Appeal, No. 161, Jan. T., 1955, from judgment of Court of Oyer and Terminer of Philadelphia County Nov. T., 1953, No. 1389, in case of Commonwealth of Pennsylvania v. Alfred Cisneros. Judgment affirmed.
Michael von Moschzisker, with him John Rogers Carroll and Thomas D. McBride, for appellant.
Samuel Dash, Acting District Attorney, with him William T. Gennetti, Assistant District Attorney, Victor Wright, Assistant District Attorney, and Richardson Dilworth, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
The defendant was indicted, tried before a jury, and found guilty of murder in the first degree, the penalty being fixed at life imprisonment. At trial he was represented by able counsel who had wide experience in homicide cases, but who did not argue this appeal.
Defendant had gone to his wife's home, some distance from his own residence, and when she called her mother on the telephone, he called into the telephone that by the time the mother got there the daughter would be dead, - which statement he made come true. He quite clearly shot his wife, Dorothy, with a 22 calibre target pistol, causing wounds from which she died. He then turned the same weapon upon himself, inflicting a wound from which he fully recovered. At the hospital to which he was taken he admitted the shooting of his wife.
The pistol was obtained by the defendant two days before the shooting, although he testified he had obtained it on the same day. He wrote two notes to his father and mother, stating he was going to commit suicide because of the unrequited love he had for his wife. He did not testify that he did not shoot her, but testified that he did not intend to kill her or to do
anything more than scare her. This the jury did not believe.
The defendant testified that he was drunk, and that his wife and said he was half Mexican and half Puerto Rican and refused to have children by him out of fear that they would be black. The jury obviously rejected the contentions of the defendant, who brings this appeal.
We have here the acquiring of the murder weapon two days before the homicide, thus evidencing premeditation; and the statement to the mother of the deceased that the wife would be dead before the mother reached her. The fact that the defendant twice shot his wife is evidence of malice: Commonwealth v. Drum, 58 Pa. 9, 17; Commonwealth v. Chapman, 359 Pa. 164, 167, 168, 58 A.2d 433.
The appellant further contends that the assistant erred in its comment on the guilt of the defendant. The court had a right to so comment so long as the jury was told that the court's opinion was not binding upon it, and the court left that determination to the jury. This the court did. See Commonwealth v. Bibalo, 375 Pa. 257, 100 A.2d 45; Commonwealth v. Lance, 381 Pa. 293, 113 A.2d 290.
The appellant's first contention is that the court district attorney in his closing address to the jury said: "He [the defendant] lied about where he got the gun," and contends that the trial court erred in overruling his motion for the withdrawal of a juror. The defendant's objection was not timely as it was made at the conclusion of the assistant district attorney's address; but even if it was timely the action of the trial judge was the subject of his sound discretion. See Commonwealth v. Wilcox, 112 Pa. Superior Ct. 240, 316 Pa. 129, 173 A. 653, and Commonwealth v. Kerr, 171 Pa. Superior Ct.
, 89 A.2d 889. In Commonwealth v. Meyers, 290 Pa. 573, 581, 139 A. 374, this Court stated: "Where, under all the circumstances of the case, the verdict rendered is a just one, the language of the prosecuting officer which will justify a reversal must be such that its unavoidable effect would be to prejudice the jury ..." In the following cases the district attorney used such phrases as "a typical gunman's defense": Commonwealth v. Del Vaccio, 299 Pa. 547, 554, 149 A. 696; "defense was cooked up": Commonwealth v. Massarelli, 304 Pa. 335, 338, 156 A. 101; "the prisoner didn't have the heart of a man or the soul of a man": Commonwealth v. Smith, 270 Pa. 583, 588, 113 A. 844; "I will ask you to say that they [the eyewitnesses who had fled the jurisdiction] are staying away from this jurisdiction for the purpose of helping this criminal": Commonwealth v. ...