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COMMONWEALTH v. SCHMIDT (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
SCHMIDT, APPELLANT



Appeal from judgment of sentence of Court of Oyer and Terminer of Huntingdon County, Sept. T., 1963, No. 1, in case of Commonwealth of Pennsylvania v. Ross Omer Schmidt.

COUNSEL

William J. Myers, for appellant.

Newton C. Taylor, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 437 Pa. Page 564]

On December 6, 1963, a jury found Ross Omer Schmidt guilty of murder in the second degree. Defendant's post-trial motions were dismissed and he was sentenced to imprisonment for not less than eight nor more than sixteen years. An appeal was filed with this Court, but it was withdrawn by defendant after a Certificate of Discontinuance was filed by defendant on October 15, 1964. On July 31, 1968, this Court allowed defendant to appeal nunc pro tunc. On this appeal, he raises several important questions which will be discussed after a brief summary of the facts.

The Commonwealth called three witnesses to testify -- Dr. Dickinson Lipphard, a pathologist who examined the deceased; Howard R. Parlett, Pennsylvania State Trooper, who was one of the troopers called to

[ 437 Pa. Page 565]

    the scene shortly after the murder; and Vickie Schmidt, the sixteen-year-old daughter of defendant and his wife, and an eyewitness to the murder. From this testimony, the jury could have found the following facts.

Defendant and the deceased, Marjorie Alice Schmidt, were married and lived in Spruce Creek, Huntingdon County, although for several weeks prior to June 3, 1963, defendant had not been living with his family. On the evening of June 3, 1963, defendant came home around 7:30 P.M. and spoke with his children for a few minutes about their Mother, picked up a few tools and then left. Defendant's wife returned home at approximately 11:30 P.M.*fn* and told Vickie that she was going out with "Duke" Isenberg. She then left her home, and Vickie went to bed.

Vickie was awakened at approximately 12:30 A.M. by her Mother "yelling" for Vickie "to call the police." Defendant and his wife were arguing in the front yard about "Duke" Isenberg. Vickie and her Aunt, Catherine Mae Zimmerman, who was living at the Schmidt home, came downstairs and stood in the hallway and watched defendant and his wife arguing in the front yard and on the front porch. Vickie testified that "Dad was hitting Mom," and that defendant "had hold" of her Mother's arms as they came into the house. They continued to argue for another ten or fifteen minutes, when the defendant suddenly pulled out a gun. Vickie grabbed defendant's arm and he pushed her back. Catherine (the Aunt) attempted to grab defendant's arm, but he pushed her back, which caused her to fall over a couch. Defendant then shot and killed his wife and turned and pointed the gun at Vickie, who ran out the back door screaming. Vickie testified that she heard her Aunt Catherine scream and another gunshot.

[ 437 Pa. Page 566]

Defendant was subsequently indicted and found guilty of the murder of his ...


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