Com. v. McMullen

• Decision Date: 06 November 1992
• Citation: 616 A.2d 14,420 Pa.Super. 130
• Parties: COMMONWEALTH of Pennsylvania v. Kim L. McMULLEN, Appellant.
• Court: Pennsylvania Superior Court

Page 14

616 A.2d 14

420 Pa.Super. 130

COMMONWEALTH of Pennsylvania v. Kim L. McMULLEN, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 17, 1992.

Filed Nov. 6, 1992.

Charles J. Kroboth, Jr., Bellefonte, for appellant.

Robert B. Stewart, III, Asst. Dist. Atty., Huntingdon, for Com., appellee.

Before TAMILIA, JOHNSON and HESTER, JJ.

TAMILIA, Judge:

On December 8, 1990, appellant, Kim Lee McMullen, was found guilty of second degree murder ¹ and burglary ² and was immediately sentenced on the murder conviction to mandatory life imprisonment. Appellant's post-trial motions were denied and on December 31, 1991 he was sentenced to eleven (11) months to five (5) years imprisonment on the burglary conviction. McMullen filed separate appeals from the December 8, 1990 and December 31, 1991 judgments of sentence and, sua sponte, this Court consolidated the matters for purposes of this appeal by Order dated March 18, 1992. The facts pertinent to this appeal follow.

During the early morning hours of February 24, 1985 a food store known as the Grocery Box was burglarized. The perpetrator of the crime was not caught. Eight days later, on March 4, 1985, the body of Dominic Barcelona, a 30-year old man who suffered from schizophrenia, was recovered from Black Log Creek, not far from the Grocery Box. Barcelona's death was ruled an accidental drowning. More than five years later, in January of 1991, upon hearing rumors the burglary and drowning were somehow related, the Pennsylvania State Police reopened both investigations. Appellant, who at the time the investigations were reopened was incarcerated on unrelated charges, gave a statement averring he and another man, Adam Wiser, burglarized the Grocery Box and, upon fleeing the scene, encountered Barcelona on a nearby bridge. Appellant stated he heard a noise, turned, saw Barcelona lying on the ground and then watched as Wiser threw Barcelona into the creek. Appellant was then charged, via two separate informations, with burglary and criminal homicide. A jury found him guilty on both counts, he was sentenced and this appeal followed.

Appellant presents six issues for our consideration, beginning with the contention the court erred by failing to quash or dismiss, on the basis of a defective information, the charge of criminal homicide. The information filed relative to Barcelona's death charged appellant with violating 18 Pa.C.S. 2501, Criminal homicide, and averred appellant did "unlawfully, intentionally, knowingly, recklessly or negligently cause the death of another human being." Appellant argues the Commonwealth's failure to specifically charge him with degree(s) of murder and/or grade(s) of manslaughter, as opposed to the general charge of criminal homicide, constituted reversible error. In the alternative, appellant submits the mere recitation of the language of the criminal homicide statute, without more, did not provide him with sufficient notice of the crime against which he must defend.

A criminal information must inform the defendant of the crime with which he is charged and must be read in a common sense manner. Commonwealth v Badman, 398 Pa.Super. 315, 580 A.2d 1367 (1990). An information will be regarded as sufficient in law provided it serves to notify the accused of the charges filed against him. Commonwealth v. Williams, 323 Pa.Super. 512, 470 A.2d 1376 (1984). "[T]he several types of homicide, namely, murder of any of the three named degrees and voluntary and involuntary manslaughter are constituent subsidiary offenses within the single major offense [of criminal homicide.]" Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977). In Badman, supra, the court found the language did "kill or take part in the killing" of the victim was sufficient to put the defendant on notice of the crime with which he was charged. Id. at 324, 580 A.2d at 1371. Contrary to appellant's contention, we find Badman lends support to the trial court's finding the information adequately advised appellant of the crime with which he was charged. See Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984) (informations are sufficient where crimes charged are substantially in the language of the statute). We find the information alleging criminal homicide clearly notified appellant he was being charged with the death of Barcelona and advised him of the crimes which he was compelled to defend.

Next, appellant argues the court erred by consolidating for trial the burglary and homicide charges. Appellant avers the Commonwealth failed to follow the procedural requirements for consolidation as set forth in Pa.R.Crim.P. 1127, Joinder-Trial of Separate Indictments or Informations, and also did not meet the substantive requirements for consolidation.

The Commonwealth concedes it failed to file a written motion for consolidation in compliance with Pa.R.Crim.P. 1127B, but argues that procedural defect cannot be the basis for a new trial since, substantively, joinder was mandated. We agree.

This Court has found the absence of a pretrial motion to consolidate does not preclude joinder provided the court has reasoned, in its discretion, all charges arose from the same criminal episode. See Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983). Although appellant opposed joinder as part of his omnibus pretrial motion, the court found the crimes were inextricably entwined and we have been presented with no evidence to disturb the trial court's ruling.

Appellant next argues because there was no indication Barcelona's death was anything other than an accident, the Commonwealth failed to...