Commonwealth v. Neill , 362 Pa. 507 ( 1949 )

That there was error committed in the trial of this case is obvious. The question is whether or not this error was so substantial as to deprive the defendant of a fair trial. We pointed out in Commonwealth v. Fugmann,330 Pa. 4, 18, 198 A. 99, that: "There is seldom any criminal or civil trial of any magnitude or duration into the record of which some irrelevant, incompetent and immaterial testimony does not 'creep' . . . To grant new trials whenever such a thing occurred would mean an interminable and intolerable succession of new trials."

In Commonwealth v. Barnak, 357 Pa. 391, 419, 54 A.2d 865, this Court said: "Taking an appeal in criminal cases is not a game in which the appellant wins if he can show that the trial judge fell a few degrees short of perfection in the conduct of his trial. This court has consistently refused to reverse convictions of murder in the first degree, even with the death penalty imposed, for errors in the conduct of the trial or in the admission of evidence or in the judge's charge, when these errors did not deprive the defendant of the fundamentals of a fair trial."

In the case now before us it is not disputed that the defendant killed his niece, a girl under 12 years of age. Neither can there be any doubt of the defendant's guilt of murder in the first degree, whether he attempted to rape the child or not. According to his own statement he, a man then over 21 years of age, "put his hand over her mouth" and he "choked her with both his hands". Since every one is presumed to intend the natural and probable consequences of his acts, the inference is reasonable that when this man choked this child he intended to kill her and he is therefore guilty of murder in the first degree. The only possible defense remaining to him was the defense of insanity. That issue was fairly tried and the finding was adverse to the contention. Three expert witnesses testified for the Commonwealth that the defendant was sane at all times before, during and after the commission of the crime. His conduct and his flight after the commission of the crime is also indicative of his sanity.

The defendant's counsel complains that the District Attorney did not submit to defendant's counsel a pretrial communication to the District Attorney from two of the expert witnesses called by the Commonwealth, in which communication they said the defendant "although of normal average intelligence, manifests a profound psychoneurosis with marked emotional instability", etc. Defendant's counsel asserts that if he had been informed of this report he might at the cross-examination of these witnesses have brought out these circumstances to the attention of the jury. A District Attorney is under no obligation to acquaint a defendant's counsel with all his oral or written communications with expert witnesses or other witnesses whom he proposes to call in the trial of a criminal case. Of course, if he should discover some fact which would militate in the defendant's favor it would be his moral and legal duty to bring this to the jury's attention, either directly or by permitting defendant's counsel to do so, for the District Attorney is a quasi-judicial officer. In the instant case there was nothing in the communication referred to which vitiated the evidence the defendant gave in court to the effect that defendant at the time of the commission of the murder was in possession of his mental faculties, was not insane and knew right from wrong and was, therefore, legally responsible for his act.

The defendant complains that when the defendant's brother was on the stand he was cross-examined by the District Attorney as to whether or not he had not made certain statements derogatory to defendant's morals and upon his denial of having done so the Commonwealth in rebuttal presented testimony that he had made such statements. The admission of this rebuttal testimony was clear error, but it was not prejudicial. In Commonwealth v.Petrillo, 341 Pa. 209, 224, 19 A.2d 288, we discussed the principle that there can be no contradiction permitted on collateral matters. We there cited Wigmore on Evidence, 3rd ed., Vol. 3, page 657, sec. 1003, which reads as follows: "The only true test [of 'collateralness'] is that laid down in Attorney-General v.Hitchcock, 1 Exch. 99 Pellock, C. B. 'Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?' " In the instant case the "rebuttal evidence" was clearly incompetent, for the reason that the cross-examining district attorney would not have been entitled to offer the evidence in support of his case: (See cases cited in 1947 Pocket Supplement to Vol. 3, Wigmore on Evidence, (3rd ed.), section 1003.) It was therefore a contradiction on a collateral matter. But, it did the defendant no harm for the following reason: Defendant by his own statement as to what he did just before he murdered his victim showed that he had indulged in grossly lascivious conduct. Having admitted that fact he was not injured by evidence that on other occasions he had indulged in like conduct. If his lascivious conduct at the time of the homicide had been a fact in issue the admission of the "rebuttal testimony" would have been prejudicial error. Since it was not a fact in issue but a fact admitted, the testimony was harmless.¹

The defendant also complains of the question which the District Attorney "suggested" to defendant and which relates to an alleged act of perversion. This suggestion was highly improper and the trial judge should not have permitted it. However, the judge did instruct the jurors to exclude it wholly from their consideration. While it is unfortunate that in the trial of any case certain incompetent evidence may be admitted which later the trial judge is obliged to instruct the jury to disregard, the practical administration of justice does not permit the granting of new trials every time such an incident occurs. An example of this is found in Commonwealth v. Fugmann, supra. There the court admitted in evidence as a res gestæ declaration a statement by the victim, which statement inculpated the defendant. The court when later realizing its error, instructed the jury to disregard the evidence. In holding that this instruction to the jury cured the error we said that "To grant new trials whenever such a thing [i. e. the admission of incompetent testimony later struck out] occurred would mean an interminable and intolerable succession of new trials." We also said: "it must be taken for granted that the jury obeys the instruction [to disregard the testimony] and that therefore the admission of what was legally inadmissible evidence was harmless error." So in the instant case we must take it for granted that the court's instruction to the jurors to exclude from their consideration the improper suggestion which the District Attorney made in reference to an alleged act of perversion by the defendant, was obeyed.

Being convinced that this defendant is guilty of murder in the first degree in choking this 12 year old child to death (whether or not the choking was a part of an attempted rape of the child) and being further convinced that the defendant was legally sane at the time he committed the crime and believing that the errors complained of did not amount to a denial of the fundamentals of a fair trial, I concur in the affirmation of the judgment and sentence of the court below.

¹ In the administration of justice in criminal cases the rule that no new trial shall be granted for the erroneous admission or rejection of evidence unless such admission or rejection has been prejudicial to the defendant, is provided by statutes in some states. In our own and many other states the rulings of the highest court are to that effect. In State v. Hickman,67 N.E.2d 815, the Court of Appeals of Ohio in passing upon the effect of the admission of rebuttal evidence on a collateral matter, said, after adjudging the evidence to be not prejudicial: "In a criminal case when the witness is cross-examined on collateral matter, the cross-examiner makes the witness his own. . . . The cross-examiner is not permitted to introduce rebuttal testimony to contradict the witness on a collateral matter." The Court then cited the provisions of Section 13449-5 of the General Code of Ohio, which reads as follows: "No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court . . . for the admission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby . . . nor for any other cause whatsoever unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial."

In Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348, the defendant's abnormal conduct was the fact in issue, and the evidence admitted was competent to prove it.