639 A.2d 421 (Pa. 1994), Commonwealth v. Mayhue

Citation:639 A.2d 421, 536 Pa. 271
Opinion Judge:The opinion of the court was delivered by: Montemuro
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Frederick E. MAYHUE, Appellant.
Case Date:March 18, 1994
Court:Supreme Court of Pennsylvania

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639 A.2d 421 (Pa. 1994)

536 Pa. 271

COMMONWEALTH of Pennsylvania, Appellee,


Frederick E. MAYHUE, Appellant.

Supreme Court of Pennsylvania.

March 18, 1994

Argued Sept. 20, 1993.

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[Copyrighted Material Omitted]

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[536 Pa. 276] Robert E. Stewart, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Kemal A. Mericli, Michael W. Streily, Asst. Dist. Attys., Robert A. Graci, Office of the Atty. Gen., for appellee.




This is a direct appeal 1 from a judgment of sentence of death, entered in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. Our standard of review in such cases is set forth in the sentencing code, 42 Pa.C.S.A. § 9711(h) which provides:

(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for further proceedings ...

(3) The Supreme Court shall affirm the sentence of death unless it determines that:

(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;

[536 Pa. 277] (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or

(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.

After reviewing the evidence in the present case as well as the ten issues raised by appellant, we sustain his conviction of murder

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of the first degree, but vacate his sentence of death and remand for imposition of a sentence of life imprisonment on the grounds that the evidence fails to support the finding of at least one aggravating circumstance.

Appellant, Frederick E. Mayhue, was convicted by a jury of murder in the first degree on January 6, 1988. Following this verdict, a sentencing hearing was held on January 7, 1988, pursuant to 42 Pa.C.S.A. § 9711. At the close of the hearing, the jury unanimously imposed a sentence of death. In reaching this decision, the jury found the aggravating circumstance of "contract to kill for pay" outweighed any mitigating circumstances. The trial court then filed an order sentencing appellant to death on January 8, 1988.

Appellant subsequently filed a Motion for a New Trial/Arrest of Judgment on January 19, 1988. Appellant refiled this motion on May 25, 1988. On October 31, 1988, the trial court issued an order denying the motion. This automatic appeal then followed.


Sufficiency of the Evidence

The facts from which this case arises are as follows: The victim, Harlene Mayhue, was last seen alive on the evening of December 15, 1986, when she left her daughter's birthday party at 10:45 p.m. Her mutilated body was subsequently found by David Kisow and Donald Meerdo at approximately 3:00 a.m. on the morning of December 16, 1986, in the trunk of the car she had been driving when last seen.

[536 Pa. 278] An autopsy performed on Mrs. Mayhue's body on the morning of December 16th revealed five deep lacerations in the victim's skull and marked hemorrhage in her brain. The victim's skull was broken. Dr. Leon Rozin, who performed the autopsy, testified that these injuries were consistent with blows from a baseball bat or similar object. (Trial Transcript (T.T.) 12/10-15/87 at 238). Dr. Rozin also noted that the victim's neck bone was fractured. (T.T. at 242). In addition, the autopsy revealed that Mrs. Mayhue had been shot between the eyes and in the left temple. Two .25 automatic caliber bullets were found in the victim's head. According to Dr. Rozin, the minimal hemorrhaging along the tracks of these bullets indicated that the victim had still been alive at the time she was shot. (T.T. 12/10-15/87 at 241). Dr. Rozin determined the cause of death to be trauma to the head. Based upon his examination of the body, he was of the opinion that the victim had first been beaten, then strangled, and finally shot. (T.T. 12/10-15/87 at 246).

The chain of events that culminated in this brutal murder began in August of 1981, when the victim filed for divorce from appellant. Due to extensive litigation regarding tax liabilities and business holdings, however, the divorce had still not been finalized at the time of the victim's death. These bitter and protracted proceedings resulted in appellant's harboring an extreme animosity toward Mrs. Mayhue and her boyfriend, Barry Carle, appellant's former financial advisor, with whom Mrs. Mayhue became romantically involved in December, 1981.

At the time of her murder, Mrs. Mayhue was residing at what had been the family residence, an 18 acre horse farm on Sunflower Road (Route 68) in Daugherty Township, Beaver County. Barry Carle frequently stayed there as well. In addition, due to past abuse, Mrs. Mayhue had secured a court order prohibiting appellant from entering the property. Appellant, meanwhile, was living in a condominium in another part of Beaver County.

As previously noted, Mrs. Mayhue attended a birthday party for her daughter, Debbie Meyer, on the evening of [536 Pa. 279] December 15, 1986, and departed at 10:45 p.m. from her daughter's house where the party was being held. She was driving a 1984 Oldsmobile belonging to Barry Carle. Appellant had called Debbie at about 9:00 p.m., and had been informed by Debbie that her mother was at the party. Appellant stated that he was at his parents' house processing a deer, and would be unable to attend.

At approximately 1:30 a.m. on the morning of December 16th, Barry Carle telephoned the Meyer residence seeking Mrs. Mayhue, who was not at home when he arrived there at 12:45 a.m. Knowing that the trip from

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Debbie's home in New Galilee, Pa. to Mrs. Mayhue's home on Sunflower Road typically took twenty-five to thirty minutes, Debbie's husband, Jeff Meyer, and Mr. Carle decided to drive along the route usually taken by Mrs. Mayhue in case her car had broken down or she had been in an accident. After this search proved to be of no avail they called the state police.

At approximately 2:45 a.m., David Kisow arrived at his home in Allegheny County accompanied by Donald Meerdo. The two men had been Christmas shopping earlier in the evening and had subsequently stopped at a local bar. Upon their arrival at Kisow's house, they noticed a strange car, later identified as Barry Carle's Oldsmobile, backed against Kisow's garage door with the keys in the ignition. After removing the keys, Kisow and Meerdo opened the trunk and found the body of Harlene Mayhue.

Upon making this discovery, Meerdo wanted to call the police. Kisow, however, urged him not to stating that, "if he didn't get rid of the car he'd be dead". Despite Kisow's requests, Meerdo called the police. This call was logged in by the Findlay Township Police at 2:59 a.m.

Detectives of the homicide unit of the Allegheny County Police along with local police and members of the coroner's office were immediately dispatched to the scene. Upon their arrival, the detectives examined the trunk of the car. There they observed the body of a white female, her severely beaten face pointing toward the trunk opening. The victim's head [536 Pa. 280] was partially wrapped in a white scarf, which appeared to have a bullet hole in it, but due to the victim's extensive facial injuries, the detectives were unable to determine if she had been shot. Two spent .25 automatic caliber shellcasings were later found beside the vehicle. A bloody baseball bat was lying between the victim's legs. After the victim's driver's license was found, the police were able to make an initial identification of the victim as Harlene Mayhue.

When interviewed by the police, David Kisow initially denied having any knowledge concerning the murder. It was not until a phone conversation with appellant on December 21, 1986 left him fearing for his life that Kisow contacted police and began to cooperate with their investigation. 2

At trial, Kisow testified that he had known appellant, who had been a close friend of his deceased father, since 1978. Since 1981, Kisow had been traveling to Colorado to perform construction work, returning to Pennsylvania each year from December through April. According to Kisow, upon his return in 1981 appellant had approached him and asked if Kisow would chop up a car for him. Kisow stated that he would. This favor was to be payment for the proceeds of a cocaine sale made by Kisow for appellant in 1980/81, which had been stolen from Kisow's house before the money could be given to appellant. 3 Kisow testified that upon his return to Pennsylvania in 1982, appellant's request changed to whether Kisow would mind chopping up a car if it had a body in it. (T.T. at 89). Appellant then repeated this request each time Kisow returned home from 1982-1986. Upon Kisow's return in September, appellant paid him a visit and asked him if he had [536 Pa. 281] thought about their deal. (T.T. at 92-93). Kisow, however, was in a hurry and did not answer. Kisow stated that he next heard from appellant a few weeks later when appellant called and told him not to be surprised if he found a car in his driveway. (T.T. at 95). As previously indicated, Kisow subsequently found a car in his driveway on the morning of December 16th when he and Donald Meerdo made their gruesome discovery.

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After finding Mrs. Mayhue's body, the police proceeded to her residence on Sunflower Road. There they discovered patches of blood in the driveway near the entrance to the garage. The blood had been covered with gravel and leaves in an apparent attempt to conceal it. In...

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