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August 5, 1985



Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.

Spaeth, President Judge, and Montemuro and Montgomery, JJ.

Author: Spaeth

This is an appeal from an order denying, without an evidentiary hearing, appellant's petition for relief under the Post-Conviction Hearing Act, 42 Pa.C.C § 9541 et seq. Appellant was convicted of first degree murder, solicitation, conspiracy, retaliation against a witness, and tampering with a witness, and was sentenced to life imprisonment. In his PCHA petition,*fn1 first, in failing to object to the trial judge's charge to the jury on the Commonwealth's burden of proof to establish the corpus delicti; and second, in failing to object to the court's informing the jury of the penalties for homicide. We affirm.

On April 23, 1977, at 10:00 a.m., Thomas Morgan, age 19, told his mother that he was going out and would be back by midnight. This was the last time anyone saw Morgan alive. On October 9, 1977, the badly decomposed torso of a man was found in a wooded area of Berks County, some sixteen miles from Morgan's home. The head was missing, although a portion of a jawbone lay nearby. Only fragments of skin and fat were intact, and all of the major organs were missing except for a small piece of liver. A wallet found near the body contained various identification papers bearing Morgan's name. This, along with eyeglasses found underneath the body, shreds of clothing, strands of hair, and two teeth, led police to conclude that the body was that of Thomas Morgan.

Appellant (Morgan's brother-in-law) and three others (who were tried separately) were charged with murdering Morgan. It was the Commonwealth's contention that appellant engineered the homicide to prevent Morgan from testifying against the four of them at an upcoming preliminary hearing on burglary charges; Morgan, a participant in the burglary, had informed on the four to the police and had agreed to testify against them at the hearing.

One of the issues to be resolved at trial was the nature of Morgan's death. Two pathologists testified for the Commonwealth, but because of the condition of the body, neither was able to state positively the cause of death. The Commonwealth did present circumstantial evidence to prove that Morgan died from unnatural causes, including the fact of the decapitation itself, the fact that Morgan did not drive and yet was found sixteen miles from his home, that he had been in good health, and that on the night of his disappearance he had expressed his intention to be gone only a short time. As to appellant's involvement in the murder, the Commonwealth's principal witness was Gene Roth, who testified that on the day after Morgan's disappearance, appellant had fully admitted to have planned and solicited the homicide. N.T. 6/26/78 at 184 et seq.

In his defense, appellant took the stand and testified that although he had known for some time that Morgan had been murdered, he was not involved in the murder. Rather, he stated, it was Joseph Biancone, a local "gangster," who had set up the murder, N.T. 6/26/78 at 234, and that Biancone had admitted this to him within a few days of Morgan's disappearance. Id.

In his PCHA petition, appellant's first argument is that counsel was ineffective in failing to object to the following portion of the charge to the jury (regarding Gene Roth's testimony of appellant's out-of-court admission).

As I told you, you may not consider the statement as evidence against the defendant unless you find that a crime was in fact committed. The Commonwealth has the burden of proving this matter by evidence independent of the statement itself. The purpose of this rule is to guard against a conviction of a person for a crime which never really happened even though the person confessed to it. More precisely, you must disregard the statement alleged to have been made by Guy Drexel unless you are satisfied by the other evidence that Thomas Morgan is dead and that his death was probably caused feloniously by someone killing him. A killing is felonious if it is either murder or involuntary manslaughter. As I told you, you can't consider the statement as evidence against the defendant unless you find the defendant in fact made the statement. N.T. 6/29/78 at 186.

Appellant contends that in telling the jury that it need only find that Morgan's death was "probably caused feloniously," the court committed reversible error, the proper standard being that the jury had to find beyond a reasonable doubt that the death was caused feloniously. While we agree with appellant that the court committed error, we have concluded that the error was not reversible.

A crime may be said to consist of three elements: first, "the occurrence of the specific kind of injury or loss;"second, "somebody's criminality . . . as the source of the loss;" and third, "the accused's identity . . . as the doer of this crime." Commonwealth v. Tessel, 347 Pa. Superior Ct. 37, 500 A.2d 144 (1985), quoting 7 J. Wigmore, Evidence § 2072, at 524, 525 (Chadbourn rev. 1978)(emphasis omitted). Corpus delicti, meaning "body of the crime," comprises the first two elements. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974). Thus, in a murder prosecution, the corpus delicti consists of "proof that a human being is dead and that such death took place under circumstances which indicate criminal means or the commission of a felonious act." Commonwealth v. Milliken, 450 Pa. 310, 317, 300 A.2d 78, 82 (1973), quoting Commonwealth v. Frazier, 4ll Pa. 195, 202, 191 A.2d 369, 373 (1963).

Based on the foregoing principles, Pennsylvania has developed a corpus delicti rule of evidence that states that before the Commonwealth may introduce a defendant's confession or admission, it must offer independent evidence that a crime in fact occurred.*fn2 Commonwealth v. Moore, 466 Ps. 510, 513, 353 A.2d 808, 809 (1976); Commonwealth v. Smallwood, 497 Pa. 476, 483, 442 A.2d 222, 225 (1982); Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980); Commonwealth v. Palmer, 448 Pa. 282, 285, 286, 292 A.2d 921, 922 (1972). Such independent evidence need not conclusively prove that a crime was committed; rather, the rule is satisfied if the evidence "points to an unlawful killing, although it may indicate as well accident or suicide." Commonwealth v. Coontz, 288 Pa. 74, 79, 135 A. 538, 539 (1927). See also Commonwealth v. Byrd, supra, 490 Pa. at 556, 417 A.2d at 179 (to introduce incriminating out-of-court statement, Commonwealth need not prove existence of crime beyond a reasonable doubt); Commonwealth v. Turza, 340 Pa. 128, 135, 16 A.2d 401, 405 (1940) (evidence sufficient "where the circumstances attending the death are consistent with crime, though they may also be consistent with . . . or suicide"). The purpose of the rule is to prevent the use of hasty and unguarded confessions to convict an individual when no crime was committed. Commonwealth v. Ware, supra, 459 365, 329 A.2d at 274. In essence, then, to introduce a defendant's confession or admission , the Commonwealth need only show that it was more probable than not that the victim died from unnatural causes.

This threshold burden, however, is irrelevant to the Commonwealth's ultimate burden of proof. It is of course settled that the Commonwealth must prove every element of the crime charged beyond a reasonable doubt, Commonwealth v. Ewell, 456 Pa. 589, 319 A.2d 153 (1974); and implicit in that burden is the requirement that the Commonwealth must prove beyond a reasonable doubt that a crime was in fact committed--in a homicide case, htat death was caused by felonious means. Commonwealth v. Moore, 466 Pa. 510, 513, 353 A.2d 808, 810 (1976); Commonwealth v. Lettrich, 346 Pa. 497, 502, 31 A.2d 155, 156 (1943); Gray v. Commonwealth, 101 Pa. 380, 386 (1882). The ...

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