716 A.2d 580 (Pa. 1998), Commonwealth v. Spotz

Citation:716 A.2d 580, 552 Pa. 499
Opinion Judge:The opinion of the court was delivered by: Justice Nigro
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Mark Newtown SPOTZ, Appellant.
Case Date:July 20, 1998
Court:Supreme Court of Pennsylvania
 
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Page 580

716 A.2d 580 (Pa. 1998)

552 Pa. 499

COMMONWEALTH of Pennsylvania, Appellee,

v.

Mark Newtown SPOTZ, Appellant.

Supreme Court of Pennsylvania.

July 20, 1998

Submitted Oct. 23, 1997.

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[552 Pa. 505] Kent D. Watkins (Direct), St. Clair, Harry A. Rubright (Collateral), Frackville, for M. Spotz.

Claude A.L. Shields, Pottsville, Robert A. Graci, Atty. General's Office, for the Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

NIGRO, Justice.

Following a jury trial, Appellant Mark Spotz was found guilty of first degree murder for the killing of June Ohlinger. The jury returned a verdict of death, and on March 6, 1996, the trial court formally imposed the death sentence. Appellant filed post-sentence motions which the trial court denied. This direct appeal followed. 1 For the reasons presented herein, we affirm the judgment of sentence.

Petitioner initially contends that the verdict of first degree murder was not supported by the evidence and was against the weight of the evidence. As in all cases in which the death penalty has been imposed, this Court is required to independently review the record to determine whether the evidence is sufficient to sustain the verdict for murder of the first degree. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26, n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In conducting such a review, we must view the evidence admitted at trial, and all reasonable inferences drawn therefrom, in the light most favorable to the Commonwealth as verdict winner, and determine whether the jury could find every element of the crime beyond a reasonable doubt. See Commonwealth v. Michael, 544 Pa. 105, 109-12, 674 A.2d 1044, 1047 (1996).

Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill, that a human being was unlawfully killed, that the person accused did the killing and that the killing was deliberate. 18 Pa.C.S. § 2502(d); Commonwealth v. Rios, 546 Pa. 271, 281, 684 A.2d 1025, 1030 (1996), cert. denied, --- U.S. ----, 117 S.Ct. 1825, 137 L.Ed.2d 1032 (1997). A specific intent to kill may be proven by circumstantial evidence, and therefore, may be inferred from the defendant's use of a deadly weapon upon a [552 Pa. 507] vital part of the victim's body. Id.; Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995).

At the same time, a defendant's request for a new trial based on the argument that the verdict was against the weight of evidence will only be granted when the verdict is so contrary to the evidence as to shock one's sense of justice. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). Unless there are facts and inferences of record that disclose a clear abuse of discretion, the trial court's ruling that a verdict was not against the weight of the evidence must stand. Commonwealth v. Brown, 538 Pa. 410, 436, 648 A.2d 1177, 1189 (1994).

Viewed under these standards, the record below establishes that on January 31, 1995, Appellant and his girlfriend at the time, Christina Noland, were staying in Clearfield County at the home of Appellant's mother and step-father, Jean and Daryl Newpher. Appellant's brother, Dustin Spotz, and Dustin's fiancee and her son were also in the home. That evening, a fight developed between Appellant and his brother, Dustin. During the fight, Dustin stabbed Appellant twice in the back with a kitchen knife. In response, Appellant ran upstairs, retrieved a .9 mm handgun, returned to the kitchen and shot his brother. Although Dustin's fiance tried to call the police, Appellant grabbed the

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phone and declared that no one could call anyone until he had gotten away. Appellant then put the handgun in his pants and fled the house with Noland in a vehicle driven by his step-father. 2

After getting dropped off at Appellant's friend's house, Appellant and Noland got a ride to a truck stop in Pine Grove, Schuylkill County, where Appellant had previously worked. At the truck stop, Appellant encountered a friend who gave him and Noland a ride into Pine Grove Borough, dropping them off on the main street of town. At this point, it was around 2:30 to 3:00 a.m. on February 1, and Appellant and Noland were without any money or a car. They walked up [552 Pa. 508] the street to a hotel looking for a car to steal, but were unsuccessful.

Appellant and Noland then walked to the Harris Mini-Mart. By this time, it was approximately 5:30 a.m., and June Ohlinger, a Mini-Mart employee, was arriving in her car to open the store. Appellant approached Mrs. Ohlinger with his gun drawn and ordered her to the passenger side. Noland got in the back of the car and Appellant then drove to a secluded area, asking Mrs. Ohlinger such questions as what time she opened the store and what time she usually saw her husband. Handing the gun to Noland, Appellant then removed Mrs. Ohlinger's jewelry and money. Appellant took back the gun, ordered Mrs. Ohlinger out of the car, and forced her to stand on the side of a roadway bridge. Appellant then shot her in the back of the head and kicked her body over the bridge into the creek below.

Appellant and Noland then drove Mrs. Ohlinger's car to a car wash in Schuylkill County, removed certain items from the car, and then traveled south to Rehoboth Beach, Delaware and then into Maryland. During the trip, Noland cut and dyed her hair.

Appellant and Noland then drove to York County, where Appellant and Noland became separated. Noland was left with Mrs. Ohlinger's car. On February 3, Appellant was arrested at a motel in Carlisle, Pennsylvania. Appellant was charged with numerous offenses, including aggravated assault (18 Pa.C.S. § 2702), kidnapping (18 Pa.C.S. § 2901), robbery of a motor vehicle (18 Pa.C.S. § 3702), robbery (18 Pa.C.S. § 3701), theft by unlawful taking (18 Pa.C.S. § 3921), criminal conspiracy (18 Pa.C.S. § 903) and murder in the first degree (18 Pa.C.S. § 2502(a)). Noland, meanwhile, abandoned Mrs. Ohlinger's car and traveled to Altoona by bus. Eventually, Noland surrendered to the Altoona police, with Mrs. Ohlinger's rings still in her possession.

At Appellant's trial, Noland testified against Appellant, describing the events above and identifying Appellant as the [552 Pa. 509] one who shot Mrs. Ohlinger. 3 One of the police officers who arrested Appellant, State Trooper Joseph Kalis, testified that the police recovered a .9 mm handgun and full metal jacket ammunition from the motel at the time of Appellant's arrest. State Trooper Chester Zalegowski testified that Appellant's fingerprints were found on certain items inside Mrs. Ohlinger's car, which had been recovered by police in York County. Another witness for the Commonwealth, Juan Maldonado, testified that he saw Appellant in Harrisburg on February 2, 1995, at which time Appellant told him that he was wanted on a homicide charge in Schuylkill County and showed Mr. Maldonado a .9 mm handgun. The Commonwealth also offered the testimony of Dustin Spotz's fiancee and her son who testified about the events surrounding the shooting of Dustin Spotz in Clearfield County on the evening of January 31, 1995.

On March 4, 1996, the jury found Appellant guilty of first-degree murder, aggravated assault, kidnapping, robbery of a motor vehicle, robbery, theft by unlawful taking and criminal conspiracy. After a penalty hearing, the jury found that there were one or more aggravating circumstances which outweighed

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any mitigating circumstances. 4 The jury therefore returned a verdict of death for the murder conviction, which the trial court formally imposed on March 6, 1996. For the other offenses, Appellant was sentenced to a total term of fourteen and one-half to twenty-nine years of imprisonment to be served consecutive with the sentence imposed for the killing of Dustin Spotz.

[552 Pa. 510] In his first claim of error, Appellant specifically argues that there was insufficient evidence to establish that he had a specific intent to kill, a finding necessary to sustain his conviction for first degree murder. Appellant contends that the only evidence offered by the Commonwealth was the testimony of Christina Noland, the person whom Appellant attempted to portray as the actual shooter. Therefore, Appellant appears to maintain that the evidence could only show him to be an accomplice and thus, there can be no liability for first-degree murder unless he shared Noland's specific intent to kill. 5 We disagree.

In the first instance, it is well settled that issues of credibility are for the jury to resolve. Commonwealth v. Fahy, 512 Pa. 298, 308, 516 A.2d 689, 694 (1986). Here, Christina Noland testified that Appellant was the one who shot Mrs. Ohlinger in the back of the head. The jury, as the finder of fact, was free to believe all, part or none of Noland's testimony. 6 Id. At the same time, the jury was free to disbelieve the evidence proffered by Appellant purporting to [552 Pa. 511] show that Noland was the trigger person. 7 Clearly, the firing of a weapon at a vital part of Mrs. Ohlinger's body, the back of her head, demonstrates Appellant's specific intent to kill Mrs. Ohlinger.

Moreover, even assuming the jury disbelieved Noland's testimony that Appellant was the one to actually pull the trigger, as Appellant seems to argue, we agree with the trial court that there was sufficient evidence to support Appellant's conviction of first degree murder as an accomplice. It is well established that an accomplice is equally criminally liable for the acts of another if he...

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