COM. v. CHISM
480 Pa. 233 (1978)
389 A.2d 1041
COMMONWEALTH of Pennsylvania v. Donald Lee CHISM, Appellant.
Supreme Court of Pennsylvania.
Decided July 14, 1978.
Harold J. Bender, Asst. Public Defender, Erie, for appellant.
Michael M. Palmisano, Asst. Dist. Atty., Erie, for appellee.
Before EAGEN, C.J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.
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
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.
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
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.
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
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 forged his wife's signature on the back of the check.
It was also shown at trial that the buyer of the 26th Street residence discovered a key behind a grate which used to house a gas heater. When tested, the key opened the side door which appellant claimed was always open because of the lack of a key. Further, traces of both type O and type B blood were found on the grate and the key.
We believe the evidence was sufficient to sustain appellant's convictions of murder of the first degree.
Appellant next argues that the suppression court erred in refusing to suppress various items of evidence which were introduced at trial. When police searched the house at 1050-52 West 26th Street, they did so without a warrant. Because of this, appellant believes the following should have been suppressed: the murder weapon found in the attic; the box the weapon was purchased in which was found in the cellar; other information concerning the purchase of the rifle; and the testimony of Robert McWhirter, who testified that he had seen appellant hide items in the attic. We believe, however, that all of these pieces of evidence and the testimony of Robert McWhirter were properly admitted.
The facts pertinent to this issue are as follows. Following the discovery of the bodies, appellant accompanied police to headquarters to help them investigate the crime. He told police about the sale of the house,
The suppression court denied appellant's motion to suppress on three alternative grounds: (1) appellant consented to the search of the house; (2) appellant lacked standing to contest the search; and (3) appellant abandoned the property in question. As we agree that appellant consented to the search of the house, we need not discuss the suppression court's alternative conclusions.
We further stated in Commonwealth v. Harris, 429 Pa. 215, 221, 239 A.2d 290, 293 (1968), "Consent must at least be freely given to be effective. This means there must be a total absence of duress or coercion, express or implied."
Viewed in the above light, the instant suppression record contains no evidence of either coercion or duress. Appellant was not under arrest at the time consent was given. As previously pointed out, appellant admits his consent was valid, but argues that he consented only to a search of the first floor of the residence. Again, the record contains no indication of such a limitation, and we therefore
Appellant also argues that information concerning the purchase of the rifle and testimony of Robert McWhirter concerning appellant's knowledge of hiding places in the attic should have been suppressed as "fruits of the poisonous" search of the house and seizure of the murder weapon. Having determined that the search was legal, the other questioned evidence cannot be fruits of an illegal search.
Detective Sergeant Toby Rigazzi, who participated in the search of the Chism home, found certain valuable items, including a silver dollar money clip, forty-seven silver dollars, an undetermined amount of change and currency, passbooks from two banks, and a checkbook. Rigazzi described these items at the trial. Appellant argues that Rigazzi should not have been permitted to do so because they were obtained as a result of an illegal search. We have already rejected that claim. Appellant also argues that the testimony was irrelevant. We reject that argument as well. Evidence is relevant if it tends to increase or decrease the probability of a material fact. Commonwealth v. Myers, 439 Pa. 381, 266 A.2d 756 (1970). Appellant advanced the theory that the killings were the result of a burglary. If there had been a burglary, the items might have been taken. Their presence on the premises supported the Commonwealth's contention that there had been no burglary. The testimony was, therefore, relevant and admissible.
District Attorney Chase testified for the Commonwealth concerning what appellant told him in the course of his investigation. Appellant conferred with Chase and Sergeant Levis and, according to Chase, appellant said he put a parka over the body of his son, Paul. This fact was not
Appellant also objected to testimony given by Commonwealth witness Martha Clinger, his stepsister. Clinger testified that appellant told her on a number of occasions during July and August of 1974 (approximately six to seven months prior to the homicides) that he was having marital problems and that he said on a number of occasions that he would kill his wife and children. Appellant argues that the threats were too remote in time from the actual killings for evidence of them to be admissible. This objection is meritless. The testimony indicated ill will on the part of appellant, evidence of which is admissible in any homicide case. Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960). If the victim of a crime is the spouse of the accused, evidence of lack of affection between them is admissible to show motive. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969). In Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974), where the defendant was accused of murdering his wife, we upheld the admission of evidence of instances of hostility and strains in their relationship, even though they occurred at least six months before the
Clinger also testified about a conversation she had with appellant while he was in jail. She said that he told her that he did not miss his family, that when shown a photograph of a grave-marker he threw it onto a table, and that he showed no interest in hearing about the funeral. Appellant objected on the basis that the testimony was irrelevant and prejudicial. This evidence shows ill will and, therefore, we find that it was admissible.
Another item of evidence that appellant objected to was the testimony of Roger Gregorich, a state police documents examiner. Gregorich testified that appellant forged his wife's signature on the closing check from the sale of their house. Appellant claims that it was improper to admit evidence that appellant committed a crime other than those he was being tried for. Such evidence is not inadmissible in all cases. It may be admitted to show a common plan where proof of one crime tends to prove the other. Commonwealth v. Boykin, 450 Pa. 25, 298 A.2d 258 (1972). It is admissible to show motive or intent. Commonwealth v. Terrell, 234 Pa.Super. 325, 339 A.2d 112 (1975). In this case, the evidence of forgery tends to show ill will between appellant and his wife. It also indicates motive, i.e. to conceal the forgery. The evidence of forgery is relevant and admissible.
Samuel Potter, a correctional officer at a prison where appellant was incarcerated, testified that he was with the appellant on July 19, 1975 and appellant said, "My God, oh my God, oh my God, I didn't mean to kill them, my God." Appellant objected on the basis of the fact that the alleged statement was made six months after the killings and, therefore, it was irrelevant. The admission of the statement was proper. It tended to make it more probable that appellant committed the killings. See Myers, supra.
Appellant next claims that it was improper to allow a hypothetical question directed by the Commonwealth to
Appellant objected on the basis of relevance to testimony showing that he was frequently visited by a number of teenage boys and that he purchased certificates of deposit at a bank for two of them, one for $1,000 and one
The trial court sustained a Commonwealth objection to certain proposed testimony of Angeline Catalino, a defense witness. Catalino was a co-worker of Athena Chism and was driven home by her on the morning of the killings. Appellant proposed to have Catalino testify that during the trip home, Athena Chism told her that the family, including appellant, was going to move to Florida. The testimony was disallowed as hearsay. Appellant argues that it was offered to show that the statement was made and not to show its truth. We find that the testimony was properly excluded. Appellant was attempting to establish that they were in fact going to move to Florida, thereby indicating reconciliation and lack of disaffection or motive to kill. Under these circumstances, we find that the statement was offered to show its truth.
Appellant takes exception to the trial court's refusal to give the following requested charge:
We find no error because of the following charge that the court did give:
Appellant next argues numerous instances of alleged ineffective assistance of counsel. We shall discuss these claims ad seriatum.
In Com. ex rel. Washington v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352 (1967), we stated:
The above standard is supplemented by Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974). In Rice, we stated that counsel would not be deemed ineffective in not pursuing meritless claims. Moreover in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), we refined our standard in judging the ineffective counsel claims in failure to object situations. In Hubbard, we articulated that when confronted with claims of failure to object or pursue avenues of questioning, we would look to merits of those only for the purpose of determining the effectiveness of counsel. Employing these standards, we will discuss appellant's allegations of ineffective assistance of counsel.
The first allegation of alleged ineffectiveness occurred when appellant was arrested. Appellant was first represented by George M. Schroeck, an attorney with the public defender's office, and then by D. Sherwood Jones,
Appellant next argues incompetency on the part of his trial counsel. He alleges several errors. One is the failure to contest the legality of appellant's arrest and to challenge his subsequent statement to the police on the basis that it resulted from such allegedly unlawful arrest. We find no incompetency because a challenge would have been meritless. The circumstantial evidence on which the conviction was based was available to the police at the time of the arrest and was sufficient to give them probable cause. Appellant would have had no right to have the arrest declared illegal and the statement declared inadmissible. Commonwealth v. Rice, supra.
There were certain searches conducted which defense counsel did not seek to suppress. We reject appellant's allegation of incompetency. The first search complained of was conducted at the scene of the killings on the day the bodies were discovered. The search was made without a warrant. Appellant consented to having the police search the scene upon their arrival. The other searches were conducted pursuant to warrants at appellant's apartment and at a garage where his car was kept. We believe that
The police were looking for clothing and blood stains. There was already evidence that the victims were killed with a weapon of the type owned by appellant, that the victims were not killed at the same time and that a burglary was unlikely. There was blood at the scene. Appellant was implicated. The evidence sought was relevant.
Appellant alleges ineffectiveness in that counsel failed to object to testimony by one of the teenage boys with whom appellant associated that appellant gave him a certificate of deposit. We have already determined that it was proper to admit evidence of the gift. Therefore, the failure to object is not ineffective assistance of counsel. See Rice, supra.
Another alleged error pertains to Samuel Potter's testimony that appellant admitted killing the victims. On cross-examination, defense counsel asked:
During the trial, while the jurors were in the hotel where they were being sequestered, an unidentified person yelled "Hang him." The court instructed the jury to disregard the remark. Appellant alleges that counsel should have moved for a mistrial. We do not agree. It appears that any effect on the jury was minimal. Viewing the trial as a whole, we find that the remark had no significant effect. A mistrial motion would have been groundless. See Commonwealth v. Levenson, 225 Pa.Super. 318, 303 A.2d 838 (1973).
While appellant was incarcerated during the trial, a fire in the juvenile section of the prison killed several inmates. Appellant saw their bodies and became hysterical. The court recessed the trial for a half day and then resumed it after being advised by a physician that appellant was able to continue. We reject appellant's argument that counsel was ineffective in failing to object to the resumption of the trial. The court has discretion on the granting of continuances during trial. See Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98 (1971). We find no abuse of discretion, and, therefore, no ineffective assistance of counsel.
Appellant next argues that counsel should have objected to testimony given by appellant's landlord, James Cousins. Cousins testified that at the beginning of the lease, appellant paid six months' rent in advance. Appellant argues that the testimony was irrelevant. The testimony tended to make it less probable that appellant intended to move to Florida. The testimony having met the test for relevance, we find no ineffective assistance of counsel.
Another witness whose testimony appellant alleges should have been objected to was deputy coroner Richard Wagner, who examined the victims' bodies at the scene of
Finally, appellant argues that counsel should have objected to the court's failure to inform the jury of the penalty for voluntary manslaughter. The court defined voluntary manslaughter and told the jury it could convict appellant of involuntary manslaughter. See Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142 (1974). The jury was advised of the penalties for each degree of murder as required by the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1311, as amended, 18 Pa.C.S.A. § 1311(b). There has been no case decided or statute enacted requiring a charge on the penalty for voluntary manslaughter. In the absence of any such case or statute, we find no ineffectiveness in not having asked for such a charge.
Having rejected all of appellant's arguments, we will not disturb the judgments of sentence.
The judgments of sentence are affirmed.
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.
I dissent. When the trial court failed to charge the jury on the penalty for voluntary manslaughter after defining the penalties for first, second, and third degree murder, the jury could reasonably infer that the trial judge did not believe that a verdict of voluntary manslaughter would be appropriate. It is true that the statute only requires a judge to instruct that jury as to the penalties for first, second, and third degree murder. But here the jury was unaware of the fact that the only reason they were not given the penalty for voluntary manslaughter was that it was not required by statute. Therefore, the jury was free to infer that it would not even be appropriate to consider voluntary manslaughter as a reasonable finding of guilt. Trial counsel should have requested an additional charge and by failing to do so was ineffective.
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