonwealth v. Sanders, 390 Pa. 379, 134 A. 2d 890, defendant had left their common home between 9:30 and 10:00 o’clock on the evening of May 3, 1955. The victim’s body was found at 2:00 p.m. on May 4th. The coroner testified that in his opinion the death occurred somewhere between 8 and 20 hours before the body was discovered. There were no eyewitnesses of the killing, which could have been committed by any unknown person. This Court sustained the jury’s verdict, which found defendant guilty of murder in the first degree and said (pages 387-388) :

“In Commonwealth v. Bolish, 381 Pa. 500, 113 A. 2d 464, the Court said (page 508) : C . . Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. “. . . It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant’s guilt beyond a reasonable doubt: Commonwealth v. Kloiber, 378 Pa. 412, 106 A. 2d 820; Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743; Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A. 2d 733; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070; Commonwealth v. Wentzel, 360 Pa. , 61 A. 2d 309”: Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 348, 106 A. 2d 587.' ” See also to the same effect: Commonwealth v. Boden, 399 Pa., supra; Commonwealth v. Nasuti, 385 Pa. 436, 123 A. 2d 435; Commonwealth v. Carey, 368 Pa. 157, 82 A. 2d 240.

In Commonwealth v. Homeyer, 373 Pa., supra, the Court sustained the verdict of a jury finding defendant guilty of murder in the first degree, with penalty fixed at death. On March 28, or March 29, 1950, the victim died of suicide or was murdered in their marital residence in Factoryville, Wyoming County, Pennsylvania. A year later (on March 7, 1951), a well preserved head identified as that of the victim was found encased in concrete in the defendant’s home. There were no eyewitnesses of the killing. Defendant contended that his Avife died of an overdose of sleeping pills; that upon discovering her body he Avas seized with panic and decided to dismember it; and that the dismemberment of her body after she Avas dead did not constitute any crime. The Court pertinently said, pages (156-157) :

“The Commonwealth has the burden of proving beyond a reasonable doubt a Avilful, deliberate and premeditated killing in order to constitute murder in the first degree. The Commonwealth in such a case, in order to establish the corpus delicti, must prove (1) that the alleged victim is dead, and (2) that the death occurred as a result of a felonious act. The corpus delicti, like other facts, may be shown by circumstantial evidence; it is sufficient if these circumstances are consistent with crime even though they are also consistent with suicide or accident;* if it Avere otherwise it Avould be impossible in many cases, where there were no eye witnesses, to convict a criminal. Commonwealth v. Gardner, 282 Pa. 458, 128 A. 87; Commonwealth v. Turza, 340 Pa. 128, 16 A. 2d 401; Commonwealth v. Johnson, 162 Pa. 63, 29 A. 280; Commonwealth v. Coontz, 288 Pa. 74, 135 A. 538; Commonwealth v. Bishop, 285 Pa. 49, 131 A. 657; Commonwealth v. Jones, 297 Pa. 326, 146 A. 905; Commonwealth v. Lettrich, 346 Pa. 497, 31 A. 2d 155.

“In the leading case of Commonwealth v. Gardner, 282 Pa., supra, the Court said (page 462) : ‘In all criminal proceedings it is incumbent on the Commonwealth to establish beyond a reasonable doubt three elements: (1) the occurrence of an injury or loss, — in homicide, a person deceased; (2). a criminal agency, — in homicide, for example, that the death was caused by a beating, gunshot or circumstances indicating a felonious act (these two combined show a crime has been committed by someone) ; (3) that the defendant is the responsible party. Defendant contends that the crime for which he is charged was not committed. . . . The person for whose death a prosecution is instituted may be alive, so evidence that he or she is in fact dead is imperative. As death may have resulted from a cause other than a felonious act, there must be evidence that it occurred under circumstances which point to the commission of a crime. In this manner the corpus delicti is shown. . . . 4 Wigmore, Evidence, 2d ed., sec. 2072, pp. 410, 412; Grant v. Com., 71 Pa. 495, 505; Johnson v. Com., 115 Pa. 369, 391; Cox v. Com., 125 Pa. 94, 102; Com. v. Bell, 164 Pa. 517; Com. v. Russogulo, 263 Pa. 93, 108. . . . It sometimes happens the circumstances attending the act may be consistent with crime, suicide or accident. In such cases, the corpus delicti is proven where the circumstances attending the death are consistent with crime, though they may also be consistent with accident (Commonwealth v. Johnson, 162 Pa. 63), or suicide (Zell v. Com., 94 Pa. 258), and it is not necessary to show by affirmative proof that the latter two possibilities do not exist before evi dence as to who did the act is admitted: Com. v. Puglise, supra, 238.’ ”

In Commonwealth v. Carey, 368 Pa., supra, this Court sustained a verdict of guilty of murder in the first degree, with penalty fixed at death, and said (page 163) : “Defendant complains that there was no testimony that anyone saw him shoot and kill the victim; that no gun was found in his possession and that evidence of the actual killing by defendant was wholly circumstantial and insufficient in quality. He assigns as error the court’s refusal of the fifth point of charge that the quality of circumstantial evidence must be 1such as to exclude every other reasonable possibility, except that of guilt.'* The trial judge properly refused to so charge

Commonwealth v. Danz, 211 Pa., supra, was a famous case. Danz died June 27, 1901. On March 12, 1903, nearly two years later, his body was exhumed and the coroner’s physician made a post-mortem examination. He testified that he found arsenic in various organs of Danz’s body in weighable quantities. Three experts testified that they were of the opinion that death had been caused by arsenic poisoning, even though arsenic is rapidly eliminated from the system, and even though the Commonwealth failed to prove that a quantity of poison sufficient to cause death was found in the deceased’s body. The Commonwealth also proved that defendant and her husband Danz quarreled frequently; that she stated to some of the witnesses that she would be happier if he were dead; to one she repeatedly said that she would like to get rid of him; that he accused her of trying to poison him; and that she had stated “To Mrs. Heinel . . . that she had put the powders Hossey had given her into her husband’s coffee, and that the son-of-a-bitcli had discovered it and thrown it out, but she would catch him yet.” Defendant denied that she had ever given her husband any arsenic; she proved that the embalmer inserted arsenic in the body of the deceased; and she likewise proved by distinguished experts that her husband had not died from arsenic poison. Defendant contended, inter alia, that the Commonwealth was unable to prove any motive, but the Court accurately said that proof of motive is unnecessary. Nevertheless, on the basis solely of the circumstantial and conflicting evidence herein-above summarized, this Court sustained a jury’s verdict of guilty of murder of the first degree.

Under the aforesaid authorities, it is clear that the evidence produced by the Commonwealth not only would adequately, but amply, justify a jury in finding-defendant guilty of murder in the first degree.

While defendant in her appeal brief of 115 pages concedes that the law is that which is hereinbefore set forth, she nevertheless contends in effect that there must be proof by eyewitnesses that she committed the crime charged, or, as she sometimes expresses it, that the Commonwealth has to exclude the possibility that some third party committed this murder. Careful consideration, analysis and all the hereinabove quoted and cited decisions of this Court demonstrate that this is not the law. If eyewitness testimony of the commission of a mnrder were necessary, or if the Commonwealth had to exclude the possibility of a third person committing the crime — which would, in reality, require an eyewitness or the capture of defendant “red-handed” — few murderers would ever be convicted, and society could not possibly be adequately protected. Moreover, even if a defendant was caught running away from the murder scene right after the murder, he would have to be acquitted under the “exclusion” theory because he could contend that he was running away in order to avoid suspicion or to escape from the unknown criminal’s attempt to murder him. In the Sauders case, in the Bolish case, in the Homeyer case, in the Wentzel case, in the Danz case, in the Boden case, in the Carey case, and in Commonwealth v. LaRue, 381 Pa., infra (to mention just a few) there were no eyewitnesses to the murder; the exact time of death was unknown; and any third party or unknown person could have committed- the murder. Any refinements or distortion of the law such as defendant urges would not only require us to overrule a myriad decisions of this Court, but would make the protection of society in most cases realistically impossible.

Defendant relies chiefly upon Commonwealth v. Bausewine, 354 Pa. 35, 46 A. 2d 491, which on its facts is clearly distinguishable. In that case the defendant was indicted for bribery. The Court discharged him because the Commonwealth’s evidence was so weak and inconclusive, and the surrounding facts and circumstances* demonstrated that no jury could justifiably have found defendant guilty beyond a reasonable doubt of the crime charged. However, the Court recognized the applicable and well settled principles of law (page 41) : “The facts and circumstances proved must, in or der to warrant a conviction, be such as to establish the guilt of the defendant, not . . . as being absolutely incompatible with his innocence, but at least beyond a reasonable doubt.” This statement of the law was repeated in Commonwealth v. LaRue, 381 Pa. 113, 112 A. 2d 362. In that case the victim was found dead in her bedroom with numerous fatal stab wounds in her body. The evidence of the Commonwealth linking defendant to the crime was circumstantial. Defendant denied that he had stabbed the victim and produced evidence suggesting that deceased had committed suicide, or that the victim was stabbed by her son who admitted he ran into her room as soon as he heard his mother scream. This Court sustained a conviction of murder in the first degree with penalty of death.

Commonwealth v. Wentzel, 360 Pa., supra, and Commonwealth v. Rogozinski, 387 Pa., supra, which are relied upon by defendant, support the Commonwealth, not the defendant. In the Wentzel case, this Court sustained a jury’s verdict that defendant was guilty of murder in the second degree. There were no eyewitnesses, the time of the crime was unknown, and anyone of many persons could have committed the murder. Miriam Green was found dead in her first floor apartment in Pottstown shortly before 2:00 o’clock on the afternoon of December 9, 1946. A blue scarf was tied around her neck. A screen and a metal grating-on the outside of the bedroom window had been removed; the front door and the bedroom window were open, so it is clear that one or many persons could have entered and committed the murder. The coroner pronounced the victim dead from strangulation, and it was his opinion that she had been dead for a period of not more than 12 hours. Defendant, a married man, residing with his wife and child, was arrested in Potts-town at about 7:30 on the evening of December 9th, the day Miriam’s body was found. Defendant admitted, inter alia, that he had gone to her apartment at 11:00 o’cloclc on the night of December 8th, gained entrance Avith a key which she had given him, and upon turning on the light discovered her dead body. He denied he had anything Avhatever to do with her death. Defendant produced witnesses Avho testified that Miriam was killed two days prior to December 8th, and also proA^ed an alibi from the late afternoon of December 5th until his visit to Miriam’s apartment at 11:00 o’clock on Sunday night, December 8th, Avhen he discovered Miriam’s dead body. The Court said (page 143) : “While none of the facts presented Avould be conclusive of his guilt when individually considered, yet there is no doubt in our minds that the evidence presented, tohen considered collectively, required that the case be submitted to the jury.

“. . . ‘. . . “. . . Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger.” See also Commonwealth v. Kovovic, 209 Pa. 485, 468; Commonwealth v. DuBoise, 269 Pa. 189, 174; Commonwealth v. Karmendi, 328 Pa. 321, 333. . . ’”

In Commonwealth v. Rogozinski, 387 Pa., supra, this Court sustained a jury’s verdict of guilty of murder in the first degree Avhere there Avere no eyewitnesses, but defendant had been Avithin a 20 minute walk of the victim’s room at the time he Avas probably murdered. The Court said (pages 402-403) : “ ‘The requirement of the law is that in order to Avarrant a conviction the facts and circumstances proved must be of such character as to . . . [prove] the guilt of the accused beyond any reasonable doubt — not that they need be absolutely incompatible with his innocence — and that doubt is for the jury unless the evidence “be so weak and inconclusive that as a matter of law no probability of fact can be draAvn from the combined circumstances”.’: Com monwealth v. Libonati, 346 Pa. 504, 508, 31 A. 2d 95. As in the case of Commonwealth v. Wentzel, 360 Pa. 137, 147, 148, 61 A. 2d 309, ‘To hold that the evidence here presented did not warrant the submission of this case to the jury would be almost tantamount to a complete elimination of convictions based entirely upon circumstantial evidence, however strong and conclusive/ ”

Trial Errors

Defendant contends that certain testimony of Mrs. Frances Robinson was inadmissible. Mrs. Robinson, a neighbor and friend of defendant, testified that in the Spring of 1958 Mrs. Kravitz, after pledging her to secrecy, told her on a number of occasions that she found life with decedent unbearable and she wanted a divorce and had retained a lawyer in order to get one.* She also testified that she had made two wills for defendant, the last being as recent as the Spring of 1958, and in neither will did she leave anything to her husband.

Evidence to prove motive, or intent, or plan, or design, or ill will or malice is always admissible: Commonwealth v. Boden, 399 Pa. 298, 159 A. 2d 894; Commonwealth v. Homeyer, 373 Pa. 150, 94 A. 2d 743; Commonwealth v. Novak, 395 Pa. 199, 150 A. 2d 102; Commonwealth v. Patskin, 372 Pa. 402, 93 A. 2d 704, and cases cited therein; Commonwealth v. Peyton, 360 Pa. 441, 62 A. 2d 37; Commonwealth v. Malone, 354 Pa. 180, 47 A. 2d 445; Commonwealth v. Jones, 269 Pa. 589, 113 A. 57; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070.

In Commonwealth v. Novak, supra, the Court said (page 204) : “‘Evidence to prove motive, intent, plan or design are admissible [citing cases] /: Commonwealth v. Homeyer, 373 Pa. 150, 159, 94 A. 2d 743. However, ‘proof of motive is always relevant but never neees sary.’: Commonwealth v. Malone, 354 Pa. 180, 188, 47 A. 2d 445.”

In Commonwealth v. Boden, 399 Pa., supra, the Court, quoting from Commonwealth v. Peyton, 360 Pa., supra, said (page 305) :

“ ‘. . . “ ‘In almost any situation — whether the fact of killing is denied, or whether self-defense is pleaded, or whether it is contended that by reason of provocation the killing is reduced to manslaughter — proof of the previous relations of the prisoner and the deceased, whether friendly or hostile or whatnot, is relevant and competent.’ ” ’ See also: Commonwealth v. Giacobbe, 341 Pa. 187, 19 A. 2d 71; Commonwealth v. Del Giorno, 303 Pa. 509, 154 A. 786; Hester v. Commonwealth, 85 Pa. 139; McManus v. Commonwealth, 91 Pa. 57; McMeen v. Commonwealth, 114 Pa. 300, 306, 9 A. 878; Commonwealth v. Minoff, 363 Pa. 287, 69 A. 2d 145,. . . ."

Mrs. Robinson’s testimony was undoubtedly admissible under the aforesaid authorities.

Conflicting or contradictory or false statements of the defendant, for example as to her use of Bovung and watering her rosebed that afternoon, and particularly as to the route she took to the Passon home, were admissible, “since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory of guilt.” Commonwealth v. Saunders, 390 Pa. 379, 388-389, and a dozen cases cited therein. The route taken by defendant to the nearby Passon home shortly after the murder was particularly important because the gun was found in a culvert along this route.

Defendant contends that the trial Court erred in refusing to separate and sequester the police officers and detectives who were Commonwealth’s Avitnesses. In nearly every criminal and civil case, one side or the other would like to have some or all of the witnesses of his opponent sequestered. The lack of adequate room space, the long delays which would inevitably be caused by sequestration and other practical considerations, make sequestration of witnesses ordinarily impractical or inadvisable, except in unusual circumstances.* For the foregoing reasons the question of sequestration of witnesses is left largely to the discretion of the trial Judge and his decision thereon will be reversed only for a clear abuse of discretion.

In Commonwealth v. Turner, 371 Pa. 417, 429, 88 A. 2d 915, the Court said: “In Pennsylvania it has long been established that the trial judge has the power to permit sequestration of witnesses: Commonwealth v. Principatti, 260 Pa. 587 at 598, 104 A. 53; and that it is a matter within the discretion of the trial judge: Commonwealth v. Sloat, 298 Pa. 10, 147 A. 834.”

The lower Court convincingly explained its reasons for refusing to order a sequestration of the police officers. We find no abuse of discretion in the trial Judge’s refusal of sequestration.

Defendant contends that the trial Judge committed a reversible error in explaining to the jury that they should ignore a statement made (in good faith) by the District Attorney, viz., that he would prove that defendant had refused to take a blood test. The trial Judge subsequently held such testimony to be inadmissible. The trial Judge wisely, fairly and exceptionally ably charged the jury on this point. The District Attorney contends that this evidence should have been admitted but that if the trial Judge erred, his error was harmless and was certainly cured in and by the Judge’s charge. In Commonwealth v. Musto, 348 Pa. 300, 35 A. 2d 307, former Chief Justice Steen, speaking for the Court, said (pages 306-307) : “. . . 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. [Citing many cases]. 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. ‘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 (3d ed.) 375, sec. 2265.”

Prior and subsequent decisions have likewise interpreted and limited the constitutional immunity from self-incrimination to speech, or the equivalent of speech, as former Chief Justice Stern so clearly said in Commonwealth v. Musto, supra. For example, in Commonwealth v. Fletcher, 387 Pa. 602, 128 A. 2d 897, the District Attorney was permitted to call the jury’s attention to defendant’s peculiar manner of walking, even thoiigh defendant had not taken the witness stand.

In Commonwealth v. Statti, 166 Pa. Superior Ct. 577, 73 A. 2d 688, the Court held that “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. 388, 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. Superior Ct. 333, 186 A. 177.”*

In Commonwealth v. San Juan, 129 Pa. Superior Ct. 179, 183, 195 A. 433, the Court held that the “person” of a defendant may be offered in evidence without violating his constitutional privilege of immunity.

In Commonwealth v. Tunstall, 178 Pa. Superior Ct. 359, 363, 115 A. 2d 914, the Court held that “The instruments or devices of crime found upon the person of one charged with crime are legitimate evidence and may be taken from a defendant and used for that purpose. Com. ex rel. v. Keister, 289 Pa. 225, 229, 230, 137 A. 223. Evidence in the form of number slips taken from a defendant’s pocket and hat band has been held admissible. Com. v. Adams, 174 Pa. Superior Ct. 504, 102 A. 2d 202. In the present case the evidence admitted [number slips removed by force from defendant’s mouth] was not obtained as the result of any procedure which shocks the conscience or violates appellant’s fundamental constitutional rights.”

Notwithstanding the general rule and the foregoing authorities, we believe that blood tests are not yet suf ficiently scientifically determinative, or of such clear probative proof as to justify compelling a defendant in a murder case to submit thereto against his will. It follows that the trial Judge correctly refused the District Attorney’s offer of proof that Mrs. Kravitz had refused to permit a blood test. However, the trial Judge in his charge Avisely and clearly explained to the jury that the District Attorney’s opening remarks should be ignored, and this charge rendered harmless the District Attorney’s remarks which Avere made in good faith. Cf. Com. v. Neill, 362 Pa. 507, 517, 67 A. 2d 270.

Defendant moved for a neAV trial on the basis that two jurors some two months after the verdict swore that a tipstaff had discussed the case Avith six jurors although what Avas allegedly said was unknown. The tipstaff and the six jurors denied this. Pour Judges constituting a Court en banc intervieAved the jurors and heard their testimony and permitted cross-examination. The lower Court in dismissing defendant’s motion, said: “If the tipstaff discussed the testimony Avith the jurors, it was improper. It Avas his duty, under the law and his oath, not to discuss the case or the testimony Avith any of them, so that the jurors may perform their duties without hindrance or suggestion from any source. But Ave have no difficulty in finding that the male tip-staff did not discuss the testimony Avith any of the jurors in this important case and is free from any misconduct or breach of his solemn oath.

“When we come to consider the testimony of the two accusing jurors, we must bear in mind the conditions under which the affidavits Avere procured. The eager lady reporter tried to take two lady jurors home after the trial. She found her Avay into the woman’s dormitory. Tavo months after the verdict, she interviewed eight jurors asking leading and searching questions with a vieAv of finding some irregularity. She harassed and annoyed several jurors until they called upon the Dis trict Attorney.* She told one juror that she had certain affidavits, which she did not have. She finally found two elderly jurors, one hard of hearing, and prevailed upon them to make affidavits at the office of defense counsel. No one knows what leading or suggestive questions she posed to these jurors, who had an opportunity' all through the trial, at the verdict, when the jury was polled, and for some months later, to complain to the Court, yet they never did. The testimony of these two jurors is vague, indefinite, uncertain, and flatly contradicted. Neither can state what was said, or what witnesses’ testimony was repeated. They do not state that the tipstaff talked to them directly, but that they overheard him discussing the case with other jurors. All six other jurors deny any discussion and also the tipstaff himself. Furthermore, there is direct testimony of five jurors, who testify that the tipstaff announced that he was not permitted to discuss the case or answer questions.

“The testimony of Mrs. Adams, that Mr. Hunsicker and Mrs. Blair were in the television room and heard the tipstaff discuss the case, is flatly denied by Mr. Hunsicker and Mrs. Blair. The testimony of Mr. Hun-sicker that he complained to the forelady and Mrs. Blair, is denied by the forelady and Mrs. Blair. It is apparent that these two accusing jurors are mistaken and are believing something that did not actually occur. We cannot believe these two jurors, in contradiction to six jurors and a tipstaff, in order to grant, what some people desire, a new trial.”

In Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A. 2d 785, the Court said (page 133-131) : “The petition alleges that some of the jurors have recently been interviewed and have stated that, if relator had taken the witness stand in his own defense or if his counsel had produced evidence of good reputation prior to his association with his co-defendants, they would have fixed the penalty at life imprisonment instead of death. The practice of interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this Court in Cluggage v. Swan, 4 Binney 150, 158 (1811), reiterated and reaffirmed in Friedman v. Ralph Bros., Inc., 314 Pa. 247, 249, 171 A. 900, 901, and again quoted from at length in Redmond v. Pittsburgh Railways Company, 329 Pa. 302, 303-304, 198 A. 71, 72. It is forbidden by public policy: Commonwealth v. Greevy, 271 Pa. 95, 99, 114 A. 511, 512. Certainly such post-trial statements by jurors are not to be given any weight on even an application for a new trial, much less a petition for a writ of habeas corpus.” We find no error or abuse of discretion in the lower Court’s rejection of this motion for a new trial.

Mrs. Kravitz did not take the witness stand. Her defense consisted of a dozen witnesses who testified as to her good reputation; two witnesses who testified that Mrs. Robinson had a bad reputation; two witnesses who testified that they never saw or knew Max Kravitz to have a gun; a witness who testified that Mrs. Kravitz had a solid-colored dress on when she answered the doorbell the day of the murder; an expert who testified as to the time of death; and four witnesses who participated in a test for gun sound. The defense also vigorously attacked the Commonwealth’s witnesses, and vigorously argued the weaknesses or conflicts in the Commonwealth’s case.

In this Court defendant’s case was ably argued —every fact or circumstance which might indicate Mrs. Kravitz’s innocence, and every actual or imaginable weakness or omission in tbe Commonwealth’s case was skillfully pointed out; and every legal point which had any possible or conceivable merit was persuasively presented to convince this Court that Mrs. Kravitz was innocent, or that in any event she should be granted a new trial.

We have carefully considered all of defendant’s authorities and all of defendant’s contentions. We find the former inapposite and the latter without merit. We are convinced that the mass of circumstantial evidence produced by the Commonwealth, when considered collectively, was not only legally sufficient, but was more than amply sufficient to prove beyond a reasonable doubt that this was a first degree murder and that it was committed by this defendant. We are also convinced that defendant had a very fair trial and that there was no reversible error.

Judgment and sentence affirmed.

Mr. Justice Cohen concurs in the result.

After a transcript of the testimony and charge of the Court which consisted of 1536 pages, had been filed.

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There was no evidence with respect to fingerprints.

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Italics throughout, ours.

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This theoretical refinement, like the statement found in earlier cases, viz., that “the facts and circumstances must be inconsistent with his innocence” was not only confusing to juries, but was illogical, unsound and irreconcilable with other decisions of the Court. At the suggestion of President Judge Kellísr it was repudiated and abandoned by this Court. See, inter alia: Commonwealth v. Grosso, 169 Pa. Superior Ct. 606, 84 A. 2d 239; Commonwealth v. Sauders, 390 Pa., supra; Commonwealth v. Rogozinski, 387 Pa. 399, 128 A. 2d 28; Commonwealth v. Nasuti, 385 Pa., supra; Commonwealth v. Kloiber, 378 Pa., supra; Commonwealth v. Homeyer, 373 Pa., supra; Commonwealth v. Carey, 368 Pa., supra; Commonwealth v. Wentzel, 360 Pa. 137, 143, 61 A. 2d 309; Commonwealth v. Holt, 350 Pa. 375, 39 A. 2d 372; Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A. 2d 95; and other cases hereinabove cited.

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Defendant’s actions and statements likewise disclosed liis innocence.

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Mrs. Robinson’s reputation was attacked by defendant but she was corroborated in several parts of her testimony.

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A request for sequestration of a witness or witnesses should be specific and should be supported by some reason or reasons demonstrating that the interests of justice require it.

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Cf. also Breithaupt v. Abram, 352 U. S. 432 — the introduction of blood taken from the defendant without bis consent and while he was unconscious was held not to violate the Federal Constitution ; also Commonwealth v. Gumear, 76 Pa. Superior Ct. 311— tone of voice, and compelling accused to wear a cap alleged to have been worn by one of the robbers.

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In fairness to the reporter, she was not called upon by the Court to deny or explain her actions which were seemingly outrageous.