Com. v. Fostar

• Decision Date: 24 January 1974
• Parties: COMMONWEALTH of Pennsylvania v. John Michael FOSTAR, Appellant.
• Court: Pennsylvania Supreme Court

Page 188

317 A.2d 188

455 Pa. 216

COMMONWEALTH of Pennsylvania v. John Michael FOSTAR, Appellant.

Supreme Court of Pennsylvania.

Jan. 24, 1974.

Rehearing Denied April 15, 1974.

Clarence F. McBride, Greensburg, for appellant.

John N. Scales, Dist. Atty., John F. Dent, Asst. Dist. Atty., Greensburg, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

During the early morning hours of February 28, 1970, the flame of life within the body of Ms. Harriet Susanna Thomas was extinguished after an assault by an intruder while she was watching television in the shelter of her home. The appellant, John Michael Fostar, was arrested and indicted for murder and burglary as a result of this incident and was subsequently convicted of both charges before a jury. Post-trial motions were filed, argued and dismissed. A sentence of imprisonment for life was imposed upon the murder indictment and the execution of sentence was suspended on the burglary bill. The appeal from the conviction on the murder charge was taken directly to this Court and the appeal from the burglary conviction was certified to this Court after first having been lodged in the Superior Court. The appeals have been consolidated and are now ripe for decision.

Appellant first contends that the evidence was not sufficient to sustain the guilty verdicts on either indictment. We have stated on many occasions that the test of the sufficiency of the evidence is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged. Commonwealth v. Paquette, 451 Pa. 250, 253, 301 A.2d 837 (1973); Commonwealth v. Oates, 448 Pa. 486, 489, 295 A.2d 337, 339 (1972). In passing upon such a motion, all evidence, actually received is to be considered without concern for the validity of the evidentiary rulings. Commonwealth v. Crews, 429 Pa. 16, 19, 239 A.2d 350 (1968); Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965).

The testimony offered by the prosecution established that the deceased, a fifty-two year old married woman, was staying in her residence on the night in question with her six year old son, Mark, her daughter, Ruth, and her daughter-in-law, Gail. That evening she had decided to sleep in the living room to allow her to be near her young son who was ill at the time and sleeping on a cot in the dining room. The daughter and the daughter-in-law of the deceased testified that they were sleeping on the second floor of the home and that in the vicinity of 3 A.M. in the morning they were awakened by the screams of the deceased. Upon going downstairs, they both observed the appellant struggling with the deceased in the living room. The daughter solicited the aid of a neighbor who was then the chief of police. When he arrived he found the decedent on the living room fllor unconscious with evident bruises. The deceased was rushed to the hospital where she was pronounced dead on arrival.

The defendant was observed leaving by the rear kitchen door by the daughter as she left by the front door to seek aid. An inspection of this kitchen door revealed a loose door jam which suggested that this was the means by which the intruder gained entry. A search of the area uncovered the defendant hiding in a building used as a 'doghouse' to the rear of the Thomas home. Upon apprehension he stated to police officers, 'I don't know why I did it. How is she?' ¹

In autopsy showed the victim had been subjected to a merciless beating and had sustained over twenty wounds about the face and trunk of the body. The cause of death was identified as a stab wound of the chest which caused a cardiac tamponade. The pathologist testified that the screwdriver found on the scene and identified as belonging to the appellant was the type of weapon capable of causing such a wound.

Investigation of the scene revealed mud prints on a pipe below a living room window and telephone wires which had been severed suggesting that before entry the assailant had peered surreptitiously into the room where the victim was lying on the divan clad only in night clothing. The pipe which contained the mud prints was within an arm's length of the telephone juncture box from which the wires had been torn, suggesting that after viewing his prey, the intruder disconnected the wires to prevent the victim from using the telephone as a means to solicit aid.

In establishing the presence of a specific intent to kill the Commonwealth is not required to depend upon proof by direct evidence but also may meet its burden by circumstantial evidence alone.

"The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom . . ."

Commonwealth v. Ahearn, 421 Pa. 311, 318, 218 A.2d 561, 565 (1966); See also, Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852 (1961); Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959); Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913 (1959).

The evidence of the Commonwealth, if believed, provided more than sufficient basis for the finding of a willful, deliberate and premeditated killing. This testimony also amply supports a verdict of first degree murder on a felony murder theory. The jury in this case was clearly warranted in finding a homicide committed in the perpetration of the crime of burglary.

There was also evidence that appellant was under the influence of alcohol and/or drugs due to his voluntary consumption of large quantities of alcoholic beverages and ingestion of pills prior to the incident. While we permit evidence of intoxication as relevant on the question of the capacity of the defendant to possess the specific intent required of a non-felony first degree murder, Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970) it is a matter which is properly left for decision by the finder of fact, who in this case and under these facts understandably resolved the issue adversely to appellant. We are completely satisfied that the proof offered by the Commonwealth was clearly sufficient to support the verdicts returned and therefore affirm the lower court's dismissal of the motion in arrest of judgment.

Numerous assignments of error have been asserted many of which are repetitious and all are without merit. A seriatim discussion can be avoided by a consideration of an erroneous basic assumption made by appellant upon which he predicates a number of his claims for relief. Appellant opines that under the indictments in this case the Commonwealth was restricted in its proof of a felony-murder to establishing a burglary accompanied by a specific intent to kill. He argues that the indictment charging burglary requires a specific intent to kill and that this indictment precluded the Commonwealth from proving the existence of any other felony but the one encompassed within the burglary charge as a basis for a finding of felony-murder under the murder indictment.

The first error in this reasoning is the conclusion that the existence of the burglary affects the proof to be offered in support of the murder charge.

The Act of March 31, 1860, P.L. 427, § 20, 19 P.S. § 351 provides:

'In any indictment for murder . . . it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient, in every indictment for murder, to charge that the defendant did feloniously, willfully, and of his malice aforethought, kill and murder the deceased . . .'.

In Commonwealth ex rel. Lagana v. Burke, 372 Pa. 298, 93 A.2d 478 (1953) we interpreted the above statutory provision as not requiring a murder indictment to specify the felony which forms the basis of the felony murder theory.

'Thus, in a case like the one at bar the Commonwealth may not be precluded from proving that the murder with which a defendant stands charged was one committed during the perpetration of a robbery, even though robbery is not mentioned in the indictment.' 372 Pa. at 300, 93 A.2d at 479.

See also, Commonwealth v. Hainds, 448 Pa. 67, 72, 292 A.2d 337 (1972); Commonwealth v. Lowry, 374 Pa. 594, 98 A.2d 733 (1953) cert. denied, 347 U.S. 914, 74...