Commonwealth v. Wentzel , 360 Pa. 137 ( 1948 )

Defendant, Gerald C. Wentzel, was found guilty of murder in the second degree. After his motions in arrest of judgment and for a new trial had been refused and sentence imposed, he took this appeal.

According to the Commonwealth's case, Miriam F. Green, a young woman who lived alone in a first floor apartment in Pottstown, Montgomery County, was found murdered shortly before two o'clock on the afternoon of Monday, December 9, 1946. When her body was discovered by other tenants of the building, she was lying on her left side upon her bed, clothed only in a short polo coat and bobby socks. A kimono had been placed carefully at the back of the body, presumably to keep it from rolling to the floor. Death was due to strangulation, caused by a woman's blue scarf being folded into a band about one inch wide and tightly tied in a square knot around her neck. There was blood on her face and teeth, as well as on the pillowslip, sheet, spread, coat, socks and scarf. There was also a bloody impression, resembling the shape of a hand, upon the sheet about the center of the bed. Small amounts of blood were also found on the floor of the living room and in the bath tub. All of this blood, upon examination, was found to be of the same type of human blood as that of deceased. Money in the apartment was not disturbed. There was no evidence of a struggle and everything in the apartment appeared to be in order. Her working clothes were neatly folded over a chair in the bedroom. A screen and a metal grating on the outside of the bedroom window had been removed. The front door and the bedroom window were open. Dr. W. L. Franck was called immediately by the police, and, upon his arrival within a few minutes, he examined deceased and pronounced her dead from strangulation. However, because the police officer who had called Dr. Franck to the scene thought that Mrs. Green might still be alive, inasmuch as there was some blood, mucus and air coming from her right nostril, the body was sent to the Homeopathic Hospital in Pottstown. There Dr. Franck again examined the remains and made the same pronouncement. It was this physician's professional opinion (based upon the facts that there was no odor of putrefaction in the bedroom, the amount of air escaping from the lungs and the consistency of the blood and mucus in the nasal fossa when the body was first examined by him) that Mrs. Green had been dead for a period of not much more than twelve hours. Dr. J. S. Simpson, the coroner's physician, performed an autopsy upon the body at seven o'clock that same evening. He found that the neck had been broken and that death was due to strangulation. He concluded that death had occurred not less than twelve or more than twenty-four hours prior to his examination, predicating his opinion upon the following facts: that there was no putrefaction in the lower right abdomen, the amount of rigidity then in the arms, and the temperature and general condition of the body when he performed the autopsy.

Defendant, a married man residing with his wife and child in nearby Kennilworth, was arrested at a club in Pottstown at about seven-thirty on the evening of the day the body was found. After making many false, conflicting and evasive statements, he finally, when faced with evidence which apparently he thought was insurmountable, admitted the following: He had had an adulterous relationship with Mrs. Green for a period of approximately two years prior to her death, that he had visited her apartment on numerous occasions, that they had drunk heavily at various hotels and taverns, and that he had had intercourse with her as late as December 2, 1946. He had caused her to be pregnant in the Spring of 1946 and an abortion had been committed. Mrs. Green had told him on December 4, 1946, that she had just received her divorce and that she was "going out and flit like a bird" two nights hence when he, defendant, was away on a hunting trip. He admitted that he had a violent temper, and that he had threatened Mrs. Green that if she ever went out with another man, he "would take her and tear her private parts out". He also stated that he had made advances to his wife about a divorce, offering her their home and twenty dollars a week, but that she refused to discuss the matter with him. He admitted he had a quarrel with Mrs. Green about a week before her body was found. He also admitted that he had gone to the Green apartment at eleven o'clock on Sunday night, December 8, 1946, gained entrance with a key which she had given him sometime previously, and, immediately upon turning on the light, discovered her dead body. He claimed, however, that he had nothing whatever to do with her death, did not touch the body, and that as soon as he made the discovery, he turned out the light and left, shutting the door behind him. He also admitted that when he was in the apartment at that time he did go into the bedroom and he said: "I walked to the side of the bed and stood about the middle of her body. I said, 'Oh, my God', and that is when I put my hand on the bed and that is where the handprint will be about the middle of the body. I then left." He acknowledged his ability to tie various types of knots, including a square one, and admitted teaching others so to do. Also, he stated that shortly after noon of the day the body was found, he had thrown the key to the Green apartment into the Schuylkill River.

The Commonwealth also presented evidence that the scarf with which the murder was committed was lost about midnight, December 6, by its owner, one Joyce Mogel, in the immediate vicinity of the place where defendant admittedly parked his car when he visited the apartment on the night of December 8. In addition, the Commonwealth established that the lights were seen burning in the kitchen and bathroom of the Green apartment and the blinds were drawn at eleven-thirty P. M., December 8; and that defendant's fingernail scrapings, taken shortly after he was apprehended by the police, showed the presence of human blood. Defendant said nothing whatever to the police about his visit to the apartment on the night of December 8 and his discovery there until sometime after his arrest.

Defendant contended that Mrs. Green was not killed on the night of Sunday, December 8, or early the following morning, as contended by the Commonwealth, but rather met her death two days prior to that time, and that he had an alibi from the late afternoon of December 5 until his admitted visit to the Green apartment at eleven o'clock on Sunday night, December 8, when he discovered the dead body of Mrs. Green. In support of his contention, defendant produced evidence that Mrs. Green was last seen during the early evening of Friday, December 6; that one of the tenants of the upstairs apartment knocked on her door the morning of December 8 and received no reply; that she did not visit her mother in Reading or call her there on December 7 or 8, as was her custom each week-end; and that she did not go to work on December 7. Defendant also offered evidence that he was on a hunting trip some two hundred miles from Pottstown from the late afternoon of December 5 until early the morning of December 8 and he also accounted for his whereabouts thereafter until his admitted visit to the Green apartment on the night of December 8. In view of defendant's many damaging admissions and the other evidence adduced by the Commonwealth, the jury may have concluded, as its verdict would indicate, that over this particular week-end of December 7 and 8, Mrs. Green, who frequently had not been seen by her neighbors for weeks at a time, may have gone away on a visit or may have secluded herself in her own apartment for reasons of her own, and not having a telephone in her apartment, found it inconvenient to call her mother. Defendant called Charles D. R. Kent, the undertaker who received the body on December 9 at about eleven o'clock, P. M., after it had been autopsied and embalmed. This witness, in an attempt to refute the testimony of Doctors Franck and Simpson, called by the Commonwealth, stated that he was of the opinion that Mrs. Green had been dead forty-eight to seventy-two hours from the time when he received the body. In rebuttal, however, the Commonwealth called John S. Frain, the undertaker who witnessed Dr. Simpson's performance of the autopsy and who had embalmed the body, and he stated that it was impossible to determine to any degree of certainty the time of death after a body had been autopsied and embalmed.

Defendant argues that the facts and circumstances presented by the Commonwealth were not of such a character as to produce a moral certainty of his guilt beyond a reasonable doubt, and, therefore, the learned court below erred in refusing a motion in arrest of judgment. With this contention we cannot agree. Inasmuch as the Commonwealth was unable to produce any eye-witness to the crime and since defendant did not confess to the actual killing, the evidence adduced by the Commonwealth was wholly circumstantial. A careful reading of such evidence reveals that it is more than ample to sustain this conviction of defendant. While none of the facts presented would be conclusive of his guilt when individually considered, yet there is no doubt in our minds that the evidence presented, when considered collectively, required that the case be submitted to the jury.

With reference to circumstantial evidence, we said, inCommonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95: "The mere fact that the evidence to establish appellant's authorship of the crime is wholly circumstantial is not fatal to the Commonwealth's case. As long ago as Commonwealth v. Harman,4 Pa. 269, this Court said, speaking through Chief Justice GIBSON (p. 271): 'No witness has been produced who saw the act committed; and hence it is urged for the prisoner, that the evidence is only circumstantial, and consequently entitled to a very inferior degree of credit, if to any credit at all. But that consequence does not necessarily follow. Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger.' See also Commonwealth v. Kovovic,209 Pa. 465, 468; Commonwealth v. DuBoise, 269 Pa. 169, 174; Commonwealth v. Karmendi, 328 Pa. 321, 333. Nor may we say, as a matter of law, that the guilt of the accused has not been sufficiently established to carry the case to the jury merely because of a remote possibility that the evidence, or some part of it, might be true and the accused still be innocent. The requirement of the law is that in order to warrant a conviction the facts and circumstances proved must be of such character as to produce a moral certainty of the guilt of the accused beyond any reasonable doubt — not that they need be absolutely incompatible with his innocence — and that doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances': Commonwealth v. DuBoise, supra, 174. See also Commonwealth v. Karmendi, supra, 334; Commonwealth v. Giovanetti, 341 Pa. 345, 359; Commonwealth v. Marino, 142 Pa. Super. 327, 333." Furthermore, it is well settled that there is no general rule to determine the quantity of circumstantial evidence necessary to overcome the presumption of innocence and carry the case to the jury; this must be weighed by the trial judge: Commonwealth v. Karmendi,328 Pa. 321, 195 A. 62.

In the instant case, we have evidence of a long-existing illicit relationship between defendant and deceased; that defendant (a powerful young man — then thirty-seven years of age, six foot two inches tall and weighing one hundred ninety-six pounds) had had frequent quarrels with deceased; that he had a violent temper; and that he had threatened her with grievous bodily harm. We also have defendant's own admissions that he was at the scene of the crime at or about the very time when two reputable physicians, called by the Commonwealth, stated that deceased had met her death; and that on the occasion of that very visit he had put his handprint on the bed sheet at the exact spot where the bloody impression, resembling the shape of a hand, was found. J. E. Burke, Federal Bureau of Investigation finger print examiner, testifying for the Commonwealth, stated that upon his examination of this bloody mark, he found it impossible to obtain a "lift" containing sufficient characteristic details to compare it with defendant's hand or palm print because of the porous nature of the bed sheet. If this bloody print was made by the hand of defendant being laid upon the sheet, it is obvious that such print could not have been made unless the blood of deceased was upon his hand at the time. This would also account for the blood under his finger nails. We also have defendant's admission that he fled from the apartment, knowing that she was dead, and that he thereafter deliberately, to divert suspicion, threw away the key with which he had gained entrance to the apartment, entered into a conspiracy with his wife to say that he first learned of Mrs. Green's death at seven o'clock on the evening of December 9, and evaded revealing to the police, until after his arrest, the facts as to his visit to the Green apartment on the night of December 8 and of his discovery there. The jury could reasonably infer from the fact that the apartment was in order when the body was found and that it showed no evidence of a struggle that deceased was alive and expecting defendant when he arrived at her apartment on Sunday night, December 8, and also that after committing the killing, he sought to avoid suspicion by removing the screen and grating and opening the door and bedroom window.

One of the most significant indications of defendant's guilt is to be found in the numerous false, evasive and contradictory statements which he made to the District Attorney and to the police following his arrest. In these statements, defendant first denied and then gradually in later statements, admitted, among other things, more and more as to his presence and actions during his visit to the Green apartment on Sunday night. Less than an hour after his arrest, defendant made his first statement, wherein he freely admitted his meretricious relationship with Mrs. Green; said that he feared his wife was becoming aware of such association; denied that he went to the Green apartment on December 8; stated that he left a club in Pottstown and went directly home that night, arriving there at eleven-fifteen; denied that he had a key to the apartment of Mrs. Green; stated that she was never pregnant to his knowledge; and said that he did not know of her death until told by a service station owner about a half hour before his arrest on Monday evening, December 9. Some twenty-six hours later, while still in custody, defendant made a second statement, in which he admitted that he did not go directly home from the club on the night of December 8, but rather went to the apartment of Mrs. Green; that the door jarred open as he was about to knock; that he went in, turned on the light, saw the dead body of Mrs. Green and ran out without going into the bedroom; and that he told his wife the following day about this visit and what he found. He made a third statement about twenty-five minutes later, in which he reiterated visiting the apartment of Mrs. Green on the night of December 8, stated that he was only there ten seconds, and that he did not go into the bedroom or bath but only went to the bedroom door. In this statement, he also stated that he had had a key to the apartment but had returned it to Mrs. Green two or three weeks before. Here, for the first time, he said that he did not touch the body, and he also said that he and his wife had no agreement between them as to the story they were to tell to the police with reference to this murder. Forty-five minutes later, defendant gave his fourth statement, wherein he admitted that he did have a key and had used it to gain admission to the apartment on the night of December 8, and that he had thrown it into the Schuylkill River at about noon when he, his wife and sister-in-law were crossing the bridge about one o'clock on the afternoon of December 9. The next morning, December 11, at about eleven o'clock, in the office of the District Attorney, defendant gave his fifth statement, wherein he stated that he had been drinking at a club in Pottstown on December 8 from seven to eleven o'clock, P. M., that he was then pretty hazy, and that when he entered the Green apartment that night, he did go into the bedroom and put his hand on the bed, leaving a handprint. In his sixth statement, made that same morning about forty-five minutes later, defendant reiterated what he had said in his fifth statement, and also admitted putting his hand on the bed at about the middle thereof and he actually diagrammed his position beside the body, and where his hand was placed. In his seventh statement, made on January 6, 1947, defendant first denied the pregnancy of Mrs. Green, and then admitted it and also stated that they had discussed abortion and even suicide. He also admitted that he and Mrs. Green had arguments, that he had lots of girls, that he had a bad temper and that he had struck girls across the neck while playing tennis. In this statement, defendant admitted also that he and his wife, whom defendant had informed at noon on December 9 of his visit to the Green apartment the previous night, had agreed to say seven o'clock the night of December 9 was the first time they knew of the murder; that he had asked his wife for a divorce and that she had refused to listen to him, although he had agreed to give her his house and twenty dollars a week. Defendant made his eighth statement shortly after making his seventh, and it is largely repetitious.

In support of his contention that his motion in arrest of judgment should have been granted, defendant leans heavily uponCommonwealth v. New, 354 Pa. 188, 47 A.2d 450, where this Court reversed a judgment of the court below after a conviction of murder in the first degree and ordered defendant's release. That case readily can be distinguished from the instant one. There, the factual situation was entirely different from that here. In that case we were unanimously agreed that defendant's conviction was based on evidence so weak and inconclusive that as a matter of law no probability of fact could possibly be drawn from the combined circumstances. Here, however, the very reverse of that is true. This defendant was convicted of murder in the second degree on evidence which, though wholly circumstantial, leaves no reasonable doubt in our minds as to his guilt. To hold that the evidence here presented did not warrant the submission of this case to the jury would be almost tantamount to a complete elimination of convictions based entirely upon circumstantial evidence, however strong and conclusive.

Defendant also argues that the court below erred in refusing to grant his motion for a new trial. He assigns as error, inter alia, the admission in evidence, over the objection of his counsel, of the following: certain photographs taken of the scene of the crime as reconstructed by the police some time subsequent to the killing; photographs of the body of the deceased; the statement of defendant made on January 6, 1947; and of testimony that deceased was pregnant by defendant in the early part of 1946. We find no merit in such argument.

As to the photographs of the scene of the crime, as reconstructed, Officer Hahn, who was the first policeman to arrive at the Green apartment shortly after the crime's detection, testified that the condition of the bedroom when photographed was the same as it was when he entered it for the first time on December 9. Furthermore, these photographs were proved and identified by the photographer who took them. We agree with the learned court below that: "While the weight of the testimony might be affected by the fact that the foundation had to be laid by Officer Hahn, yet in view of his explanation to the jury we feel that they were competent evidence." Under the circumstances, we do not believe the trial court abused its discretion in admitting these pictures.

The photographs of the deceased were taken at a funeral parlor shortly after the body was found, and their correctness is not questioned. They were offered better to enable the jurors to understand the appearance of the body when found, the clothing then upon it, and the position of the scarf used in the killing. These photographs were referred to by Dr. Simpson and other witnesses for the Commonwealth to explain and corroborate their testimony. It is conceded they were not pleasant to look at. At the time they were received in evidence, the learned trial court instructed the jury as follows: "However horrible a crime may have taken place, as shown by these pictures, does not indicate the guilt of this defendant. You will have no prejudice against any one because of these photographs or anything like that. It may be they are to some extent shocking. Of course, after all, you are passing upon the guilt or innocence of this defendant. They are only put into evidence for such aid as they may be to you in determining the issue which comes before you for determination." As to the admission of similar photographs, we said, in Commonwealth v.Ferry, 326 Pa. 129, 133, 191 A. 130: "Such photographs are admissible in evidence. . . . However, the admission or exclusion of such exhibits is a matter within the sound discretion of the trial judge. If he believes that their effect may be to inflame the jury's emotions against a defendant and their admission is not necessary to show the location of wounds, they should be excluded. Whenever they are received in evidence, the jury should be instructed as to their purpose and cautioned not to permit the photographs to stir up their emotions to a defendant's prejudice." See also Commonwealth v.Dreamer, 324 Pa. 220, 188 A. 117; Commonwealth v. Earnest,342 Pa. 544, 21 A.2d 38. The trial court exercised due caution in admitting these photographs. They were an important part of the Commonwealth's case and it was proper to admit them with the cautionary statement of the court.

With reference to the admission of defendant's statement, made in question and answer form, on January 6, 1947, while in the custody of the District Attorney, defendant contends that it was reversible error to have admitted the statement, because some of the questions propounded to him contained self-serving and argumentative declarations. Defendant does not deny that he was afforded every opportunity to make full answer, or that the statement was an accurate transcript of the conversation that took place between him and the District Attorney. There is no claim of coercion or that the answers given by defendant were not offered voluntarily. There was no abuse of discretion in admitting the evidence. "Voluntary statements made by a defendant as to the occurrence may be used against him although not containing a confession of guilt":Commonwealth v. Tenbroeck, 265 Pa. 251, 254, 108 A. 635.

It is clear that evidence of the pregnancy of Mrs. Green was admissible. This testimony proved the intimate relationship which existed between the parties and was a material fact to be considered by the jury. It was the Commonwealth's contention that this relationship led to the killing. We said, inTurner v. Commonwealth, 86 Pa. 54, 70: "That adulterous intercourse may be proved as a circumstance leading to the commission of crime, is ruled in the case of Ferrigan v. Commonwealth, 8 Wright 386, and it would thus seem to follow that if the criminal conduct proposed to be proved becomes in any way a link in the chain of circumstances which connects the defendant with the crime charged, it is admissible in evidence. That such circumstance is in its character criminal, and tends to exhibit another crime than the one charged, is no reason for its exclusion."

We have carefully considered all the assignments of error and find them without merit. The record shows that defendant received a fair and impartial trial, that the charge of the court was comprehensive and free from error, and that the evidence adduced was more than sufficient to sustain this conviction of murder in the second degree. Under such circumstances, the sentence must be sustained.

Judgment affirmed, and record remitted to the court below to the end that the sentence may be carried into effect.