Com. v. Petrakovich

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore JONES; POMEROY; ROBERTS, J., filed a dissenting opinion in which MANDERINO; ROBERTS; MANDERINO
Citation459 Pa. 511,329 A.2d 844
PartiesCOMMONWEALTH of Pennsylvania v. William PETRAKOVICH, Appellant.
Decision Date05 December 1974

Page 844

329 A.2d 844
459 Pa. 511
COMMONWEALTH of Pennsylvania
v.
William PETRAKOVICH, Appellant.
Supreme Court of Pennsylvania.
Dec. 5, 1974.

Page 846

[459 Pa. 516] Frederick J. Lanshe, Public Defender, Allentown, for appellant.

George J. Joseph, Dist. Atty., Howard R. Miller, Asst. Dist. Atty., Allentown, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

POMEROY, Justice.

Appellant, William Petrakovich, charged with the murder of his wife, was tried before a jury and convicted of murder in the first degree. Upon denial of post-trial motions, a sentence of life imprisonment was imposed. This direct appeal followed. 1 We have considered[459 Pa. 517] each of appellant's arguments and, for the reasons

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set forth below, affirm the judgments of sentence. 2

I. Sufficiency of the Evidence

Appellant first contends that the evidence is insufficient to support a verdict of murder in the first degree. As we have said many times, our scope of review as an appellate court is limited to determining 'whether, accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.' Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974) Citing Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Commonwealth v. Bayard, 453 Pa. 506, 309 A.2d 579 (1973). Of course, because the prosecution prevailed in the trial court, the record must be viewed in the light most favorable to the Commonwealth. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973); Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970)). [459 Pa. 518] With these standards in mind, we turn to a review of the rather bizarre set of facts disclosed by the record.

Appellant and Rochelle Petrakovich were married in September, 1970 and resided near Allentown, Pennsylvania. Both had been previously married and divorced and had lost custody of their respective children of those prior marriages. In May, 1971, appellant and his wife moved to Arizona where they lived for several months. In October of that year, Mrs. Petrakovich returned to Allentown and obtained employment at the Top Diner, where she had previously worked. On January 12, 1972, appellant appeared at the Diner, spotted his wife behind the lunch counter, and accosted her. The prosecution version of what leaned over the counter and pushed his eye-witnesses, was as follows: Appellant lleaned over the counter and pushed his wife against a refrigeration unit which was several feet behind her. Mrs. Petrakovich, seeming startled, moved towards the counter and apparently spoke with her husband for one or two minutes. No witness could testify as to the content of this conversation. Appellant then drew a gun and fired it at his wife; she screamed, clutched her left arm, and fell to the floor. Still holding the gun, appellant leaped over the counter and warned the other employees and patrons not to move or call the police. He then bent over his wife and said 'I love you, Shel.' After another warning to an employee who attempted to come to the injured woman's aid, appellant again professed his love to his wife and fired a second shot into her chest. He then shot himself in the chest and fell upon his wife's body. The police and an ambulance were then called. Mrs. Petrakovich died before arrival at a hospital.

Taking the stand in his own behalf, appellant recounted a very different version of the facts, and denied that he had shot his wife. He stated that life for him and his wife had been extremely difficult immediately after their [459 Pa. 519] marriage due to the loss of custody of their children. It was to escape that painful situation that they had

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moved to Arizona; but in a final attempt to regain her children, Mrs. Petrakovich returned to Allentown. On December 31, 1971, she telephoned appellant and asked him to join her and to meet her at the Top Diner at 11:00 a.m., January 12, 1972. Upon arriving at the Diner at the appointed time, appellant saw his wife at work behind the counter, approached her and, placing his hands on her shoulders, kissed her. After some general conversation, Mrs. Petrakovich told him that her efforts to win her children had been unsuccessful. Suddenly, appellant heard her scream and saw that she had shot herself with the family gun which she had brought from Arizona. He jumped over the counter and took from her the gun which, in the process, discharged accidentally, and his wife fell to the floor. As he knelt over her, telling her that he loved her, she asked him to 'go with her.' Wishing to join her in death, he shot himself in the chest.

One of the fundamental responsibilities of a jury is to choose between competing versions of the facts. Commonwealth v. Bayard, Supra 453 Pa. at 509, 309 A.2d at 581. We have repeatedly held that a jury may properly accept or reject all or any part of a defendant's testimony. Commonwealth v. Oates, 448 Pa. 486, 295 A.2d 337 (1972); Commonwealth v. Reid, 448 Pa. 288, 292 A.2d 297 (1972); Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970). The resolution of discrepancies between the evidence presented by the defendant and that of the Commonwealth is a matter of credibility, and, therefore, within the province of the jury. Commonwealth v. Oates, Supra448 Pa. at 490, 295 A.2d at 339.

Here, the jury obviously accepted the version of the facts presented by the Commonwealth's witnesses, and we are satisfied that that testimony was sufficient to warrant a verdict of murder in the first degree. A [459 Pa. 520] key element in the offense of murder in the first degree is, of course, the specific intent to kill. According to the Commonwealth's evidence, the appellant shot twice into the body of his wife, once into her chest. It is settled that the specific intent to kill may be inferred from the use of a deadly weapon upon the vital part of the body of another. Commonwealth v. Mosley, 444 Pa. 134, 279 A.2d 174 (1971); Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1970); Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970).

Appellant argues, however, that there was a discrepancy between one aspect of the testimony of a Commonwealth witness and the physical evidence, and that this inconsistency renders the evidence insufficient to support the verdict. The Commonwealth witness testified that when the shot which entered the arm of the deceased was fired, appellant was standing 'directly in front of' her. The evidence showed that the bullet which entered the victim's left arm passed into the left chest and finally lodged in the right side of the abdomen at the back of the body. This would arguably indicate that the bullet entered the body at an angle, not from 'directly in front' of the decedent. Such a variance, however, is one which goes to credibility rather than sufficiency. See Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969). Through cross-examination, appellant made the jury fully aware of this discrepancy. The jury resolved it in favor of the Commonwealth, and this it was entitled to do.

II. Admissibility of Photographic Evidence

The trial judge admitted into evidence, over appellant's objection, three photographs of the nude upper torso of the body of the deceased. 3 Appellant contends that

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[459 Pa. 521] these photographs were not only inflammatory but also irrelevant, since a forensic pathologist had testified fully as to the range and angle from which each bullet had entered the body and its course through the body.

We have consistently held that the question of admissibility of photographs of a corpse in homicide cases is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973); Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971) (opinion in support of order); Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969); Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968); Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959); Commonwealth v. Peyton, 360 Pa. 441, 62 A.2d 37 (1948). When the trial judge is confronted with gruesome or potentially inflammatory photographs, the test for determining their admissibility which he must apply is 'whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.' Commonwealth v. Powell, Supra, 428 Pa. at 278--279, 241 A.2d at 121; Commonwealth v. Peyton, Supra, 360 Pa. at 450, 62 A.2d at 41. A photograph which is not deemed to be inflammatory, however, may be admitted so long as it has relevance and can assist the jury's understanding of the facts of the case before it. Commonwealth v. Claitt, 454 Pa. 313, 311 A.2d 922 (1973); Commonwealth v. Smalls, 449 Pa. 15, 295 A.2d 298 (1972); Commonwealth v. Morgan, 448 Pa. 494, 295 A.2d 77 (1972).

[459 Pa. 522] In the case at bar, the trial judge concluded that the three photographs in question were neither gruesome nor inflammatory and that, particularly in light of appellant's story that the deceased had shot herself, they were of probative value as a supplement to the pathologist's testimony. We have examined the photographs and we agree. A photograph of a corpse is not inflammatory Per se. Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970). As the opinion in Collins suggests, it is generally the manner in which a corpse is displayed that causes photographs to be emotionally charged. 4 Here, most of the blood had been removed from the body so that any possible inflammatory effect was...

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74 practice notes
  • Commonwealth v. Chamberlain, No. 155 CAP
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 14, 2011
    ...the weight of that evidence and not its admissibility." Drumheller, 808 A.2d 893, 905 (Pa. 2002) (citing Commonwealth v. Petrakovich, 329 A.2d 844, 850 (Pa. 1974)). Third, we agree with the Commonwealth that Mr. Janowsky's statements were not hearsay because they were admitted not to prove ......
  • Com. v. Chester, Nos. 103
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 20, 1991
    ...v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974); Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970). It is the manner in which the corpse is displayed that causes pho......
  • Com. v. Reed
    • United States
    • Superior Court of Pennsylvania
    • December 6, 1990
    ...and passions of the jurors." Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982) (quoting Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 [1974] ). The fact that blood is visible in a photograph does not necessarily require a finding that the photograph is......
  • Commonwealth of Pa. v. Chamberlain
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 14, 2011
    ...the weight of that evidence and not its admissibility.” Drumheller, 808 A.2d 893, 905 (Pa.2002) (citing Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844, 850 (1974)). Third, we agree with the Commonwealth that Mr. Janowsky's statements were not hearsay because they were admitted not t......
  • Request a trial to view additional results
74 cases
  • Commonwealth v. Chamberlain, No. 155 CAP
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 14, 2011
    ...the weight of that evidence and not its admissibility." Drumheller, 808 A.2d 893, 905 (Pa. 2002) (citing Commonwealth v. Petrakovich, 329 A.2d 844, 850 (Pa. 1974)). Third, we agree with the Commonwealth that Mr. Janowsky's statements were not hearsay because they were admitted not to prove ......
  • Com. v. Chester, Nos. 103
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 20, 1991
    ...v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978); Commonwealth v. Liddick, 471 Pa. 523, 370 A.2d 729 (1977); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974); Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970). It is the manner in which the corpse is displayed that causes pho......
  • Com. v. Reed
    • United States
    • Superior Court of Pennsylvania
    • December 6, 1990
    ...and passions of the jurors." Commonwealth v. McCutchen, 499 Pa. 597, 602, 454 A.2d 547, 549 (1982) (quoting Commonwealth v. Petrakovich, 459 Pa. 511, 521, 329 A.2d 844, 849 [1974] ). The fact that blood is visible in a photograph does not necessarily require a finding that the photograph is......
  • Commonwealth of Pa. v. Chamberlain
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 14, 2011
    ...the weight of that evidence and not its admissibility.” Drumheller, 808 A.2d 893, 905 (Pa.2002) (citing Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844, 850 (1974)). Third, we agree with the Commonwealth that Mr. Janowsky's statements were not hearsay because they were admitted not t......
  • Request a trial to view additional results

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