Com. v. Small

Decision Date01 November 1999
Citation559 Pa. 423,741 A.2d 666
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. John A. SMALL, Appellant.
CourtPennsylvania Supreme Court

Robert D. O'Brien, York, for J. Small.

John W. Thompson, Jr., York, Robert A. Graci, Harrisburg, Mary Lou V. Erb, York, for the Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION

CASTILLE, Justice.

This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of York County.1 Following a jury trial, which commenced on May 7, 1996, appellant was convicted of first degree murder2 and attempted rape3 in connection with the 1981 death of Cheryl Smith. The jury determined that the two aggravating circumstances it found outweighed the two mitigating circumstances and returned a sentence of death.4 On June 19, 1996, the trial court imposed the jury's sentence of death for the first degree murder conviction and additionally sentenced appellant to serve an aggregate term of five to ten years imprisonment for the attempted rape conviction to run consecutive to the death sentence. For the reasons below, we affirm the conviction and judgment of sentence.

I. SUFFICIENCY OF THE EVIDENCE

Appellant first claims that the evidence was insufficient to support the jury's verdict that he was guilty of first degree murder and attempted rape. When reviewing a sufficiency of the evidence claim, an appellate court must view all the evidence and all reasonable inferences arising therefrom in the light most favorable to the Commonwealth as the verdict winner in order to determine whether the evidence was sufficient to enable the finder of fact to find that all of the elements of the offenses were established beyond a reasonable doubt. Commonwealth v. Hall, 549 Pa. 269, 279, 701 A.2d 190, 195 (1997), cert. denied, 523 U.S. 1082, 118 S.Ct. 1534, 140 L.Ed.2d 684 (1998). After a review of the record, we find the evidence is sufficient to support the first degree murder and attempted rape convictions.

The evidence at trial established that on the evening of August 5, 1981, a group of people, including the victim, attended a party in the Borough of Hanover. Even though many of the attendees at the party were underage, large quantities of alcohol and marijuana were consumed. At some point during the evening, a fight erupted and the police were called to the scene. Prior to the arrival of the responding police officers, a group of the partygoers left in two separate vehicles and drove to a local tavern. After consuming more alcohol at the tavern, the group drove to a wooded area outside of Hanover, known as "the Pines." Several members of the group departed. At one point, the victim left the remaining members of the group and went into the woods to relieve herself. She was followed by appellant and co-defendant James Frey. Sometime thereafter, witnesses testified that they heard the victim scream. An eyewitness, Larry Tucker, later testified at trial that he had followed appellant into the woods and then watched appellant and the co-defendant grab the victim, throw her to the ground and say to her "you give it to everybody else".5 Appellant was seen shortly thereafter coming out of the woods with blood on his hands. Co-defendant Frey followed several minutes later and the remaining members of the group then left the Pines leaving the victim in the woods. The victim was never seen alive again and her body was found seven weeks later, in a spread eagle position, naked from the waist down with her shirt rolled around her neck, exposing her upper torso. Forensic evidence indicated that the cause of death was a head trauma.

No arrest was made for a number of years. Finally, police investigators learned that appellant had been making incriminating statements implicating himself in the murder. Linda Rhinehart testified that she overhead appellant at an arcade in Hanover state to some friends that: "I followed her into the woods' cause I was going to get some of that ... She won't be a tease anymore. It's amazing what a tire iron can do to hush someone making that much noise." Cerenna Hughes testified that appellant told her that after the night at the Pines, Cheryl "run away" and "she gave in, she gave up." Harry H. Carper III testified that sometime during 1981, he visited appellant at his home and appellant stated "he might have killed" Cheryl Smith and that "he hit her over the top of her head." Lastly, Janice Small, appellant's wife at the time of the murder, testified that one night in 1981 when Carper was visiting at their residence, she overheard appellant say to Carper "I killed a girl.... [We] hit her over the head, dumped her ass in the woods and left her there." She also testified that on one occasion when she was reading a newspaper article about the murder, appellant walked by and said, "that's the girl we killed."

In order to sustain a conviction for first degree murder, the Commonwealth must prove (1) that the defendant acted with a specific intent to kill; (2) that a human being was unlawfully killed; (3) that the person accused did the killing; and (4) that the killing was done with deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Bronshtein, 547 Pa. 460, 472, 691 A.2d 907, 913 (1997), cert. denied, 522 U.S. 936, 118 S.Ct. 346, 139 L.Ed.2d 269 (1997). Specific intent to kill can be proven where the defendant knowingly applies deadly force to the person of another. Commonwealth v. Hall, 549 Pa. at 281, 701 A.2d at 196. Death caused by the use of a deadly weapon upon a vital part of the victim's body is sufficient to prove the specific intent required for a conviction of first degree murder. Id. Furthermore, all co-conspirators to a murder may be found guilty of first degree murder, regardless of which person actually inflicted the wound which resulted in death. Commonwealth v. Gibson, 547 Pa. 71, 84, 688 A.2d 1152, 1158 (1997), cert. denied, 522 U.S. 948, 118 S.Ct. 364, 139 L.Ed.2d 284 (1997). Here, the eyewitness accounts, appellant's numerous statements admitting to the killing and forensic evidence amply established appellant's conviction for attempted rape and first degree murder. Appellant claims that since there are inconsistencies between various witnesses' testimony, this Court should find the evidence insufficient to convict appellant.6 Although appellant phrases this as a sufficiency argument, the challenge goes to the weight of the evidence. Section II, infra. Accordingly, appellant's challenge to the sufficiency of the evidence must fail.

II. WEIGHT OF THE EVIDENCE

Appellant also contends that the verdict was against the weight of the evidence. The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. Commonwealth v. Johnson, 542 Pa. 384, 394, 668 A.2d 97, 101 (1995),cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996). An appellate court cannot substitute its judgment for that of the finder of fact. Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982). Thus, we may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Hawkins, 549 Pa. 352, 368, 701 A.2d 492, 500 (1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998).

Appellant asserts that inconsistent witness statements, memory problems of witnesses, drug and alcohol use of witnesses on the night of the murder and the alleged suggestive and coercive police interview tactics warrant a reversal. All of the matters complained of by appellant, however, were issues argued by appellant's counsel during trial and were properly weighed and rejected by the jury before it reached its verdict. See Commonwealth v. Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995)

(appellant's assertion that inconsistencies in a witness's testimony rendered him not credible as a matter of law has no merit since the inaccuracies claimed are only minor and a witness's credibility is solely for the jury to determine), cert. denied, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996); Commonwealth v. Hudson, 489 Pa. 620, 628, 414 A.2d 1381, 1385 (1980) (witness's ability to testify about events he witnessed after consuming drugs is a matter of credibility to be considered by the jury). A review of the record indicates that appellant has failed to establish that the jury's verdict was so contrary to the evidence to shock this Court's sense of justice so as to warrant a new trial.

III. AFTER-DISCOVERED EVIDENCE

Appellant next claims that the trial court erred in not granting a new trial because of exculpatory after-discovered evidence. During the Post Sentence Motion proceedings, appellant presented testimony that shortly after the victim's body was discovered, the victim's family received anonymous threatening phone calls. On one occasion the caller told the victim's parents that their other daughter was next and on another occasion the caller said "I am so sorry. I didn't mean it—for it to happen to her." In addition, the victim's aunt, with whom the victim had been living for ten months preceding the murder, noticed what appellant characterizes as, "drive-by actions." Specifically, she testified that on several occasions, beginning a week after the victim's funeral, two or three men drove slowly past her house, shined flashlights into her house and hollered statements. These "drive-bys" occurred for about two weeks. Appellant argues that this evidence is exculpatory because it demonstrates that the callers and actors involved with the "drive-bys" were the culprits—not him.

Unless there has been a clear abuse of discretion, an appellate court should not disturb the trial court's denial of appellant's motion for a new trial based on after-discovered evidence. Commonwealth v. Parker, 494 Pa. 196,...

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