Appeal, No. 38, Jan. T., 1960, from judgment of Court of Oyer and Terminer of Montgomery County, June T., 1958, No. 245, in case of Commonwealth of Pennsylvania v. Ethel Kravitz. Judgment affirmed; reargument refused June 27, 1960.
Mortin Witkin, with him William L. O'Hey, Jr., for appellant.
Bernard E. DiJoseph, District Attorney, with him J. W. Ditter, Jr., Assistant District Attorney, for Commonwealth, appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and McBRIDE, JJ.
OPINION BY MR. JUSTICE BELL.
Max Kravitz, husband of the defendant, was killed in their home, 1250 Knox Road, Wynnewood, Pennsylvania, on July 4, 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,*fn1 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 case with certain jurors on numerous occasions during the trial. The lower Court (with 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 which, 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
his 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 rosebed; 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 decedent 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 disclosed
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.
Dr. 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 U.S. nickel-plated revolver which was subsequently identified by an agent of the F.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*fn2 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. Sauders, 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): '... 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 eye-witnesses of the killing. Defendant contended that his wife died of an overdose of sleeping pills; that upon discovering her body he was seized with panic and decided to dismember it; and that the dismemberment of her body after she was 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 wilful, 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;*fn3 if it were otherwise it would 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 evidence
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 'such as to exclude every other reasonable possibility, except that of guilt.'*fn4 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-bitch 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 hereinabove 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 ...