Com. v. Tomoney

• Decision Date: 20 March 1980
• Citation: 412 A.2d 531,488 Pa. 324
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas TOMONEY, Appellant.
• Court: Pennsylvania Supreme Court

Page 531

412 A.2d 531

488 Pa. 324

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas TOMONEY, Appellant.

Supreme Court of Pennsylvania.

Submitted Jan. 21, 1980.

Decided March 20, 1980.

[488 Pa. 327] Henry J. Lunardi, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Kenneth Gallant, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

EAGEN, Chief Justice.

On March 29, 1977, Joseph Williams was fatally stabbed by Thomas Tomoney. On October 4, 1977, Tomoney was found guilty of murder of the first degree by a jury in the Court of Common Pleas of Philadelphia. Post-verdict motions were denied on April 13, 1978, and Tomoney was sentenced to life imprisonment. This appeal followed.

Tomoney advances five assignments of error, all of which are without merit.

Tomoney initially contends the verdict of murder of the first degree is not supported by the evidence. The test used to determine whether the evidence presented is sufficient to sustain the conviction is:

"(W)hether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt."

Commonwealth v. Waldman, 484 Pa. 217, 222, 398 A.2d 1022, 1024-25 (1979) (citing cases).

Viewed in this manner, the evidence established the following:

On March 18, 1977, Tomoney and two other black males engaged in an altercation with Williams during which Tomoney stabbed Williams with a screwdriver. Immediately before the stabbing, Tomoney had stated he "had to get a body" because of an earlier killing at a brickyard. ¹ Tomoney was taken into police custody after this particular stabbing, but Williams declined to identify Tomoney as his assailant when questioned by the police at the hospital. Williams told his brother that he would not press charges out of fear of retaliation.

On March 29, 1977, Tomoney, his brother, and a third black male approached Williams who was standing on a street corner with two other people. When he saw Tomoney approach, Williams picked up a foot-long piece of thin metal which he secreted in his sleeve. Tomoney asked to speak with Williams, but was rebuffed. Tomoney then pulled a knife from his shirt and stabbed the deceased in the chest without Williams having displayed his weapon or having made a move to attack Tomoney. When Williams' mother reached the scene, Williams told her he had been stabbed by "Tommy Dirt" (Tomoney's nickname) and later, at the hospital, told her he had been stabbed by "the same dude who had stabbed me before." The stab wounds were determined to be the cause of Williams' death.

Murder of the first degree is statutorily defined as "a criminal homicide . . . committed by an intentional killing." 18 Pa.C.S.A. § 2502(a) (Supp.1979-80). Intentional killing is defined as "(k)illing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S.A. § 2502(d) (Supp.1979-80). Since the specific intent to kill may be inferred from the assailant's words or conduct or from the attendant circumstances, Commonwealth v. Craig, 471 Pa. 310, 315, 370 A.2d 317, 320 (1977) (citing cases), it is clear that the evidence presented here was sufficient to support a verdict of murder of the first degree. While it is true that the trial testimony of Tomoney could lead to the conclusion that he acted in self-defense or in the heat of passion and, thus, preclude a finding of guilt of murder of the first degree, Tomoney's credibility and the facts of the occurrence were for the jury.

Secondly, Tomoney complains the trial court erred in failing to order the district attorney to elect whether this was a capital case before the trial commenced. In chambers, prior to jury selection, Tomoney's counsel asked the court to order the district attorney to elect whether or not the case was capital. He reasoned Tomoney's age (sixteen) and lack of education were patent mitigating factors which would compel a jury to select a sentence of life imprisonment, rather than death. Counsel further argued an election was necessary in order to prevent the Commonwealth from gaining an unfair advantage which could result from the district attorney removing the issue of the death penalty during trial. ² The district attorney refused to make a pretrial election, and the court refused to order him to do so. Not only was the court's refusal to grant defense counsel's request proper, but the court was not empowered to order such an election.

Our decision in Commonwealth ex rel. Fitzpatrick v. Bullock (hereinafter: Bullock ), 471 Pa. 292, 370 A.2d 309 (1977), aids in the resolution of the present issue. In Bullock, a murder prosecution, the trial court conducted pretrial proceedings after which it found the case non-capital due to the defendant's youth and lack of maturity at the time of the crime. On appeal from that order, this Court held that 18 Pa.C.S.A. § 1311 (Supp.1979-80) requires "the initial determination of the presence or absence of aggravating and mitigating circumstances in a jury trial for murder be made by the jury after it has convicted the defendant of murder of the first degree." (Emphasis in original.) Bullock, supra at 303, 370 A.2d at 314. We disapproved the trial court's pretrial determination that mitigating circumstances existed and its resulting certification of the case as non-capital.

If a court may not make a pretrial determination of whether a case is properly capital or non-capital because the legislature has directed the jury to initially determine the existence of aggravating and mitigating circumstances and, thus, the propriety of the death penalty, it logically follows that a court may not order the prosecution to make such a determination.

Moreover, in Bullock we rejected the contention that pretrial certification of a case as capital or non-capital was desirable due to the "strong possibility" that a "death-qualified" jury would be conviction prone. We said that "(t)he requirement of individual voir dire in a capital case should give a defendant ample opportunity to explore for and isolate such bias." (Citations omitted.) Bullock, supra at 302 n. 8, 370 A.2d at 313-14 n. 8.

Thirdly, Tomoney insists the trial court erred in denying a requested voir dire question which was designed to detect conviction bias. This question was phrased as follows:

"The District Attorney has indicated that he might seek the death penalty in this case, and you have indicated a willingness and an ability to impose the death penalty in a proper case. Since you feel this way about the death penalty, do you think you would tend to favor the prosecution in a case like this one if the prosecution later on decided not to seek the death penalty? Cf. Comm. v. Roach, 444 Pa. 368, 282 A.2d 382 (1971)." (Emphasis in original.)

We need not determine whether this hypothetical question would be proper on voir dire because in this instance no prejudice could have resulted from its denial. Tomoney does not contend, and the record does not indicate, that the district attorney informed the jury in this case of his intention to seek or not seek the death penalty. Since the factual situation on which the question was based did not occur, the denial of the voir dire question could not have resulted in prejudice. Hence, the court's ruling is not reversible error.

Tomoney next contends the trial court erred in permitting decedent's nephew, Donald Hodges, to testify to an incident on March 18, 1973. This testimony established that, during that incident, Tomoney had stated that he "had to get a body" due to an earlier killing and, shortly thereafter, stabbed the decedent with a screwdriver.

It is undisputed that the testimony in question was relevant as proof of motive, ³ see Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978); Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977), but it is asserted that it was unnecessary and so inflammatory...