COMMONWEALTH of Pennsylvania, Appellee, v. Henry P. FAHY, Appellant.
Supreme Court of Pennsylvania.
Argued Jan. 22, 1985. Decided Oct. 21, 1986.
516 A.2d 689
298
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.
This direct appeal arises from the conviction and death sentence of Henry P. Fahy (Appellant) pursuant to
On January 24, 1983, Appellant was tried before a jury with the Honorable Albert F. Sabo of the Court of Common Pleas of Philadelphia County presiding. The jury returned guilty verdicts on all charges on January 29, 1983. After the required sentencing hearing6 was conducted, the jury determined that Appellant be sentenced to death. Sentencing was deferred pending the filing and disposition of post-trial motions which were argued before a court en banc and denied on November 2, 1983. Appellant was sentenced to death on the homicide conviction, ten to twenty years on the burglary conviction, two and one-half to five years on the weapons conviction, and ten to twenty years on the rape conviction. Appellant‘s burglary and rape convictions were ordered to run concurrently with each other but consecutively to the murder conviction. The weapons con
Appellant first argues that insufficient evidence exists to support a conviction of murder of the first degree. As Mr. Justice Flaherty recently reiterated, “It is well established that the test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.” Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). See also, Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985).
Viewing the evidence in the light most favorable to the Commonwealth, it was established that on January 9, 1981, at 7:15 a.m., Nicky Caserta received a telephone call from her girlfriend during which the girls made plans to meet and walk to school. That meeting never took place. After completing the phone conversation, since Nicky‘s mother had left for work, Nicky locked the door, as she had routinely done every morning. From a vantage point across the street, Appellant saw Nicky‘s mother leave for work. He proceeded across the street and was let in the Caserta home by Nicky. Appellant was well known to Nicky because he and Nicky‘s aunt were living together nearby. Appellant asked Nicky to go upstairs and look for a pair of pliers for him. As soon as Nicky went up the steps, Appellant locked the front door and followed her. Appellant then grabbed Nicky and when she began screaming, forced tissue in her mouth, wrapped a sweater around her face, and had sexual intercourse with her. Upon completing this crime, Appellant commanded Nicky to dress. Due to the child‘s hysterical state of mind, she put her parochial school uniform on backwards, sending Appellant into a violent rage which resulted in him dragging the child to the basement.
On January 29, 1981, police investigators at the Sex Crimes Unit interviewed Rosemarie Kelleher, Appellant‘s live-in girlfriend, questioning her regarding an alleged sexual assault by Appellant upon her six year old son, Christopher. Ms. Kelleher phoned Appellant and requested him to come to the Sex Crimes Unit for questioning regarding this rape allegation. Appellant agreed and upon his arrival fifteen minutes later, he gave his name and asked someone in the hall who he was supposed to see. Officer Carol Keenan then approached Appellant. She testified that he had no difficulty walking or talking, nor did he appear to be under the influence of drugs or alcohol. While Appellant was speaking with Officer Keenan, Detective Chitwood and Sergeant Rosenstein approached Appellant and advised him that there were two warrants for his arrest on charges of rape.7 However, they did not, at this time, tell him the names of the victims.
Appellant was placed under arrest at 10:15 p.m., handcuffed and transported to Homicide Headquarters, where he was placed in an interview room and unhandcuffed at 10:30 p.m. At 10:45 p.m., Appellant was permitted to use the bathroom facilities and get a drink of water. Both
Appellant initially denied culpability in any of the crimes; however, after viewing pictures of the victim‘s body, Appellant began to cry and said, “Alright I did it, I did it.” After he regained his composure, Appellant orally related the details of the murder. This was followed by the preparation of a written statement which began about 12:30 a.m., on January 30, 1981. Upon completion of the written statement, Detective Chitwood read it back to Appellant and then gave it to Appellant to read. The Officers required Appellant to read portions of the statement out loud to assure themselves that he, in fact, could read. After reading the entire statement, Appellant then signed each of ten pages and stated that it was a true and correct statement. This was finished at approximately 2:00 a.m. The statement provided the following facts of the murder:
I grabbed her arm and dragged her down to the cellar. I had my other hand around her mouth. Down in the cellar I started choking her around the neck with my hands, but it wasn‘t working.
I told her, I said, ‘Die,’ she wouldn‘t die. I pushed her to the floor. She kept kicking like she was gasping for air, spit started coming from her mouth. She just wouldn‘t die. I kept telling her, ‘Bitch, you Bitch, you‘re supposed to die.’
So I grabbed a red cord from the washer, but before I did that I took a T-shirt from the clothesline and wrapped it around her mouth. I had the cord. I put it around her neck and started pulling on it, choking her, but it wasn‘t doing any good.
As I was choking her, I kept saying, ‘Die, die.’ She kept kicking and stuff came out of her mouth. I put my foot, this foot, (left foot indicated) on the cord. Then I used both my hands pulling the cord up to me real hard. When I thought she was dead, she wasn‘t moving, I let go of the cord.
Then she started choking for air again. I couldn‘t understand why she wasn‘t dying.
So I went upstairs and went into the kitchen and into the drawer in the kitchen sink near the stove. I got a knife and went back down the cellar. Her body was still jerking. I took the knife and I started stabbing her in the chest—
[At this time, he was indicating with his right hand the motion that he was stabbing her.]
—About seven times. I figured it would be enough. I went back upstairs and took a piece of paper off the table to dry my hands after I washed them. I washed them in the sink in the kitchen. I used the same paper to open the faucet, the one with the red button.
After I dried my hands I noticed a piece of the knife was missing.
I went back downstairs to find it and I saw the piece laying about a foot away from her.
I picked it up. I saw a pair of green shorts, the color of a[n] army uniform. I rolled up the knife and the broken piece in the shorts and put it in my pocket in the thing I was wearing under my coat ...
I came up out of the cellar, shut the door, and put a chair up against the door because I thought she could be alive and come back upstairs ...
I left and got in my truck and drove over to Emerald Street. I‘m not sure if it was Clearfield, but I know it was between Clearfield and Allegheny. I put everything in a brown paper bag and then threw it down the Culbert [sic]. It‘s about a block from Emerald and Orleans. I could probably show you. After that I went and picked up Michael for work. (N.T. 555-558)
At approximately 2:30 a.m., Appellant was given coffee and something to eat. He was then handcuffed at 2:41 a.m. and proceeded to show the Officers the location where he had disposed of the knife used to stab Nicky, which was successfully recovered from the sewer. Upon his return to the police station at 3:10 a.m., Appellant was permitted to use the bathroom facilities and get a drink of water. Appellant then made a telephone call during which he admitted to both his mother and to Rosemarie Kelleher that he raped and murdered Nicky. Appellant was then arraigned at 4:05 a.m.
On January 30, 1981, a criminal complaint was lodged against Appellant charging him with murder of the first degree, rape, burglary, and possession of an instrument of crime.
Appellant subsequently denied making the statement to the police. He claimed he did not initial the Miranda warnings and that, in fact, he was never advised of his constitutional rights. He did admit that the signature on the ten pages was his; however, he claimed that he signed blank pieces of paper after being promised that he would be taken to a doctor the following Monday. Appellant admitted that he told the detectives that he did it, but said he made this admission because the detectives convinced him that he did it. He also admitted that he told his mother and Rosemarie on the telephone that he raped and murdered Nicky, but said he did this only because he was confused and upset at the time, and that it was not true. Appellant
At trial, Michael Mullen testified that he worked with Appellant and that he called Appellant at 6:45 a.m., on January 9, 1981, and was told by Appellant that he would be picked up in five minutes. However, Appellant never arrived at Michael‘s home until 8:10 a.m., looking pale. They left work shortly after arriving, and Appellant suggested that they return to his home because he wanted to take a shower. Later that morning, Appellant came downstairs with his thermal underwear rolled into a ball and said he was going to wash them.
Rosemarie Kelleher testified that it was very unusual for Appellant to do the wash. She also established that Appellant attempted to flee to Baltimore on the night of January 9, 1981, but he ran out of gasoline on the way and had no money. Appellant telephoned her and asked that she and his brother Harry come and pick him up. Appellant returned to Philadelphia, but did not go back to the house where he lived with Ms. Kelleher, nor did he return to work between the slaying on January 9, and his arrest on January 29.
Appellant attempted to defend himself by arguing that the victim was his friend and, therefore, he could not have committed these acts of violence against her. Appellant also asserts that the Commonwealth witnesses were incorrect in their description of the events surrounding the crimes, and that Appellant‘s testimony was “so much more believable than the version adopted by the Commonwealth through its witnesses” that Appellant should be granted relief.8
In Commonwealth v. Farquharson, 467 Pa. 50, 60, 354 A.2d 545, 550 (1976), our Court stated, “where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding.” However, this rule of law applies only in cases where the patent unreliability of the testimony is such as to render a verdict of guilt based thereupon as no more than pure conjecture. Whack, id.; Farquharson, id. (See also, Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982)).
The only testimony offered to contradict the Commonwealth‘s evidence was that of Appellant. This contradiction basically centered around the events on the day of the murder and Appellant‘s penchant for young girls. More specifically, Appellant claims the testimony of the Commonwealth‘s witnesses concerning his location during various hours of the day in question was totally inaccurate. Appellant also testified that his relationship with the victim and the Caserta family was very friendly in nature; however, this testimony was also contradicted by prosecution witnesses. The jury clearly disbelieved the Appellant‘s version of the events and as was its province, credited the testimony of the Commonwealth witnesses.
We are satisfied that Appellant has presented no basis for disturbing the jury‘s verdict on the ground of insufficient evidence. Taking all of the facts of this case as a whole, a jury could conclude beyond a reasonable doubt that young Nicky Caserta‘s death was a homicide. From the extent of the injuries to the victim‘s body, a jury could reasonably infer the killing was willful and deliberate. Fur
Appellant next argues that the suppression court committed reversible error in denying Appellant‘s motion to suppress his confession and the murder weapon, which flowed from the unlawful confession.
As we stated in Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976),
... In reviewing this ruling our initial task is to determine whether the factual findings are supported by the record. ‘In making this determination, we are to consider only the evidence of the prosecution‘s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error ...
See also, Commonwealth v. Berkheimer, 505 Pa. 506, 481 A.2d 851 (1984); Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980); Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977).
When faced with conflicting testimony, a suppression court, as factfinder, may pass upon credibility, and these findings will not be disturbed when supported by the record. Commonwealth v. Guest, 500 Pa. 393, 456 A.2d 1345 (1983); Commonwealth v. Firth, 479 Pa. 333, 388 A.2d 683 (1978). The record reveals and the suppression court found that the evidence introduced by the prosecution was more credible than that of Appellant, and, therefore, the court refused to grant the motion to suppress.
After reading the statement, Appellant affixed his signature to each individual page of the ten page document.9 Detective Chitwood testified that during the interview and confession Appellant was alert and responsive. Throughout the questioning, Appellant was neither threatened nor coerced by the police, and denied being under the influence of drugs. The complete interview lasted approximately one and one-half hours.
Appellant‘s testimony at the suppression hearing was totally contradicted by the testimony of the Commonwealth‘s witnesses. Appellant claimed his confession was not voluntarily obtained. Appellant also claims his confes
The duty of the suppression court is to determine whether the Commonwealth has established by a preponderance of the evidence that the confession was voluntary and that the waiver of constitutional rights was knowing and intelligent. Jones, Id. Our responsibility on review is to determine whether the record supports the factual findings of the trial court and to determine the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975). Reviewing Appellant‘s arguments in light of the previously espoused standard, we are convinced the suppression court was correct in ruling that Appellant‘s statements were admissible. Our review of the conflicting testimony illustrates that Appellant, in fact, was informed of the charges against him, advised of the nature of the questioning, and cognizant of his constitutional rights.
Appellant next argues that the trial court committed reversible error in failing to sustain Appellant‘s motion for a mistrial as a result of prosecutorial misconduct. This issue is without merit. During the early stages of trial, defense counsel and the assistant district attorney agreed not to inform the jury that Appellant had confessed to the Caserta killing during his arrest on two warrants involving independent sex crimes. Appellant specifically alleges that
By Miss Rubino (A.D.A.):
Q. Mr. Fahy approximately how long did you live at 2063 East Rush Street?
A. For about two years.
Q. And how often did you during that two year period did you live there?
A. Very often.
Q. For approximately how many months in the year of 1980 did you live there?
A. Months?
Q. Yes. How many of the months in 1980 did you live there?
A. As far as I know, all of them.
Q. You were never living anywhere else besides 2063 in 1980?
A. Not that I can remember; no.
Q. In 1979, how many months did you live there?
A. ‘79
(There was a long extended pause.)
I‘m not sure. I think I was—(Pause) I think I could have been locked up for—
Mr. Greene: Objection. (N.T. 726-27, 1-28-83).
THE COURT: Strike from the record the witness’ last answer to that question as not being responsive.
Mr. Fahy, would you please answer specific questions? Don‘t volunteer, or go into—
THE WITNESS: I‘m trying to, Your Honor.
THE COURT: The question was, how many months and you can tell us how many months. Now, you can‘t—
THE WITNESS: Well, I am—I believe that me and Cookie [Rosemarie Kelleher] got in a few arguments and I was away from the house—oh, for maybe about a day or two, at my mother‘s or different places until Cookie
cooled down. But, I don‘t believe I was ever away from the house in ‘79 for any month at all. (N.T. 726-727, 730).
In Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977), the Court stated:
Although we reiterate the admonition to trial courts and prosecutors that they should exercise every possible precaution against the introduction of improper references to prior unrelated criminal activities of the accused, we nevertheless recognize that there will be situations where, even with the greatest care, such evidence may inadvertently impregnate a trial. In such a case where it is evident that the introduction of the improper reference was not intentional and the nature of the comment was innocuous, immediate and effective curative instructions may remedy the error.
Furthermore, the Court in Williams concluded that the nature of the reference and whether the remark was intentionally elicited by the Commonwealth are considerations relevant to the determination of whether a mistrial is required. See also, Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162 (1981); Commonwealth v. Cannon, 453 Pa. 389, 309 A.2d 384 (1973).
In the instant case, Appellant‘s improper response was unsolicited. The question posed required a number answer, not the response given. Further, Appellant‘s statement, “I could have been locked up,” gave no indication that he had been convicted of a crime, nor did it reveal the nature and extent of the crime for which he had been incarcerated. Also, there are situations where the taint resulting from an improper reference to an unrelated criminal act may be expunged without resort to the extreme remedy of aborting an otherwise fair trial. Williams, id.
While Appellant‘s response was improper, it was unsolicited and promptly stricken from the record. Appellant‘s remark was unintentionally introduced into the record, and was not exploited later on during the trial or
Lastly, Appellant challenges the constitutionality of
Aggravating circumstances.—Aggravating circumstances shall be limited to the following:
...
(9) The Defendant has a significant history of felony convictions involving the use or threat of violence to the person.
At the penalty stage of this proceeding, the prosecutor introduced evidence that on November 24, 1981, prior to the instant trial, Appellant was convicted of raping a seventeen-year-old girl on September 26, 1980. Also, on November 24, 1981, Appellant was convicted of attempted rape and attempted involuntary deviate sexual intercourse of a thirteen-year-old child on October 21, 1980.10 Subsequently, the jury found three aggravating circumstances, that Appellant committed the killing while in the perpetration of a felony,
Appellant now attacks the finding of aggravating circumstance
In Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984), this Court reviewed an identical claim and stated:
Appellant further contends that certain language employed in the statute‘s enumeration of aggravating and mitigating circumstances, to be weighed by the jury in determining whether the death penalty should be imposed, are (sic) so vague as to invite arbitrary and capricious imposition of the death penalty. The challenged language includes, inter alia, the phrases “significant history of prior criminal convictions” (
42 Pa.C.S.A. § 9711(e)(1) ), “extreme mental or emotional disturbance” (42 Pa.C.S.A. § 9711(e)(2) ), “age of defendant” (42 Pa.C.S.A. § 9711(e)(4) ), “participation in the homicidal act was relatively minor” (42 Pa.C.S.A. § 9711(e)(7) ), “capacity of the defendant ... to conform his conduct to the requirements of law ...” (42 Pa.C.S.A. § 9711(e)(3) ). In reviewing an identical claim of vagueness asserted against the corresponding portion of the death penalty statute of the State of Florida, which employed virtually identical language, the Supreme Court of the United States rejected the vagueness claim, noting that a jury‘s evaluation of the aggravating and mitigating circumstances, as enumerated, requires no more line drawing than is commonly required of a factfinder in any lawsuit. Proffitt v. Florida, 428 U.S. 242, 257, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913, 925-926 (1976).
See also, Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985).
We find no basis, and Appellant has not raised any novel reasons, to ignore the holdings of Proffitt, Beasley, and Goins. Therefore, Appellant‘s contention that
After oral argument, permission was given and supplemental briefs were filed by both parties concerning an inquiry made by this Court during oral argument. The issue underlying this inquiry is whether a finding by the jury in mitigation under
Our review of the death penalty statute, the record and the nature of the common law bar to execution of the death warrant where the condemned prisoner becomes incompetent after conviction convinces us that a jury finding of substantial mental impairment under
Appellant was ruled competent to stand trial and for sentencing, and there is nothing in the record to suggest that Appellant is incompetent and should not be executed. At the sentencing hearing, Appellant testified that he had an inner compulsion to abuse young children sexually. This evidence did not purport to establish incompetency, it was
Finally, in accordance with our statutory obligation12 to review sentences of death from the standpoint of their proportionality to sentences in similar cases, Commonwealth v. Zettlemoyer, 500 Pa. 16, 62, 454 A.2d 937, 961 (1982), cert. den., 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed. 1327 (1983), we have reviewed Appellant‘s death sentence in light of the Pennsylvania Death Penalty Study, see Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), and find the sentence to be proportionate with the penalty imposed in similar cases, considering the circumstances of the crime and the character and record of Appellant.
The convictions and the sentence of death are affirmed.13
HUTCHINSON and ZAPPALA, JJ., file a dissenting opinion.
NIX, Chief Justice, concurring.
I join the opinion of the majority.
I write in response to the dissenting opinion of Mr. Justice Zappala. While I am generally in agreement with the distinction that he is attempting to define with reference to the applicability of section
HUTCHINSON, Justice, dissenting.
I reluctantly dissent. On this record, I do not believe that the definition of torture articulated by this Court in Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985), has been satisfied. In Pursell, we held that torture encompasses the “infliction of a 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. The Pursell definition requires the pain and suffering imposed on a victim to be unnecessary, or more than needed to effectuate the demise of the victim. Moreover, in Pursell there was circumstantial evidence in the form of mutilation from which an intent to cause unnecessary pain or distress could be inferred. Such evidence is not present on this record. As Mr. Justice Zappala points out in his dissent, the lack of intent does not make the present crime less heinous or horrible. The
The instant case poses the problem whether the actions of a bumbling murderer, unable to quickly realize his ghastly scheme, constitute torture. Appellant finally stabbed his victim to death after attempts at strangling with his hands, a T-shirt and a cord had failed. Albeit gruesome, the steps taken by the appellant were calculated solely to kill the victim. Accordingly, the Pursell definition of torture, requiring unnecessary pain and suffering, has not been satisfied. The record here excludes mitigating circumstances. The presentation of an improper aggravating circumstance to a jury, required to return a death sentence if aggravating circumstances outweigh mitigating circumstances, necessarily introduces an arbitrary and possibly unconstitutional factor into the determination of death. Commonwealth v. Holcomb, 508 Pa. 425, 456 n. 16, 498 A.2d 833, 849 n. 16 (1985) (Opinion Announcing the Judgment of the Court), cert. denied, — U.S. —, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986). I am therefore compelled to dissent.
ZAPPALA, Justice, dissenting.
In Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985), a majority of this Court defined the aggravating circumstance of an offense committed by means of torture,
To this end, the General Assembly has defined in specific terms the only circumstances under which the death penalty might be appropriate in this Commonwealth.