# Commonwealth v. DeJohn

> Supreme Court of Pennsylvania · May 17, 1979 · 486 Pa. 32

URL: https://www.frixlaw.com/law-library/cases/9535587

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Jill Y. DeJOHN, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 17, 1979
- **Citations:** 486 Pa. 32; 403 A.2d 1283; 1979 Pa. LEXIS 572
- **Precedential status:** Published
- **Opinion:** Dissent by Manderino
- **Judges:** Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino, Larsen
- **Cited by:** 149 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9535587

## How later opinions describe it (automated extraction)

- holding that, contrary to Miller and Smith , under the Pennsylvania Constitution, a person retains a reasonable expectation of privacy in bank records even though a bank employee would have free access to view the contents contained therein
- holding that, contrary to Miller and Smith, under the Pennsylvania Constitution, a person retains a reasonable expectation of privacy in bank records even though a bank employee would have free access to view the contents contained therein
- holding that under the Pennsylvania Constitution, Article I, Section 8, defendant had a legitimate expectation of privacy in his bank record, despite not having such an interest under the Fourth Amendment
- recognizing under Article I, Section 8 an expectation of privacy in bank records
- holding that defendant had a legitimate expectation of privacy in his bank record under Article I, Section 8, despite not having such an interest under the Fourth Amendment

## Opinion text

MANDERINO, Justice,
dissenting.
I dissent. The evidence in this case comes no where near the necessary quantum of evidence required to convict a citizen of a crime. Proof must be beyond a reasonable doubt. Such proof is unequivocally absent in this case.
The defendant, Jill V. DeJohn, was convicted of fatally shooting her husband, Michael DeJohn in the garage of their home on February 11, 1976. Yet, there is no evidence that she was even present in the garage at the time the shooting took place. The prosecution and the majority of this Court conclude that the evidence was sufficient on a theory that the defendant had to be the guilty party because she was *74 the only adult in the home at the time the victim was shot. That theory, however, in this case, is riddled with holes. The evidence in this case establishes that the shooting could have taken place when only the victim and the defendant were in the home, but it also establishes that the shooting could have taken place when the defendant was not at home. The evidence does not even establish that the victim entered the garage while the defendant was in the home. It is true that witnesses saw the victim’s car enter the driveway at about 6:10 p. m., but no one saw the car enter the garage at that time. It is sheer speculation to conclude that the victim’s automobile was driven into the garage immediately after he pulled into the driveway. The two witnesses who saw the car did not know whether the car had been driven into the garage. One of the witnesses, a neighbor, stated that from his vantage point, he lost sight of the car after it entered the driveway and he could not testify whether the car entered the garage. The other witness, a newsboy, did not testify that he saw the car go into the garage. The car may have been driven into the garage at that time, or the driver of the car may have parked the car outside at that time, or the driver of the car may have left the scene after having driven into the driveway, and returned later. Any one of these events could have happened and there is absolutely no evidence from which it can be inferred that one event rather than any of the other two actually happened. Nor can we assume from the evidence or our common experience that the car being driven into the garage immediately after it enters a driveway is more highly probable than not. Our common knowledge would probably indicate otherwise. It may be that more cars are left outside of garages rather than put into garages when one arrives at home. The majority’s entire case rests on the conclusion that the victim’s car was driven into the garage immediately after his entry into the driveway. No evidence points to this fact. It is sheer speculation. Yet, that speculative fact is essential to the prosecution’s theory that if two people are in the same room at the same time when one of them is shot, it may be inferred that the survivor shot the victim.
*75 Even if we speculate for argument’s sake that the car entered the garage immediately after .it pulled into the driveway, and the victim entered the garage around 6:10 p. m., there is absolutely no evidence that the defendant was in the garage at that time. The defendant and her two young children who were upstairs in the home from 6:10 p. m., until around 7:00 p. m., testified that the defendant did not go down to the garage during that time. The testimony of the defendant and her children can properly be rejected according to the majority. I agree. Rejection of their testimony however does not provide legal proof that defendant was in the garage. It was incumbent upon the prosecution in addition to asking that the defendant’s testimony be rejected to present some evidence that defendant was in the garage at the ■ time of the shooting. There was no such evidence. This Court has frequently said that mere presence at the scene of the crime is not enough to convict beyond a reasonable doubt. Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978). This Court has also said that:
“. . . although the prosecution’s evidence establishes appellant’s presence at the scene of the crime it does not establish more and without more the conviction cannot stand. Presence alone at the scene of a crime is not sufficient. Commonwealth v. Leach, 455 Pa. 448 , 317 A.2d 293 (1974); Commonwealth v. Pierce, 437 Pa. 266 , 263 A.2d 350 (1970); Commonwealth v. Giovanetti, 341 Pa. 345 , 19 A.2d 119 (1941).”
Commonwealth v. Finley, supra, 477 Pa. at 390, 383 A.2d at 1263 .
In this case there is not even evidence that the defendant was at the scene of the crime when it occurred.
The time of the shooting was not even established to have been within the forty-five minute period after the victim possibly entered the garage and before the defendant left the home. That is a possibility under the evidence, but it is an equal possibility that the shooting occurred after the defendant left the house. The prosecution’s medical expert said that in his opinion the shooting took place twelve hours *76 before the autopsy. This would make the time of the shooting around 9:20 p. m., a period of time when the defendant was not in the home. It is true that the medical expert said that his margin of error could be from two to four hours. His opinion, nonetheless, was that it was around 9:20 p. m. It is also true that this witness stated that a determination of the time of death is quite difficult. He said:
“In this particular case I would estimate the time of death at approximately 12 hours before I examined the body, [9:20 a. m. the next morning] but there is an error in that interpretation. There is possible error in that interpretation of 2 to 4 hours possibly either way. That is the closest I can come to the estimation of time of death.”
This witness also said that he “had other information indicating to me that the body was stiff when it was first found at 1:00 [a. m.]. This would indicate to me that death had occurred earlier in the evening.” The reference to earlier in the evening was obviously to a time prior to 1:00 a. m. Between 6:10 p. m. and 1:00 a. m. the next morning there is a period of almost 7 hours. Defendant was in the home for only 45 minutes after the victim pulled into the driveway. Given the broad range of the expert’s time of death testimony the victim could have been shot when the defendant was in the home, but he also could have been shot during a period several hours after the defendant left home. The expert’s reference to earlier in the evening was never tied down to that 45 minute period and, his opinion was that death took place around 9:20 p. m.
The majority states that the evidence warrants the rejection of a burglary theory. So it does, but so what? The rejection of that theory does not provide any evidence to convict the defendant. Someone may have wanted others to suspect a burglary, but who? Why the defendant? It could have been another person. There is absolutely no evidence in the record that the defendant pulled out the drawers and messed up the room adjacent to the garage to fake a burglary. If there was any evidence of it the majority’s *77 rejection of the burglary theory would be significant, but there is no evidence that the defendant faked the burglary.
There are other holes in the majority’s analysis of this case. The gun from which the fatal shot was fired was never found. There is no evidence that the gun was in the house prior to the victim’s arrival in the driveway and into the garage. If the majority must speculate, why speculate that the gun was in the house without any proof from which that can be inferred any more than speculate that the victim had the gun with him when he left for his out-of-town trip and had it with him when he returned?
Today, the majority fashions a new legal standard to support a conviction. The majority says that the “evidence and logical inferences show that appellant had the opportunity, the means and motive to kill her husband,” and therefore, the majority concludes that the defendant’s guilt was established beyond a reasonable doubt. The majority however cites no statute or case law in support of its proposition. Opportunity, means, and motive have never been sufficient to establish guilt beyond a reasonable doubt — even assuming that those factors were really tied down in this case, which they were not.
To say that defendant had the opportunity is speculative. The defendant was in the home and might have been in the garage at the time of the shooting which might have taken place when she was in the home and she might have had the gun in her possession. There is no evidence to establish any of the mights in the preceding sentence. The prosecution’s case requires speculation, without evidence, that the victim’s car might have entered the garage around 6:10 p. m. The prosecution’s case requires speculation, without evidence, that the defendant might have been in the garage at the same time. The prosecution’s case requires speculation, without evidence, that defendant might have had access to the gun that day. Convictions, in our system of jurisprudence, cannot rest on such speculation.
The evidence in this case leaves many question marks. It creates suspicions but it does not prove beyond a reasonable *78 doubt that Jill V. DeJohn shot and killed her husband, Michael DeJohn. The defendant is therefore entitled to be discharged as to the charge of murder.
I have considered the complete record in discussing whether guilt was established beyond a reasonable doubt. That involves a consideration of all of the evidence introduced at trial, whether properly or improperly. I agree with that portion of Mr. Justice Roberts’, opinion, however, which takes issue with the approval of the evidence introduced in this case to prove motive. The financial circumstances of the defendant, except for the insurance money, were inadmissible in the prosecution for a crime of violence. As Wigmore has pointed out:
“(2)(a) The lack of money by A might be relevant enough to show the probability of A’s desiring to commit a crime in order to obtain money. But the practical result of such a doctrine would be to put a poor person under so much unfair suspicion and at such a relative disadvantage that for reasons of fairness this argument has seldom been countenanced as evidence of the graver crimes, particularly of violence: (footnote omitted.)
Nevertheless in cases of merely peculative crime (such) as larceny or embezzlement), and in civil cases where the issue is whether the defendant borrowed money or not, the fact that he was in need of it at the time is decidedly relevant to show a probable desire to obtain it and therefore a probable borrowing or purloining; and there is here not the same objection from the standpoint of possible Unfair Prejudice:” (footnote omitted.) (Emphasis is original.)
II Wigmore on Evidence, § 392 (3d Ed. 1940).
Under the prosecution’s theory a person on trial for robbery could have evidence introduced of a prior unrelated robbery because the person needed money on both occasions. Such a theory has never been accepted. If it were, prior robberies *79 or larcenies or embezzlements or similar pecuniary crimes could always be introduced in a subsequent prosecution for the identical crime. Such a theory has always been rejected. The evidence in this case concerning the defendant’s financial transactions should not have been admitted into evidence.
I must also disagree with the majority in its conclusion that the extortion conviction should be affirmed. The search warrant for the defendant’s home was improperly issued because the affidavit does not establish probable cause. The bank records must be excluded for the reasons stated by the majority with which I agree. It is immaterial that the typewriter check itself was not introduced into evidence in the extortion trial. The total contents of the check were read into evidence. To distinguish between this and the introduction of the physical check itself is ludicrous. The defendant’s attempted extortion conviction was obtained with the use of improperly admitted evidence. The defendant is entitled to a new trial as to this charge.
PETITION FOR REARGUMENT

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9535587. Public record. Not legal advice.