Com. v. Henry

Decision Date08 February 1990
Citation569 A.2d 929,524 Pa. 135
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Josoph HENRY, Appellant.
CourtPennsylvania Supreme Court

Donald B. Corriere, Dist. Atty., Richard H. Pepper, Bethlehem, Robert A. Graci, Chief Deputy Atty. Gen., for appellee.



FLAHERTY, Justice.

On April 25, 1987, in the Court of Common Pleas of Northampton County, the appellant, Josoph Henry, was found guilty of murder of the first degree, rape, involuntary deviate sexual intercourse, indecent assault, burglary, theft, robbery, and aggravated assault. In connection with the murder conviction, a separate sentencing hearing was held, as required by 42 Pa.C.S. § 9711, and appellant was sentenced to death. The present appeal ensued. We find no error in the proceedings, and affirm the judgment of sentence.

The incident from which the convictions arose was one in which appellant burglarized the dormitory room of Jeanne Ann Clery, a student at Lehigh University. Clery, who was present at the time of the burglary, was viciously assaulted by appellant. He slashed Clery's neck repeatedly with broken glass, bit her face, raped her, sodomized her, strangled her, and beat her all over her face and body. Before leaving the scene, appellant murdered Clery to prevent her from identifying him.


First, appellant claims that it was error for the trial court to deny his motion to bar selection of a petit jury from Lancaster County because of alleged systematic exclusions of non-whites and those convicted of juvenile offenses and misdemeanors. 1 In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the United States Supreme Court held that in order to establish a prima facie violation of the Sixth and Fourteenth Amendment requirement that the jury represent a fair cross section of the community, the defendant must show:

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Id. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 587.

The record indicates that approximately 6,000 names are selected annually in Lancaster County to receive questionnaires concerning the recipients' availability for jury duty. The names are selected at random by computer and are taken from voter registration lists and from school census data. Approximately two percent of Lancaster County is black. In 1986, school census data, which lists all persons over eighteen living within the school district, was not used for the city of Lancaster, where 80% of the county's black population resides, because the computer tapes used by the city were not compatible with the county's computers. The names of prospective jurors from the city were generated by using voter registration lists.

The first prong of appellant's argument is that jury panels selected from voter registration lists systematically exclude blacks because blacks, so it is claimed, do not register to vote in proportion to their numbers.

This Court has repeatedly held that a criminal defendant may not attack the racial composition of jury panels drawn from voter registration lists on the theory that blacks are underrepresented in voter lists. Commonwealth v. Terry, 513 Pa. 381, 405-06, 521 A.2d 398 (1987), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987); Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981). Since the record indicates that the panels were formed by computer generated lists without regard to race, and since voter registration lists have been established as an acceptable source of such lists, there is nothing of record to indicate that the panels were improperly formed with respect to the race of prospective jurors, and appellant's assertion of error is without merit.

The second prong of appellant's claim is that it was error to exclude those convicted of juvenile and minor crimes from jury service. Although such persons do appear to have been excluded from jury service based upon their responses to questionnaires asking them whether they had ever been convicted of a crime, appellant is entitled to no relief on this claim since there is nothing of record to indicate that such persons are entitled to the protection afforded by Duren v. Missouri. As to the allegation that the jury was selected in violation of state law, 2 where the panel has been selected impartially, but the selection process erroneously excluded those convicted of lesser crimes, appellant is entitled to no relief absent a showing of prejudice resulting from the erroneous exclusion. Since no prejudice has been alleged, let alone proved, appellant is entitled to no relief on this claim.

Next, appellant argues that it was error for the trial court to have denied his pretrial motion in limine to preclude the Commonwealth from making reference to bite mark evidence through the testimony of Dr. Dennis Asen, a general practicing dentist. Dr. Asen testified as to the source and nature of bite marks found on the victim's body. Because the appellant did not dispute that he caused the marks, this claim actually concerns the dentist's testimony that the bite marks were attacking or sadistic in nature.

Appellant claims that the dentist is unqualified to state that the bite marks were attacking or sadistic because there is no generally accepted scientific procedure for comparing bite marks. Although it is true that the American Dentistry Association does not recognize forensic odontology as a specialty, and there is no board certification in forensic odontology, Dr. Asen testified that he had taken courses, attended lectures and read the professional literature concerning forensic odontology. Further, he testified that he had done research into the categorization of human bite marks and that he was able to distinguish lunatic and fighting bite marks from attacking or sadistic bite marks and from sexually oriented bite marks. The essence of the distinction is that fighting bite marks are less well defined because they are done carelessly and quickly, whereas attacking or sadistic bite marks are made slowly and produce a clearer pattern. According to Dr. Asen, the sadistic bite mark is one of the most well-defined. Sexual bite marks are also well defined, but usually have a red center, produced by sucking tissue into the mouth. The dentist testified that the bite marks produced in this case were extremely well-defined, and were attacking or sadistic in nature. The legal significance of this testimony is that it might have been considered by the jury as part of their determination that the homicide was committed by means of torture.

Pennsylvania has adopted a liberal standard for the qualification of an expert. "Generally, 'if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the jury.' " Commonwealth v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26 (1988), quoting Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974); Moodie v. Westinghouse Electric Corp., 367 Pa. 493, 501, 80 A.2d 734, 738 (1951). In this case it was established that Dr. Asen had a specialized knowledge in the area of identifying bite marks, and the trial court was careful to instruct the jury that they were free to accept or reject his testimony:

[A]s I have stated, the fact that I am permitting this witness to opine in this area does not in any way mean that you are going to find his opinions reliable or worthy of belief. You will have to make that decision. On the other hand, it doesn't mean you won't. What I'm trying to tell you is don't attach any significance that by my permitting it that you are obligated to follow it. You will get a whole set of instructions that deals with how a jury approaches testimony given by expert witnesses. And the bottom line of those instructions will be that if the jury finds in a given case that the expert's opinion is not worthy of belief, the jury has the full right, under the law, to reject it.

Since Dr. Asen was established as a practicing dentist who had specialized knowledge of bite mark identification, and since the jury was clearly informed of its right to accept or reject Dr. Asen's testimony, it was not error to have denied appellant's motion in limine to exclude the testimony of Dr. Asen. 3


The primary trial phase issues concern the verdicts of insanity and "guilty but mentally ill." Appellant claims that the trial court erred in taking these two issues away from the jury as a matter of law. He also challenges evidentiary rulings permitting or prohibiting proof of facts relating to the issues of insanity and guilty but mentally ill.

Appellant's main contention is that the trial court erred in granting the Commonwealth's demurrer to the sufficiency of the evidence as it related to the defense of insanity. Appellant argues that the court's conclusion that Pennsylvania does not recognize a defense of insanity based upon what is described as an inherent pathologic illness triggered by the voluntary ingestion of alcohol is a perversion of 18 Pa.C.S. § 308 4 and a misinterpretation of appellate cases addressing the issue of alcohol in relation to the defense of insanity. He argues that in enacting section 308, the legislature did not intend that the insanity defense and guilty but mentally ill verdict be taken away from a defendant when a M'Naghten state results from alcohol triggering an inherent pathological...

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