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COMMONWEALTH v. GOMINO (03/19/63)

March 19, 1963

COMMONWEALTH
v.
GOMINO, APPELLANT.



Appeal, No. 188, April T., 1962, from judgment of Court of Oyer and Terminer and Quarter Sessions of the Peace of Allegheny County, Sept. T., 1960, No. 215, in case of Commonwealth of Pennsylvania v. Peter Gomino. Judgment vacated and record remanded.

COUNSEL

H. David Rothman, for appellant.

Martin Lubow, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 200 Pa. Super. Page 163]

OPINION BY ERVIN, J.

The indictment in this case charged that the appellant, Peter Gomino, on the 22nd day of August, 1960, did deal in, dispense, sell, deliver, distribute, prescribe,

[ 200 Pa. Super. Page 164]

    traffic in and give away a quantity of a certain drug, compound, substance and preparation commonly known as morphine, being and containing a compound and derivative of opium. He was tried by a jury and found guilty. After the dismissal of his motions in arrest of judgment and for a new trial, a life sentence was imposed. The defendant appealed.

At about 3:30 p.m. on August 22, 1960, Eugene Pietosi, a known drug addict, was observed by certain Federal and city officers entering the home of the appellant. Five or ten minutes later Pietosi came out of the appellant's home carrying in his hand a cellophane packet containing two capsules or pills, which he dropped when the officers approached him. He was arrested and he informed the officers that the pills were supposed to contain morphine and that he had just bought them from the appellant, Peter Gomino. One of the officers testified that they had heard, from a source which had proved to be reliable in the past, that the appellant Gomino was selling morphine illegally. Pietosi was approximately 75 to 100 feet from the appellant's door when he was arrested. Some of the officers immediately entered the home of the appellant and made a search of the premises and arrested the appellant. In the search the officers found two bottles of morphine tablets, obviously purchased under prescriptions and similar to those contained in the packet which Pietosi had dropped to the ground. The officers also found spoons, hypodermic needles and other paraphernalia customarily used by addicts. The cellophane wrapper which contained the pills dropped by Pietosi was similar to the cellophane wrapper around a spoon found in the appellant's apartment. The printed matter on the two cellophane wrappers was similar.

The appellant and Pietosi were taken to police headquarters. It took about 15 to 20 minutes to go from

[ 200 Pa. Super. Page 165]

    the appellant's home to police headquarters. At the police headquarters Pietosi, who was seated next to the appellant and no more than five or six feet from him, gave the officers a statement, which was reduced to writing and signed by Pietosi, and he stated that daily during a period of four months he had purchased from the appellant two morphine tablets, each containing one-quarter grain of morphine, for the sum of $3.00 each. The appellant made no denial thereof. A criminalist was presented by the Commonwealth, who testified that he examined the contents of the packet thrown to the ground by Pietosi and also the pills in the bottles found in the appellant's apartment and that they contained more than one-quarter grain of morphine per avoirdupois ounce. In fact, he stated that they contained approximately a thousand times more than one-quarter of a grain of morphine per avoirdupois ounce.

Officer Raugh testified that at the time of the arrest of the appellant he asked him who was prescribing the narcotics for him, for what reason and where he was having these prescriptions filled, and that the appellant answered him, giving names, addresses and dates. Raugh said that he talked to the appellant at his home for about five or six minutes.

Counsel for the appellant argues that the court erred in admitting into evidence what purported to be appellant's tacit admission of guilt when there was no evidence of corpus delicti or independent corroboration of appellant's guilt. Extra-judicial admissions or confessions of one accused of crime may not be received in evidence until the corpus delicti has first been established by independent proof, but as was said in Com. v. Turza, 340 Pa. 128, 134, 16 A.2d 401, "... this does not mean, as appellant contends, that the Commonwealth must preliminarily and independently establish all the elements of the charge, i.e., (1) the occurrence

[ 200 Pa. Super. Page 166]

    of an injury or loss - in homicide, a person deceased, (2) somebody's criminality as the source of the injury or loss - in homicide that the death was caused by a beating, gunshot or other circumstances indicating a felonious act, and (3) the accused's identity as the responsible party or one of the responsible parties. 'By this view, the term "corpus delicti" would be synonymous with the whole of the charge, and the rule would require that the whole be evidence in all three elements independently of the confession, which would be absurd.' Wigmore on Evidence (3rd ed.), section 2072. The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed; consistent therewith, all that the rule requires is that the first two of the above-mentioned three elements be independently established. Thus, whenever, as here, the Commonwealth, in a homicide case, has established that the person for whose death the prosecution was instituted is in fact dead and that the death occurred under circumstances indicating that it was criminally caused by someone, the rule is satisfied and admissions or confessions of the accused may then always be received as proof of the identity of the guilty agent: ...." At page 135 the Court further said: "'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 ...


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