756 A.2d 1139 (Pa. 2000), Commonwealth v. Spotz

Citation:756 A.2d 1139, 562 Pa. 498
Opinion Judge:The opinion of the court was delivered by: Mr. Justice Castille
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Mark Newton SPOTZ, Appellant.
Case Date:August 22, 2000
Court:Supreme Court of Pennsylvania

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756 A.2d 1139 (Pa. 2000)

562 Pa. 498

COMMONWEALTH of Pennsylvania, Appellee,


Mark Newton SPOTZ, Appellant.

Supreme Court of Pennsylvania

August 22, 2000.

Argued Nov. 15, 1999.

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[562 Pa. 511] Bruce P. Blocher, Suzanne S. Smith, York, for Mark Newton Spotz.

Christy H. Fawcett, Robert A. Graci, Amy Zapp, Harrisburg, for Office of Atty. Gen.



CASTILLE, Justice.

This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of York County. 1 On April 22, 1996, following a jury trial, appellant was convicted of first degree murder, 2 kidnapping, 3 robbery, 4 theft, 5 robbery of a motor vehicle, 6 carrying a firearm without a license, 7 and criminal conspiracy to commit first degree murder, kidnapping and robbery of a motor vehicle. 8 At the penalty phase, the jury determined that the four aggravating circumstances it found outweighed the two mitigating circumstances it found and, therefore, returned a sentence of death. 9 Post-verdict motions

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were denied and the trial court formally imposed the death penalty for the murder conviction. In addition, the trial court sentenced appellant to an aggregate consecutive term of 20 years and 9 months to 41 years and 6 months on the kidnapping, robbery, carrying a firearm without a license and conspiracy to commit murder charges. He received concurrent sentences on the remaining charges.

Although [562 Pa. 513] appellant has not specifically challenged the sufficiency of the evidence to prove murder, we begin, as we do in all death penalty direct appeals, by performing our self-imposed obligation to review the evidence underlying the first degree murder conviction. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 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), reh. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, supports the jury's finding of all of the elements of the offense beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 539-40, 510 A.2d 1217, 1218 (1986).

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 done with premeditation or deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 551, 599 A.2d 624, 626 (1991). A specific intent to kill may be proven by circumstantial evidence; it may be inferred from the defendant's use of a deadly weapon upon a vital part of the victim's body. Commonwealth v. Bond, 539 Pa. 299, 305, 652 A.2d 308, 311 (1995).

The evidence adduced at trial showed that: at 6:20 a.m. on February 2, 1995, in York County, appellant approached Penny Gunnet's vehicle on the pretense of asking Ms. Gunnet for directions. Appellant aimed a nine-millimeter semiautomatic pistol at Gunnet and forced her into the passenger seat. He then drove the car to Indian Rock Dam Road, an isolated area, while his girlfriend, Christina Noland, followed him in a car they had stolen from June Ohlinger in Schuylkill County. While the two cars were stopped on Indian Rock Dam Road, Noland heard three gunshots. Soon afterwards, appellant sped off in Ms. Gunnet's car. Noland attempted to follow appellant in the Ohlinger vehicle, but she was unable to keep [562 Pa. 514] up. Gunnet was eventually found under the wheels of her car, which had been abandoned by appellant. Thomas Stover and Patricia Eisenhart, two motorists, both positively identified appellant as the man they saw walking near the area where Ms. Gunnet's body was found.

Juan Maldonado testified that, on the day of the murder, appellant tried to sell him items of jewelry that had belonged to Ms. Gunnet. At that time, appellant informed Maldonado that he had a nine-millimeter semiautomatic pistol that was "dropping them like flies." Michelle Rhinehart, appellant's ex-wife, testified that less than 24 hours after the murder of Ms. Gunnet appellant gave her several rings that were later identified as belonging to Ms. Gunnet. Appellant also offered her several credit cards at the same time. Charles Carothers, another of appellant's acquaintances, testified that he heard appellant offer Rhinehart credit cards that appellant said would have to be used the

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next day. Carothers further testified that appellant confessed that he had shot his brother and had killed "these other ladies." Appellant told Carothers that he had thrown one woman off of a bridge and "the other lady he ran over with her car and she got stuck under it." Carothers also testified that appellant was in possession of the silver nine-millimeter semiautomatic pistol that was later identified as the weapon that fired at least two of the three nine-millimeter bullets recovered from Ms. Gunnet's car.

The police eventually tracked appellant to a motel room in Carlisle, Pennsylvania. When appellant opened the door to the room, he discarded a silver nine-millimeter semiautomatic pistol and surrendered to the police. A subsequent search of the room yielded appellant's bloodstained jeans, a knife, nine-millimeter "full metal jacket" ammunition, five credit cards issued in Ms. Gunnet's name and one credit card issued in Ms. Gunnet's husband's name. Ms. Rhinehart's fingerprint was found on one of the credit cards. Corporal James Rottmund of the Pennsylvania State Police, a ballistics expert, testified that two full metal jacket bullets that were recovered from Ms. Gunnet's car were conclusively fired from the gun seized from appellant.

[562 Pa. 515] Dr. Isidore Mihalikis, a forensic pathologist, testified that Ms. Gunnet died from two gunshot wounds. One bullet passed through Ms. Gunnet's neck, severing her jugular vein, piercing a carotid artery, and severing her spine before exiting the body. Another bullet entered her chest and pierced her heart and lungs before exiting the body. Dr. Mihalikis further testified that there were three bullet holes in Ms. Gunnet's vehicle. When appellant was arrested, he was found to have sustained a self-inflicted bullet wound to his thigh. The wound matched the trajectory of bullet holes in appellant's jeans, in the driver's seat and in the floor of Ms. Gunnet's car.

Appellant's accomplice, Christina Noland, testified for the Commonwealth She related that, at the time appellant abducted Ms. Gunnet, they were escaping because appellant had shot his brother on January 31, 1995. She further testified that, prior to abducting Ms. Gunnet, she and appellant had committed a similar flight-induced crime in Schuylkill County. Specifically, they forced June Ohlinger into the passenger seat of Ohlinger's car at gunpoint, drove her to a remote, wooded area and shot her in the back of the head. 10 Commonwealth witness Dr. Richard Bindie, a board certified anatomical and clinical pathologist and forensic pathologist, testified that Mrs. Ohlinger had sustained a gunshot wound to the back of the head consistent with the use of a full-metal-jacket bullet. Ms. Noland testified that she and appellant took Ms. Ohlinger's car and money and drove to Rehoboth Beach, Delaware. In Delaware, they attempted to alter their appearances before returning to York County in search of another vehicle and [562 Pa. 516] money for gas. Unfortunately, they happened upon Penny Gunnet.

Based upon the foregoing facts, overwhelming evidence was presented to support the first degree murder conviction. We now proceed to address appellant's allegations of error.

Appellant first claims that the trial court abused its discretion in denying his request to appoint new counsel and new

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standby counsel. Appellant alleges that there was a conflict of interest between himself and appointed counsel and, therefore, he was entitled to new counsel under Pa.R.Crim.P. 316(c)(ii). We discern no error here.

On March 14, 1996, approximately one month prior to trial, appellant's appointed counsel alerted the trial judge that they had received information that appellant was involved in a conspiracy to murder Christina Noland, his co-conspirator and a key Commonwealth witness. The court concluded that this disclosure by appellant's counsel was proper under Rule 1.6(c)(1) of the Rules of Professional Conduct. 11 Subsequently, on April 3, 1996, appellant's counsel alerted the court that they had received additional credible information that appellant planned to stab one of them in the neck with a pencil during the course of trial in order to secure a mistrial. During subsequent inquiries by the court, appellant's counsel repeatedly assured the court that they would still do their best to represent appellant. The court noted that, even if it appointed new counsel, the possibility would still exist that appellant would attack his new counsel in an attempt to cause [562 Pa. 517] a mistrial. Although appellant denied that he intended to attack his counsel, as a security precaution, the court arranged for several officers from the sheriff's department to be in close proximity to appellant at all times during the trial.

On April 8, 1996, just before jury selection, appellant...

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