Appendix — Pennsylvania v. Nelson

87-4670) - ’

Upremé Court US.

FILED

AUS £2 1987

JOSEPH F. spayy,

IN THE in

SUPREME COURT OF THE UNITED STATES”

AUGUST, 1987

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

VS

JOHN NELSON,

Respondent

PETITION FOR WRIT OF CERTIORARI

FROM THE SUPREME COURT OF PENNSYLVANIA

Frank J. Scutella, Esq.

Counsel of Record

Michael J. Veshecco

Erie County District Attorney

Erie County Court House

Erie, Pennsylvania 16501

(814) 452-3333 Ext. 349

APPENDIX

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, Ik AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILE BE ISSUED,

IN THE

SUPREME COURT OF THE UNITED STATES

AUGUST, 1987

COMMONWEALTH OF PENNSYLVANIA,

Petitioner

Vs

JOHN NELSON,

Respondent

PETITION FOR WRIT OF CERTIORARI

FROM THE SUPREME COURT OF PENNSYLVANIA

Frank J. Scutella, Esq.

Counsel of Record

Michael J. Veshecco

Erie County District Attorney

Erie County Court House

Erie, Pennsylvania 16501

(814) 452-3333 Ext. 349

TABLE OF CONTENTS

Opinion from the Court of Common Pleas, Criminal

Division, No. 559 A & B of 1983, dated April 17,

1984 by the Honorable Fred P. Anthony................- 1

Opinion of the Pennsylvania Supreme Court, Western

District No. 43 W.D. Appeal Docket 1984, dated

po te 1 PreePreryTerrererrryrrry Tre TET ree 42

Concurring and Dissenting Opinion of Justice

Rolf Larsen filed April 3, 1987.........c. cc cceeceees 68

Concurring and Dissenting Opinion of Mr. Justice

MoMesmptt Tiled Apeil 2, 19S7 sccccvscasccststvscdsrsar 73

Concurring and Dissenting Opinion of Mr. Justice

Paepadakos filed April 3, 1967 .ccccccoscssscccsccesese 75

Judgment of the Supreme Court of Pennsylvania,

Western District No. 43 W.D. Appeal Docket,

1964 Gobel Reehl 3, WE cc cckevensarcccecssvesvenasees 79

Order of the Supreme Court of Pennsylvania

Western District No. 43, W.D. Appeal Docket,

1984 on Petition for Reargument, dated June

Me, BSE acese FETT E TOT TCT T TUT PCr TTT Ue ee 80

Jury Charge of Judge Fred P. Anthony..............+.- 81

42 Me. C.B.A. HTL (a) Came Gi) coc cccvcciaccseuns 87

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON

: PLEAS

vs : OF ERIE COUNTY, PENNA.

: CRIMINAL DIVISION

JOHN NELSON : NO. 559 A&B of 1983

OPINION

Anthony, J., April 17, 1984.

Defendant, John Andrew Nelson, was tried and

convicted of the crime of first degree murder, 18

Pa. C.S. §§2501-2502, and of possession of instruments

of crime, 18 Pa. C.S. §907. In the sentencing hearing

for the murder conviction, the jury fixed the penalty

at death based on the aggravating circumstance of

torture, 42 Pa. C.S. §971i(d) (8).

The defendant has filed a motion for new trial

and/or arrest of judgment, which we now consider.

On February 14, 1983, sametime after 8:30 p.m.

the defendant John Andrew Nelson killed his wife, Sara

Nelson, by a series of attacks upon her, which included

striking her with a claw hammer, stabbing her repeatedly

with a wood chisel and ultimately strangling her with

a cord. Many of the details of this brutal homicide

are uncertain, but the following facts can be gleaned

fram the testimony at trial.

The defendant was released fram Doctor's Osteopathic

Hospital in theearly evening of February 14, 1983.

Defendant testified that he was released at

5:00 p.m. and went looking for his wife at her place

of employment. Unable to find her there, defendant

went drinking at various bars. Defendant claims that he

consumed six to ten beers prior to meeting his wife at

her home sometime after 8:00 p.m.

Defendant's girlfriend, Lottie Skrzypa Boyles, tells

a slightly different story. She said that she picked

up the defendant near the hospital a little after 7 P.M.

and dropped him off near his wife's home. If her story

is believed, defendant could not have consumed the six

to ten beers that he alleges.

In any event, sametime after 7 P.M., defendant went

to Mentley's Bar where he met David Fuller, an ex-police

officer. In the course of their conversation, defendant

said he was mad at his wife and asked what the penalty

for murder was. Though the defendant was drii:king,

Fulier did not think he was intoxicated.

After meeting his wife, defendant persuaded her to

drive him over to Henri's Beauty Parlor at approximately

8:30 P.M. This was the last time the victim was seen alive.

While at the beauty parlor, the fatal attack occurred.

The victim was hit on the left side of the head above

the ear with the claw end of an ordinary claw hammer.

She was stabbed six times with a wood chisel, but only

three of these thrusts actually punctured the chest

area. After perpetrating these assaults, the defendant

went upstairs to the main area of the beauty parlor and

obtained an electrical cord. Taking it downstairs, he

strangled his wife with the cord. Dr. Jack Rozwadowski,

a pathologist at Hamot Hospital, testified that the

wounds by themselves would not have caused the victim's

death. It was the strangulation with the electrical cord

which brought about Sara Nelson's death.

After the slaying, the defendant disposed of his

wife's car by driving it to his mother-in-law's

residence. A little later, the defendant called his

step-daughter asking where the victim was.

After his arrest, the defendant confessed to the

homicide numerous times. He told Ms. Boyles, his

girlfriend, George Shoemaker, a bartender at Zurm's

Tavern, and David Zanni, a cab driver, about the killing.

Shortly after 11 P.M., he then called the Millcreek

Township Police Department and confessed to the murder.

~

While in the custody of Officer Love, and without any

prompting from the officer, defendant twice blurted out

that he had killed his wife. Later at the Millcreek

Township Police Station, he twice admitted killing his

wife. Immediately prior to these latter two admissions,

at 12:15 a.m. and 1:05 a.m. on February 15, 1983, he was

advised of his Miranda rights and he orally

acknowledged understanding them.

The defendant's memory of his participation in the

killing only began to grow blurry when he was interrogated

at 3:05 a.m. on February 15. Since that time the

defendant has maintained that he cannot remember killing

his wife, although he remembers almost every other

detail of the evening.

Finally, defendant was arraigned on the hamicide

and possession charge at approximately 4:45 a.m. on

February 15, less than six hours after his arrest.

I. CLAIMS OF ERROR - POSSESSION OF

INSTRUMENTS OF CRIME CONVICTION

The defendant has abandoned his motion for new

trial and/or arrest of judgment with respect to his

conviction for possession of the instruments of crime

=4-

by failing to brief or argue this contention at the

hearing on the post-trial motions. Cammonwealth v.

Williams, 476 Pa. 557, 570, 383 A.2d 503, 509-10 (1978);

Commonwealth v. Manigault, 501 Pa. 506, , 462 A.2d

239, 241 (1983).

II. ALLEGATION THAT VERDICT WAS

CONTRARY TO LAW

For a verdict to be contrary to law, "it must appear

that the verdict is not consistent with any of the

alternatives properly before the jury under the charge

of the court." Cammonwealth v. Ashford, 227 Pa.

Superior Ct. 351, 354-55, 322 A.2d 722, 723 (1974).

In this case, the defendant was convicted of first degree

murder and possession of the instruments of crime, both

of which were alternatives available to the jury.

Consequently, the verdict was not contrary to law.

III. ALLEGATION THAT COURT ERRED IN ALLOWING

COMMONWEALTH TO INFER THAT AN "ALIBI"

DEFENSE WAS BEING ASSERTED.

The defendant alleges that the Commonwealth

inferred that an "alibi" defense was being asserted in

its opening and closing statements.

It is true that the Commonwealth did mention

"alibi" in both its opening and closing statements.

However, both references must be looked at in context.

In the opening statement, the assistant district

attorney told how the defendant called Ms. Dina at 9:30

p.m. on the night of the murder. The assistant district

attormey then stated "Mr. Nelson at this point is

laying up the scene, he is setting up an alibi. At that

point in time, Sara Nelson is probably dead." (TT,

Voi. I, p. 14).

In the closing argument, the assistant district

attormey again talked about the call to Ms. Dina and

mentioned the defendant's disposal of his wife's car.

He said that the defendant was planning an alibi.

Looking at both of these statements in the context

in which they were spoken, the Commonwealth was

referring to the defendant's behavior on the night of

the killing. One could reasonably infer that the

defendant was trying to concoct an alibi. The

Commonwealth brought this matter up not to attempt to

shift any burdens of proof, but rather to attempt to

show that the defendant was conscious of his wrongdoing

and that he had planned the crime. As such, the

Cammonwealth's remarks were fair deductions fram the

evidence that it presented at trial. See, Cammonwealth

v. Galloway, 302 Pa. Superior Ct. 145, 160, 448 A.2d

568. 576 (1982); Cammonwealth v. Cronen, 464 Pa. 138,

346 A.2d 59 (1975).

Even if we believe that the Commonwealth's use of

the word "alibi" was improper, a new trial would not be

warranted unless the unavoidable effect of the remarks

"is to so prejudice the jury against the accused and prevent

the finding of a true verdict." Cammonwealth v.. Betrand,

484 Pa. 511, 517, 399 A.2a 682, 685 (1979) (opening

statement) ; Cammonwealth v. D'Ambro, 500 Pa. 303, 310,

456 A. 2d 140, 144 (1983) closing statement).

Viewing all the evidence, we do not believe that

the remarks prejudiced the jury so as to prevent the

finding of a true verdict. Evidence was presented of

defendant's numerous confessions, of blood of his type

being found at the scene of the crime, of his asking Mr.

Fuller what the penalty for death was, and of the earlier

threats to his wife. In light of this and other evidence,

we do not see how the prosecution's use of the word

"alibi" would have effected the verdict.

We therefore find no error warranting the granting

of a new trial.

IV. ALLEGED ERROR IN FAILURE TO

APPOINT A SPECIAL PROSECUTOR

The defendant claims that he should be granted a

new trial because his right to a fair trial was

prejudiced in that a special prosecutor was not

appointed. The particular occurrence which gave rise to

this pre-trial request was that Shad Connelly, an

Assistant District Attorney, had been present in the

interrogation room at the Millcreek Township Police

Department in the early morning hours of February 15,

1983 when the defendant made incriminating statements.

The defendant premises his argument for appointment

of a special prosecutor on the allegation that it is

prosecutorial misconduct for an assistant district

attorney to participate in the investigation of a crime

prior to the filing of charges. In particular he claims

that this creates a bias against an accused. He further

claims that an assistant district attormey's testimony

about his investigation is given undue "credence and

credibility" by a jury. He infers that this alleged

misconduct is sanctioned by the District Attormey, and

~

that therefore the whole office should be recused and a

special prosecutor appointed.

As a preliminary matter, we must decide whether a

prosecutor may ever participate in the investigation

of crime. The ABA Standards for Criminal Justice,

Standards Relating to the Prosecutorial Function (1977),

although not binding upon this Court, are persuasive

in defining the proper role of the prosecutor. In the

Standards, a limited investigatory function for the

prosecutor's office is called for. Standards Relating

to the Prosecutorial Function §3.1l. We believe that

within proper parameters that this is a proper role

for the District Attroney's office.

The defendant , however, implies that by participating

in an investigation prior to the filing of charges, the

district attorney's office is biased against an accused.

The defendant seems to believe that the district attormey's

office cannot make an objective assessment of whether

to drop the charges or pursue the case to trial ora

plea agreement if an assistant district attorney had

participated in a pre-charge investigation. We agree

that an assistant district attormey should be objective.

However, an assistant district attorney as a professiona l

can still be objective and participate in a limited

investigation prior to the filing of charges.

This court will not try to define what are the proper

limits to this limited investigatory role. We only

hold that Attorney Connelly's conduct in this case

falls within the proper limits. The only "“inves-

tigation" that the Assistant District Attormey conducted

was an observation of the defendant and the witnessing

of the defendant's unelicited statement. Such a passive

participation does not carry with it the threat of the

assistant district attorney becoming so wedded to one

particular point of view as to lose his objectivity.

In any event, the assistant district attomey

recused himself because he was to be called as a witness.

See, Pennsylvania Code of Professional Responsibility

DR 5-102(A). This operated as a further assurance of

the objectivity of the actual trial prosecutor.

We would reach the same result, if the defendant's

argument was construed to attack the assistant district

attorney's conduct as creating an “appearance of

impropriety". This standard as applied to the district

@-10=

attomey's office was rejected by the Pennsylvania

Supreme Court in Commonwealth v. Harris, 501 Pa. 178,

160 A.2d 747 (1983). The Court called instead for "a

determination on a case by case basis of whether the

acts of a public prosecutor have actually tainted the

proceedings so as to require a new trial with a special

prosecutor appointed rather than an absolute grant of

one at any allegation of the ‘appearance of impropriety.'"

Id., at , 460 A.2d at 749; see also, Cammonwealth v.

Miller, 281 Pa. Superior Ct. 392, 422 A.2d 525 (1980).

The final basis for challenging the assistant

district attormey's pre-charge investigation is that it

allowed him to testify at trial where it is alleged

that his testimony was given undue "credence and

credibility". We do not see, nor does the defendant

enlighten us, how the jury gave undue "credence or

credibility" to the testimony of the assistant district

attorney. He simply testified about what the defendant

did and said while he was present in the interrogation

roam. As such, his testimony was mo different fram the

police officers'. This Court does not see how his

position would give his testimony greater "credence

=)}<

and credibility" than the police officers' testimony.

Having considered all the arguments advanced by

the defendant we find it was not error to deny his

motion for appointment of a special prosecutor.

V. ALLEGED ERROR IN NOT SUPPRESSING

DEFENDANT'S STATEMENTS

The defendant alleges that the Court erred in

failing to suppress the various statements made by him

while at the Millcreek Township Police Department in the

early morning hours of February 15, 1983 and also the

recorded statement made by him in the Erie County Prison

in the late night hours of February 16, 1983. Because

different considerations are involved in evaluating the

statements made on the two different dates, we shall

address the statements made on each day separately.

A. Statements Made on February 15, 1983

In challenging the voluntariness of his confessions,

the burden is placed upon the Commonwealth to show the

voluntariness of the confession by a preponderance of the

evidence. Commonwealth v. Hunt, 263 Pa. Superior Ct.

504, 509, 398 A.2d 690, 692 (1979); Cammonwealth v.

Watts, Pa. Superior Ct. 4 , 465 A.2d 1288,

1290 (1983). "In determining the voluntariness of a

a} Du

statement, the totality of the circumstances must

be considered." Cammonwealth v. Eackles, 286 Pa.

Superior Court, 146, 151, 428 A.2d 614, 617 (1981);

accord, Commonwealth v. Starkes, 461 Pa. 178, 184,

335 A.2d 698, 701 (1975).

In looking at the totality of the circumstances,

we must not only consider what transpired while the

defendant was in custody, but also what occurred prior

to the arrest and at the arrest. In this case, the

defendant without any prompting confessed to killing

his wife to Lottie Skrzypa Boyles, George Shoemaker and

David Zanni, prior to the arrest. The defendant then

called the police dispatcher and told the police on his

own volition that he had killed his wife. Then after the

police arrived on the scene and arrested him, he twice

blurted out to Officer Love that he had killed his wife.

So we have in this case, a defendant who for whatever

reason wanted to tell people about the crime he had cammitted.

In reviewing the whole record, it appears that the

defendant persisted in confessing until sometime after

2:00 a.m. This Court therefore believes that all of the

statements made on February 15, arose from same desire

«i 3~

SS

of the defendant to express himself, rather than from

any actions taken by the police.

The defendant however claims that the police

realizing that he had been hospitalized, should have

inquired about the reason for the hospitalization.

Such a per se rule of inquiry has been rejected by the

courts. Cammonwealth v. Commish, 471 Pa. 256, 268, 370

A. 2d 291, 277 (1977; Commonwealth v. Hunt, 263 Pa.

Superior Ct. 504, 510, 398 A.2d 690, 693 (1979).

Instead we must look at the testimony of the defendant

and the interrogating officers in determining what the

surrounding circumstances were that could have

effected the voluntariness of the statements.

Cammonwealth v. Jones, 457 Pa. 423, 433, 322 A.2d 119,

125 (1974); Cammonwealth v. Hunt, 263 Pa. Superior

Ct. at 510-11, 398 A.2d at 793.

Though the defendant testified to same

disorientation, Officers Love, Orr and Andrews and

Attorney Connelly all testified that they believed

he was suffering fram psychological disability and that

he appeared to be mentally alert. In addition, Shoemaker,

Boyles and Zanni also believe the defendant to be

alia

relatively normal.

Though the defendant did become combative at

several of the earlier interviews the testimony shows that

he calmed down and was rational thereafter. Given all

the testimony by the police officers and other

witnesses we do not believe that the emotional outbursts

show the defendant was psychologically disabled from

making a voluntary statement. See, Cammonwealth v. Hunt,

263 Pa. Superior Ct. at 51l, 397 A.2d at 693.

The defendant further suggests that his alleged

intoxication rendered his statements involuntary.

Intoxication, in and of itself, is not dispositive of the

voluntariness of a confession. Commonwealth v. Jones,

457 Pa. at 432-33, 322 A.2d at 125; Cammonwealth v. Hann,

272 Pa. Superior 431, 435, 416 A.2d 533, 535 (1979).

Instead, we must look at the totality of the circumstances.

We have the testimony of not only the interrogating

and arresting officers and Attorney Connelly, but also

of Boyles, Shoemaker and Zanni that while the defendant

had obviously been drinking, he did not appear

intoxicated.

Though the shackling and binding of a suspect in

some circumstances may show an attempt to overbear the

ais

the free will of the suspect, we do not believe that

in this case the police when they shackled and bound the

defendant intended to achieve such a result nor that their

conduct did achieve such a result. As we mentioned

previously, the defendant's

statements seem to have arisen from some inner prompting,

not same outside pressure.

The defendant suggests that the appearance of

Assistant District (sic) Connelly at the interrogation

room created sane undue psychological pressure on the

defendant to confess. This Court fails to see what

psychological pressure is created by the presence of a

member of the District Attorney's office which is not

also created by the presence of police officers.

There seems to be a suggestion that the confessions

were involuntary because of an alleged undue delay in

arraignment. The Defendant , however, was arraigned

within six hours of his arrest. Therefore the delay,

in and of itself, is not a ground for suppressing the

statements. Cammonwealth v. Davenport, 471 Pa. 278, 286-

87, 370 A.2d 301, 306 (1977).

Finally, the defendant seems to suggest that he

was subjected to continuous interrogation. Instead, the

«lé=

a a a i at ee =

first interrogation session lasted about fifteen minutes

and the second about five to fifteeen minutes. The

final session took about an hour, but that was only

because the defendant gave a long narrative statement.

The interrogation therefore did not reach the egrecious

duration as occurred in Cammonwealth v. Riggins, 451 Pa.

519, 304 A.2d 473 (1973) and Cammonwealth v. Purvis, 458

Pa. 359, 326 A.2d 369 (1974). In this case, it only

lasted for about one-and-one half hours spread over a

four hour period.

In addition, between the interrogation sessions, the

defendant was given a chance to rest and the police gave

him cigarettes and coffee. These actions can “hardly

(be) the type of police conduct which leads to a finding

of involuntariness". Commonwealth v. Willman, 434, Pa.

489, 255 A.2d 534, 536 (1969).

Considering these factors, we do not find that the

police conducted the interrogation in such a way as to

overbear the defendant's free will.

In looking at the totality of the circumstances

starting from the defendant's admission to Lottie

Skrzypa Boyles, the Commonwealth has shown by a

preponderance of the evidence that the defendant's

«Je

statements were the “product of an essentially free and

unconstrained choice by its maker." Commonwealth v.

Eackles, 286 Pa. Superior Ct. at 151, 428 A.2d at 617.

B. Statement Made On February 16, 1983.

The defendant challenges his February 16, statement

as being involuntary because of the psychological

pressure created by solitary confinement. However, solitary

confinement, in and of itself, does not make a statement

made by a defendant involuntary. Commonwealth v. Brown,

273 Pa. Superior Ct. 129, 416 A.2d 1123 (1979). We

must look at the totality of the circumstances in making

that determination. Commonwealth v. Schroth, 495 Pa.

561, 567, 435 A.2d 148, 151 (1981).

In this case, defendant was put in solitary

confinement because of his self-professed suicidal

tendencies. So the Cammonwealth was not motivated by any

intention to coerce the defendant by putting him in

solitary confinement.

The fact that the defendant claimed to be suicidal

does not mean that the defendant could not make a

voluntary and rational statement. Detective Donowski,

who recorded the statement, testified that the defendant :

=] B=

appeared alert and rational when he made his statement.

On the tape itself, the defendant seemed to be

responsive to the questions. Most important is the fact

that if the defendant's will had been overborme, he would

be expected to have made an inculpatory statement.

Instead his statement was mostly exculpatory when campared

to his earlier statements. The Commonwealth has thus

sustained its burden of showing the voluntariness of this

statement. See, Cammonwealth v. Hunt, 263 Pa. Superior Ct.

at 511, 398 A.2d at 693.

Defendant's counsel also suggests that the

February 16 statement should be inadmissible because it

was obtaired from the defendant when counsel was not

present, though the police knew the court had appointed

counsel.

In this case, the defendant requested the police

to came so that he could make a statement, and he

knowingly and voluntarily waived his right to have counsel

present. The courts have held that under such

circumstances, the statement is admissible and does not

violate any constitutional rights. Commonwealth v. Peoples,

483 Pa. 152, 156, 394 A. 2d 956, 957 (1978);

Cammonwealth v. Kesting, 274 Pa. Superior Ct. 79, 86, 417

si Ge

A.2d 1262, 1265 (1979) (petition for allowance of

appeal denied (1980)).

Consequently, we find that the February 16

statement was voluntary and not obtained in violation

of the Constitution.

VI. ALLEGED ERROR IN NOT SUPPRESSING

THE TESTIMONY OF HARRY HOLMWOOD

Harry Holmwood was a Deputy Sheriff who also

worked as a prison guard. During the defendant's trial,

he escorted the defendant to and from the trial and

guarded him during the trial.

On Thursday, September 15, 1983, the first day

of the trial, Officers Love and Skellie testified

regarding the murder scene at Henri's Beauty Parlor. As

the defendant was being led back to the prison, he

remarked to Holmwood that the Officers had lied on the

stand about the circumstances at Henri's. Holmwood had not

said anything to the defendant to elicit this statement.

Holmwood told no one of the defendant's statement

until Tuesday, September 20, 1983, when the defendant

testified that he could not remember what had transpirec

at Henri's. Holmwood then approached the Assistant

District Attormey who was trying the case during the noon

=20~

break to tell him of the defendant's statement. The

Assistant District Attorney informed the defendant's

counsel of this occurrence in the afternoon. That

same afternoon, the prosecutor sought to call Deputy

Sheriff Holmwood as a rebuttal witness whereupon this

Court held a suppression hearing. After listerming to

arguments fram both counsel, this Court denied defendant's

motion to suppress, finding the statement voluntary.

The defendant challenges this decision on two

grounds. First, he claims the testimony was inadmissible

because the defendant was not advised of his Miranda

rights. Secondly, he seeks to impute Mr. Holmwood's

failure to disclose to the prosecution and claims that

this failure to disclose is reversible error.

Miranda warnings need only be read to an accused

or suspect prior to custodial interrogation. Miranda v.

Arizona, 384 U.S. 436 (1966); Commonwealth v. Bracey, 501

Pa. 356, . 461 A.2d 775, 780 (1983). Since Mr.

Holmwood did not interrogate the defendant, he did

not need to inform the defendant of his Miranda rights.

See, Rhode Island v. Innis, 446 U.S. 291 (1980;

Commonwealth v. Bracey, supra.

;

Pa. R. Crim. P. 305 imposes a duty upon the

Cammonwealth to disclose to the defendant incuplatory

statements made by him, of which the Cammonwealth is

aware. This duty however only arises when a pre-trial

request for such information is made by the defendant.

Pa. R. Crim. P. 305(B). If such a request is made,

the Commonwealth has a continuing duty to disclose any

such information which is uncovered during the trial.

Pa.R.Crim.P. 305(D). However, when the defendant does

not make a pre-trial discovery motion, as is the case

herein, the Commonwealth has no duty to disclose

inculpatory statements made by the defendant. Commonwealth

v. Brocco, 263 Pa. Superior Ct. 51, 396 A.2d 1371 (1979).

Given the seriousness of this case, the Court

deemed it necessary in the interest of justice to grant

the defendant time to research the legal issues involved

and the opportunity to call the defendant as a

surrebuttal witness. Considering the nature of Mr.

Holmwood's testimony, this was an adequate remedy.

After the suppression hearing, the voluntariness

of the statement was never really in dispute. The only

issues were whether the defendant made the statement, and

whether the testimony was admissible as a matter of law.

The defendant not only cross-examined Mr. Holmwood,

but he was also allowed to be recalledas a surrebuttal

witness, if he so desired. This remedied the factual

question.

The defendant's counsel was granted a short recess

to research the legal issues. The defendant did not

then find nor has he subsequently found any authority for

his contention that Mr. Holmwood's testimony should be

suppressed as a matter of law. In the only case that the

defendant cites, Commonwealth v. Thiel, Pa. Superior

Ct. _. 470 A.2d 145 (1983), the Superior Court

granted a new trial because the Commonwealth failed to

produce key evidence of airplane tickets after the

defendant had filed a Rule 305 motion, and the trial

court granted no remedy to the violation of this rule.

That case is inopposite because herein there was no Rule

305 violation, and the defendant was given sufficient time

to prepare a defense to overcome any possible prejudice

caused by the introduction of Mr. Holmwood's testimony.

Consequently, this court finds that the testimony

of Mr. Holmwood was properly admitted.

o2}~

VII. ALLEGED ERROR IN ADMITTING PHOTOGRAPHS

OF THE VICTIM DURING THE SENTENCING PHASE.

During the sentencing phase of the trial, the

Commonwealth presented four photographs taken of the

victim at the scene of the crime. The defendant timely

objected to admission of these photographs and now

asserts that this Court erred in overruling his

objection.

The black and white photographs, taken from

various angles, show the various puncture wounds and

ligature marks on the victim's body. However, the

fact that the photographs were not in color but black

and white thereby rendered them not unduly gruesame.

In such a situation, our Supreme Court has stated,

"When the trial judge is confronted with gruesome or

potentitally 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.'" Cammonwealth v. Petrakovich,459 Pa. 51l,

521, 329 A.2d 844, 849 (1974) (quoting Commonwealth v.

Powell, 428 Pa. 275, 278-279, 241 A.2d 119,121 (1968) and

yo

Commonwealth v. Peyton, 360 Pa. 441, 451, 62 A.2d 37, 41

(1948)).

During the sentencing hearing, the Cammonwealth

used the photographs to attempt to show that the victim

had been tortured prior to death. Torture involves

the intentional infliction of pain and suffering.

Commonwealth v. Pursell, 67 Erie Co. LJ. 41, 69 (1983);

Annot., 83 A.L.R. 3d 1222 (1978 and supp). The

photographs by showing the wounds and ligature marks

helped the jury to make a determination of the amount

of pain and suffering experienced by the victim prior

to her death. Such a determination is essential to the

subsequent determination of whether torture was involved.

To deter any possible prejudice, this Court gave

cautionary instructions to the jury not to let the

photographs inflame their emotions, but only to use them

in evaluation whether torture had been imposed upon the

victim. As such, the essential evidentiary value of

the photographs clearly outweighed their prejudicial

effect. See, Cammonwealth v. Sullivan, 472 Pa. 129, 371

A.2d 468 (1977) (photographs admissible to show brutality

of the murder to demonstrate the intent to kill);

Cammonwealth v. Vogel, 468 Pa. 438, 364 A.2d 274 (1976)

a

Fp anes Oe Ree ee atten Tee

(photographs of victim at scene of crime admissible

to show killing with malace); Commonwealth v. McCutchen,

499 Pa. 597, 454 A.2d 547 (1982); photographs of

upper torso and anal area admissible to show "sodomy,

as a motive for the killing, and the brutality of the

beating, thus allowing an inference of intent to kill,"

id., at 601, 454 A.2d at 547); Commonwealth v. Edwards,

493 Pa. 281, 426 A.2d 550 (1981) (photograph of victim with

knife handle protruding from the abdamen admissible to

show force used to establish intent to kill).

VIII. ALLEGATION THAT VERDICT IS CONTRARY

TO THE WEIGHT OF THE EVIDENCE.

A. Guilt Portion of Trial

The test to apply in determining whether to

grant a new trial on the ground that the verdict is

against the weight of the evidence is whether the

verdict is "so contrary to the evidence as to shock

one's sense of justice and to make the award of a new

trial imperative, so that right may be given another

opportunity to prevail." Commonwealth v. Mitchell,

Pa. Superior Ct. P , 465 A.2d 1284, 1287

(1983); accord, Cammonwealth v. Fields, ,Pa. Superior

ohn.

Ce ee

Ct. ’ , 464 A.2d 375, 380 (1983).

Unlike a motion in arrest of judgment based on a

challenge to the sufficiency of the evidence, we must

look ar all the admissible evidence in determining

whether the verdict is so contrary to the weight of

the evidence to warrant a new trial.

The defendant appears to raise five grounds why

he believes the verdict was against the weight of the

evidence. First, he argues that he was so intoxicated

that he was unable to have premeditated the homicide.

Secondly, he claims that the killing was in the heat

of passion. Thirdly, he appears to be arguing that his

alleged chronic alcoholism has led to a diminished

capacity to form the requisite intent for first degree

murder. Fourth, he claims that his alleged lack of

memory of the killing negates a showing of premeditation.

Finally, he argues that the fact that he was hospitalized

until hours before the killing shows that there was

insufficient time for him to have premeditated the

murder.

The fact of voluntary intoxication is

irrelevant in a murder case except to the extent that it

a2]

negates the specific intent required for first degree

murder, Commonwealth v. England, 474 Pa. 1,19-20,

375 A.2d 1292, 1301 (1977); 18 Pa. C.S. §308. In this

case, the Commonwealth presented witnesses who saw the

defendant either prior to the murder or shortly after

the murder, and all thought he was not intoxicated.

David Fuller, the ex-police officer, and the

defendant's stepdaughter both saw the defendant prior

to the killing and both thought he did seem intoxicated.

Ms Boyles, Mr. Shoemaker and Mr. Zanni, all saw the

defendant shortly after 9 P.M., which was after the

murder was completed. All three witnesses testified

that the defendant did not seem intoxicated. Given all

this testimony, the jury's determination is not

contrary to the weight of the evidence.

In a murder case, the defendant is entitled

to have the jury instructed that they may find the

defendant guilty of voluntary manslaughter, instead of

murder. Cammonwealth v. Zettlemoyer, 500 Pa. 16, 67, 454

A.2d 937, 964 (1982). The Commonwealth always has

the burden of proving beyond a reasonable doubt all

the elements of first degree murder. Commonwealth v.

Walzack, 468 Pa. 210, 217, 360 A.2d 914, 917 (1976)

-28-

Commonwealth v. Green, 493 Pa. 409, _—,_ 426 A.2d

614, 616 (1981). If the defendant alleges that the

killing was the result of a “sudden and intense passion

resulting from serious provocation", the

Cammonwealth must establish beyond a reasonable

doubt that the killing was not due to the "sudden

and intense passion" to warrant a first degree murder

conviction. Mullaney v. Wilbur, 421 U.S. 684 (1975);

accord, Commonwealth v. McFarlane, 252 Pa. Superior Ct.

523, 382 A.2d 465 (1977) (allocatur denied (1978)).

Otherwise, the defendant may only be convicted of

voluntary manslaughter. 18 Pa. C.S. §2503.

In reviewing the jury's determination in this

regard, we must determine whether the clear weight of

the evidence shows "that the defendant was impassioned

and that a reasonable man would have acted in the heat

of passion in the circumstances." Commonwealth v.

Henderson, 273 Pa. Superior Ct. 5l, 54, 416 A.2d 1084,

1085 (1979); accord, Commonwealth v. McCusker, 448 Pa.

382, 292 A.2d 286 (1972). The passion involved must

be brought on by a sufficient provocation.

Cammonwealth v. McCusker, 448 Pa. at 390, 292 A.2d at 290.

In this case, the defendant seems to be intimating that

-29-

his wife's extramarital activities was a sufficient

provocation to bring on the heat of passion. However

as Cindy Smith, a neighbor of the victim, and the

defendant have both testified, the defendant was aware

of his wife's infidelity for at least four months prior

to the murder. This is a sufficient period for a

reasonable man to have cooled off.

Also, the defendant alleges that his wife

swung a hammer at him and that this was a sufficient

provocation. The defendant's reaction to this alleged

provocation was to hit her with a claw hammer, stab her,

and strangle her. This reaction is well beyond what

a “reasonably provoked" man would be expected to do.

Further, the fact that the defendant was drinking the

night of the murder is irrelevant in determining how

a reasonable man would have acted. Commonwealth v.

Henderson, 273 Pa. Superior Ct. at 54 n.*, 416 A.2d

at 1085, n.*.

Under either interpretation of the alleged

provocation the jury's determination is not contrary

to the clear weight of the evidence.

The defendant also seems to be alleging that he

did not have the specific intent to kill because he

-30-

had a diminished capacity brought on by acute

alcoholism. If this is indeed what he is now

alleging, then he has violated Pa. R.Crim.P. 305(c)

(1) (b), which requires that the defendant give pre-

trial notice of such a defense. Cammonwealth v.

Frisoll, 277 Pa. Superior Ct. 396, 419 A.2d 1204

(1980).

Assuming that the defendant has camplied with Pa.

R.Crim.P. 305, the only evidence that was presented

in this defense was testimony by the defendant and his

sisters that he had been hospitalized for alcoholism.

The defendant would then have us assume that because

he allegedly was suffering from acute alcoholism that he

must therefore have a diminished capacity. Such an

assumption does not necessarily follow from the fact

of his hospitalization and he has presented no medical

evidence to support such an inference.

In any event, even if the defendant has presented

medical testimony to back up his assertion, the lay

witnesses’ testimony that the defendant appeared nomnal

would be sufficient to allow the jury to reject the

diminished capacity defense. Commonwealth v. Brantner

486 Pa. 518, 406 A.2d 1011 (1978)

=

The defendant further agrees that because he cannot

remember inflicting the wounds upon the victim that he

cannot have premeditated the murder. The jury as

trier of the fact was free to reject the defendant's

testimony about his loss of memory. Cammonwealth v.

Jensch, Pa. Superior Ct. , 469 A.2d 632 (1983)

Nonetheless, memory by the killer of his deeds is not

a prerequisite to finding premeditation. Premeditation

may be inferred from circumstantial evidence, like the

use Of adeadly weapon upon a vital part of the victim's

body, Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614

(1981) (paring knife); Commonwealth v. Gardner, 490

Pa. 421, 416 A.2d 1007 (1980), or evidence of

strangulation. Cammonwealth v. Graves, Pa. Superior

Ct. _—, - 456 A.2d 561 (1983). In this case, the

defendant used two deadly weapons, a claw hammer and a

wood chisel, and he also strangles his wife. The jury's

inference of premeditation under these circumstances

is not contrary to the weight of the evidence.

Finally, the defendant appears to argue that the

fact that he was hospitalized up until hours before the

murder indicates that there was insufficient time to

plan or premeditate the killing. Such an argument

-32-

is a non sequiter. The period of premeditation

necessary to form the requisite specific intent can be

very short, and does not need to take hours to

germinate. Cammonwealth v. Green, 493 Pa. at P

426 A.2d at 617; Commonwealth v. Hartzell, Pa.

Superior Ct. , 467 A.2d 22, 27 (1983). In this

case, evidence of earlier threats to his wife as

testified to by Cindy Smith, and the defendant's remarks

about killing his wife that he made to David Fuller,

show that the premeditation may have been occurring

over a long period of time.

Having considered all the alleged errors, we

find that the jury's verdict was not contrary to the

clear weight of the evidence.

B. Sentencing Portion of the Trial

The defendant also alleges that the jury's

determination that the defendant tortured his wife

prior to her death is contrary to the clear weight of

the evidence. 42 Pa. C.S. §9711 spells out the

sentencing procedure to be used in a first degree

murder case. If the jury finds that the enumerated

aggravating circumstances outweigh the mitigating

wie

circumstances, a sentence of death will be imposed.

42 Pa, C.S. §9711(c) (1)9iv.). In this case the jury

found the presence of the aggravating circumsatnce

of torture, but no mitigating circumstances.

Torture is not defined in the statute, 42 Pa.

C.S. §9711(d) (8), therefore the Court must rely upon

the cammon-place or everyday meaning of that word.

The cammon definition of torture is the intentional

infliction of pain and suffering on the victim prior

to death. Cf., People v. Steger, 16 Cal. 3d 539, 128 Cal.

Reptr. 161, 546 P. 2d 665, 83 A.L.R. 3d 1206 (1976);

Annot., 83 A.L.R. 3d 1222 (1978 & Supp); Webster's

Third New International Dictionary 2414 (1976).

The oral evidence presented herein showed that

the victim was hammered and stabbed, and then strangled.

Although, as the defednant points out, there is no

evidence of how long he brutalized his wife prior to her

death, it can be inferred fram the amount of brutality

perpetrated upon her that the victim underwent some

period of pain and suffering. This inference is

bolstered by the fact that the extension cord was

originally upstairs, suggesting that the defendant had

a34~

to stop to go upstairs to get the cord before he could

finish his deed. This suggests that the victim lied

there in pain, while the defendant sought the cord

to administer the final act. These factors also create

the inference that the pain and suffering was

intentionally inflicted.

Further, Dr. Rozwadowski, the pathologist,

testified that there was some period of time between

the hammering and stabbing, and the strangulation.

Though he was uncertain of the time that elapsed, the

jury could have inferred that the victim has undergone

a period of pain and suffering and that such pain and

suffering was intentionally inflicted.

As was mentioned previously, the pictures of

the deceased as she looked at the scene of the crime,

also helped to establish that she must have underwent

pain and suffering prior to death.

Given all of these considerations, we find that

the jury's determination that torture was involved, was

not contrary to the clear weight of the evidence.

-35-

IX. SUFFICIENCY OF THE EVIDENCE?

In evaluating the sufficiency of the evidence

to sustain a conviction, the well established rule

is:

The sufficiency of the evidnce must

be evaluated upon the entire trial

record. All the evidence must be

read in the light must favorable to

the Commonwealth and it is entitled

to all reasonable inference arising

therefrom. The effect of such a Motion

(in Arrest of Judgment) is to admit all

the facts which the Commonwealth's

evidence tends to prove...Also, in

passing upon such a Motion, all evidence

actually received must be considered

whether the trial rulings thereon were

right or wrong.

Commonwealth v. Terenda, 433 Pa. 519, 523, 252 A.2d

635, 639 (1969); Commonwealth v. Strunge, 287 Pa.

Superior Ct. 212, 216, 429 A.2d 1176, 1178 (1981);

accord, Cammonwealth v. Rawles, Pa. , 462 A.2d

619 (1983).

le address this issue even though it has not been

argued or briefed because of the seriousness of the

penalty imposed and the exacting review this case will

have in the Pennsylvania Supreme Court.

We interpret defendant's allegations that this Court

erred in the denial of his demurrer and that the

"verdict is contrary to law" as being a motion in

arrest of judgment challenging the sufficiency of the

evidnce for his murder conviction.

=-36-

18 Pa. C.S. §2501-2502 set out the following

elements which must be proved to sustain a conviction

for first degree murder: 1) a person must be killed;

2) the defendant must have killed the victim; and 3)

the defendant must have the specific intent to kill.

In addition, the Pennsylvania Supreme Court has read

into the statute the requirement that common-law malice

must also be shown. Coammonwealth v. Thampson, 466 Pa.

15, 351 A.2d 280 (1976); Commonwealth v. Hare, 486

Pa. 123, 404 A.2d 388 (1979)

Merle Wood, the county coroner, identified the

person killed as Sara Nelson, so the first requirement

was met.

The defendant herein admitted that he killed

his wife to police officers Love, Skellie and Orr,

Assistant District Attormey Connelly, his girl friend,

the bartender at Zurn's and a cab driver. From all

this testimony,it is clear that the second element of

the crime was established.

The term "specific intent to kill" is a phrase

developed by our courts as another way of expressing

the statutory requirement that the killing be "willful,

deliberate and premeditated." Commonwealth v. O'Searo,

=37=

466 Pa. 224, 234, 352 A.2d 2d 30, 35 (1976).

Reading the evidence in the light most

favorable to the Cammonwealth, the specific intent to

kill requirement could be inferred from the intentional

use of deadly weapons (a claw hammer and a wood chisel)

upon vital parts of the human body, Commonwealth v.

Green, 493 Pa. 409, 426 A.2d 614 (1981) (paring knife-

deadly weapon) ; Commonwealth v. Gardner, 490 Pa. 421,

416 A.2d 1007 (1980): or from the evidence of

strangulation, Commonwealth v. Graves, Pa. Superior

Ct. _—_- 456 A.2d 561 (1983); or fram the cambination

of the use of deadly weapons and strangulation. The

specific intent to kill could also be inferred fran

the conversation that the defendant had with David Fuller

wherein he asked what. the penalty for murder was and

confessed that he was mad at his wife. Further,

Cindy Smith testified that in September, 1982, the

defendant said he would kill his wife if she would

net come back to him. Considering all the aforementioned

evidence, the Commonwealth established the third

requirement.

Malice or malice aforethought is a general intent

requirement. Cammonwealth v. Weinstein, 499 Pa. 106,

=3§~

SS —a—aeo”7~_Ooooeoee

115,451 A.2d 1344, 1348 (1982). It can be

established by showing that the killing was cammitted

"with an intent to killor to inflict serious bodily

harm", or with reckless disregard for human life.

Commonwealth v. Hare, 486 Pa. at 129, 404 A.2d at 391.

Virtually the same considerations used to establish

"specific intent to kill" will also establish

malice. See, Commonwealth v. O'Searo, 466 Pa. 224, 352

A.2d 30 (1976); Cammonwealth v. Graves, Pa. Superior

Ct. _, 456 A.2d 561 (1983). The use of a deadly weapon

O'Searo, supra, and evidence of strangulation, Graves,

supra, will also allow an inference of malice. Thus

the evidence established malice.

Therefore, reading all the evidence in the light

most favorable to the Commonwealth, there is sufficient

evidence of record to establish all the prerequisites

for a verdict of first degree murder.

B. The Sentencing Phase

We also interpret the defendant's motion as

challenging the sufficiency of the evidence used to

prove the aggravating circumstances of torture.

As we previously mentioned, torture is not

defined in the sentencing statute. 42 Pa. C.S. §9711

-39-

(d) (8). Therefore, we must rely upon the cammon

sense definition, which defines torture as the

intentional infliction of pain and suffering. Cf.

People v. Steger, 16 Cal. 3d 539, 128 Cal. Rptr. 161,

546 P. 2d 665, 83 A.L.R. 3d 1206 (1976); Annot.,

83 A.L.R. 3d 1222 (1978 and Suppl.); Webster's Third

New International Dictionary 2414 (1976)

In looking at the evidence in the light most

favorable to the Commonwealth, there are numerous

grounds on which the jury could have found torture.

The brutality of the killing itself, where the

defendant hammered, stabbed, and strangled the victim,

would be sufficient to infer that the defendant

intentionally inflicted pain and suffering on the victim

prior to her death. The fact that the extension cord

used to strangle the defendant was originally upstairs

suggests that the defendant had to stop brutalizing

his wife to go upstairs to get the cord. This also

would help bolster the inference that the defendant

tortured his wife.

Also, Dr. Rozwadowski, the pathologist, testified

that a period of time elapsed between the finish of

the hammering and stabbing and the start of the

=O~

strangulation. Though he was uncertain of the time

period between the two events, the jury could

have inferred that the victim had undergone a period

of pain and suffering, and that such pain and suffering

was intentionally inflicted.

Finally, the picture of the victim with her

many wounds would also help to create the inference

that she was tortured prior to death.

Considering all of this evidence in the light

most favorable to the Commonwealth, there is sufficient

evidence of record to support the jury's determination

that torture was involved.

ORDER

ADN NOW, to-wit, this 17th day of April,

1984, after considering the motion for new trial and/

or arrest of judgment by the defendant, John Andrew

Nelson, the motion is hereby denied. The defendant is

directed to appear for sentencing on April 24, 1984,

at 8:45 A.M.

BY THE COURT

cc: Bradley H. Foulk, Esquire

Frank J. Scutella, Esquire

=i l=

(J-148-1986)

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

NO. 43 W.D. Appeal

Docket, 1984

Appeal from Judgment of

Sentence of Court of

Common Pléas of Erie

County, Criminal Division

entered May 7, 1984 at

No. 59 A&B of 1983

vs

JOHN A. NELSON,

Appel lant : ARGUED: September 15,1986

OPINION

NIX, C. J. Filed: April 3, 1987

The Appellant, John A. Nelson, was convicted

by a jury of murder in the first degree and of

possession of an instrument of crime. Following

further deliberation, the jury decided that imposition

of the death sentence was appropriate, having found

the aggravating cricumstances of torture. After denying

the appellant's post-trial motions, the trial court

formally imposed the judgment of sentence of death

for the murder; and also sentenced him to a term of

imprisonment of fram one to two years for the campanion

crime. There followed this direct appeal to this Court

a ',

pursuant to section 722(4) of the Judicial Code, 42

Pa. C.S. §722(4).

In the early evening of February 14, 1983,

John A. Nelson was released from a hospital after having

spent about three days there for problems of

alcoholism. Later that same night he killed his wife,

Sara Nelson, which subjecting her to a sequence of

brutal assaults in the basement of a certain business

establishment. He struck her on the head with a claw

end of a hammer; then stabbed her repeatedly in the

chest with a chisel; and finally, strangled her by

wrapping an electric cord around her neck. At trial the

Commonwealth's medical testimony established the cause

of death as being by strangulation.

The record evidence discloses that about 7:00

P.M. on the night in question, prior to the killing,

appellant Nelson had gone to a local bar and engaged

in conversation with one David Fuller, an ex-policeman.

In that conversation, according to Fuller's testimony

at trial, the appellant remarked that he was angry with

hsi wife and inquired as to the penalty for murder.

Fuller further testified that the appellant did not

appear to be intoxicated during this conversation.

=43-

John Nelosn left the bar and went to his wife's

residence where he was amditted by his stepdaughter,

Ms. Dina. In the opinion of Ms. Dina, the appellant

was not under the influence of alcohol when he arrived.

Sara Nelson was home and did meet with her husband.

About 8:00 P.M., Mrs. Nelson agreed to drive her

husband to a certain beauty parlor. It was in the

basement of the beauty parlor that he subjected her to

the brutal, fatal attack that ended her life.

Thereafter, he removed Mrs. Nelson's car to another

location; and then telephoned his stepdaughter,

representing that he was again looking for his wife.

A short time later, however, he told at least three

friends or acquaintances that he had killed his wife,

Around 11:00 P.M. the same night the appellant called the

local police and confessed to having killed his wife.

After being place in police custody, and after receiving

the required Miranda warnings, he twice more stated to the

police that he had killed his wife. Prior to trial the

(1) These admissions were made to Ms. Lottie Boyles,

George Shoemaker and David Zanni.

-44-

appellant filed a motion seeking to suppress his

statements to the police, but that motions was denied. ‘2?

During trial appellant sought to convince the

jury that he was so intoxicated on the night of the

killing that his actions were not deliberate and

premeditated and that he did not possess a specific

intent to take his wife's life. In this context, he

attempted to establish that he was so afflicated by the

curse of chronic, severe alcoholism that his mond had

become impaired to the point of being incapable of

cammitting a premeditated homicide or of forming a

specific design to kill. The only evidence adduced by

the defense in support of this theory of diminished

mental capacity was testimony provided by appellant

himself and testimony supplied by his sisters,

stressing that his hospitalization prior to the killing

had been for the treatment of alcoholism. The defense

did not offer expert medical testimony to establish

the extent to which his alleged alcoholism had impaired

(2) In this appeal the appellant does not challenge

the suppression ruling relating to the incriminating

statements made to the police.

-45-

his mental faculties. Defense counsel argued to the

jury that the homicide could not rise any higher

than murder in the third degree based upon the

assertion of mental incapacity due to alcoholism.

The Appellant also argued in the alternative that he

killed his wife while in a heat of passion brought on by

a marital dispute during which she struck him with a

hammer.

The jury's verdict in this case makes it clear

that they rejected the appellant's allegations of

diminished mental capacity or conduct while in a heat

of passion, and that theybelieved the evidence established

an intentional malicious killing. In deciding that

imposition of the death penalty was appropriate, the

jury expressly accepted the prosecution's theory

that the homicide was cammitted by means of torture and

found that there were no outweighing mitigating

circumstances.

Before this court, the appellant raises numerous

challenges; same are directed at the guilt stage of

his trial but most are concerned with the sentencing

phase of the proceedings.

-46-

|

Our review of this case must start with the

question of whether the record evidence was sufficient

to sustain the verdict of first degree murder

returned by the jury. Cammonwealth v. Wallace, 500 Pa.

270, 455 A.2d 1187 (1983); Commonwealth v. Zettlemoyer,

500 Pa. 16, 26 n.3, 454 A.2d 937, 942 n.3 (1982).

Section 2502(a) of the Crimes Code, 18 Pa. C.S.§2502(a),

states that "(a) criminal homicide constitutes murder

of the first degree when it is cammitted by an

intentional killing" (emphasis added). The phrase

"intentional killing" is defined as a "willful,

deliberate and premeditated killing." 18 Pa. C.S.

§2502(d). This Court has held that a "willful,

deliberate and premeditated killing" is one where the

actor has a specific intent to bring about the death

of the victim. Commonwealth v. Meredith, 490 Pa. 303,

309, 416 A.2d 481, 484 (1980); Commonwealth v. O'Searo,

466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Jones,

355 Pa. 522, 50 A.2d 317 (1947). The test by which we

must determine the sufficiency of the evidence is whether,

accepting as true all of the Cammonwealth's evidence

and all reasonable inferences arising therefrom upon

~~

which, if believed, the fact-finder could reasonably

have based its verdict, such evidence and inferences

are sufficient in law to establish the elements of

the crime in question beyond a reasonable doubt.

Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d

688 (1978), cert. denied 440 U.S. 938 (1979);

Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971).

Under the testimony presented at trial, the

Commonwealth's evidence was unusually impressive

in establishing the specific intent to kill. The element

of specific intent is one that may be proved fram the

circumstances surrounding the event. Cammonwealth v.

Paquette, 451 Pa. 250, 301 A.2d 837 (1973). As we

noted in Commonwealth v. Meredith, supra:

Where one does not verbalize the

reasons for his actions, we are

forced to look to the act itself to

glean the intentions of the actor.

Where the intention of the actor is

obvious from the act itself, the

finder of the fact is justified in

assigning the intention that is

suggested by the conduct. If a deadly

force is knowingly applied by the

actor to the person of another, the

intent to take life is as evident

as if the actor stated the intent to

kill at the time the force was applied.

(Emphasis added. )

-48-

490 Pa. at 311, 416 A.2d at 485.

Here, appellant admitted causing the death of his

wife to individuals even before his arrest on these

| charges. Thereafter, during custodial interrogation,

he again confirmed the fact that he brought about the

termination of his wife's life. Thus the fact that

he was the cause of the death is amply supported

by the testimony presented. The circumstances surrounding

the event reflect withequal clarity his intent at the

time to bring about the deathof his spouse. Having first

assaulted his wife with a hammer and then a chisel,

and being unsuccessful in extinguishing her life,

appellant then left the basement, went upstairs and

secured an electric cord and returmed to the basement

where he effectively used the cord to accomplish his

purpose. From this sequence of events, the jury was

certainly justified in concluding that the assault

wsa designed to terminate the life of the unfortunate

victim. See, e.g., Cammonwealth v. Pursell, 508 Pa.

212, 495 A.2d 183 (1985). We are satisfied that the

evidence produced by the Commonwealth provided ample

basis for the jury's determination that the killing was

-49-

willful, deliberate and premeditated.

Notwithstanding the legal sufficiency of the

Commonwealth's evidence to sustain the jury's verdict

of first degree murder, the appellant asserts that the

(3) sh

verdict was against the weight of the evidence.

support of that proposition he argues that, given his

evidence concerning the effect of his alcoholism on his

mental capacity, the jury should have found that his

mind was so impaired that it could not form a specific

intent to kill. It is true that in Pennsylvania

diminished mental capacity may be defense to a charge

requiring a specific intent. Cammonwealth v. Zettlemoyer,

(3) Unlike the challenge of legal sufficiency of the

evidence, the complaint that the verdict was aginst the

weight of the evidence requires an assessment of the

credibility of the testimony offered by the Commonwealth.

Commonwealth v. Brantner, 486 Pa., 518, 522 n.2, 406 A.2d

1011, 1013 n.2 (1979); Commonwealth v. Farquharson, 467

Pa. 50, 60, 354 A.2d 545, 550 (1976). It is a mle of

this Cammonwealth that an appellate tribunal should not

entertain a challenge to the weight of the evidence

since their examination is confined to the "cold record.”

Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203

(1982) ; Commonwealth v. Farquharson, supra; Commonwealth

v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). However,

where the penalty of death is imposed we will consider

such a complaint.

-50-

supra; Commonwealth v. Weinstein, 499 Pa. 106,

451 A.2d 1344 (1982); Cammonwealth v. Branter, 486

Pa. 518, 406 A.2d 1011 (1979); Commonwealth v.

Walzack, 468 Pa. 210, 360 A.2d 914 (1976). However,

the appellant's reliance upon that theory in this case

is without merit. Even assuming, arguendo, that the

appellant's evidence concerning his chronic alcoholism

and its effect, consisting solely of testimony fram

him and his sisters, could have justified a finding of

diminished mental capacity, the jury was not compeiled

to accept this testimony or to make such a finding.

It is a fundamental rule of law that a jury may believe

any, all or none of a party’s evidence. E.g.,

Commonwealth v. Stoyko, 504 Pa., 455, 475 A.2d 714 (1984)

Even has the appellant presented expert medical testimony

to establish that his mental capacity had been

diminished by chronic alcoholism and that the infirmity

affected his actions at the time of the killing, the

jury would not have been obliged to accept such testimony.

Commonwealth v. Walzack, supra.

As a further argument that the verdict was against

the weight of the evidence, the appellant asserts

that the testimony indicated he killed his wife ina

-5]-

"heat of passion" brought on by a marital dispute, and

that with such evidence the jury could have returned

a verdict of voluntary manslaughter. It is true that

extended provocation brought about by stress, anger

and hostility caused by marital problems can provide

grounds for a verdict of voluntary manslaughter instead

of murder. Cammonwealth v. Shaver, 501 Pa. 167, 460

A.2d 742 (1983). However, in the instant case the

"heat of passion" defense rested upon the jury's

acceptance of appellant's trial version of the events.

The weight and credibility of that testimony was for

the trier of fact to determine. Id.; Cammonwealth v.

Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). And,

as previously noted, it was within the province of the

fact-finder to believe all, same or none of the

appellant's testimony. Commonwealth v. Stoyko, supra. ;

Commonwealth v. Shaver, supra.

The appellant's arguments concerning the weight

of the evidence were, of course, first raised before the

trial court in his post-trial motions, and were rejected

by the trial judge. The trial judge was able to observe

the demeanor of the witnesses as they offered their

=6 290

evidence and was satisfied that the jury's verdict

was justified. A jury's resolution of the facts should

not be disturbed unless the failure to do so would

be tantamount to a miscarriage of justice. See, e.q.

Bohner v. Eastern Express, Inc. 405 Pa. 463, 175 A. 2d

864 (1961); Lupi v. Keenan, 396 Pa. 6, 151 A.2d 447 (1959);

Frank v. W.S. Losier & Co. Inc. 361 Pa. 272, 64 A.2d

829 (1949). Such would be the case where the quality

and/or quantity of the evidence clearly does not

support the verdict reached. See Commonwealth v. Vogel,

458 Pa. 200, 321 A.2d 633 (1974). Clearly such a

situation is not presented in this appeal.

The appellant next raises as a ground for a

new trial the fact that the trial judge, at the

beginning of the defense's case during the guilt stage

of the proceedings, refused to grant the motion of

defense counsel for a recess prior to calling the

appellant to the witness stand. The motion was made

about 4:00 P.M. on a Monday, in the midst of trial,

and sought to have the proceedings adjourned until the

following morning, purportedly to give defense counsel

additional time to determine whether or not his client

ate

ll

would testify. We note that defense counsel had

assumed the representationof his client long in

advance of trial; we also note that counsel had

advised his client relating to hsi right to testify on

his own behalf, and further stated that he had advised

his client that, in counsel's judgment, he should,

in this case, testify. Moreover, counsel and his

client had the entire weekend prior to the Monday

in question to further consider whether the client

would testify. In denying the motion for the 4:00 P.M.

adjournment, the trial judge took the position that the

time had come for the defense to make its final

decision as to whether the appellant was going to

testify. When the appellant took the witness stand

after the adverse ruling, he was questioned on direct

examination solely about matters of his personal

background and events prior to the killing. That part

of his testimony was concluded about 4:35 P.M., at which

point court was adjourned for the day. Thus the

effect of the refusal to grant the requested

adjournment merely forced the defense to make the

decision it had been considering for an extended period

av

prior to that moment.

Contending here that the denial of the recess

was a violation of his right to confer with counsel

as guaranteed by the Sixth Amendment of the Federal

Constitution, the appellant relies on the decision

of the United States Supreme Court in Geders v.

United States, 425 U.S. 80 (1976). That case, however,

does not support the appellant's contention. Geders

upheld the right of a criminal defendant to confer with

his counsel during a recess which had been called by

the trial judge; the case does not address the

question of the defendant's right to have a recess

called. It is within the sound discretion of the trial

judge to control the course of trial. Cammonwealth v.

Dress, 354 Pa. 411, 47 A.2d 197 (1946). There was no

question in the instant case that the defense had ample

opportunity to explore their options and that they were

not forced to make a hasty decision. Moreover, the

appellant has not suggested how the denial of the

recess prejudiced him. It is therefore apparent that

this assignment of error is totally without merit.

-55-

It also follows that the appellant's related

contention, that trial counsel was ineffective in

not including the recess denial as a ground in his

post-trial motions, must fail as well. Counsel is not

ineffective for failing to assert a baseless claim.

Commonwealth v. Williams, 500 Pa. 226, 455 A.2d 632

(1983) ; Commonwealth v. Hubbard, 472 Pa. 259, 372

A.2d 687 (1977).

The appellant next camplains that his trial

attorney was ineffective in failing to camply with

Pa.R.Crim.P. 305(c) (1) (b), which requires the defense

to give the Commonwealth pre-trial notice of an

intention to offer at trial a claim of mental

infirmity. This argument must also be rejected as a

ground for a new trial. Despite the apparent failure

of defense counsel to camply with the above

procedural requirement, the trial court permitted

the defense to claim diminished mental capacity, to

present evidence in support of the claim, and to

argue the matter to the jury for their consideration.

Therefore, we cannot ascertain how, if at all, the

Appellant was actually prejudiced by the procedural

=-56-

omission; his brief to this Court provides us with

no hlep in that regard. Before a defendant on direct

appeal is entitled to further inquiry under a theory

of ineffective assistance of trial counsel, it must

appear that counsel's omission or improper cammission

was, in some way, prejudicial to the interests of the

defendant. Cammonwealth v. Ford, 491 Pa. 586, 421

A.2d 1040 (1980); Commonwealth v. Wade, 480 Pa. 160,

389 A.2d 560 (1978).

Still maintaing that he was not effectively

represented during the guilt stage, the appellant

further avers that trial counsel failed to seek

pre-trial discovery from the Cammonwealth. In support

of this argument the appellant's brief simply states

that : "it is alleged and believed that the

Cammonwealth was in possession of substantial medical

evidence which would relate to the defendant's

mental or physical condition." (Emphasis added.)

Upon the record before us in this appeal there is no

way Of knowing whether trial counsel did or did not

attempt to secure such pre-trial discovery; nor is there

any way of knowing from the appellant's brief what, if

aS Fa

ee

any, medical evidence the Cammonwealth may have

have had in its possession. In providing this Court

with nothing more than a bare allegation or statement

of belief to support the argument, the appellant

would have us consider a claim in the abstract. That

we will not do. Cammonwealth v. Floyd, 506 Pa. 85,

484 A.2d 365 (1984).

The appellant also camplains that his

defense counsel made no attempt, during the guilt

phase of the trial, to present any expert medical

testimony concerning the impact of his alcoholism on

his mental capacity. However, the appellant makes no

assertion here that there was a medical witness who

would have offered testimony favorable to his

defense of diminished mental capacity. Consequently,

this assertion of ineffective assistance of counsel is

also without merit. Cammonwealth v. Floyd, supra.

As a final challenge to the effectiveness of counsel's

“ assistance during the guilt stage, the appellant

contends that counsel's closing argument fell short of

required standards. Our review of counsel's efforts

in that regard discloses no such failure.

-58-

Having concluded that the Commonwealth's

evidence in this case was legally sufficient to sustain

the jury's verdict of first degree murder, and

having rejected the arguments upon which the

appellant relied for the grant of a new trial, we

turn now to the appellant's assertions regarding

the sentencing phase of the proceedings against him.

In urging us to vacate the sentence of death, the

appellant first directs our attention to the torture

element of the case. He asserts that section 9711

(d) (8) of the Sentencing Code, 42 Pa. C.S. §9711(d) (8),

which makes torture an aggravating circumstance

upon which a sentence of death can be based, is

unconstitutionally vague. He further asserts that

the trial judge's charge to the jury concerning

torture was prejudicially inadequate; and that the

Commonwealth's evidence was not legally sufficient

to prove that the killing of Mrs. Nelson was accompanied

by torture. The appellant also complains that his

trial counsel was ineffective in not demurring to the

Cammonwealth's proof of torture as an aggravating

circumstance, and for not objecting to the trial judge's

charge relating to torture.

-59-

oh rn ass gE AN. ESR STE SE

Ordinarily the failure of trial counsel to

timely raise these objections would constitute a waiver

and therefore preclude a consideration of these issues

on the merits. E.g., Cammonwealth v. Clair, 458

Pa. 418, 326 A. 272 (1974). It would then be incumbent

upon appellant to show that those amissions

constituted ineffective assistance of counsel.

Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802

(1985); Commonwealth v. Miller, 494 Pa. 229, 431 A.2d

233 (1981); Commonwealth v. Gay, 489 Pa. 17, 413 A.2d

675 (1980). However, in capital cases we have relaxed

the traditional waiver concepts because of the

uniqueness of the penalty involved, and permit an

assessment of the alleged error on its merits.

See, e.g. Cammonwealth v. Pirela, 510 Pa. 43, 507 A.2d

23 (1986); Cammonwealth v. Pursell, supra;

Cammonwealth v. Stoyko, supra; Cammonwealth v. Frey,

504 Pa. 428, 475 A.2d 700, cert. denied, 469 U.S.

963 (1984); Commonwealth v. Zettlemoyer, supra;

Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174

(1978). Moreover, in this instance such an inquiry

is facilitated since the issues raised do not depend

-60-

upon facts which were not part of the record. (4)

Section 971l(d) of the Sentencing Code

(5) of circumstances which

enumerates ten categories

are characterized as aggravating and hence warrant

imposition of the death penalty for first-degree

murder. In this case the Commonwealth relied solely

on subsection 8 for the aggravating circumsatnce to

justify the penalty of death. That subsection provides

that the death penalty may be appropriate where "(t)he

offense was cammitted by means of torture." The record

of the sentencing proceeding reflects that the court's

entire instruction relating to this aggravating

circumstances was as follows:

(4) Frequently, in the context of complaints of

ineffectiveness of counsel, an evidentiary hearing

is required to establish the factual predicate upon

which the legal issues will depend. Here, it isa

pure question of law which eliminates a necessity for

remand for a further hearing.

(5) As a result of an amendment by Act 1986-87,

signed July 7, 1986, section 9711(d) was increased

by two additional aggravating circumstances. However,

as noted in the text of this opinion, there were only

ten enumerated categories at the time of trial.

wt

Now, the Crimes Code (sic) defines

aggravating circumstances. For purposes

of this particular case only the

following matters, if proven, can

constitute aggravating circumstances,

and in this case there is only one

item in which the Commonwealth is

contending under the Crimes Code (sic)

that there is an aggravating

circumstance, and that is that the offense

was committed by means of torture.

T.T. Vol. V. pp. 198-199.

Appellant notes that the word "torture", as used in

subsection 8, is given no definition by the

Sentencing Code and that the trial court made no

effort to further define that term for the jury in

this case. He argues that this was an insufficient

instruction that constituted a denial of due process.

A well recognized aspect of the void-for-vagueness

concept is the requirement that standards be

sufficient'y precise to guide the court and jury.

Godfrey v. Georgia, 446 U.S. 420, 428, 29 (1980)

(opinion of Stewart, J. announcing judgment of the

Court, joined in by Blackmun, Powell and Stevens, JJ.)

Proffitt v. Florida, 428 U.S. 242, 255-56 (1976)

(opinion by Powell, J., announcing judgment of the

Court, joined in by Stewart and Stevens, JJ.); Gregg

v. Georgia, 428 U.S. 153, 192-94 (1976) (opinion of

Stewart, J. announcing judgment of the Court, joined

in by Powell and Stevens, JJ.). In this instance the

question is whether by merely utilizing the word

"torture", the General Assembly has made sufficiently

clear the requisite degree of culpability for the

imposition of the death penalty under this particular

aggravating circumstance.

The test to be applied is whether the prohibited

conduct is so vague that men of cammon intelligence

must necessarily guess at its meaning and differ as to

its application. See, generally Note, The Void-For-

Vagueness Problem in the Supreme Court, 109 U. Pa. L.

Rev. 67 (1960). The word torture is defined in Webster's

Third New International Dictionary (unabridged) as

"the infliction of intense pain (as from burning,

crushing, wounding) to punish or coerce sameone;

toment or agony..., anguish of body or mind;

excruciating agony..." As noted by this Court in

Cammonwealth v. Pursell, supra, 508 Pa. at 238, 495 A.2d

at 196, the general "meaning of such a term (torture)

is a matter of cammon knowledge,..." The word torture

is generally understood as "the infliction of a

-63-

considerable amount of pain and suffering on a victim

which is unnecessarily heinous, atrocious, or cruel

manifesting exceptional depravity." Id. at 239, 495 A.2d

at 196. Thus we agree with the Commonwealth that the

word "torture", even with its ductile quality, does not

present a vagueness question of constitutional

proportions. Cammonwealth v. Pursell, supra. Thus we

reject the contention that subsection 8 is

unconstitutionally vague because of its use of the

word "torture" without further elaboration of that tem.

However, this conclusion does not end our

inquiry into the instant complaints. It is the

responsibility of the courts to "channel the sentencer's

discretion by ‘clear and objective standards’ that

provide ‘specific and detailed guidance,' and that

‘make rationally reviewable the process for imposing a

sentence of death.'" Godfrey v. Georgia, supra, at

(6)

428.

(6) Arbitrary and capricious sentencing can only be

avoided where the issues are clearly identified and the

controlling law explained. E.g. Godfrey v. Georgia, 446

U.S. 420 (1980). The function of elucidating the relevant

legal principals belongs to the trial judge, and the

failure to perform this function deprives the defendant

of a fair trial. Commonwealth v. Bishop, 472 Pa. 485,

372 A.2d 794 (1977).

=h=

The sentencing phase under seciton 9711 is only

applicable after there has been a finding of murder

in the first degree. The aggravating circumstance provide

an additional element to the intentional killing

which justifies the ultimate sentence. Thus subsection

8 of section 9711 must of necessity require more than

(7) Implicit in subsection 8 is

a mere intent to kill.

the requirement of an intent to cause pain and suffering

in addition to the intent to kill. There must be an

indication that the killer is not satisfied with the

killing alone.

The cricical distinction between Commonwealth v.

Pursell, supra, and the case at bar is that in Pursell,

the trial judge gave the: jury a charge which contained

a sufficiently guiding definition of the word "torture".

(7) The law has long recognized the distinction between

the intent to inflict pain and the intent to kill.

In those cases where death resulted from the infliction

of torture, legislatures deemed it appropriate to

equate it with the specific intent to kill. E.g. State

v. Morales, 120 Ariz. 517, 587, P. 2d 236 (1978);

People v. Steger, 16 Cal. 3d 539, 546 P.2d 665 (1976);

Townsend v. People, 107 Colo. 258, 111 P.2d 236 (1941);

State v. McKenzie, 186 Mont. 481, 608 P.2d 428 (1980);

State v. Bentford, 39 N.M. 293, 46 P.2d 658 (1935). Here

where the infliction of torture is beign utilized as an

aggravating circumstance after a finding of a specific

intent to kill, the additional element of the intent to

inflict torture provides the heinousness necessary to

warrant the extreme penalty.

-65-

That charge conveyed to the jurors the idea that

the "torture murderer", besides having an intent to

kill, has an additional specific intent --""'an

intention to inflict pain, suffering or both pain and

suffering.'" 508 Pa. at 239 n. 13, 495 A.2d at 197

n.13 (quoting charge of trial judge). The central

element in our decision in Pursell, is that we upheld

the charge given by the trial judge regarding the meaning

of "torture." Although we recognize the definitional

problem that confronted the trial court in the

instant case, we must also observe that the trial judge

in Pursell, was faced with the same problem and yet

succeeded in providing a charge which satisfied due

process requirements.

Having concluded that the jury charge given during

the sentencing phase of the instant case was

prejudicially deficient, we must also conclude that

trial counsel was ineffective in his assistance when

he failed to make a timely objection to that charge.

For the reasons set forth herein, we are

constrained to vacate the death sentence imposed upon

the appellant, and remand the case to the court below

=-66-

eee

for the imposition of a life sentence. (8)

Mr. Justice Larsen files a concurring and dissenting

opinion.

Mr. Justice McDermott files a concurring and dissenting

opinion in which Mr. Justice Papadakos joins.

Mr. Justice Papadakos files a concurring and dissenting

opinion in which Mr. Justice McDermott joins.

(8) As noted previously, the appellant has raised

numerous objections with respect to the sentencing

phase of his trial. In view of our disposition of this

appeal it is unnecessary to address his remaining

arguments.

-67=

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appel lee

NO. 43 W.D. Appeal

Docket 1984

Appeal from Judgment of

Sentence of Court of |

Common Pleas of Erie

County, Criminal Division

entered May 7, 1984 at

No. 559 A&B of 1983

.

JOHN A. NELSON, $

Appel lan : ARGUED: September 15, 1986

CONCURRING AND DISSENTING OPINION

JUSTICE ROLF LARSEN Filed: April 3, 1987

I dissent to the vacation of appellant's

judgment of sentence of death and imposition of a life

sentence; I join that portion of the majority opinion

affirming appellant's convictions.

By anybody's definition, appellant tortured his

victim, and cammitted the offense of murder of the

first degree by means of torture. As Justice Papadakos

observes, we gave body to the meaning of the word

"torture", and approved the trial court's eleboration

of that term, in Commonwealth v. Pursell, 508 Pa. 212,

495 A.2a 183 (1985), wherein we held that what is intended

-68-

to be included are those murders of the first degree

where the actual cammission of the offense included

such concurrent heinous, atrocious or especially

cruel acts as to set the murder apart from those murders

of teh first degree not attended by aggravating

circumstances, i.e., the "conscienceless or piti’ess

crime" which causes inordinate or extreme pain and

suffering, from which the intent to cause such pain

and suffering can be presumed. Id. at 239, 495 A.2d

at 197.

While I believe it would be preferable to charge

the jury more fully regarding the aggravating

circumstances of "committed by means of torture" along

the lines adopted and approved in Pursell, I do not

believe that the failure of the trial court to give

the more camprehensive instruction is an absolute

necessity in all cases, nor do I believe that the

minimal instruction on "torture" in the instant case

requires that we vacate the sentence of death.

Our standard of review of a sentence of death

is established by the Sentencing Code which provides

that we shall affirm the sentence of death (assuming the

-69-

absence of trial errors) unless we determine that:

(i) the sentence of death was the

product of passion, prejudice or any

other arbitrary factor;

(ii) the evidence fails to support the

finding of an aggravating circumstance

specified in subsection (d); or

(iii) the sentence of death is excessive

or disproportionate to the penalty imposed in

similar cases, considering both the

circumstances of the crime and the character

and record of the defendant.

42 Pa. C.S.A. §9711(h) (emphasis added).

I do not find that the sentence of death was the

product of passion, prejudice or any other arbitrary

factor, and it is not excessive or disproportionate to

the penalty imposed in similar cases involving torture

of the victim. The record also discloses sufficient

evidence to support the finding of an aggravating

circumstance specified in subsection (d), namely

subsection (d) (8) as that subsection has been interpreted

by this Court in Pursell. As Justice Papadakos states,

"Appellant inflicted a considerable amount of pain and

suffering on his victim", by acts that were especially

"heinous, atrocious or cruel, manifesting exceptional

depravity, and the acts themselves prove that Appellant

«IO-

intended to torture his victim to death." Concurring

and Dissenting slip op. at 3. Accordingly, we are

directed by statute to affirm the sentence of death

in this case.

Perhaps in the abstract, or in another case, the

evidence would not support the aggravating circumstance

of "torture" where the trial court gave no elaboration

on the meaning of that term to the jury and the jury

was permitted to find such aggravating circumstances on

sparse or speculative evidence of "torture." This is not

such a case, however. It is a case where the jury could

have, and did, apply its common understanding of the

word "torture" to the heinous facts before it to arrive

at a fully supported determination that the offense

had been committed by means of torture.

As the United States Supreme Court has stated in a

related context, it "is neither possible nor desirable

for a person to whom the state entrusts an important

judgment to decide in a vacuum, as if he had no

experiences." Barclay v. Florida, 463 U.S. 939, 950

(1983). If a court failed to instruct a jury on the

legal meaning of negligence in a civil case, and the

jury found a defendant negligent who had driven his

«Tle

car at 100 m.p.h. through a crowded pedestrian crossing

against a red light, I do not believe we would require a

new trial simply because the jury instruction regarding

"negligence" was at its “bare bones minimum." We could

legitimately review the record and find any inadequacy

in the instruction to be harmless. So too in the

instant case, where the jury correctly applied its

cammon understanding of the word "torture" and found

the existence of that aggravating circumstance

(§9711(d) (8)), and where the record demonstrates

sufficient evidence to support that aggravating

circumstance as interpreted in Pursell.

Alternatively, as I must be bound by the majority's

position regarding the adequacy of the court's

instruction on the aggravating circumstance, I would

not remand for imposition of a life sentence. Rather,

I would vacate the sentence of death and remand for a

new sentencing proceeding, for the reasons set forth

in my concurring and dissenting opinion in Cammonwealth

v. Williams, Pa. ___, A.2d___(1987) (J-149-1986,

filed March 17, 1987).

af —

(J-148-86)

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA NO. 43 W.D. Appeal

Appellee : Dkt. 1984

: Appeal fram Judgment of

: Sentence of Court of

: Cammon Pleas of Erie

vs : County, Criminal Division

entered May 7, 1984 at

No. 559 A & B of 1983

JOHN A. NELSON,

Appellant

ARGUED: September 15,1986

CONCURRING AND DISSENTING OPINION

MR. JUSTICE MCDERMOTT FILED: APRIL 3, 1987

I join in the affirmance of appellant's conviction.

However, I must dissent from the decision to vacate the

sentence of death.

To kill by "means of torture", 42 Pa. C.S. §9711

(a) (8), does not mean that one must intend to kill

only by torture. What is proscribed is an intentional

killing that is inflicted by means of intense pain,

"the infliction of a considerable amount of pain and

suffering on a victim which is unnecessarily heinous,

atrocious, or cruel manifesting exceptional depravity."

aT Qa

Commonwealth v. Pursell, 508 Pa. 212, 238, 495 A.2d

183, 196 (emphasis added). A killing by "means of torture"

does not require that troture be the reason for the

employment of painful means. The means of killing

are evidence of intention that when proved are subsumed

by the intention to kill, and where that intention is

maniefsted by the umnecessary infliction of pain the

torture prosecribed by the statute may be considered

in imposing sanction.

What is proscribed is the infliction of pain

that accompanies the intention to kill. It cannot matter

to the victim that his killer is an (sic) bungler,

unfamiliar with the state of the art, or did his best

with the means at hand. If the means employed inflict

pain as defined in Pursell, supra., the killer ought

not be heard to say that the pain was a mere by-product

of his killing.

MR. JUSTICE PAPADAKOS joins in this Concurring

and Dissenting Opinion.

«Jin

J-148-1986

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

NO. 43 W.D. Appeal Docket

1984

Appeal from the Judgment of

Sentence of the Court of

Common Pleas of Erie County

Criminal Division, entered

at No. 559A &Bof 1983,

on May 7, 1984.

vs.

JOHN A. NELSON,

Appellant

Argued: September 15, 1986

CONCURRING AND DISSENTING OPINION

MR. JUSTICE PAPADAKOS FILED: APRIL 3, 1987

I join that portion of the majority opinion which

affirms Appellant's conviction of murder of the first

degree, but must dissent fram the vacation of the

sentence of death and imposition of a life sentence

in this case.

We have already found that the application of our

Death Penalty Statute's aggravating circumstance eight

(42 Pa.C.S. §9711(d) (8)), “the offense was cammitted

by means of torture", by a jury in its determination of

whether a convicted murderer should receive the penalty

aFh~

of life or death is not dependent upon the recitation

of any particular formula or the incantation of

specific magic words, because, in our view, we feel

the meaning of such a term is a matter of cammon

knowledge so that an ordinary man would not have to

guess at what was intended. Commonwealth v. Pursell,

508 Pa. 212 at 238, 495 A.2d 183 at 196 (1985).

We also indicated that if a jury concluded that the

means of torture are present "we can believe, without

a reasonable doubt, that the user of such means intended

to torture his or her victim to death." Pursell, at 239

495 A.2d at 197. The majority's present attempt to

discredit the trial court's charge at the sentencing

hearing because it did not point out that a specific

intent to cause pain and suffering was necessary or

that the death had to be caused by acts separate and

distinct from the torture." (slip opinion p. 17), in

reality, only seeks to undermine Pursell's teachings

and the more basic assumption that underlies Pursell,

i.e., that the term is a matter of cammon knowledge.

The court's charge clearly set out the statutory

language and that the jury had to find that the

Commonwealth's evidence on the subject was credible

~

beyond a reasonable doubt. The statutory language

itself, "the offense was cammitted by means of torture",

simply and sufficiently conveys to the ordinary man

that the killing had to be caused by torturous methods.

Not to repeat this information by any other fommula as

suggested by the majority, is not fatal to the charge,

it only represents non-redundancy.

Apparently, the majority feels that such repetition

is mandated by virtue of the facts which led to the

untimely death of Appellant's victim. As I read the

majority opinion, it would have us believe that the

brutal assault on Appellant's wife with the claw hammer,

stabs by a chisel, and choking with an extension

cord, were separate, distinct episodes unrelated in

time or purpose. This is illogical.

In Pursell, we found that torture was more than

present, inferred same by the number of blows, manual

strangulation, asphyxiation and continued traumatization

of the body after death, which acts were held to be part

if the same act of killing.

Here, Appellant dragged his wife into the basement

of a beauty salon, assaulted her with a hammer and

chisel, and when that didn't finish off her life, went

aT Fa

upstairs and secured an electric cord and returned

to the basement where he effectively used the cord to

accomplish his purpose, her death by means of torture.

I believe that a common understanding of this

sequence of events would indicate that Appellant

inflicted a considerable amount of pain and suffering

on his victim, which was unnecessarily heinous, atrocious

or cruel, manifesting exceptional depravity, and that the

acts themselves prove that Appellant intended to torture

his victim to death.

I would conclude that the record contains substantial

evidence to support the jury's finding of aggravating

circumstance 8 and that, in light of Pursell, the

subsection is constitutionally valid and that the charge

was sufficient for the jury to understand the law on this

issue.

I therefore, join the Concurring and Dissenting

Opinion authored by Justice McDermott.

Accordingly, I would affirm the conviction of murder

of the first degree and affirm the sentence of death.

MR. JUSTICE McDERMOTT joins this Concurring and

Dissenting Opinion.

-78-

SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA

Appel lee

NO. 43 W.D. Appeal Docket

1984

Appeal fram Judgment of

Sentence of Court of Cammon

Pleas of Erie County,

Criminal Division, entered

May 7, 1984 at No. 559 A&B

of 1983

ARGUED: September 15, 1986

JUDGMENT

ON CONSIDERATION WHEREOF, it is now here ordered

and adjudged by this Court that the judgment of the COURT

OF COMMON PLEAS of ERIE COUNTY, be, and the same is,

hereby vacated and case remanded for imposition of

Life Sentence.

Irma T. Gardner

Deputy Prothonotary

Dated: April 3, 1987

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June 26, 1987

Michael J. Veshecco

Frank J. Scutella, Esquire

Office of District Attorney

Court House

Erie, Pa. 16501

In Re: Cammonwealth v. John A. Nelson

No. 43 W.D. Appeal Docket 1984

Gentlemen:

The Court has entered the following Order on your

Petition for Reargument in the above-captioned matter:

"PER CURIAM

AND NOW, this 23rd day of June, 1987,

the Petition for Reargument is denied."

Very truly yours,

Deputy Prothonotary

ITG:cho

cc: Dennis V. Williams, Esq.

Hon. LeRoy Zimmerman, Attorney General

Hon. Fred P. Anthony

«ftp

(Jury Charge)

THE COURT: Members of the jury, you must

now decide whether or not this defendant is to be

sentenced to death or to life imprisonment. The

sentence will depend upon your findings concerning

the aggravating and the mitigating circumstances.

The Crimes Code provides that the verdict

must be a sentence of death if the jury should

unanimously find at least one aggravating

circumstance and no mitigating circumstances or if

the jury unanimously finds one or more aggravating

circumstances which outweigh any mitigating

circumstances. The verdict must be a sentence to

life imprisonment in all other cases.

Now the Crimes Code defines aggravating

circumstances. For purposes of this particular case

only the following matters, if proven, can constitute

aggravating circumstances, and in this case there is only

one item in which the Commonwealth is contending under

the Crimes Code, that there is an aggravating

circumstance, and that is that the offense was cammitted

by means of torture.

afi-

Now for purposes of this case, the following

matters, if proven, can constitute mitigating

circumstances: That the defendant has no

no significant history of prior criminal convictions:

defendant was under the influence of extreme mental

or emotional disturbance: or any other mitigating

matter concerning the character or record of the

defendant or the circumstances of his offense.

Now, the Commonwealth has the burden of

proving aggravating circumstance beyond a reasonable

doubt. I have already defined that term reasonable

doubt, for you earlier in the trial. The defendant

has the burden of proving mitigating circumstances

but by what we call a fair preponderence of the

evidence. That is a lesser burden of proof than

beyond a reasonable doubt. A preponderence of the

evidence exists where one side is more believable

than the other side.

Now, all of the evidence fram both sides,

including the evidence that you heard earlier during

the trial of this case, as to aggravating or mitigating

circumstances is important and proper for you to

consider. You should not decide out ~*© any feelings of

vengence or prejudice towards the defendant. As

I previously told you, too, you must understand that

it is entirely up to a defendant whether or not to

testify or to present evidence. You must not draw

any adverse inference form his silence or the evidence

that was presented by him. There are photographs that

we have permitted to be introduced in this case, and the

photographs are somewhat inflammatory in nature.

You should not let them stir up your emotions. The

photographs are there for one purpose only, and that is to

help you in weighing the evidence as presented by the

Commonwealth in terms of their contention that they

have presented to you an aggravating circumstance of

torture. Set aside any kind of emotion that might

result from the seeing of those photographs and look

only at the question of whether or not the photographs

substantiate in any degree the Cammonwealth's proof of

torture.

Now, the verdict is for you, members of

the jury. Remember and consider all of the evidence

that's been presented, giving it whatever weight you

think it is entitled. Now, remember, you are not merely

-83-

recommending the punishment in this case; what you are

doing is actually fixing the punishment of either

death or life imprisonment. Your verdict must be

unanimous; it cannot be reached by a majority vote

or by any percentage. It has to be the verdict of each

and every one of you. Now, remember that your verdict

must be a sentence of death if you unanimously find

at least one aggravating circumstance and no mitigating

circumstances or if you unanimously find one or more

aggravating circumstances which outweigh any mitigating

circumstances. In all other cases, your verdict

must be a sentence of life imprisonment.

Now, you will take with you a verdict

slip, which I have here in my hand, upon which to

record your verdict and findings. You will note

that in the first section it says, we the jury

unanimously sentence the defendant--and there are

two blocks under that, two blank spaces, one along

side the word death,and the other along side the words

life imprisonment. It is therein that the foreman must

indicate and check either your verdict of death or life

imprisonment, whatever unanimous sentence it is, and

then, if, in fact, the sentence should be one of death,

-84-

you must move on to the second section of the sentencing

verdict slip which says, we the jury have found

unanimously--and therein there are two sections you

must deal with, the first of which says at least one

aggravating circumstance and no mitigating circumstance,

the aggravating circumstance is--therein there is a

blank line, and if that's your finding, you should

check that line, to begin with, and then indicate

the aggravating circumstance and, of course, in this

case there is only one aggravating circumstance the

Commonwealth is contending, and that is the offense was

committed by means of torture. The second block deals

with a statement of one or more aggravating

circumstances which outweigh any mitigating

circumstances and the aggravating circumstance is-~and

again, if that's the finding of the unanimous jury, you

must 'x" that block and indicate there what the

aggravating circumstance is. On the bottom line,

there is a line for the foreman to sign, on the left-

hand side, there is a blank space for the date.

Members of the jury, at this point, you

will leave with the tipstaffs and take with you

=$5-

the sentencing slip and proceed to deliberate the

sentence to be imposed in this case or either death

or life imprisonment.

Are there any corrections or additions to

the Court's instructions before the jury begins their

deliberations?

MR. FOULK: None, Your Honor.

MR. SCUTELLA: None, Your Honor.

THE COURT: All right. The exhibits that are

going with the jury?

-86-

§9711 Sentencing Procedure for murder of the first

degree

(a) Procedure in jury trials

(1) After a verdict of murder of the first degree

is recorded and before the jury is discharged, the court

shall conduct a separate sentencing hearing in which

the jury shall determine whether the defendant shall

be sentenced to death or life imprisonment.

(2) In the sentencing hearing, evidence

may be presented as to any matter that the court deems

relevant and admissible on the question of the sentence

to be imposed and shall include matters relating to any

of the aggravating or mitigating circumstances

specified in subsection (d) and (e). Evidence of

aggravating circumstances shall be limited to those

circumstances specified in subsection (d).

(3) After the presentation of evidence,

the court shall permit counsel to present argument

for or against the sentence of death. The court

shall then instruct the jury in accordance with

subsection (c).

(4) Failure of the jury to unanimously agree

upon a senetnce shall not impeach or in any way

_— . =

affect the guilty verdict previously recorded.

(b) Procedure in non-jury trials and quilty pleas

(1) Before the jury retires to consider the

sentencing verdict, the court shall instruct the

jury on the following matters:

(i) the aggravating circumstances specified

in subsection (da) as to which there is same evidence.

ade

(ii) the mitigating circumstances specified

in subsection (e) as to which there is same evidence.

(iii) aggravating cricumstances must

be proved by the Commonwealth beyond a reasonable doubt;

mitigating circumstances must be proved by the defendant

by a preponderance of the evidence.

(iv) the verdict must be a sentence of

death if the jury unanimously finds at least one

aggravating circumstance specified in subsection (da)

and no mitigating circumstance or if the jury

unanimously finds one or more aggravating circumstances

which outweigh any mitigating circumstances. The

verdict must be a sentence of life imprisonment in all

other cases.

-88-

(vy) the court may, in its discretion,

dis charge the jury if it is of the opinion that

further deliberations will not result in an unanimous

agreement as to the sentence, in which case the court

shall sentence the defendant to life imprisonment.

(2) The court shall instruct the jury on any

other matter that may be just and proper under the

circumstances.

(a) Aggravating circumstances - Aggravating

circumstances shall be limited to the following:

(1) The victim was a fireman, peace officer or

public servant concerned in official detention, as

defined in 18 Pa. C.S. §5121 (relating to escape), who

was killed in the performance of his duties.

(2) The defendant paid or was paid by another

person or had contracted to pay or be paid by another

person or had conspired to pay or be paid by another

person for the killing of the victim.

(3) The victim was being held by the defendant

for ransome or reward, or as a shield or hostage.

(4) The death of the victim occurred while

defendant was engaged in the hijacking of an aircraft.

-89-

(5) The victim was a prosecution witness to

a murder or other felony committed by the defendant

and was killed for the purpose of preventing his

testimony against the defendant in any grand jury

or criminal proceeding involving such offenses.

(6) The defendant camitted a killing while

in the perpetration of a felony.

(7) In the cammission of the offense the

defendant knowingly created a grave risk of death

to another person in addition to the victim of the

offense.

(8) The offense was committed by means of

torture.

(9) The defendant has a significant history of

felony convictions involving the use or threat of

violence to the person.

(10) The defendant has been convicted of

another Federal or State offense, cammitted either

before or at the time of the offense at issue, for

which a sentence of life imprisonment or death was

imposable or the defendant was undergoing a sentence

of life imprisonment for any reason at the time of

=90-

the cammission of the offense.

(e) Mitigating circumstances - Mitigating

circumstances shall include the following:

(1) The defendant has no significant

history of prior criminal convictions.

(2) The defendant was under the influence of

extreme mental or emotional disturbance.

(3) The capacity of the defendant to

appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was

substantially impaired.

(4) The age of the defendant at the time of

the crime.

(5) The defendant acted under extreme

duress, although not such duress as to constitute a

defense to prosecution under 18 Pa. C.S.§309 (relating

to duress), or acted under the substantial domination

of another person.

(6) The victim was a participant in the

defendant's homicidal conduct or consented to the

homicidal acts.

=9]-

(7) The defendant's participation in the

homicidal act was relatively minor.

(8) Any other evidence of mitigation concerning

the character and record of the defendant and the

circumstances of his offense.

(f) Sentencing verdict by the jury ~

(1) After hearing all the evidence and

receiving the instructions from the court, the jury

shall deliberate and render a sentencing verdict. In

rendering the verdict, if the sentence is death, the

jury shall set forth in such form as designated by

the court the findings upon which the sentence is based.

(2) Based upon these findings, the jury

shall set forth in writing whether the sentence is

death or life imprisonment.

(g) Recording sentencing verdict ~ Whenever the

jury shall agree upon 4 sentencing verdict, it shall

shall thereafter impose upon the defendant the

sentence fixed by the jury-

(h) Review of death sentence ~

Review of death =————

(1) A sentence of death shall be subject to

-92-

automatic review by the Supreme Court of

Pennsylvania pursuant to its rules.

(2) In addition to its authority to

correct errors at trial, the Supreme Court shall

either affirm the sentence of death or vacate the

sentence of death and remand for the imposition of a

life imprisonment sentence.

(3) The Supreme Court shall affirm the

sentence of death unless it determines that:

(i) the sentence of death was the

product of passion, prejudice or any other arbitrary

factor;

(ii) the evidence fails to support the

finding of an aggravating circumstance specified in

subsection (d); or

(iii) the sentence of death is excessive

or disproportionate to the penalty imposed in similar

cases, considering both the circumstances of the crime

and the character and record of the defendant.

(i) Record of death sentence to Governor - Where

a sentence of death is upheld by the Supreme Court, the

prothonotary of the Supreme Court shall transmit to

=93<

the Governor a full and complete record of the

trial, sentencing hearing, imposition of sentence and

review by the Supreme Court.