No. 28 March Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, at No. 75-10894.
Harold J. Bender, Asst. Public Defender, Erie, for appellant.
Michael M. Palmisano, Asst. Dist. Atty., Erie, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Eagen, C. J., and Roberts and Nix, JJ., concur in the result. Manderino, J., files a dissenting opinion. Packel, J., took no part in the decision of this case.
Appellant, Donald Lee Chism, was convicted by a jury of five counts of murder of the first degree. Post-verdict motions were denied and appellant was sentenced to five consecutive terms of life imprisonment. This direct appeal followed.
Appellant does not challenge the sufficiency of the evidence. However, because this case involves convictions for murder of the first degree, this court has an independent duty to review the evidence. Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187. The evidence produced at trial is as follows.
On January 27, 1975, at approximately 9:25 or 9:30 a.m., appellant "discovered" the bodies of his wife, three children and the children's grandfather at the family home at 1050-52 West 26th Street, Erie. At the time of the crime, appellant was separated from his wife and was living at 627 West 32nd Street, Erie. When he discovered the bodies, appellant notified a neighbor, Edwin Rosenzweig. After going to the scene of the killing and observing the bodies, Rosenzweig called the police.
The police arrived at the Chism family residence at 10 a. m. and found that Paul Chism, appellant's twelve year old son, had been shot four times. Paul was covered with a
blood-soaked parka (appellant claimed he covered the body upon discovery). David Chism, age 9, had been shot five times, once from very close range. Appellant's six-year-old daughter, Annamaria, had been shot four times, once from close range. Paul Tolis, age 75 and the children's grandfather, had been shot four times. All four of these individuals were dressed in night clothes. The blood surrounding these bodies was dry and the bodies were cold to the touch. Rigor mortis was beginning to set in.
Police also found the body of appellant's wife, Athena, who had been shot three times at close range. Athena Chism worked the midnight shift in an allnight diner and was dressed in her working clothes. Her body was still warm and subsequent examination revealed that she had died two to three hours after the other four victims.
Police found several spent .22 caliber cartridges on the floor by the bodies. No murder weapon, however, was discovered at the time police first arrived.
Appellant accompanied police to headquarters. Although at the time appellant was not a suspect, he was given his Miranda rights. A trace metal test was administered to appellant and fingernail scrapings were taken.*fn1 Appellant then conferred with Erie County District Attorney Robert Chase and Erie Police Detective Sergeant Donald Levis for the purpose of helping authorities investigate the crime.
Appellant told police that he left his house at 32nd Street on the morning of the murder at 8:30 a. m. After stopping at a Texaco gasoline station at 32nd and Cherry, appellant went to a car wash at 38th and Liberty. He claimed he then went to a store before going to the 26th Street house and discovering the bodies. He told police he entered the house through the side door, which was always open because there was no key to the door. Appellant also told police that robbery or burglary could have been a possible motive for
the slayings. He claimed that although he and his wife had been separated, they had sold the 26th Street house and were planning to move to Florida. Appellant further stated that, at the closing for the sale of their home, the couple received a check for over $16,000. According to appellant, his wife had cashed this check and had the $16,000 somewhere in the house, although he didn't know where. He also claimed that his wife had been carrying over $8,000 in her purse.
At trial, officers testified that the house, on first inspection, looked like it had been ransacked by burglars. However, the officers doubted that burglary was the motive, as too many valuable items were left behind, including an extensive coin collection of Mr. Tolis'. Further, an officer testified that while drawers were thrown on the floor of the house, the items inside the drawers were left undisturbed, further negating a possible burglary.
At the time of his conference with the investigating authorities, appellant was told that the spent cartridges were from a .22 caliber weapon. He admitted that he had bought a .22 caliber rifle for his oldest son, Paul, but he claimed not to know where it was.
Police informed appellant that they were going to search both the house on 26th Street and his apartment. When he asked why a search of his apartment was necessary, appellant was informed that police were checking for traces of blood on his clothing and in other places.*fn2 Appellant then told police that some of his clothing would certainly contain traces of blood from having covered his son Paul's body with the coat. Appellant then consented to the search.
While searching the attic of the house on 26th Street, police found a .22 caliber rifle hidden behind a removable piece of wallboard. The rifle was the one purchased by appellant. Subsequent tests showed that this rifle was indeed the murder weapon. At trial, witnesses also testified
that appellant was familiar with hiding places in the attic, as they had seen him hide various items in the attic.
Traces of blood were discovered in numerous places in appellant's apartment and automobile and on various items of clothing. Traces of both type O and type B blood were found almost everywhere in the bathroom. The blood deposited in appellant's apartment and automobile could not have been placed there merely by discovering his son's body, because when police arrived at the crime scene shortly after appellant allegedly discovered the bodies, the blood was already dry. Moreover, a witness who spent four to five days a week at appellant's apartment testified that he had never seen nor heard of anyone bleeding profusely in the bathroom at appellant's apartment.
Police were able to find numerous witnesses who contradicted parts of appellant's narrative. While appellant told police that he didn't leave his apartment until 8:30 on the morning of the killings, two neighbors testified that appellant's car was not in its normal parking place between 7:00 a.m. and 7:45 a.m. Another witness testified that he noticed appellant's car at his wife's house at 8:25 a.m.
Various witnesses testified that they had heard appellant threaten to kill his wife. In fact, appellant's mother was visiting five months before the murder when appellant told her "The next time you see me I'll be behind bars and she [Athena Chism] will be dead."
It was also established at trial that appellant, and not his wife, had cashed the check from the sale of the house. A handwriting expert testified that, in his opinion, appellant had ...