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COMMONWEALTH v. MUSSOLINE (04/16/68)

decided: April 16, 1968.

COMMONWEALTH
v.
MUSSOLINE, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, No. 160, affirming judgment of Court of Quarter Sessions of Luzerne County, April T., 1965, No. 575, in case of Commonwealth of Pennsylvania v. Anthony F. Mussoline.

COUNSEL

George A. Spohrer, with him Helen M. Stack, and Hourigan, Kluger & Spohrer, for appellant.

Anthony B. Panaway, Assistant District Attorney, with him Arthur L. Piccone, First Assistant District Attorney, and Thomas E. Mack, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones dissents. Dissenting Opinion by Mr. Justice Cohen.

Author: Roberts

[ 429 Pa. Page 466]

Appellant, Anthony Mussoline, was tried before a judge and jury and convicted of malicious mischief in connection with the dynamiting of a scrap yard owned by one Salvatore Gaudiano. Relying entirely on circumstantial evidence to prove Mussoline's guilt, the Commonwealth was permitted to establish, inter alia, that three small droplets of blood found 60 feet from the scene of the explosion were of the same type, "A", as that of appellant. It is uncontradicted that type A is the second most common blood type, appearing in approximately 30% of all human beings. Appellant has advanced several reasons for the inadmissibility of this evidence, including the argument that it was legally irrelevant to the issue of whether appellant was present at the scene of the crime.

In order to place the blood type evidence in its proper perspective, we shall review the Commonwealth's case in some detail. Three witnesses testified that early on the morning of February 10, 1965, at about 2:30 A.M., they heard a loud explosion in the area of Gaudiano's scrap yard. No one, however, saw anybody at the scene of the blast at that time. An expert witness testified as to the cause of the explosion and its origin. He concluded that dynamite had been placed under a davenport in the scrap yard office. In order to link appellant to this dynamite, testimony was introduced to show that Anthony Mussoline and his brother Barney were engaged in the business of strip mining (appellant apparently pursued this business as a sideline, for his main occupation was that of police

[ 429 Pa. Page 467]

    officer), that this business made use of high explosives, and that Barney had purchased some dynamite, in the name of the business only, about three weeks before the scrap yard explosion. No attempt was made to link the dynamite actually used in the blast with that purchased by appellant's brother.

The Commonwealth next sought to show motive. Salvatore Gaudiano, owner of the demolished yard, testified that on the day before the explosion he and appellant had inadvertently met in a local garage, whereupon a conversation ensued concerning a debt owed Gaudiano by appellant. No harsh words were exhanged, nor were any blows struck by either man. Gaudiano did tell Mussoline, however, that if appellant did not pay the money by the end of the week he (Gaudiano) would have Mussoline arrested. Gaudiano concluded his testimony by stating that the debt has since been paid, that he and Mussoline are still friends, and that they continue to do business with each other.

With the exception of the evidence recited above (evidence tending to show only that appellant had some possible motive for the crime, and that he had access to dynamite), the balance of the Commonwealth's case consisted entirely of an attempt to place Mussoline at the scene of the crime by the use of blood-type evidence. Viewing this evidence in a light most favorable to the Commonwealth, it appears that in 1960 Mussoline entered the Hazleton State General Hospital for surgery, pursuant to which his blood was then typed as Landsteiner A, Moss 2, Rh positive. The blood spots found near the scene of the crime were also of this type. A nurse at the Hazleton Hospital testified that on the morning of the crime, at approximately 3:15 A.M., Mussoline came to the accident ward with a two inch long laceration on the inside of his right forearm. He explained to the nurse that he had

[ 429 Pa. Page 468]

    sustained the injury about two hours before (well prior to the time of the explosion) when he slipped on some ice in his driveway while putting his car into the garage. According to Mussoline, he cut his arm on a piece of jagged concrete. When asked why he had waited so long before coming to the hospital, appellant told the nurse that he first believed the wound to be minor, and only after his wife urged him to obtain treatment did he finally come to the accident ward. The story told by the nurse was in all material aspects corroborated by a police officer who had interviewed appellant the following day while investigating the case. In addition to the nurse, the Commonwealth called to the stand the doctor who actually treated Mussoline's wound. He stated that the bleeding had substantially stopped by the time he saw the wound, and that it was probably caused by a sharp object such as a piece of glass. On cross-examination, however, the doctor admitted ...


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