Appeal, No. 140, March T., 1955, from judgment and sentence of Court of Oyer and Terminer of Cambria County, Dec. T., 1954, No. 11, in case of Commonwealth of Pennsylvania v. Harry Gossard. Judgment and sentence affirmed.
John M. Bennett, with him William P. Kelly, for appellant.
Fred J. Fees, for appellee.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEE JUSTICE HORACE STERN
Defendant having pleaded guilty to the charge of murder the three judges of the court below held a hearing, adjudged his crime to be murder of the first degree, and fixed the penalty at death.
Defendant, 39 years of age, is a tall man weighing nearly 200 pounds. By his own admissions he is, and all his life has been, a sexual degenerate, enticing and preying upon many females including "dozens" - even "hundreds" - of children of tender age.
On the early evening of October 28, 1954, defendant accosted a little girl, Karen Mauk, aged 6 years, weighing from 40 to 50 pounds, on a street in the Borough of East Conamaugh, Cambria County. She had left her home nearby to engage in a Halloween jaunt; when she failed to return at ten o'clock and could not be located in the neighborhood an alarm was given and an organized search begun. About midnight her dead body was found in a cemetery two miles distant; she was lying on her back, undressed except for shoes and socks. It later appeared, as confessed by defendant, that, upon meeting Karen, he had subjected her to lewd practices which he resumed in a nearby garage and had then driven her to the cemetery where she was subsequently found; during the automobile ride he disrobed the child and continued to indulge with her in unnatural practices. Upon reaching the cemetery he spread her coat upon the ground, placed the little girl upon it and stretched his body over her. When she complained that he was pressing too hard upon her body he started to rise but claims that he then suffered a "blackout," and, when he regained consciousness, he found himself lying across her face. Feeling for her pulse, listening to her chest, and finding no sign of life, he left the scene and drove back to his home, leaving
the body in the position in which it was later found. Arrested a few days thereafter he made an oral confession to the Chief of Police of the City of Johnstown who wrote down in longhand his answers to the questions propounded to him. The confession was then reduced to typewritten form and presented to defendant, who signed it after making a few corrections and deletions.
Medical testimony produced at the hearing was to the effect that the child had died of smothering, or suffocation, caused by the pressure of defendant's heavy body upon her chest. When found she was blue in the face, her tongue was protruding and a bloody fluid was oozing from her mouth, all of which indicated death by asphyxiation. There were some slight bruises upon her legs and other parts of her body. The principal question to be determined was whether the death had occurred in an attempt by defendant to commit rape. He denied that he had been guilty of anything other than acts of perversion, but in answer to one of the questions asked him in regard to Karen having cried he said: "I was trying to penetrate her and I guess it hurt." This he deleted from the written confession before he signed it, insisting that he had not made such a statement, but the Chief of Police and several others who either were present when the confession was made or were listening in an adjacent room at the end of an intercommunication system testified positively that he had made the remark attributed to him. Accepting their testimony as true, and on the basis of it and other ...