Commonwealth v. PacellCommonwealth v. Pacell
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- Before:
- Johnson
Following a jury trial Appellant, Richard Pacell, was convicted of first-degree murder and possessing instruments of crime generally. On March 20, 1984, the Honorable George J. Ivins of the Court of Common Pleas of Philadelphia County sentenced Appellant to life imprisonment for first-degree murder and a concurrent sentence of not less than one nor more than two years for possessing instruments of crime generally.
I. REVERSIBLE ERROR WAS COMMITTED WHEN THE PROSECUTOR WAS ALLOWED TO QUESTION THE APPELLANT, OVER OBJECTIONS OF TRIAL COUNSEL, AS TO PRIOR CRIMINAL ACTIVITY AND, IN PARTICULAR, THE ASSAULT ON DEBBIE BIRKMIRE.
II. THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT’S MOTION FOR A MISTRIAL WHEN THE PROSECUTOR IN HIS CLOSING ADDRESS WAS GUILTY OF PROSECUTORIAL MISCONDUCT IN CALLING THE DEFENDANT A LIAR.
III. REVERSIBLE ERROR WAS COMMITTED WHEN THE TRIAL COURT CONTINUALLY ALLOWED THE PROSECUTING ATTORNEY TO LEAD WITNESSES AND THEN REPEAT THE WITNESSES’ TESTIMONY AFTER THEIR ANSWERS, OVER THE OBJECTIONS OF TRIAL COUNSEL.
IV. ERROR WAS COMMITTED WHEN THE JURY FOUND THE DEFENDANT GUILTY OF FIRST DEGREE MURDER DESPITE THE FACT THAT THE EVIDENCE PRESENTED WOULD NOT ALLOW A DETERMINATION OF GUILT BEYOND A REASONABLE DOUBT.
After careful review of the record, we believe Judge Ivins’ Opinion filed March 6, 1984 adequately addresses Issues II and III and with respect to these issues raised by Appellant on appeal, we affirm on the basis of the trial court’s opinion.
Appellant in Issue I argues that the trial court erred in admitting Appellant’s testimony, on cross-examination, that he hit his common-law wife, Debbie Birkmire, during an argument that took place five days before the murder.
See
N.T., 6/2/83 at 68-75. The trial court correctly concluded that this testimony did not refer to “prior criminal activity”, since Appellant was never arrested, indicted, or convicted for it. Opinion, 3/6/84 at 5. The court
While evidence either of a prior bad act or crime is inadmissible if offered to prove the defendant’s bad character, see Commonwealth v. Zettlemoyer, 500 Pa. 16, 50, 454 A.2d 937, 955 (1982), cert. denied 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 reh. denied 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983); Commonwealth v. Styles, 494 Pa. 524, 527, 431 A.2d 978, 980 (1981), such evidence may be admissible for other evidentiary purposes if its probative value outweighs its tendency to prejudice the jury. See Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). See also McCormick, Handbook on Evidence, supra at § 190. Such other evidentiary purposes include establishing the defendant’s motive or that the defendant “acted with malice, deliberation, or the requisite specific intent.” Id. at 558, 562-63.
The Commonwealth’s theory in this case was that the relationship between Appellant and Birkmire was rapidly deteriorating, primarily because Appellant suspected she was having an affair with the victim; that five days before the murder, Appellant and Birkmire argued violently about
Q. I’d like to know why did you hit her? Why did you find it necessary to hit an 18-year-old girl in the face?
N.T., 6/2/83 at 72-73.
This evidence was relevant, if at all, to show the depth of the estrangement between Appellant and Birkmire. One might argue that Birkmire’s age, or the fact that she was struck in the face, had no relevance to this issue, and that the purpose of the questions was the impermissible one of showing Appellant’s propensity for violence. Appellant did, in fact, object that the Commonwealth’s questions were irrelevant. N.T., 6/2/83 at 70. Commonwealth v. Fuller, 479 Pa. 353, 388 A.2d 693 (1978), might appear to support this position. There, the trial court allowed a witness to testify that she had seen the defendant with the murder weapon, a gun, two days after the murder, when he had hit her with it. Although she was not permitted to testify that the defendant had also attempted to rape her, the supreme court nevertheless reversed and granted a new trial, holding that the testimony was relevant only to the issue of the defendant’s possession of the gun, and that the trial court should therefore have prevented the jury from hearing evidence about the defendant’s use of the gun to hit the witness. Id., 479 Pa. at 358, 388 A.2d at 695.
On balance, however, we believe that the evidence here was relevant to Appellant’s motive, and that because it was part of the sequence of events leading directly to the homicide, this relevance was not vitiated by remoteness. (In fairness to the trial court, it should be noted that despite
Unlike the situation in Fuller, Appellant’s argument with Birkmire took place before the murder. It was, therefore, directly relevant to the Commonwealth’s theory of motive for, as the Commonwealth argued, it tended to show escalating anger and jealousy, of “an intensity of feeling, enough to make somebody act____” N.T., 6/6/83 at 45. It is true that Appellant’s argument with Birkmire took place five days before the murder, but that was not so long a period as to vitiate its relevance to Appellant’s state of mind at the time of the killing. The jury could find that the ill-will generated by the argument continued throughout the five-day period and led directly to the purchase of the murder weapon and the conception and execution of the murder plan. N.T., 6/6/83 at 45-47. See Commonwealth v. Martin, 479 Pa. 63, 387 A.2d 835 (1978) (evidence that the victim had hit appellant with a chair thirteen days before murder held admissible under motive exception); Commonwealth v. Glover, 446 Pa. 492, 496, 286 A.2d 349, 351 (1972) (evidence that two to three weeks before defendant murdered man found in former girlfriend’s apartment, defendant had broken into apartment and assaulted another man found there; held, relevant to motive and not too remote to be relevant to state of mind at time of murder.)
Commonwealth v. Faison,
437 Pa. 432, 264 A.2d 394 (1970), presents a situation analogous to the case at bar. In
Faison,
the defendant killed a friend of his estranged girlfriend, believing that the victim was helping the girlfriend elude him. She testified that the defendant had raped and threatened to kill her and her children if she left him. The Commonwealth argued that the evidence of the
With respect to Issue IV, Appellant in his brief appears to argue that each of the elements for first degree murder was not established beyond a reasonable doubt, but he does not specifically state which of the elements was not proven.
Appellant does concede that “[t]here is evidence that the defendant intentionally killed the deceased.” Appellant’s brief at 14. His brief suggests that the unchallenged evidence shows “that there was a struggle, that passion was involved, [and] that defendant tried to aid the deceased after the stabbing.” Id. These factors, however, are not inconsistent with the jury’s verdict of first-degree murder.
A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
Since it is conceded by Appellant that the killing was intentional, we must conclude that murder of the first degree was proven beyond a reasonable doubt.
Sufficient evidence exists on the record to support the jury’s verdict. While there may be unrebutted testimony which, if believed by the jury, could have raised a reasonable doubt, it is the function of the jury and not the trial judge to decide issues of credibility and reasonable doubt. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984).
Judgment of sentence affirmed.
Notes
. We may affirm a correct decision of the trial court on any basis. See Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 359, 437 A.2d 417, 424 (1981).