Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1968, No. 1405, in case of Commonwealth of Pennsylvania v. Robert Davis.
I. Raymond Kremer, with him Neil H. Stein and Kremer, Krimsky & Luterman, for appellant.
Judith Dean, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Justice O'Brien in Support of Affirmance. Mr. Chief Justice Jones and Mr. Justice Eagen join in this opinion. Opinion by Mr. Justice Roberts in opposition to affirmance. Mr. Justice Pomeroy and Mr. Justice Manderino, join in this opinion in opposition to order of affirmance. Opinion by Mr. Justice Pomeroy, in opposition to Order of Affirmance. Mr. Justice Roberts and Mr. Justice Manderino join in this opinion in opposition to order of affirmance.
Judgment of sentence affirmed by an evenly divided Court.
Judgment of sentence affirmed.
[EDIT ] Opinion by Mr. Justice O'Brien in Support of Affirmance:
Some time in the morning of July 21, 1967, Mrs. Hattie Stirling discovered the dead body of her daughter, nine-year-old Vintress Stirling, in the apartment which Mrs. Sterling and Vintress shared with Mrs. Stirling's three younger children. The police, summoned by an aunt of the deceased, arrived on the premises at 8:30 a.m., where they found the victim's body, lying face up on the bed with bruises around her neck and face and with foam around her mouth.
On the basis of circumstantial evidence, the jury found appellant, Robert Davis, guilty of first degree murder. Appellant admitted that he had spent the entire night in the Stirling's apartment, allegedly waiting for Mrs. Stirling, who had gone out with a boy-friend, and that he had been admitted to the apartment by the victim. Mrs. Stirling testified that when she returned home at 1:30 a.m., the appellant threatened to kill her. She claimed that she attempted to check on
the welfare of her children, but appellant held up a sheet partially obscuring the decedent so that Mrs. Stirling did not suspect anything until, still in the company of appellant, she discovered the decedent's body the following morning.
The decedent's sister, Sandra, who shared a bed with the decedent and a younger sister, testified that she had awakened at sometime the previous evening to hear the appellant ask her where her sister usually slept, after which the appellant pushed the decedent up toward the head of the bed. Sandra had no idea whether her sister was alive or dead at the time.
At the trial of appellant, the Commonwealth sought to show that the victim had been killed before 1:30 a.m., but that this fact had been concealed from Mrs. Stirling. The appellant's theory was apparently that Vintress had been killed by an intruder sometime after 1:30 a.m., during which time appellant was, at all times, with Mrs. Stirling.
The Commonwealth's theory was that the murder was committed pursuant to an attempt to commit rape or sodomy on the victim. This theory was supported by evidence that acid phosphastase, an enzyme produced by the male during ejaculation, was found in the foam in the victim's mouth and by evidence that semen stains were found on the victim's bed linen and on the pajamas and panties she was wearing at the time of her death, as well as on appellant's shorts. Although appellant, by vigorous cross-examination, established that since acid phosphastase is also produced in the digestion of certain green vegetables and no sperm was discovered in the foam, the presence of semen in the victim's mouth was not clearly established; the appellant did not really contest the Commonwealth's theory that the victim had been murdered pursuant to an attempt to commit some sort of sexual abuse. Instead, appellant tried to show that the Commonwealth had not
linked him to the crime beyond a reasonable doubt. Nevertheless, the jury found appellant guilty of murder in the first degree and ...