Commonwealth v. Boschino

Opinion by

Mr. Chief Justice Sterrett,

This appeal is from the judgment of the court below imposing the penalty affixed by law to the crime of murder of the first degree.

The defendant was indicted in due form, tried and convicted of that felony on testimony amply sufficient to dispel every doubt as to the corpus delicti and the existence of all the “ ingredients necessary to constitute ” the highest grade of felonious homicide. The evidence tended strongly to prove that the deceased, Frank Comforti, was the victim of a willful, deliberate and premeditated murder; and the only serious question of fact for the jury was whether the defendant was the guilty agent. The testimony adduced and relied on by the commonwealth to establish that fact was not merely circumstantial, but also direct and positive. Three of the commonwealth’s witnesses testified, in substance, that they were at or very near the scene of the alleged murder at the time it was committed, and that they saw and recognized the defendant as the person who fired the fatal shot. If their testimony was believed by the jury, they could have little if any difficulty in reaching the conclusions of fact on which their verdict must necessarily have been based.

After testifying fully and circumstantially as to what occurred on the Sunday afternoon of November 11, when the deceased, the defendant and other companions were together, including the altercation that then occurred, etc., the separation of the company shortly before the deceased was shot, and the direction in which some of them went, Antonio Umbrianno, one of the witnesses referred to, proceeded to say in substance that he went up the hill towards his home, and when he was near the middle of the railroad he heard two shots and saw the deceased, Comforti, fall near the stump; that these shots were fired by Boschino, and two or three minutes afterwards he saw him fire three shots more ; that at the time the shots were fired Boschino was in the bushes, on the right side, and Comforti was on the path, walking towards the railroad, in the direction of his home, etc.

Rocco Salvatori, another of said witnesses, testified substantially that he saw somebody — Boschino, as he believed, — shoot from the bushes, and Comforti dropped, and, as he fell, he uttered an exclamation indicating that he was at least seriously wounded; that, as it appeared to him, (the witness,) Comforti heard a noise in the bushes, immediately before the shots, and turned, and, as he turned around, he was shot; that at first he heard two shots, and then Boschino advanced a few steps and fired three more shots.

John Myran, the third witness, testified to having heard two shots, and he then turned back a few steps and faced somebody, in front of him, who fired three shots; that Boschino, the man who fired the three shots, ran towards the Lackawanna railroad; that he (witness) was scared, ran in the bushes and came to where Comforti was lying, looked at the body and saw blood coming out of the mouth, then went home and told those who were there. He also testified that when the first two shots were fired Comforti, who was standing in the path, fell, etc.

According to the testimony of Doctor Kelly, the coroner, he made a post mortem examination on Monday, November 12, and found a small circular wound, between the second and third ribs at the right edge of the breast bone, which passed through both cells of the heart, the left ventricle of the heart, and through the root of the left lung; and the bullet was found in the cavity of the left lung, with considerable blood, etc. He also testified that this bullet wound was the cause of Comforti’s death.

It is not our purpose, nor is it necessary, to further summarize or refer specially to the evidence. It is sufficient to say that the testimony above referred to and a great deal of other evidence, much of which is purely circumstantial, tended to prove not only the commission of a willful, deliberate and premeditated murder on the person of the deceased, but also the defendant’s- participation therein, as claimed by the commonwealth. On the other hand, the testimony of the defendant himself, and other evidence introduced, in his behalf, tended to show that he was not a party thereto; that at the time the fatal shot was fired he was not at the place where the shooting was done, but was then at his own house some distance away from the scene of the alleged murder. As the learned trial judge— referring to this branch of the defense — very properly said: “ If he (defendant) was at his own home when the fatal shot was fired, of course he could not have fired it himself.”

No question is raised as to the admission or rejection of testimony. We are satisfied from an examination of the record before us that all the evidence introduced by both parties was properly before the jury, and. was clearly for their exclusive consideration. It appears to have been fairly and impartially submitted to them with clear, concise and fully adequate instructions as to the law applicable to every phase of the case. Sixteen requests for instructions were presented by defendant’s counsel, in which the law, — relating to the burden of proof, the nature and effect of a reasonable doubt, and other matters pertaining to the defense, — was stated in terms most favorable to the defendant. These requests were all affirmed without any qualification, and the jury were thus provided with a safe and reliable guide in considering the evidence and in endeavoring to arrive at a correct conclusion as to the guilt or innocence of the defendant. In addition to that, the instructions contained in the general charge were, as already intimated, fully adequate and substantially correct. In connection with these instructions the testimony was impartially reviewed by the learned trial judge, and the rights of the defendant were carefully guarded.

An examination of the record with special reference to the nine specifications of error, — all of which are to the charge,— has failed to convince us that any of them should be sustained. The subjects of complaint in the first three, together with the fifth and sixth, are respectively excerpts from the charge. In neither of these, severed as they are from the context, does there appear to be any substantial error. When read in connection with their respective contexts, every doubt as to their correctness vanishes. In other words, the charge as a whole, including the portions complained of, is clearly correct. The excerpt, relating to the flight of the defendant, recited in the first specification, was immediately followed by statements which brought into view the defendant’s theory of the case. The same may be said as to the third specification in which reference is made to the alleged alibi. Indeed, the entire paragraph from which that excerpt is taken is substantially the language of this court in Watson v. Commonwealth, 95 Pa. 418.

It is the special duty of the court to call attention to discrepancies in the testimony, and we are satisfied that, in the discharge of that duty, there was no error in charging as complained of in the second specification. Nor can the court be convicted of error in not giving instructions that were not requested by the defendant, and hence the fourth specification should be dismissed. As we have seen, the defendant’s counsel presented sixteen requests for instruction. If other instructions were deemed necessary they should have been requested.

We find nothing in either of the specifications that requires further notice. The case was fairly and correctly tried, and there appears to be nothing in the record of which the defendant has any just reason to complain.

The judgment of the court below is affirmed, and it is ordered that the record be remitted for the purpose of execution.