Commonwealth v. Frederick

498 A.2d 1322, 508 Pa. 527, 1985 Pa. LEXIS 410

• Court: Supreme Court of Pennsylvania
• Decided: October 4, 1985
• Docket: 85 Western District Appeal Docket, 1983
• Status: Published

Opinions

OPINION OF THE COURT

HUTCHINSON, Justice.

Appellant was arrested on August 18, 1982 and charged with criminal homicide, 18 Pa.C.S. § 2501, in the death of his girlfriend, Karen Meeker. Appellant was tried before a jury and convicted of first-degree murder, 18 Pa.C.S. § 2502(a). After the separate sentencing hearing required by our death penalty statute, 42 Pa.C.S. § 9711, appellant was sentenced to death. This direct appeal followed. 42 Pa.C.S. §§ 722(4) and 9711(h). Based on the arguments raised by appellant and our independent review of the case as required by Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), we affirm the conviction for first-degree murder but vacate the death sentence.

Appellant and Mrs. Meeker, his victim, had lived together approximately two years. Mrs. Meeker’s previous marriage ended in divorce, finalized shortly after she moved in with appellant. Her relationship with appellant was not always a happy one, and she occasionally broke it off, only to return at a later time. Disagreements between appellant and the victim’s family led appellant to file criminal charges against members of Mrs. Meeker’s family. The victim herself had charged appellant with destroying some of her property. These charges were still pending at her death, although she had attempted to withdraw her complaint.

The day she was killed, the victim was seen in several places with appellant. They were seen arguing, although nobody could give any specifics about the arguments. At about 3:30 p.m. the victim was discovered lying by the side of a country road. She had been shot and mortally wounded. Her intestines were protruding from her abdomen, and she had lost quite a bit of blood. She was helped by Claudia Rice, who happened to be driving in the area. Mrs. Rice left to call for help. She returned with Ed Crafton who also was in the area. The two of them were talking with the victim in an attempt to calm her until help arrived. During these conversations, the victim identified appellant as the one who shot her. She said appellant asked her to come into the woods so he could show her something and then shot her at close range. The victim also made similar statements to the paramedics and ambulance attendants, the doctor at the hospital and several of her relatives. The victim died during surgery shortly after the police had arrested appellant.

Appellant first claims that the trial court improperly admitted the statements made by the victim just before her death. In all those statements she identified appellant as her killer. The standard rule for the admissibility of such statements are that the declarant believes that she is going to die, that death is imminent, and that death actually results. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Commonwealth v. Little, 469 Pa. 83, 364 A.2d 915 (1976). The declarant need not say specifically that she will die, Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972), nor must she say it to every witness who testifies. The belief in impending death can be inferred from the surrounding circumstances without a direct statement of that belief by the witnesses. Commonwealth v. Gause, 459 Pa. 595, 330 A.2d 856 (1975). The admissibility of those statements is a matter of trial court discretion. Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976). However, once admitted, the jury determines what weight they should be given. Id.

The court below held an evidentiary hearing out of the jury’s presence to determine whether the statements incriminating appellant were admissible. Four witnesses testified at that hearing. Claudia Rice stated that Mrs. Meeker told her she was not going to make it. Ed Crafton, who also helped at the scene of the crime, corroborated that testimony. The ambulance attendant testified that the victim also told him she was dying. The doctor testified that when the victim reached the hospital she knew that she had a protruding wound in her abdomen. From all of this testimony, it is apparent that there was sufficient evidence to support the trial court’s finding that the victim believed her own death was imminent. Therefore, the testimony was competent and properly admitted.

Appellant also argues that because there were some inconsistencies among the various statements made by the victim the testimony should have been excluded. However, inconsistency is not a proper basis for excluding dying declarations. Commonwealth v. Douglas, 461 Pa. 749, 337 A.2d 860 (1975). Once the court has ruled on the inadmissibility, the jury is free to determine whether or not to believe them, in whole or in part. Bastone, supra. Here, the victim was consistent in identifying appellant as the person who shot her. The inconsistencies on other matters went to weight, not admissibility, and apparently did not destroy the jurors’ belief that the victim correctly identified the appellant as her assailant. There was no error in admitting the victim’s statements.¹

Appellant also contends that the trial court improperly refused to instruct the jury that the prosecution had the burden of proving an absence of passion as an element of first-degree murder. The requested instruction is said to be required by Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Mullaney held, based on In re Winship, 397 U.S. 358 (1970), that the prosecution must prove absence of passion beyond a reasonable doubt in order to avoid reducing a homicide from murder to voluntary manslaughter, which is defined as a killing committed during the heat of passion, 18 Pa.C.S. § 2503(a).

Mullaney states, however, that the issue of passion must be properly presented before the instruction is required:

[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.

Mullaney, supra, at 704, 95 S.Ct. at 1892.² See Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982) (defendant must present “some evidence” of self-defense before prosecution is required to prove absence of self-defense); but see Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714, cert. denied, — U.S. —, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984) (evidence of intoxication places no new burden on prosecution). In the instant case, appellant has not presented any credible evidence to support his “heat of passion” contention. Thus, his requested jury instruction was properly denied.

We have defined the heat of passion as including “any emotions of the mind known as anger, rage, sudden resentment or terror, rendering the mind incapable of cool reflection.” Commonwealth v. Harris, 472 Pa. 406, 408, 372 A.2d 757, 758-59 (1977) (per curiam). The only evidence presented to support the finding of passion was that the victim and appellant had a stormy love affair and that they had been seen arguing the morning the victim was killed. This is insufficient to show the passion required to reduce a murder to manslaughter. Appellant also cites testimony indicating that he was sick and tired of their fighting. N.T. 201, 208, 214. When viewed in context, however, that testimony also fails to present the issue of legally sufficient passion. Indeed, it seems to cut the other way:

She said he has told her he wanted to show her something up in the woods and when she got up there, he went down in the woods, picked up a gun and told her he was tired of fighting with her, is what she indicated and then he shot her.

N.T. at 201 (testimony of William Flexman).

[S]he said my boyfriend shot me, well, a friend and she said he wanted to go for a walk in the woods. She said if I’d known he had a gun then I wouldn’t have gone. He stepped into the woods and produced a gun and turned around and said I’m tired of your f — ing around on me and shot her.

N.T. at 208 (testimony of Max Crandall).

She said they were driving up Moody Hollow Road, talking about some previous charges against us and he just pulled off the road. He got out and he called her out to the edge of the road and she said that he said that I’m sick and tired of you and your shit and then he shot her and she said she heard the truck drive away.

N.T. at 214 (testimony of Jonathan Watson). This testimony does not show the sudden provocation required by our cases. See, e.g., Commonwealth v. Horne, 479 Pa. 496, 388 A.2d 1040 (1978); Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977); Commonwealth v. Mason, 474 Pa. 308, 378 A.2d 807 (1977); Harris, supra. Instead, it is relevant to show appellant acted willfully in killing the victim.

The court’s instruction on voluntary manslaughter did state that the jury could only find malice if:

you are satisfied beyond a reasonable doubt that the [appellant] was not acting under a sudden and intense passion resulting from serious provocation by the victim or under an unreasonable belief that the circumstances were such that if they had existed or if they existed [sic] would have justified the killing.

N.T. at 281. This instruction adequately states the proper burden of proof in this case. Therefore, the requested instruction was unnecessary. Since we have found no error in the finding of guilt, his conviction of first-degree murder must be affirmed.

Having decided the jury properly found appellant guilty of first degree murder, we now turn to the question of whether the death penalty the jurors imposed in this case can be upheld. 42 Pa.C.S. § 9711(h) states that the sentence shall be affirmed unless we find that it was the product of passion, prejudice or other arbitrary factor, that the evidence does not support the statutory aggravating circumstances, or that the sentence is disproportionate to sentences in other similar cases.

At the separate sentencing hearing conducted in this case, the prosecution presented evidence as to only one aggravating circumstance, viz., a significant history of felony convictions involving the use of threat or violence to the person. 42 Pa.C.S. § 9711(d)(9). The only evidence produced was one prior conviction for voluntary manslaughter.

In Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985), we held that a single prior conviction for the equivalent of third-degree murder, 18 Pa.C.S. § 2502(c), was legally insufficient to constitute a “significant history of felony convictions” under 42 Pa.C.S. § 9711(d)(9).³ This case is identical to Goins except the prior conviction is voluntary-manslaughter, a lesser degree of homicide than that at issue in Goins. Therefore, we must, as we did in Goins, vacate the death sentence.

Judgment of conviction affirmed; judgment of sentence vacated. Case remanded to Court of Common Pleas of McKean County for imposition of a sentence of life imprisonment.

LARSEN, J., files a concurring and dissenting opinion. McDERMOTT, J., files a concurring and dissenting opinion in which LARSEN and PAPADAKOS, JJ., join. PAPADAKOS, J., files a concurring and dissenting opinion in which LARSEN, J., joins.

1 . The admission of the statements also satisfies us on our independent review of sufficiency required by Commonwealth v. Zettlemoyer, supra. In Zettlemoyer, we stated that in each death penalty case we would determine whether there was sufficient evidence to sustain the conviction for first degree murder. In Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978), we stated dying declarations are sufficient by themselves to sustain a conviction. Therefore, the evidence in this case is sufficient.

2 . See Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Patterson does not elaborate on what the defense must do to meet its burden of “negation.”

3 . The dissents correctly point out that the proper application of 42 Pa.C.S. § 9711(d)(9) is difficult. Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985); see also Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), cert. denied, — U.S. —, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984). However, their solution seems to us to dispense with the ordinary implication of the word "history," the use of the word "conviction” in its plural number and the presence of 42 Pa.C.S. § 9711(d)(10) in our death penalty statute. One of the dissents points out, in hypotheticals, some of the anomalies presented by the legislature’s attempt to capture in precise words the heinous crimes which warrant the final penalty of death. Reasonable precision appears required by decisions of the federal judiciary. The solution to the problems the dissents point out, therefore, lies with the legislature.