Com. v. Miller

• Decision Date: 18 November 1993
• Citation: 430 Pa.Super. 297,634 A.2d 614
• Parties: COMMONWEALTH of Pennsylvania v. Ardella MILLER, Appellant.
• Court: Pennsylvania Superior Court

Page 614

634 A.2d 614

430 Pa.Super. 297

COMMONWEALTH of Pennsylvania v. Ardella MILLER, Appellant.

Superior Court of Pennsylvania.

Argued June 7, 1993.

Filed Nov. 18, 1993.

Shelley Stark, Public Defender, Pittsburgh, for appellant.

Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com.

Before ROWLEY, President Judge, and WIEAND, CIRILLO, DEL SOLE, TAMILIA, KELLY, POPOVICH, HUDOCK and FORD ELLIOTT, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed after Appellant was convicted of murder of the third degree ¹ at a nonjury trial. Post-trial motions were denied, and Appellant was sentenced to five to twelve years imprisonment. A petition for reconsideration of sentence was denied by the court below and this direct appeal followed. We vacate Appellant's third degree murder conviction and remand for an evidentiary hearing.

The facts, when viewed in the light most favorable to the Commonwealth as the verdict winner, are as follows: Appellant and the victim, Mark Smith (Smith), had lived together on and off for several years, a relationship that resulted in the birth of their son, Mark, Jr. In the early morning hours of July 29, 1990, Appellant and Smith had an argument during which Smith burned Appellant with a cigarette, poked her in the chest and slapped her. Moments later, Appellant's uncle, Nate Durah, telephoned. Appellant informed Mr. Durah of the argument, but told him that everything was okay. Nevertheless, Mr. Durah, accompanied by his wife, Barbara, arrived at Appellant's home approximately forty-five minutes later. He testified that he escorted Smith from the house, and the two men argued as they walked up the street. Upon returning to the house, Mr. Durah lost sight of Smith momentarily and then heard his wife scream. He further testified that Smith at some point took off his clothes in the street and looked like he was reaching for something in his pants. Mrs. Durah testified that after the two men had walked back down the street, Smith took his pants off as Mr. Durah briefly walked to his car to return a baseball bat that he had been carrying. Mrs. Durah further testified that at this point Smith came up behind Appellant, "snatched her arm" and then stated, "Is this what you want?" or words to that effect. N.T. 4/2/91, at p. 55. Shortly thereafter Appellant plunged a kitchen knife into Smith's heart, causing his death. The depth of the wound was nine centimeters. Neither Mr. or Mrs. Durah testified that they saw Smith in possession of the knife at any time.

In a taped statement introduced by the Commonwealth in its case-in-chief, Appellant's version of the events was consistent with the testimony of the Durahs. Appellant, however, stated that Smith walked over to her and said, "Did I want to join my brother[?]" N.T. 4/3/91, at p. 111. Appellant's statement then indicates that, at the time Smith was removing his pants, a knife fell out and both parties reached for it. Appellant picked it up, told Smith that she "was tired of his shit," and stabbed Smith in the heart. Id. at 112.

Appellant claimed she acted in self-defense and now points to the following evidence: 1) Statements by Mr. Durah that Smith physically assaulted her, as well as other female relatives, on prior instances, and that he had removed Smith from the house on several occasions due to the couple's troubled relationship; 2) the testimony of Smith's probation officer that, on occasion, Appellant called him to tell him Smith was abusing her, particularly when Smith was intoxicated; 3) the probation officer's testimony about a specific incident where he visited the house and was told Smith hit Deborah Brooks, Appellant's sister, with a baseball bat and had pointed a gun at Appellant, and an incident where Smith threatened to throw an electrical appliance in a bathtub in which Appellant was sitting; 4) the probation officer's testimony that Smith was referred to outpatient treatment for alcohol abuse and violence in the home, although, to the probation officer's knowledge, Smith had never attended these programs; 5) the testimony of Deborah Brooks which corroborated the probation officer's testimony as to these other incidents between Appellant and Smith, as well as her testimony as to an additional incident where Smith allegedly threatened to burn the house down; 6) testimony that Appellant had once sought a protection from abuse order; and 7) the testimony of the victim's mother, who lived next door to Appellant, in which she acknowledged that her son and Appellant fought often. Mrs. Smith also testified regarding the occasion where victim threatened to electrocute Appellant while she was in the bathtub.

Appellant raises the following issues on appeal:

I. Do the federal and state constitutions compel a new trial because trial counsel overrode the defendant's expressed desire and refused to allow the defendant to testify[?]

II. Does the Commonwealth disprove self defense by speculating that the victim was unarmed, and by arguing that his previous violence had not caused serious bodily injury and that the defendant had remained in the abusive relationship?

III. Does the Commonwealth disprove self defense and prove malice, if the only evidence of malice is the possible inference from use of a deadly weapon and the Commonwealth itself offers evidence of self defense which negates malice?

IV. Was trial counsel ineffective for failing to corroborate the self defense claim with the following available evidence:

1. The deceased's prior criminal record;

2. Ms. Miller's hospital record;

3. Police reports from Smith's arrests for acts of violence against Ms. Miller;

4. Ms. Miller's testimony;

5. Expert testimony regarding the battered woman syndrome;

And was counsel ineffective for failing to object to the admission of unauthenticated altered and prejudicial evidence, and for failing to object to the Commonwealth's improper impeachment of a Commonwealth witness?

Appellant's Brief on Reargument at p. 3.

We note that Appellant's first issue was not raised in post-trial motions, but rather, was first raised in her 1925(b) statement of matters complained of on appeal. The trial court acted correctly in not considering this claim because, once an appeal had been filed, it was divested of jurisdiction to act further in the case. See generally, Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981). Thus, the issue is waived. See Pa.R.Crim.P. 1123 (only those issues included in written post-verdict motions are considered preserved for appellate review); see also, Commercial Credit Corp. v. Cacciatiore, 343 Pa.Super. 430, 435, 495 A.2d 540, 543 (1985) ("failure to preserve issues in post-trial documents cannot be rectified by proffering them in response to a rule 1925(b) order of court"). We do note, however, Appellant has claimed in her fourth issue that trial counsel was ineffective for failing to present her testimony. Thus, as shall be discussed infra, because we are remanding for an evidentiary hearing on these claims of ineffectiveness, the issue of whether Appellant was prevented from testifying on her own behalf may be determined at the evidentiary hearing.

We now turn to the second and third issues enumerated above, both of which deal with the sufficiency of the evidence with respect to Appellant's conviction. The test for reviewing a sufficiency claim is well-settled:

Where a defendant challenges his conviction on appeal the test of sufficiency of evidence is whether, viewing all evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.

Commonwealth v. Torres, 396 Pa.Super. 499, 501, 578 A.2d 1323, 1324 (1990) (citations omitted). "A person may be convicted of third-degree murder where the murder is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought." Commonwealth v. Pigg, 391 Pa.Super. 418, 425, 571 A.2d 438, 441 (1990), alloc. den., 525 Pa. 644, 581 A.2d 571. Malice has been defined as a "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured." Id. at 425, 571 A.2d at 441 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868). "[M]alice imports the absence of justification." Commonwealth v. Hill, 427 Pa.Super. 440, 444, 629 A.2d 949, 951 (1993), (citing Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973)). Thus, when a defendant claims self-defense, the Commonwealth must disprove the claim beyond a reasonable doubt. Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068 (1978), cert. den.,439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663.

Because both the second and third issues involve the relationship between a claim of self-defense and the element of malice necessary to support a conviction for third degree murder, we address them together.

In discussing this relationship, our Supreme Court has stated:

The relationship between a claim of self-defense and the element of malice has been described as follows: "[i]n a prosecution for murder, evidence of provocation or self-defense tends to negate the malice required to prove murder." Commonwealth v. Heatherington, 477 Pa. 562, 568, 385 A.2d 338, 341 (1978). Further, in order to meet its burden of proof on the element of malice, the Commonwealth must exclude self-defense beyond a reasonable doubt. Id.

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Although the Commonwealth is required to disprove a claim of self-defense arising from any source beyond a reasonable doubt, a jury is not required to believe the testimony of the defendant who raises the claim. See Commonwealth v. Hinchcliffe, 479 Pa. 551, 556, 388 A.2d 1068, 1071 (1978) (...