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COMMONWEALTH v. ROSS (11/12/63)

November 12, 1963

COMMONWEALTH
v.
ROSS, APPELLANT.



Appeal, No. 182, March T., 1963, from judgment of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, Feb. T., 1962, No. 106, in case of Commonwealth of Pennsylvania v. Bernard Ross. Judgment affirmed.

COUNSEL

Thomas A. Harper, with him Utterback and Brown, for appellant.

Samuel Strauss, Assistant District Attorney, with him Martin Lubow, Assistant District Attorney, and Edward C. Boyle, district Attorney, for Commonwealth, appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Bell

[ 413 Pa. Page 37]

OPINION BY MR. CHIEF JUSTICE BELL

Bernard Ross, the appellant, was indicted for the murder of Mrs. Eva Mae Boston. He was convicted of murder in the first degree and sentenced to death. He then filed a motion for a new trial which was denied. Thereafter he appealed to this Court.

Appellant contends that the lower Court committed three reversible errors: (1) the admission of certain parts of the pathologist's testimony, (2) failure to require

[ 413 Pa. Page 38]

    the jury to hear and consider "penalty" evidence immediately after finding a verdict of murder in the first degree, and (3) charging the jury as to the factors to be considered in fixing the penalty.

The Evidence

The evidence, considered in the light most favorable to the Commonwealth, may be summarized as follows:

The appellant and the decedent, Mrs. Eva Mae Boston, commenced living together in 1954, although each was married to someone else. Their meretricious relationship continued until at least September of 1961 when the appellant left their common abode. At the time the appellant and the decedent began living together, Mrs. Boston had three sons. Subsequently she had two daughters, of whom appellant was apparently the father. After 1961 appellant continued to visit Mrs. Boston nearly every morning, although he no longer resided with her. Violent quarrels frequently occurred during these visits. On a number of these visits appellant threatened to kill Mrs. Boston and some or all of her children. Russell Boston, aged 14, one of decedent's sons, testified that on one occasion his brother, Daniel, aged 17, stepped between his mother and appellant when they were fighting and the appellant threatened him with a knife. On another occasion when appellant was fighting with Mrs. Boston, Daniel threatened to call the police. At that time appellant pulled out a gun and threatened Daniel with it.

Edward Alford testified that appellant told him three or four months prior to the shooting that he was going to kill Mrs. Boston. Marion Hamons testified that she saw appellant the night before the murder and he showed her a loaded gun which he said he carried all the time. Blanche Nash testified that the night

[ 413 Pa. Page 39]

    before Mrs. Boston was killed, the appellant pulled out a gun and said, "I got something to do with this gun and it will be sooner than they think."

On November 10, 1962, the night before the murder, defendant threatened to kill Mrs. Boston and displayed a loaded pistol. On the morning of November 11, appellant came to Mrs. Boston's apartment and began quarreling with her. Daniel told appellant to leave. Appellant then said, "I am going to kill all of you." Thereupon appellant pulled out a gun and shot Daniel Boston in the chest, when he was only three ...


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