Com. v. May

• Court: Pennsylvania Supreme Court
• Writing for the Court: Before NIX; CAPPY; PAPADAKOS; CASTILLE; MONTEMURO; CASTILLE
• Citation: Com. v. May, 656 A.2d 1335, 540 Pa. 237 (Pa. 1995)
• Decision Date: 17 May 1995
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Freeman MAY, Appellant.

Page 1335

656 A.2d 1335

540 Pa. 237

COMMONWEALTH of Pennsylvania, Appellee, v. Freeman MAY, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 20, 1994.

Decided April 4, 1995.

Reargument Denied May 17, 1995.

Timothy D. Sheffy, Joseph M. Farrell, for F. May.

Daniel Ehrgood, Bradford Charles, for Com.

Robert A. Graci, for Attorney General's Office.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

Following a trial by jury, Appellant, Freeman May, was convicted of first degree murder ¹ in connection with the stabbing death of Kathy Lynn Fair. After a separate penalty hearing was held, the jury found one aggravating circumstance and one mitigating circumstance, and further found that the aggravating circumstance outweighed the mitigating circumstance. Therefore, the penalty was fixed at death. This is an automatic direct appeal from that sentence. ² For the reasons discussed below we affirm the conviction of first degree murder but vacate the sentence of death and remand the case to the Court of Common Pleas of Lebanon County, Criminal Division, for a new sentencing hearing.

The facts of this case are as follows. In 1988, human skeletal remains were discovered by a man cutting wood in a remote wooded location in Lebanon County. The remains were buried under logs, brush and leaves. Through an examination of the remains by a forensic pathologist, Dr. Neil A. Hoffman, police determined that the remains were those of Kathy Lynn Fair, who was last seen alive on September 4, 1982, and who had been reported as missing after failing to appear for a date with her sister. Dr. Hoffman also determined from marks on the bones that the cause of death was multiple stab wounds inflicted by a short, stout, single-edged weapon appearing to be a knife. N.T. at 645-646.

Appellant was charged with the murder of Kathy Fair in 1990. At trial, Detective Michael F. Wahmann, Chief County Detective in the Office of the District Attorney for Lebanon County, testified that at the time Kathy Fair's remains were found, he recalled an incident that had occurred in December of 1982 in approximately the same location where Kathy Fair's remains were found. N.T. at 731. In the December 1982 incident two girls who had accepted a ride from Appellant were stabbed with a short, stiff, folding single-edged knife and left for dead not far from the place where Kathy Fair's remains were discovered. One of the girls was raped. In connection with the 1982 rape-assaults, Appellant was charged with and convicted of two counts of attempted murder, aggravated assault, reckless endangerment, and one count of rape. The two victims, here identified as G.S. and S.S., survived the stabbings and testified in the instant case about the 1982 rape-assaults.

Additionally, Stanley May, Appellant's brother, testified that Appellant came to his house on December 17, 1982, and told Stanley May that "he took this girl out a few months ago and said he tried to make out with her, and he said that he stabbed her and buried her with brushes. But he said that's not why he's talking to me now. He said he did it again last night [referring to the rape-assaults on G.S. and S.S.]." N.T. at 799. ³ Stanley May also testified that Appellant always carried a folding buck knife, which is a short, sturdy, single-edged knife. N.T. at 797.

Appellant's wife, Denise DeHaven, also testified at trial that when she was visiting Appellant while he was in jail in connection with the 1982 rape-assaults, Appellant told her that "he had hurt another girl, buried her under some leaves and bushes in the woods." N.T. at 826. Ms. DeHaven also testified that Appellant had written letters to her in which he told her that he had "hurt a girl and buried her in the woods." N.T. at 827.

Thomas W. Fryberger, an acquaintance of Appellant, testified that on one occasion, Appellant took him and two girls up to a wooded location. N.T. at 836. Mr. Fryberger later took a state police trooper, Samuel Curley, to that location, and Trooper Curley testified that the wooded location was where Kathy Fair's remains were found. N.T. at 845.

Charles W. Neidig, an inmate at the prison where Appellant was incarcerated for the 1982 rape-assaults, also testified at trial. Mr. Neidig testified that he had a conversation with Appellant in the prison yard after Appellant returned from a Post Conviction Hearing Act hearing which was held in connection with the convictions relating to the 1982 rape-assaults:

MR. BRADFORD CHARLES [for the Commonwealth]: Can you tell the jury and the Judge what that conversation was?

MR. CHARLES NEIDIG: Yes. I seen [sic] Mr. May out in the yard, and I asked him how he made out in court at his hearing, and he told me, he said he didn't make out too good. I said, well, you know, I asked him what happened, and he said they were trying [to] put a body on him. I said, a body. I said, well, I asked him how they connected him up with a body, and he said his brother was suppose [sic] to be testifying against him. And I said, well, how long ago did this happen, you know. He said, Quite a while ago. And I said, Well, that's too long, you know. Don't worry about that, you know, and he said, Yeah, but I did it. And I said, Man don't go blowing that around, and just right about then somebody else walked over and conversation was stopped.

N.T. at 850-851.

Appellant only presented two witnesses and did not testify on his own behalf. Appellant's first witness, one of the investigating police officers, testified that Appellant's name never came up in connection with Kathy Fair until her remains were found. N.T. at 920. Appellant's second witness, the grandmother of Kathy Fair's child, also testified that she had never heard Appellant's name until his arrest for the murder of Kathy Fair. N.T. at 934.

In each case in which the death penalty is imposed, this Court is required to conduct an independent review of the sufficiency of the evidence on the charge of murder of the first degree, even where the defendant has not challenged the conviction on that ground. 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'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 beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). Additionally, circumstantial evidence alone is sufficient to convict one of a crime, including first degree murder. Commonwealth v. Gorby, 527 Pa. 98, 107, 588 A.2d 902, 906 (1991). Based on our review, the Commonwealth clearly meets this test.

In order to prove murder of the first degree, the Commonwealth must show that a human being was unlawfully killed, that the accused committed the killing, and that the killing was done in an intentional, deliberate and premeditated manner. Commonwealth v. Mitchell, 528 Pa. 546, 599 A.2d 624 (1991). In the instant case, there is no dispute that Kathy Fair was unlawfully killed. ⁴ Additionally, there was testimony that Appellant confessed to at least three people, Stanley May, Denise DeHaven and Charles Neidig, to killing a girl and hiding her in the woods, circumstances substantially similar to the manner in which Kathy Fair was killed and later discovered. Further, there was testimony from the victims of the 1982 rape-assaults, an incident which occurred proximate in time to the disappearance of Kathy Fair and proximate in location to the later discovery of her remains. Moreover, an acquaintance of Appellant testified that Appellant had once taken him to the location where Kathy Fair's remains were found. Finally, there was testimony that Appellant always carried a type of knife consistent with the type of weapon used to kill Kathy Fair, and that Appellant had used a similar type of knife in his attacks on G.S. and S.S. This evidence, and all reasonable inferences therefrom, when viewed in a light most favorable to the Commonwealth, is sufficient to prove that Appellant killed Kathy Fair. Finally, there is sufficient evidence to prove that the killing was done in an intentional, deliberate and premeditated manner. Dr. Hoffman testified that Kathy Fair suffered at least five stab wounds to the upper body. N.T. at 641. Specific intent to kill can be proven by the use of a deadly weapon upon a vital part of the body. Commonwealth v. Bricker, 458 Pa. 367, 326 A.2d 279 (1974). The upper body is clearly a vital part of the body. Accordingly, we find that the evidence upon which Appellant's conviction for first degree murder was based was sufficient as a matter of law to sustain that conviction.

Appellant now raises several claims of error which he alleges require a new trial to be granted or the death sentence to be vacated. These claims were raised in post-trial motions and were denied.

Appellant's first claim of error is that the trial court erred in permitting evidence to be admitted during the trial involving other criminal conduct of Appellant. At trial, the trial court permitted the testimony of G.S. and S.S. and evidence related to the 1982 rape-assaults under the "common scheme" or "signature crime" exception to the general rule that evidence of other criminal acts of the defendant is not admissible. See, e.g., Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994); Commonwealth v. Hawkins, 534 Pa. 123, 626 A.2d 550 (1993). Appellant argues that the similarities between the other criminal conduct of Appellant and the criminal conduct involving Kathy Fair do not show any common thread or scheme or distinct signature, but are merely coincidental, not logically...