Reargued December 21, 1966.
Staley, Chief Judge, and McLaughlin, Kalodner, Hastie, Forman, Ganey, Smith, Freedman and Seitz, Circuit Judges. Hastie, Circuit Judge (concurring). Freedman, Circuit Judge (dissenting).
This is an appeal from the denial of a petition for a writ of habeas corpus by the United States District Court for the Western District of Pennsylvania.
The sole question involved, having any merit, is whether or not the admission of testimony on behalf of the Commonwealth, showing that the defendant committed another homicide at the time he committed the instant one, the shootings being in rapid succession, was a denial of due process of law, as being a failure to observe fundamental principles of fairness, essential to the concept of justice.
The facts, briefly, are these: The defendant who was married, but not living with his wife, began to live with the decedent, Eva Mae Boston, in 1954, in Clairton, Pennsylvania. The decedent was married, but, likewise, not living with her husband. At the time they began living together, Mrs. Boston had three boys and subsequently two daughters were born to her and the defendant. In September of 1961, the defendant left the apartment where he had been living with Mrs. Boston, but, very frequently, he would return and would continually quarrel with her, as well as with the children. There was testimony that on one occasion Daniel Boston, Jr., also deceased, stepped between his mother and the defendant while they were fighting, at which time the defendant threatened her with a knife, and, on another occasion, the decedent, Daniel Boston, threatened to call the police when the defendant, while fighting with his mother, pulled out a gun and threatened to kill him with it.
On the morning of November 11, 1962, according to the Commonwealth's testimony, the defendant came to the apartment of Mrs. Boston and began quarreling with her. He made such a commotion that Daniel Boston, Jr., age seventeen at the time and who was in bed, got up and told the defendant to stop fighting and leave his mother alone, as well as to "Stop coming around here and trying to run all over us." and "If you want somebody to fight, fight me and let my mother alone." As a result of this altercation, the defendant then said, "I am going to kill all of you." He then pulled out a gun and shot Daniel Boston in the chest and he stumbled through the living-room and immediately fell dead. Defendant then wheeled around and fired a shot at Russell Boston, who was then age fourteen, who ran out of the house, lost consciousness, fell on the steps, was rushed to a hospital and miraculously survived, though only after a very long period of convalescence. Later, Mrs. Boston's body was found on the floor of the bedroom by the police. There was no one who witnessed the actual killing of Mrs. Boston, but, when apprehended, the defendant admitted that he had killed her. At the trial for the death of Mrs. Boston, the defendant admitted that he had the gun with him on the morning of the shooting, but said he was going to get rid of it and was going to give it to the boys' grandfather.
In order to buttress the Commonwealth's contention that the killing of Mrs. Boston was premeditated, conscious and deliberate, as opposed to it being accidental or in self-defense, and lacking in any cause, therefor whatsoever, the Commonwealth called, over the objection of the defendant, the coroner's physician, a pathologist, who testified that Daniel's death was caused by a gunshot wound through the heart. It was the Commonwealth's contention that the reason for calling the pathologist, coroner's physician, was, as has been indicated, to show the absolute premeditation involved in the killing, as implementing his assertion that "I am going to kill all of you." Accordingly, the execution of this threat was a vital part of the Commonwealth's case to show first-degree murder in the killing, rather than second-degree or manslaughter.
The appellee presses for consideration two arguments, (1) that the admission of the testimony of Daniel Boston's death was wholly irrelevant and "that its admission was highly prejudicial under the circumstances of this case.", and (2) while the evidence was relevant, its admissibility was so prejudicial to the defendant, that it outweighed any probative value thereof. In support of the first contention, appellee cites Commonwealth v. Gidaro, 363 Pa. 472, 70 A.2d 359. In that case, there was no question involved of a multiple killing and it concerned itself entirely with whether or not the killing by the appellant of one Michael Matzura, the decedent, was done with the specific intention on the part of the appellant to take the decedent's life. It was the contention of the appellant that the inference of specific intent to take life was permissible only where it was established that the bullet entered directly into a vital organ, which the court rejected as a point for charge and which was the subject matter of the appeal. However, in affirming the trial court, it stated that this contention of the appellant had been laid to rest in Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398, where the trial judge instructed the jury to the same effect as the appellant here contends for and the case was reversed as prejudicial error, and asserted 363 Pa. at p. 478, 70 A.2d at p. 362 " Proof that the bullet entered the body at the exact location of a vital organ or part was not required.", (italics ours), and, further, on p. 479, 70 A.2d at p. 362 the court stated, "The only requirement is that there be sufficient evidence to justify the jury's verdict which imports a finding of specific intent to kill." Accordingly, this case merely states that it is not necessary to show that the shot fired from a gun entered a vital organ of decedent's body. Here, there was no question whatsoever as to whether or not the bullet entered a vital part of Daniel Boston's body and nowhere it intimates that the killing of an individual may not be shown and is, therefore, limited to the rejection of the irrebuttable presumption that use of a deadly weapon upon the vital part of the body of another gives rise to an intention to kill.
The real question posed under the view here taken is whether the introduction of the killing of Daniel Boston was irrelevant and, if so, was its admission a trespassing of defendant's constitutional rights. We shall first take up the question of relevancy.
The law is well-settled in Pennsylvania that evidence of the commission of a crime, other than the one for which a defendant is being tried, is not generally admissible. However, like most rules, there exist certain well-defined exceptions, for example, when more than one person is killed by the accused either as part of a common plan, design or motive, or as part of the res gestae, or as part of a sequence of acts related to the crime, or as part of a chain of criminal acts, and the exception to the rule is deeply embedded in the law of Pennsylvania. Commonwealth v. Gockley, 411 Pa. 437, 192 A.2d 693; Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334; Commonwealth v. Williams, 307 Pa. 134, 160 A. 602; Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150; Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193; Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348; Commonwealth v. Petrillo, 338 Pa. 65, 12 A.2d 317; Commonwealth v. Kluska, 333 Pa. 65, 3 A.2d 398.
Since it would serve no useful purpose to give the factual content of each of these cases, to show admissibility in the instant case, one will suffice. In Commonwealth v. Wable, supra, the Commonwealth proved that one Woodward, a truck driver, was murdered while asleep in the cab of his truck on the Pennsylvania Turnpike, and that three days later, one Pitts, a truck driver, was similarly murdered while asleep in his cab on the Pennsylvania Turnpike, and three days thereafter, one Shepard was shot while asleep in his cab on the Pennsylvania Turnpike in Ohio. At the trial for the murder of Pitts, Shepard identified the defendant as the man who had shot him and the court admitted evidence relating to the murder of Woodward and the shooting of Shepard, and, speaking through Chief Justice Stern, the Court said at 382 Pa. p. 84, 114 A.2d p. 336: "* * * That evidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other or * * *. A veritable multitude of authorities in our appellate courts enunciate, albeit in varying language, this familiar principle." It seems abundantly clear that under the law of Pennsylvania other crimes including, as above, that of murder, may be shown where the killing tends to prove a plan or design embracing the commission of two or more crimes and especially so, as when here, the killing is done in the carrying out of a threat so to do.
The same rule is equally applicable under the Federal authorities. In Lisenba v. People of State of California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166, the Court held that admissibility in a murder trial of evidence of another similar crime to establish intent, design and system on the part of the accused is left by the Fourteenth Amendment to be determined by the State law and the State courts. In this case, the state of California indicted the defendant for the killing of his wife. At the trial, the death of his former wife was introduced into evidence and the testimony was admitted "* * * On the widely recognized principle that similar but disconnected acts may be shown to establish intent, design, and system. The Fourteenth Amendment leaves California free to adopt a rule of relevance which the court below holds was applied here in accordance with the State's law." (p. 227, 62 S. Ct. p. 286.) Here, the Court had no hesitancy in admitting the killing and ...