Appeal, No. 243, Jan. T., 1954, from judgment of Court of Oyer and Terminer of Philadelphia County, Sept. T., 1952, No. 673, in case of Commonwealth of Pennsylvania v. Alphonso LaRue. Judgment affirmed; reargument refused April 11, 1955.
G. Wesley Allen, with him Fitzhugh L. Styles, for appellant.
Victor Wright, Assistant District Attorney, with him Michael von Moschzisker and Samuel Dash, First Assistant District Attorneys, and Richardson Dilworth, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
This is an appeal from a conviction of murder in the first degree with the penalty fixed at death.
Alphonso LaRue, the defendant, is accused of the wilful and deliberate murder of Mildred Walker. She was found dead in her bedroom, with numerous fatal stab wounds on her body. It was accurately and succinctly stated by the learned trial Judge in his opinion refusing a new trial that "The evidence of the Commonwealth linking defendant to the crime was circumstantial in character, consisting for the most part of the testimony of the son of the deceased and other witnesses, together with the signed statement of defendant which had been obtained by the police after the arrest of defendant. Defendant denied that he had stabbed Mildred Walker, and the evidence produced by him suggested that deceased had committed suicide; and defendant's counsel argued that the son of the deceased had the opportunity of stabbing his mother."
We have reviewed both the law and evidence in this case to determine whether the ingredients necessary to constitute murder in the first degree were proved to exist: Commonwealth v. Davis, 363 Pa. 91, 69 A.2d 123; Commonwealth v. Carey, 368 Pa. 157, 82 A.2d 240.
The test of the quality of circumstantial evidence necessary to convict one of murder in the first degree was accurately stated by Justice DREW in Commonwealth v. Bausewine, 354 Pa. 35, 40, 41, 46 A.2d 491: "... While the mere fact that the evidence adduced is wholly circumstantial is not fatal to the Commonwealth's case (Commonwealth v. DePetro, 350 Pa. 567, 577, 39 A.2d 838), yet it must be remembered that guilt must be proved and not conjectured. The reasonable inference of guilt must be based on facts and
conditions proved; it cannot rest solely on suspicion or surmise. These do not take the place of testimony. The facts and circumstances proved must, in order 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. ..." See also: Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 348, 106 A.2d 587, and Commonwealth v. Kloiber, 378 Pa. 412, 427, 106 A.2d 820, and cases cited therein.
The evidence produced by the Commonwealth was that the deceased died as a result of stab wounds inflicted on July 30, 1952, at her home at 122 South 57th Street in Philadelphia. The Coroner's physician testified, inter alia, that there were twelve wounds on the body of the deceased. Two of these wounds were inflicted from behind, one entering the right side of the back penetrating the kidneys and the other entering the left shoulder. The son of the deceased, a boy seventeen years of age, testified that he came home shortly after 10 P.M., July 30, 1952, and heard the appellant talking upstairs. He heard his mother scream and ran upstairs and saw her lying in the second floor front bedroom. He ran out of the house trying to catch the appellant, but was unable to do so. Three photographs of the front bedroom window and street were introduced into evidence, and the deceased's son stated that the photographs represented the conditions as they existed on July 30, 1952. The deceased's son further testified that appellant and deceased had a quarrel sometime in June and his mother said, in the appellant's presence, that the appellant had threatened to kill her. He stated the appellant had a gun in his pocket, that he did not see it, but only saw the print of his pocket. He further stated that the appellant chased the deceased out of
the house. The deceased's son further stated, on direct examination, that he was not present during any other quarrel between his mother and the appellant. The Commonwealth, in a side bar discussion, pleaded surprise and was permitted by trial Judge, over appellant's objection, to prompt and lead its own witness. The deceased's son also testified that the appellant had threatened to shoot his mother, that he had taken a knife from a can of lye on the floor and made the appellant drop the gun. He further testified that about two weeks thereafter he heard the appellant say "if I can't have you, no one else will have you". Another witness for the Commonwealth testified that she was visiting the deceased on the night of her death, that she had met the appellant about 5 P.M. that afternoon, that he did not have dinner with them, but that he left shortly thereafter and came back about 9:45 P.M. She stated that the deceased was upstairs dressing when the appellant came in and that he went upstairs. She further testified that she heard the deceased scream and that when she went upstairs she saw the appellant jump out of the bedroom window. A neighbor testified for the Commonwealth that he saw the appellant on the roof of 124 South 57th Street, next door to the deceased's house, and that the appellant dropped down by his hands from the roof to the steps below. A detective testified as to a written statement signed by the appellant on the day of his arrest, August 9, 1952. He was permitted to read this statement after preliminary questioning by appellant's counsel. The statement, which was offered and admitted into evidence over appellant's objection, recited that the appellant was twenty-five years of age, that he lived at 122 South 57th Street, that on the evening of July 30, 1952, after he had a discussion with the deceased about her boy friend, he
went into the lavatory, and while there he heard "a more or less a holler", that when he went back into the room he saw a white-handled paring knife in her hand and while trying to wrench it from her the knife pierced her neck. In the statement, the appellant further stated that he threw the knife in the sewer and that he could not explain why he did so. The Commonwealth further produced a prior conviction of the appellant for robbery while being armed with an offensive weapon in 1945. The trial Judge, at the time of the introduction of this evidence, cautioned the jury as to its use.
Serveral alleged trial errors are assigned by counsel for defendant as reasons for granting a new trial.
It was not error to permit the district attorney to cross-examine a witness for the Commonwealth upon pleading surprise. Deceased's son, Alphonso Walker, was a witness for the Commonwealth. Prior to the trial he gave a written statement to the district attorney. At the trial he testified that there was no quarrel other than that referred to in his testimony. This was contrary to what he had said in his written statement. At side bar the Commonwealth pleaded surprise and was permitted, over objection, to further examine the witness. The testimony developed the fact that the witness had misunderstood the question and proceeded to tell in detail what had happened on the previous occasion. Since the action of the Commonwealth was in its endeavor to discover the ...