Appeal, No. 126, Jan. T., 1963, from judgment of Court of Oyer and Terminer of Berks County, March T., 1961, No. 167, in case of Commonwealth of Pennsylvania v. Edwin W. Gockley. Judgment affirmed.
Martin W. Binder, with him James R. Hevalow, for appellant.
Peter F. Cianci, Assistant District Attorney, with him Frederick O. Brubaker, District Attorney, for Commonwealth, appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Appellant was tried for the murder of Clement J. Smith and was convicted by a jury of murder in the second degree. Following the dismissal by the trial Court of appellant's motions for a new trial and for an arrest of judgment, a sentence of not less than 10 years and not more than 20 years of imprisonment was imposed. From that judgment the appellant now appeals.
The law is well established that in considering the appeal of a defendant after a verdict or plea of guilty, the test of the sufficiency of the evidence is whether accepting as true all the evidence upon which, if believed, the jury could have properly based its verdict, such evidence is sufficient in law to prove beyond a
reasonable doubt that the defendant is guilty of the crime charged: Commonwealth v. Gooslin, 410 Pa. 285, 286-287, 189 A.2d 157; Commonwealth v. Burns, 409 Pa. 619, 633, 187 A.2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 208, 161 A.2d 861; Commonwealth v. Johnson, 410 Pa. 605, 190 A.2d 146; Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421; Commonwealth v. DeMoss, 401 Pa. 395, 165 A.2d 14; Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65.
The evidence produced by or in favor of the Commonwealth may be thus summarized:
During the month of March, 1960, Mabel Klein and Clement J. Smith two residents of the City of Reading, disappeared from their respective homes. Police officers who were investigating these disappearances ultimately learned that appellant had had some business relation with Mrs. Klein. Appellant was a general contractor and painter. He had discussed with her some alterations she wished to have made in her house. On July 15th, September 13th, and October 20th, 1960, the officers spoke to appellant about Mrs. Klein's disappearance. On the first two of these occasions appellant had stated that he knew nothing about the whereabouts of Mrs. Klein. However, during his interview with the police on October 20th, he said: "I don't know why you are bothering me all the time. Why don't you check with Clement Smith?"
On October 22, 1960, the police officers interrogated Myrtle Messner, Smith's landlady, who rented rooms by the week. When asked what had become of Smith, Mrs. Messner stated that late in February or early in March of 1960, Smith "just went off" and she had never seen him again. When asked what happened to Smith's effects, Mrs. Messner testified that in March of 1960 the appellant had appeared at her rooming house having in his possession keys both to her front door and to Smith's room. She had never given these
keys to appellant. He told her that he was "supposed to take Mr. Smith's belongings out and also his mail." Mrs. Messner requested appellant to obtain proper authorization from Smith.
A few days later Mrs. Messner received by mail, in an envelope postmarked Baltimore, Maryland, March 21, 1960, a card purportedly signed by Smith authorizing Mrs. Messner to permit appellant to remove Smith's effects. A few days later, on March 26, 1960, appellant returned to Mrs. Messner's premises, paid her $4.50 for a week's rent on Smith's behalf, plus $18.50 for other items, for all of which she gave him a receipt. Mrs. Messner thereupon permitted appellant to remove Smith's mail and furniture, for which he gave her a receipt.
The Reading police sent to the FBI for comparison an authenticated specimen of Smith's signature and the above mentioned card which was purportedly signed by Smith. The FBI expert testified that in his opinion Smith had not signed the card.
On November 17, 1960, having become convinced that (defendant) appellant was connected in some way with the disappearance of Smith, the police secured a warrant for his arrest and took him to the detective bureau at City Hall, Reading. Captain Feltman, Chief of the Reading Police, then informed appellant that he (Feltman) would have to obtain a search warrant to examine appellant's premises, known as the Englewood Tennis Club, which was both his home and place of business. Appellant replied that a search warrant would not be necessary and that Captain Feltman might search the premises as much as he wished, so long as he put everything back where he had found it. Appellant then delivered to Captain Feltman the keys to his premises.
Appellant was repeatedly interrogated by the police on November 17th and 18th, 1960. At first appellant
said that he had not seen Smith since March 11, 1960, when he happened to meet him on the street in Reading. He also asserted that Smith had given him authority to remove his furniture and mail from Mrs. Messner's establishment.
On November 19, 1960, the police searched appellant's premises in his absence. They found considerable mail addressed to Smith. Being convinced that appellant was not telling them the truth, the officers immediately (viz., on November 19th) obtained additional warrants for appellant's arrest and took him to State Police Barracks for further interrogation. In the course of such interrogation, which was taken down stenographically, appellant admitted knowledge of the deaths of both Mrs. Klein and Smith. At this interrogation he stated that on an unspecified date in March of 1960 Smith had appeared at appellant's premises in an automobile which contained the dead body of Mrs. Klein. According to appellant, Smith stated that he had stolen the automobile in Baltimore. Appellant said he had had an argument with Smith arising out of appellant's objections to Smith's bringing Mrs. Klein's body to appellant's home. In the course of this argument Smith menaced appellant with the latter's single barreled 12-gauge shotgun and while the two men were struggling for possession of this weapon, it was accidentally discharged, wounding but not killing Smith. Defendant then said that he had killed Smith with another shell "to put him out of his misery." Appellant further admitted that he had subsequently buried both bodies on his premises. He also admitted that he had written the above-mentioned card which was sent to Mrs. Messner, and added that he also had sent letters to friends and acquaintances of Mrs. Klein which were intended to allay their concern about her disappearance.
While the record of appellant's interrogation was being transcribed, the police took the appellant to the Englewood Tennis Club (his home and place of business) where he willingly pointed out to them where they should dig for the two bodies. The bodies of Smith and Mrs. Klein were found in a common grave in an advanced state of decomposition and putrefaction. That one body was that of a woman was established by hair which was still connected to the skull; that the other body was that of Smith was established by his dentist and by clothing which was recognized by a member of Smith's family. When Smith's body was examined by a pathologist, he found in the body wadding from a shotgun charge. The presence of shotgun pellets in Smith's body was shown and proved by X-rays.
The police investigated appellant's story concerning the car allegedly stolen in Baltimore by Smith, and learned that no car of that make and model had been reported as stolen in Baltimore at or about the time in question. On December 9, 1960, the police therefore again interrogated appellant concerning the circumstances of the deaths of Mrs. Klein and Smith. Appellant then gave a different account of the death of Mrs. Klein. In this second statement he abandoned his original story that Smith had brought Mrs. Klein's dead body to the Tennis Club. Instead, the story he now told was that he himself had taken her to the Tennis Club in his automobile on a particular Sunday in order that they might more conveniently discuss the carpentry work he was planning to do for her. Later that evening Smith unexpectedly dropped in to pay a visit. According to appellant, Smith and Mrs. Klein commenced a romantic affair which continued until late the following Thursday or Friday. He found them occupying the same bed Sunday night and Monday morning. Between Sunday night and late Thursday or
Friday, appellant was away from his home during working hours. However, while he was at home, in the mornings and evenings, he found them still in his house; some of the time they were drinking together, and some of the time they were sleeping together. Far more important, he stated that on his return to his home late on Thursday or Friday, Smith took him to a bedroom and showed him Mrs. Klein's dead body. Appellant said Smith told him Mrs. Klein had died of natural causes. Appellant in this, his second statement, gave the same account as before concerning his subsequent argument with Smith, in the course of which Smith had threatened appellant with the latter's single barreled 12-gauge shotgun and while he and Smith were struggling for possession of the gun, it was accidentally discharged, killing Smith. However, in this second ...