Com. v. Marinelli
| Decision Date | 25 February 1997 |
| Citation | 547 Pa. 294,690 A.2d 203 |
| Court | Pennsylvania Supreme Court |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Kevin J. MARINELLI, Appellant. |
Robert B. Sacavage, Sunbury, Anthony J. Rosini, Shamokin, Robert A. Graci, Office of Attorney General, for Commonwealth.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
This is a direct appeal from the judgment of sentence of death imposed on appellant, Kevin J. Marinelli, by the Court of Common Pleas of Northumberland County, Pennsylvania.
Appellant and his co-defendant Thomas Kirchoff (Kirchoff) each were charged in connection with the killing of Conrad Dumchock and were tried jointly. 1 Following a jury trial, appellant was found guilty of: 1) criminal homicide (first degree murder) 2; 2) robbery 3; 3) conspiracy to commit robbery 4; 4) burglary 5; 5) theft by unlawful taking 6; 6) receiving stolen property 7; and 7) aggravated assault. 8 Co-defendant Kirchoff was found guilty of each of the same offenses as appellant, with the degree of homicide being second degree. After the penalty phase hearing, the jury returned a sentence of death on appellant's first degree murder conviction. The jury concluded that the two aggravating circumstances it found (defendant committed the killing while in the perpetration of a felony, 9 and defendant committed the offense by means of torture) 10 outweighed the two mitigating circumstances it found (defendant had no significant history of prior convictions, 11 and other evidence in mitigation concerning the character and record of the defendant). 12
In addition to imposing judgment of sentence of death for the first degree murder, the trial court, by further sentencing orders dated August 11, 1995, imposed judgment of sentence on appellant as follows: for the robbery conviction, imprisonment for a term of not less than ten (10) nor more than twenty (20) years, to run consecutive to the sentence for the first degree murder; for the conspiracy to commit robbery conviction, imprisonment for a term of not less than five (5) nor more than ten (10) years, to run consecutive to the sentence for the robbery conviction; and, for the burglary conviction, imprisonment for a term of not less than ten (10) nor more than twenty (20) years, to run consecutive to the sentence for the conspiracy to commit robbery conviction.
Appellant's judgment of sentence was automatically appealed to this court. 13 For the reasons expressed herein, we affirm appellant's convictions and the judgments of sentence imposed on him.
The testimony at appellant's trial established the following facts. On the evening of April 26, 1994, appellant and his brother, Mark Marinelli (Mark), and Kirchoff met at appellant's apartment to plan a burglary of the residence of Conrad Dumchock (Dumchock), whom Mark knew to have stereo equipment. The three men obtained weapons, disguises, and gloves in preparation for the burglary, and proceeded to Dumchock's home in Kulpmont.
Dumchock was home alone and had just spoken to his sister and brother-in-law on the telephone for forty-five minutes. The Marinelli brothers and Kirchoff arrived at Dumchock's home and initially had difficulty gaining entry. Observing that Dumchock's car was parked outside his house and concerned about the possibility of being discovered, the threesome left Dumchock's residence but returned a few minutes later to again attempt to enter. Eventually, they broke a small window in the kitchen door and entered the residence.
Upon entering Dumchock's residence, appellant immediately proceeded to the second floor, where he encountered Dumchock. When Dumchock requested that appellant leave his home, appellant struck Dumchock's face with his gun and yelled for assistance from Mark and Kirchoff.
The appellant and Kirchoff continued to beat Dumchock, despite Dumchock's pleading with them to take what they wanted and leave him alone. The three rummaged through Dumchock's home looking for items to take and asking Dumchock where his guns and money were located. When Dumchock would moan or not answer, appellant would hit Dumchock again.
Mark and Kirchoff departed Dumchock's home after they had loaded the items they wished to steal, while appellant remained in the residence with Dumchock. Appellant then shot Dumchock twice in the head, with one shot into Dumchock's eye and the other directly between Dumchock's eyes. Appellant then ran out of Dumchock's house and exclaimed, "Let's get out of here!"
The threesome returned to Kirchoff's home and divided the items stolen from Dumchock. A short while later, the Marinelli brothers returned to Dumchock's house and took a motorcycle from the victim's porch. Appellant attempted to start the motorcycle on compression, with Mark following in a car. They were observed crossing the main road in Kulpmont heading toward the other side of town. When the motorcycle would not start, appellant abandoned it.
On the morning following the killing, Clyde Metzger, who was waiting for Dumchock to drive him to work, entered the victim's home and discovered Dumchock's stereo equipment had been disarranged and Dumchock's dog was shaking. Metzger called out to Dumchock but received no response. Metzger became concerned and left Dumchock's home, and headed to the police station. On his way there, Metzger encountered a Kulpmont Police Sergeant Detective Robert Muldowney, and related to him the circumstances he had found.
Sergeant Muldowney entered Dumchock's home, noting that the storm door was open, the inside door was propped open with a chair, and the glass had been broken from a window in the door. Inside the house, Sergeant Muldowney discovered that telephone cords had been cut. Upstairs, Sergeant Muldowney discovered the victim's cold body lying at the top of the stairway landing. Sergeant Muldowney noted that Dumchock's bedroom was disheveled, with drawers removed from the dresser and various items strewn on the victim's bed. Pennsylvania State Police and County Coroner Richard Ulrich were called to the scene. The victim's sister also arrived at his house and noted that Dumchock's motorcycle was missing. The motorcycle was later recovered hidden in some brush where it had been abandoned. Dumchock's brother-in-law informed police that guns, tools, and electronic equipment were also missing from Dumchock's residence. One of Dumchock's friends, David Dormer, was brought to Dumchock's residence to assist police in determining which stereo equipment, as well as liquor, was missing.
On May 25, 1994, Mark Marinelli's girlfriend, Deeann Chamberlain, turned over to Coal Township Police certain weapons which Mark had brought to her home. These weapons were later identified as having belonged to the victim. County Coroner Ulrich was at the Coal Township police station when Ms. Chamberlain turned over these weapons. The coroner connected the items with the Dumchock killing, and notified the District Attorney and State Police. Further, Ms. Chamberlain allowed Shamokin Police to come to her home and remove other items Mark had left there, including a telephone answering machine. Coroner Ulrich recognized the telephone answering machine as being of the type reported missing from Dumchock's house, and he notified the State Police.
Additionally, a friend of appellant, Nathan Reigle, was questioned by police about the Dumchock murder. Reigle stated to police that appellant had bragged about how he had killed Dumchock. A search of appellant's residence by police recovered a number of items, including stereo equipment, later identified as property belonging to the victim. After being questioned by police, appellant gave police both an oral and a taped confession as to his involvement in the Dumchock killing.
Proceeding under new Pa.R.Crim.P. 1410 B(1)(c), appellant in this matter elected not to file a post-sentence motion with the trial court. 14 His issues on appeal were enumerated in his Statement of Jurisdiction, which was filed along with his notice of appeal to this court. The trial court subsequently filed an opinion pursuant to Pa.R.A.P. 1925(a). Appellant's notice of appeal and brief to this court indicate that he is challenging all of the trial court's judgments of sentence, dated August 11, 1995, in this matter.
Appellant's brief presents boilerplate challenges to the sufficiency and weight of the evidence, requesting this court to grant him new trial or arrest of judgment without developing his argument or setting forth the considerations we must address. Nevertheless, in all cases in which the death penalty is imposed, we must conduct an independent examination of the sufficiency of the evidence supporting the appellant's conviction. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh'g 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 deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish all the elements of the offense(s) beyond a reasonable doubt." Commonwealth v. Hughes, 536 Pa. 355, 361, 639 A.2d 763, 766 (1994). We review the record with these standards in mind.
In a first degree murder 15 case, the Commonwealth must prove 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 malice aforethought, in addition to the establishment of premeditation and deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). The use of a deadly weapon on a vital part of the body is sufficient to...
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