Appeal, No. 236, Jan. T., 1962, from judgment of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, Dec. T., 1960, No. 872, in case of Commonwealth of Pennsylvania v. Thomas E. Burns. Judgment affirmed.
Abraham J. Brem Levy, for appellant.
Richard A. Sprague, Assistant District Attorney, with him Burton Satzberg and Arlen Specter, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE O'BRIEN
The appellant, Thomas E. Burns, was convicted of murder in the first degree and sentenced to life imprisonment. The appellant and Marie Coleman had been living in a meretricious relationship for several years prior to January 10, 1959, when she was last seen alive. Burns and Marie Coleman were the sole occupants of a house in Philadelphia, using the second floor and third floor as their living quarters. Both were employed and Burns was married, but separated from his wife and children. Marie Coleman had many relatives in the Philadelphia area, including sisters, nieces, a brother and a married daughter, living in Detroit, Michigan, and she had friends with whom she associated in the area where she lived.
At the trial, in April 1961, no evidence of the dead body or any part of the body of Marie Coleman was produced. The Commonwealth's evidence consisted entirely of circumstantial evidence, statements and admissions of defendant.
The reasons assigned by appellant for new trial or arrest of judgment are essentially that the evidence produced by the Commonwealth was not sufficient to prove the corpus delicti and the extra-judicial statements of defendant, admitting complicity in the crime charged, were admitted before the corpus delicti was established; and the evidence adduced by the Commonwealth, both direct and circumstantial, was not such as reasonably and naturally would justify an inference
of guilt, nor of such quantity and quality as to overcome the presumption of innocence and support a verdict of murder in the first degree; and the remarks of the assistant district attorney and the judge in referring to Marie Coleman as the dead woman; and the admission in evidence of an incident several months prior to the disappearance of Marie Coleman; and the court in calling and questioning a witness; all of which complaints deprived the defendant of due process and fair trial under the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania.
The appellant was arrested on October 21, 1960 and charged with the murder of Marie Coleman, who disappeared on January 10, 1959.
At the trial, before Judge WEINROTT and a jury, in April 1961, the Commonwealth introduced evidence to establish that Marie Coleman was about 49 years of age, about 5 feet 9 inches tall and weighed approximately 185 pounds. On Friday, January 9, 1959, between ten and ten-thirty P.M., Marie Coleman called her sister's home on North 21st Street, Philadelphia, and spoke to her niece (Ernestine Moore). Elodis Palmer, the sister of Marie Coleman, then was called to the telephone and spoke to her sister. Elodis Palmer last saw her sister in December 1958, but had numerous telephone conversations with her until the last one on January 9, 1959.
Earthia Del Wooden, a friend of Marie Coleman for many years, and who saw her daily, was with her on Saturday night and returned to Marie Coleman's home with her shortly after midnight after drinking in several bars. Marie Coleman went in the house, using a key and Earthia Del Wooden was walking to her home when at the side of the house heard a commotion and returned, rang the doorbell, was admitted by the defendant and both went to the second floor apartment
where Marie Coleman was lying on the floor, motionless, with some blood on her forehead. Earthia Del Wooden left, the defendant stayed in the house. It was the last time Earthia Del Wooden saw Marie Coleman.
Another friend, Netra Chappell, saw Marie Coleman on Saturday, January 10, and was to meet her the next day, Sunday, January 11, to do some shopping. Netra Chappell did not see Marie Coleman after Saturday, and did not meet her on Sunday. Marie Coleman did not keep her appointment.
Sisters and nieces of Marie Coleman in the Philadelphia area regularly received gifts, holiday and birthday greeting cards, as well as phone calls from her and had conversations with her by telephone several times weekly and some personal visitations at greater intervals. Marie Coleman visited her daughter and family in Detroit, Michigan in the summertime for about two weeks for six years before her disappearance. The daughter customarily received letters, phone calls, gifts and greeting cards from her mother.
Marie Coleman borrowed money from a bank in April 1958, which required repayment in monthly installments which were made each month within the time prescribed by the loan conditions. The last payment was received by the bank on December 17, 1958 and there were no other payments made, although there was much more money due on the loan to be paid in future monthly installments. Her credit rating was excellent.
The police made an extensive search in an attempt to find her or learn something of her whereabouts.
An examination of the premises occupied by the defendant and Marie Coleman revealed all her apparel, jewelry, underclothing, medication, tooth brush, comb luggage and several coats and all the articles she owned were intact in the premises.
The Commonwealth's purpose in submission of its evidence was to establish the corpus delicti by showing the habits and way of life of Marie Coleman and the consistency of her practice of maintaining a close relationship with her family and friends, who were numerous, and with her daughter and grandchildren in Detroit. She had a good credit rating and a recognition of financial obligations to be met regularly and on time. Her employment enabled her to meet her obligations and enabled her to buy gifts and send greeting cards on holidays, birthdays and other times throughout the year to her relatives. She was able to spend time with her daughter and grandchildren in Detroit on her annual summer trip to be with them, when she brought gifts for her family. Any time Marie Coleman would make a trip she would advise members of her family she was leaving. Her customs were well known.
The Commonwealth advances its position of establishment of the corpus delicti by showing a well, healthy woman, with a consistent pattern of living for many years and a sudden and abrupt termination of such pattern without any prior preparation or discussion with any of her relatives or friends; her disappearance without natural or legitimate reason or cause established the corpus delicti by showing circumstantially (1) death, (2) felonious circumstances surrounding her disappearance abruptly and without apparent cause. The last time she was seen was in the presence of the defendant in an apparently helpless condition on the floor of their common abode in circumstances that would indicate she was unconscious or incapable of moving herself.
In Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155 (1943), pages 502, 503, this court said: "It is elementary that the term corpus delicti with respect to homicide does not require the Commonwealth to produce the body or part of the body of the victim. The
rule is satisfied by evidence, other than the confession, from which the jury on proper instructions may find that the child's death resulted from a felonious act. ...