Commonwealth v. Neill

67 A.2d 276, 362 Pa. 507, 1949 Pa. LEXIS 440

• Court: Supreme Court of Pennsylvania
• Decided: April 11, 1949
• Docket: Appeal, 40
• Status: Published

Opinions

Opinion by

Mr. Justice Horace Stern,

Defendant appeals from a conviction of murder of the first degree with the penalty of death. Notwithstanding an intensive study of the record commendably made by his counsel in order to detect and expose errors committed by the court below, we are not convinced that there were any of sufficient importance to justify, much less require, the granting of a new trial.

Defendant is a young man twenty-two years of áge. From his earliest youth he has lived an extremely unsettled life. He attended elementary public schools and junior high school in Philadelphia but ran away from home several times during that period and was finally transferred to a disciplinary school; the psychological clinic attached to that school found him to be an “unstable, socially maladjusted boy”. After going away to the west coast he worked, first at ranching, then at a succession of different jobs, and then on ships of the merchant marine. In Texas, at the age of 17, in 1942, he enlisted in the United States Marine Corps and was shortly thereafter sent with replacements to Guadalcanal and the Pacific theatre of the war, where he became engaged in active combat service and had several harrowing experiences. He contracted a severe case of malaria and was hospitalized in New Zealand as a casualty because of this illness and combat fatigue. On his return to the United States he was invalided out of the service with an honorable discharge. The next few years of his life were marked by a succession of temporary jobs, marriage at 18 to a woman six years his senior, quarrels with her which resulted ultimately in divorce, disagreements with various members of his family, and, in general, a postwar restlessness. He had several recurrent attacks of malaria and was admitted at intervals to Naval and Marine Hospitals in San Francisco, Philadelphia and San Diego. He again entered upon service in the merchant marine; this brought him to foreign countries, but he afterwards left the sea and, during the summer of 1947, worked on a farm; toward the end of that summer he had in mind to go once more to the west coast, but, preparatory to departing, he visited the home of his sister, Mrs. Mallon, in the Kensington district of Philadelphia, principally in order to obtain some money which belonged to him and of which she was acting as custodian. It was at this point that the crime was committed which is the subject of this appeal.

The facts, briefly stated, are as follows: One of his sister’s children was a young girl, Isabella, not quite 12 years, of age. Aj; ahQut £¡.30 o’clock on Saturday afternoon, Septenab,er 6, her mother gave her some money go out an(j buy berwtf ft pfti? oí soetoj defendant^ stating that he wished to purchase a polo shirt, left the house with her. According to his testimony he had been for some time “jumpy and nervous”, was suffering from headaches, and had been drinking to some extent. After strolling with Isabella for a while along Kensington Avenue and eating with her at a restaurant he offered to take her to a place where she could ride a pony, at which suggestion she “jumped with joy”. They entered a taxicab and, at his direction, were driven to the athletic field of a boys’ club at Front Street and Erie Avenue, but, finding the gates of the field closed, they walked north together to Luzerne Street, east to Whitaker Avenue, and then down the latter toward Erie Avenue again. At that point, on the east side of Whitaker Avenue, there is a large open lot some 1300 feet long by 450 feet wide of which the southern end was used by boys as a baseball field but the greater portion was in the nature of a pathless waste of rough terrain covered thickly with bushes and weeds of a height of from 4 to 6 feet. Telling Isabella that he would show her the place where he used to play baseball as a boy, defendant climbed with her the five foot elevation which led up to this lot and traversed it for a distance of some 300 feet or more toward the railroad tracks which skirted its eastern border. The facts thus stated and those which describe the subsequent happenings are derived entirely from defendant’s written confessions. He began violently to hug and kiss Isabella; she objected; he says that he became intensely passionate; she lay on the ground on her back amid the thick weeds; he cannot recall whether she did this at his proposal but he “guessed” that he suggested it. He lay beside her, caressing and fondling her in a lewd manner and taking indecent liberties with her person; he intended to ask her to relieve his passion “in same way or other”; he does not remember whether or not his person was exposed. Mean while she had started to cry and scream, and, according to a statement made in his confessions, she threatened to ■ tell her parents, whereupon he became frightened, put his hand over her mouth and “the next thing he knew” he was choking her with both his hands and she was gasping for air and bleeding from the nose. In his testimony at the trial he said he did' not know whether she did threaten to téll her parents, and he intimated that his former statement to that effect had been elicited by pressure on the part of his interrogators. When he released his hands, and she lay limp and motionless, he said that he realized what he had done; he fled from the scene, stopped at a bar for drinks, washed, some blood from his face, and then wandered back to his sister’s house where he arrived between 7.30 and 8.00 o’clock in the evening. He said nothing to his sister or to any members of the household as to what had happened but gave an equivocal answer to their inquiries as to what he knew of Isabella’s whereabouts; he washed, shaved, changed his shirt, and then left and went to a farm in Maryland where he took employment and where he was subsequently apprehended. The body of Isabella lay on the lot undiscovered for 13 days; it was then found, in the midst of weeds 4 to 6 feet high, in an advanced state of decomposition.

The court instructed the jury that defendant was guilty of murder of the first degree if he committed the crime either with premeditation or during the course of an attempt to commit rape. The principal contention now urged by defendant’s counsel is that, although the evidence admittedly disclosed an indécent assault, it did not establish an attempt to commit rape. It is true, of course, that, to constitute'such an attempt, there must be not only an intent but also some overt act which seeks to carry that intent into execution. It is also true that the term “rape” as uséd in the murder statute is limited to rape at common law and does not include statutory rape: Commonwealth v. Exler, 243 Pa. 155, 158-160, 89 A. 968, 969, 970. But, taking the facts as to what occurred from defendant’s confessions, from his testimony on the witness stand, and from all the surrounding circumstances, we have no hesitation in concluding that the evidence was amply sufficient to permit a jury to infer that it was not only defendant’s intention to commit rape if he could not gain Isabella’s voluntary consent to sexual relations, but that, knowing from her attitude toward his caresses that he could not possibly obtain such consent, he proceeded by overt acts of aggression to accomplish his purpose. Indeed if, as he testified, he was not certain whether she threatened to tell her parents, his choking her might well have been, not for the purpose of silencing her, but in furtherance of a frenzied attempt to overcome her resistance to his attack. In Commonwealth v. Prenni, 357 Pa. 572, 574; 575, 55 A. 2d 532, 533, it was held on testimony much weaker than the present that the jury was warranted in drawing the inference that an attempt had been made to commit rape and that there was enough evidence to support a finding that the death of the'victim resulted from an attempt to force sexual intercourse with her against her will.

The sole ■ defense offered by defendant was that of insanity but the evidence on that question favorable to defendant was extremely unconvincing.' An expert witness testifying on his behalf expressed the opinion that he suffered from a “recurrent Confusional insanity” that lasted, however, only for the time that elapsed between his fondling the child and his becoming conscious that he had his hands around her throat and she was bleeding from the nose; thereupon he regained his sanity and ran from the scene of the crimé. Apart from the fact that “confusional insanity” is apparently an antiquated and discarded theory and that the proposition that there could be such a thing ás a momentary insanity was sharply challenged by an expert witness for the Commonwealth, it would seem quite obvious that defendant’s witness failed to differentiate between a mere temporary frenzy or emotional excitation, and insanity within the legal meaning of that term, namely, inability, from disease of the mind, to understand the nature and quality of the act and to distinguish between right and wrong with respect to it: Commonwealth v. Szachewicz, 303 Pa. 410, 416, 417, 154 A. 483, 484, 485; Commonwealth v. Lockard, 325 Pa. 56, 60, 188 A. 755, 757.

The Commonwealth produced three expert witnesses who were firmly of the opinion that defendant was sane at all times before, during and after the commission of the crime. In a communication submitted by two of them to the District Attorney as a result of their examination of defendant prior to the trial they stated that, “although of normal average intelligence,” he “manifests a profound psychoneurosis with marked emotional instability colored by severe chronic malaria,” and that “the commission of this act of violence can be explained as an impulsive act on the basis of his profound psychoneurosis, marked emotional instability and severe chronic malaria, which factors can be considered therefore as extenuating circumstances.” Defendant’s counsel asserts that, had he been informed of this report, he might, in his cross-examination of these witnesses, have brought these circumstances to the attention of the jury. In that same report, however, these witnesses had stated, as categorically and confidently as they did on the witness stand, that, in their opinion, defendant at the time of the commission of the murder was in possession of his mental faculties, was not insane, knew right from wrong, and was therefore legally responsible for his act. Certainly neither social maladjustment, nor lack of self-control, nor impulsiveness, nor psychoneurosis, nor emotional instability, nor chronic malaria, nor all of such conditions combined, constitute insanity within the criminal-law conception of that term. As to the possible effect the presentation of the witnesses’ report might have had on the jury with respect to the imposition of the penalty, it is sufficient to say that all the facts in regard to defendant’s drinking, headaches, malaria, maladjustment, nervousness and psychoneurosis were brought out at length, partly in his own testimony, partly in that of his witnesses, and partly from portions of public records admitted in evidence. It might be added that although defendant’s counsel asked one of these expert witnesses whether he had given the District Attorney’s office a report of his examination he did not press for an answer nor pursue the inquiry to a conclusion, neither did he ask to see the notes which the witness had made during his examination of defendant and which he had with him on the witness stand. It has never been considered, nor held to be, the duty of a District Attorney, in the absence at least of a request, to exhibit a private communication or “report” of his expert witnesses to defendant’s counsel, any more than it would be his duty to acquaint opposing counsel with conversations or communications, oral or written, which he might have had with any other witnesses called on behalf of the Commonwealth.

There are several assignments of error to rulings of the court concerning the admission or rejection of evidence. The psychiatrist who testified on behalf of defendant was not present during the trial to hear the testimony offered by the Commonwealth, and, because of that fact, the court apparently thought that this Witness should not be allowed to express his opinion in regard to defendant’s sanity unless there were framed and presented to him a hypothetical question covering all the evidence in the case. It is well settled that an expert who has made a personal examination of a defendant may express his conclusions on the basis of such, examination alone, hypothetical questions being necessary only where no such personal examination has been made by the witness, although they may, of course, be employed, if it be deemed desirable, to supplement such examination: Commonwealth v. Gibson, 275 Pa. 338, 341, 119 A. 403, 404; Commonwealth v. Logan, 361 Pa; 186, 195, 196, 63 A. 2d 28, 32. However, there was no harm done in this case by the view initially taken by the court because the witness was finally allowed to express his opinion at length on the basis of both his examination and the summary of the testimony narrated to him by counsel.

One of the assignments of error is directed to the court’s restriction of the admission in evidence of certain public records concerning the medical and psychological history of the defendant — records of the Board of Education, of the Travellers’ Aid Bureau, and of the Veterans Administration. These records might well have been admitted, but their partial exclusion worked no substantial damage to defendant because all the material portions of their contents were brought out in the testimony of defendant himself or of other witnesses.

Defendant’s brother was questioned as to what he observed concerning defendant’s conduct, and what his experiences with him were, while defendant was once staying with him on his farm. He testified that defendant was very nervous and he recounted some incidents by way of illustration. In cross-examination by the District Attorney he was asked whether he had not made certain statements derogatory to defendant’s morals; upon his denying having done so thq Commonwealth, in rebuttal, presented testimony that he had in fact made such statements, to wit, that defendant had indulged on one occasion in a lascivious kissing of his married sister, had undressed a three year old daughter of his brother at bedtime and tried to teach her to “shimmy”, and had “molested” a fourteen year old daughter of a neighbor ing farmer. This was offered in order to discredit the brother’s testimony in chief. While it should have been excluded because it involved contradiction of the witness on a merely collateral matter, the error in receiving it in evidence was harmless in view of the fact that defendant admitted having made lewd advances to his victim, and therefore it did him no injury to show that he was of a lascivious nature.

Finally, it is complained that the learned trial judge allowed the District Attorney to ask an improper and prejudicial question on cross-examination of the defendant. The District Attorney “suggested” to defendant that when Isabella was on the ground he attempted to commit an act of sexual perversion. The fact that instead of this being propounded in the usual form of an interrogatory the District Attorney said “I suggest to you . . .” is certainly of no importance; in English courts it is not unusual to present in that manner what are intended merely as questions and are so understood. But the question itself, irrespective of its form, was highly reprehensible, because there was nothing whatever in the testimony to indicate that any such offense had been committed or attempted. However, the learned trial judge, in vigorous language, admonished the jury to expunge from their minds what had thus been intimated, and cautioned them to give no credence to it but to exclude it wholly from their consideration. The test in such cases is whether the jury may have been so strongly influenced by the improper introduction of such an insinuation that the effect of it on their minds could not likely be dispelled by the court’s subsequent instruction to disregard it: Commonwealth v. Fugmann, 330 Pa. 4, 17-20, 198 A. 99, 106, 107. In the present instance we do not believe that the jury could have been so influenced, for they must immediately have realized that there was no basis for the District Attorney’s “suggestion”. Be this as it may, it is safe to conclude that, in view of the established, even admitted, atrocity of the crime, this incident was not a contributing factor in the determination of the penalty.

Reading the record in all its gruesomeness leads inevitably to the conclusion that the verdict was wholly justified. The crime was singularly abnormal and shocking. A visitor in his sister’s home, defendant took advantage of the confidence reposed in him by this young, innocent and trusting girl who naturally looked with respect and admiration upon her soldier uncle. If not at the very time he started from the house at least at some point in his stroll with her he must have conceived the design which he afterwards carried into execution, because there could have been no other reason for his luring her to a desolate spot and there taking her into the dense bushes that covered the lot where he perpetrated his crime. After seeking satisfaction of his lust he murdered her cruelly and repulsively by strangulation, and then, with almost incredible callousness, left her body exposed to decomposition by the elements, calmly rejoined his sister and her family, evaded their queries as to the child’s whereabouts, left the city for a concealed destination, occupied himself for 16 days on a farm until he was apprehended, and during all that time gave no concern whatever to the decent disposition of the child’s body or to the anxiety of the parents caused by her disappearance. The jury, impressed, as they must have been, by these circumstances, imposed the penalty of death and, since it is they in whom the statute vests discretion to fix the penalty, it is not for this Court to review their decision.

Judgment and sentence affirmed.