Com. v. Vandivner, No. 528 CAP.

• Decision Date: 23 January 2009
• Docket Number: No. 528 CAP.
• Citation: 962 A.2d 1170
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. James W. VANDIVNER, Appellant.
• Court: Pennsylvania Supreme Court

962 A.2d 1170

COMMONWEALTH of Pennsylvania, Appellee v. James W. VANDIVNER, Appellant.

No. 528 CAP.

Supreme Court of Pennsylvania.

Submitted September 13, 2007.

Decided January 23, 2009.

Susan Elizabeth Ritz, Esq., Fayette County Public Defender's Office, for James W. Vandivner.

Amy Zapp, Esq., Nancy Ann Duffield, Esq., Fayette County District Attorney's Office, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION

Chief Justice CASTILLE.

This is appellant's direct appeal from the February 12, 2007 sentence of death imposed following his trial by jury before the Honorable Gerald R. Solomon of the Court of Common Pleas of Fayette County. The issues raised by appellant lack merit; therefore, we affirm the conviction and judgment of sentence.¹

Jessica Cable and her mother Michelle Cable lived at 100 East Second Street, Grindstone, Fayette County. On July 5, 2004, Jessica was babysitting at a neighbor's home. Between 8:30 and 9:00 p.m., Jessica saw appellant driving in the direction of her home and immediately ran home. When she arrived, she saw appellant get out of his vehicle and walk to the back porch of her home. As Jessica followed, appellant entered the home through the back door and, while walking through the home, encountered a family friend, Larry Newman, in the living room. Appellant asked Larry where Michelle was, and Larry pointed to the front door. Appellant then opened the door and walked onto the sun porch.

On the steps leading to the sun porch from the outside, appellant met Michelle and her son, Billy Cable. As appellant walked onto the porch, Billy told him, "Dude, get off my property." Notes of Testimony ("N.T."), 2/7/07, at 36. Appellant then pointed a gun at Michelle, at which point, Billy pounced on appellant in an attempt to wrestle the gun from his hand. Appellant managed to keep the gun and pointed it at Larry Newman's head. Larry's relative, Kenneth Newman, then rushed appellant, and the gun fired. Appellant who still had the gun, walked quickly to Michelle and told her he was going to kill her. He grabbed her by the hair, shot her in the head, and, as she fell to the ground, stated, "There, you bitch, I said I was going to kill you." Id. at 39. Appellant smiled and walked away. A motorist who was passing by saw appellant grab Michelle by the hair and shoot her in the head.

Meanwhile, after unsuccessfully attempting to take the gun from appellant, Billy had gone inside the home to look for a weapon to protect his family. When he was unable to find a weapon, he left the home. As he stepped off the back porch, Billy saw appellant walking toward him with the gun in his hand. Appellant pointed the gun at Billy, who turned to run away. Appellant shot Billy in the neck and then left the scene. Police subsequently apprehended appellant in a field and recovered a Jennings J22 handgun. As appellant was being taken into an interview room at the Pennsylvania State Police barracks, he blurted out to Trooper James Monkelis, "This is a death penalty case and I don't want the needle, life for a life. Tell the DA I will plead guilty to life. I would have killed myself if I knew Michelle was dead." N.T., 2/8/07, at 255.

On July 8, 2004, Dr. Cyril Wecht performed an autopsy on Michelle and determined that the manner of death was homicide in that she "died as a result of anoxic and cephalopathy, diminution of oxygen to the brain tissue with degeneration, early necrosis, death of brain tissue, produced as a result of the gunshot wound to the head." Id. at 244. Dr. Wecht recovered the bullet from Michelle's brain and provided it to the State Police for analysis. Corporal David J. Burlingame, an expert in the field of firearm and toolmark examination determined that the bullet recovered from Michelle's brain was fired from the Jennings 22 handgun found in appellant's possession at the time of his apprehension.

Prior to trial, appellant filed a petition to bar the death penalty, alleging that he is mentally retarded and has significant limitations in adaptive skills. He argued that, pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the execution of a mentally retarded person constitutes cruel and unusual punishment and requested a pretrial hearing to determine whether the death penalty should be barred in this instance. Judge Solomon held a four-day hearing on appellant's petition at which appellant presented the testimony of two expert witnesses and several lay witnesses, and the Commonwealth offered the testimony of a psychiatrist and an official of the Department of Transportation. Judge Solomon determined that appellant had failed to meet his burden of proving that his limitations, if any, began before he was 18 years of age, as required by the standards for determining mental retardation endorsed by this Court in Commonwealth v. Miller, 585 Pa. 144, 888 A.2d 624 (2005). Thus, based upon appellant's failure to establish this element, the court denied the petition.

A jury found appellant guilty of the first-degree murder of Michelle, criminal attempt to commit criminal homicide with respect to Billy and the aggravated assault of Larry Newman. At the penalty phase hearing, the Commonwealth presented evidence of two aggravating circumstances: (1) that, in the commission of the offenses appellant knowingly created a grave risk of death to another person in addition to the victim, 42 Pa.C.S. § 9711(d)(7); and (2) that appellant had a significant history of felony convictions involving the use or threat of violence, id. § 9711(d)(9). The jury found both aggravating circumstances and one mitigating circumstance related to appellant's character and the circumstances of his offense, id. § 9711(e)(8) (the "catchall" mitigator), and determined that the two aggravating circumstances outweighed the mitigating circumstance. Thus, the jury returned a sentence of death. On February 12, 2007, the trial court formally imposed the death sentence as well as a consecutive sentence of 20 to 40 years for the attempted homicide of Billy Cable and a sentence of 10 to 20 years to run consecutively to appellant's sentences for first-degree murder and attempted murder, for the aggravated assault of Larry Newman.

Appellant raises eight issues in this direct appeal, five related to the guilt phase and three involving his petition to bar the death penalty and the penalty phase.

I. Sufficiency and Weight of the Evidence

II. Jury Error in Finding Appellant Guilty of Murder

Appellant argues his first two issues together, related to the sufficiency and weight of the evidence and jury error in finding him guilty of first-degree murder. Because the two issues are set forth as sufficiency and weight claims, they will be addressed together as such.²

Appellant claims that the evidence presented at trial was insufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. He contends that it is clear that the jury was confused and could not have found him guilty of first-degree murder based upon what he terms the speculative and unreliable evidence presented, which he claims was inconsistent and contradicted by the physical and testimonial evidence. He further argues that the evidence supports the proposition that he was intoxicated at the time of the crime. Appellant bases this argument on the testimony of his uncle, Donald VanDivner, who testified that he and appellant drank beer at a bar from approximately 11 a.m. until 4 p.m. on the day of the murder, and that of his brother, Albert VanDivner, who also testified to the imbibing, adding that the men began the day with an eight ball³ of crack cocaine and that they occasionally left the bar to smoke the crack cocaine. Due to his alleged intoxication, appellant argues, the evidence was insufficient to convict him of first-degree murder because the use of intoxicants negates the specific intent required for a conviction.

In addition, appellant argues that he was incapable of forming the required specific intent due to his diminished capacity. He points to the testimony of a defense witness, psychologist Adam Sedlock, who stated that appellant's overall level of function is in the mild range of mental retardation and that he has organic functional problems with the frontal lobe of his brain, which controls his ability to think before he speaks or acts. Appellant argues that the Commonwealth did not refute his diminished capacity claim; therefore, he posits, the jury could not have found that he was capable of forming the requisite specific intent.

The Commonwealth responds that the evidence demonstrated that there were several eyewitnesses to the murder. Appellant shot one witness, Billy Cable in the neck, Jessica Cable watched as appellant shot her mother, appellant pointed his gun at the head of a third witness, Larry Newman, and a driver passing by on the street witnessed appellant shooting Michelle Cable in the head. The Commonwealth argues that the jury heard testimony that appellant had consumed alcohol and crack cocaine prior to the shooting but chose not to reduce the verdict, noting that the jury may disregard all, part or some of the evidence. Further, the Commonwealth claims that it established that appellant possessed specific intent to kill in that, while armed with a handgun, he grabbed Michelle by the hair and shot her in the head, thereby using a deadly weapon upon a vital part of the victim's body.

In its Opinion in Support of Jury Verdict and Sentence, the trial court found the evidence sufficient to support the first-degree murder conviction in that all of the elements of first-degree murder were met. According to the trial court, the evidence established that: (1) two eyewitnesses, Jessica Cable and the driver passing by, testified that appellant approached Michelle, grabbed her by the hair and then...