No. 3048 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Berks County at No. 810831301 & A Bill.
Charles M. Guthrie, Jr., First Assistant District Attorney, Reading, for Commonwealth, appellant.
Robert L. Moore, Reading, for appellee.
Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Johnson and Hoffman, JJ. Johnson, J., filed a dissenting statement.
[ 332 Pa. Super. Page 522]
Dorcas Clouser was found dead in her apartment on April 9, 1981. Her death was caused by the application and inhalation of a caustic containing sodium hydroxide. Appellee, Dennis Staten, was charged with Dorcas Clouser's murder and with criminal homicide, burglary, theft, aggravated assault, simple assault, and attempted arson. Appellee filed a notice of alibi defense. The burglary charge was eventually dismissed, but appellee was brought to trial on the remaining charges.
Appellee's jury trial commenced on November 9, 1981 before the Honorable W. Richard Eshelman. The Commonwealth's theory of the case was basically that appellee initially went to the victim's apartment in order to appropriate various stereo components. A friend of appellee's, Rodrique Miller, testified that on April 7, 1981, appellee informed him that he (appellee) intended to take possession of the stereo components by getting the victim or another woman high on drugs. Later that same day, appellee returned to Miller's residence carrying a bag containing stereo parts which appellee later sold to Miller. Miller also testified that two days later, on April 9, 1981, appellee asked Miller if he had seen the news reports of Dorcas Clouser's death and asked Miller to throw the stereo components in the river.
Another Commonwealth witness observed the victim and the appellee at the victim's apartment on April 7, 1981 at about 6:00 p.m. The same witness observed appellee's car parked in the vicinity of the victim's apartment at approximately 7:30 p.m. on the same evening.
[ 332 Pa. Super. Page 523]
After three days of trial, the pathologist who performed the autopsy on the victim on August 10, 1981 took the stand. The doctor fixed the time of Ms. Clouser's death at or about 8:15 p.m. on April 8, 1981. The doctor was eventually excused from the witness stand and the Commonwealth continued to present its case. At a later time, the Commonwealth requested permission to recall the pathologist to clarify or attempt to correct the problem which had developed in the medical testimony. Defense counsel objected, and the trial judge refused to allow the recall.
At the close of the Commonwealth's evidence, appellee demurred to the evidence. Since much of the Commonwealth's testimony placed appellee at the scene and with the victim on April 7, whereas the date of death was fixed at April 8, the trial court sustained the appellee's demurrer. Judge Eshelman explained:
The Commonwealth's evidence was clearly insufficient to allow the jury to find [appellee] guilty on the homicide charges. On the one hand, the Commonwealth, by the pathologist's testimony, established that the victim died on the evening of April 8, whereas all of the other evidence of the Commonwealth showed that [appellee] was last seen in the vicinity of the victim's apartment building on the evening of April 7. There was not a scintilla of evidence which placed [appellee] in Ms. Clouser's neighborhood, let alone in her company or in her apartment, on the evening of April 8, 1981. Further, the proof adduced at trial regarding time of death was in irreconcilable conflict with the charge set forth in the information that "on the same day and year [April 7, 1981] . . . [appellee] did feloniously, willfully, deliberately, intentionally and premeditatedly, kill one Dorcas Clouser, and the said victim, being so mortally wounded, did die on April 7, 1981, between 6:00 p.m. and 8:00 p.m."
Where time is of the essence of the offense, such a discrepancy is fatal to the Commonwealth's case. Commonwealth v. Boyer, 216 Pa. Super. 286, 264 A.2d 173 (1970). ...