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COMMONWEALTH v. TOMLINSON (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
TOMLINSON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 1711 of 1966, in case of Commonwealth of Pennsylvania v. Francis Lynn Tomlinson, Jr.

COUNSEL

Peter J. Verderame and Samuel G. Moyer, for appellant.

Stephen B. Harris, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell. Concurring Opinion by Mr. Justice Barbieri. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy and Mr. Justice Jones join in this dissent.

Author: Bell

[ 446 Pa. Page 242]

On July 15, 1966, Lucy T. Husvar was found dead in her apartment in Bristol, Bucks County. Appellant Francis Lynn Tomlinson, Jr. was arrested and indicted for the murder, as well as for rape, arson, burglary, robbery by violence, robbery, larceny and receiving

[ 446 Pa. Page 243]

    stolen goods. Appellant was brought to trial on the murder indictment and, while represented by counsel, pleaded guilty. A three-Judge panel, consisting of Judges Bodley, Biester and Satterthwaite, found appellant guilty of murder in the first degree, and fixed the penalty at life imprisonment.

We shall set forth the evidence, including appellant's own testimony, which established the sordid facts in this case. On the afternoon of July 15, 1966, Lucy T. Husvar left her place of employment at approximately 4 o'clock and purchased some groceries and Salem cigarettes at a local grocery store. At approximately 8:15 that evening, a long-time friend called at the victim's home, and after receiving no response to his knock at the front door, went to the rear of the house where he observed smoke coming through a basement window. He alerted the neighbors and a fire alarm was sounded. Several of the neighbors broke the locked door at the front of the building and went to the cellar steps, where they saw "a ball of flame" coming from the bottom of the cellar steps. They doused the flame with water and immediately discovered that the flame and smoke had emanated from a pillow which had been placed over the face and head of the deceased victim at the bottom of the cellar steps.

The police investigation revealed that the victim's nude body was found at the bottom of the cellar steps with her pedal pushers and panties around her right ankle. The victim's house and car keys were found on the basement floor by the side of her body and her handbag, with the wallet missing, was found on a kitchen chair. Large quantities of blood were found on the landing at the top of the cellar stairs, and blood and hair samples were present on the baseboards. Blood was also present on each of the stair treads, indicating that the body had collapsed on the landing

[ 446 Pa. Page 244]

    and was pulled down the cellar steps by the feet. A bloody latent fingerprint, discovered on the door at the landing area, was proved to be that of the appellant.

The Philadelphia Medical Examiner testified that there were at least ten deep wounds around the head and face and burned tissue on the upper chest and shoulders. Seminal fluid was found in the area of the vagina and thigh. The cause of death, according to the Medical Examiner, was severe head injuries, with contributing smoke inhalation.

A witness identified appellant walking a short distance in the direction of the victim's house shortly after 8 P.M. on the night of the murder. Four other witnesses, including a Catholic priest and a Bristol Township detective, saw and talked with appellant near the scene of the crime between 8:40 P.M. and 9 o'clock P.M. All of these witnesses described appellant as being "quite cool," and not nervous when he identified himself to the four witnesses as the victim's handyman.

At approximately 1:45 A.M., two police officers went to appellant's apartment armed with an arrest warrant and a search warrant. Appellant opened the door after a knock and greeted the police officers with the words, "I've been expecting you." The police officers searched the apartment and their search revealed a shirt with bloodstains and burn marks, as well as trousers and shoes all bearing traces of blood. The bloodstains on the shirt and trousers were analyzed and found to be Type B blood, the same as that of the victim, whereas a blood sample taken from appellant revealed that his was Type A. Charred material was also found in scrapings taken from his shoes. A search of appellant's car revealed a pack of Salem cigarettes and a partly filled can of lighter fluid in the glove compartment.

[ 446 Pa. Page 245]

Appellant was warned of his Constitutional rights, first at the time of arrest in his apartment, and later when he arrived at the police station at approximately 2:45 A.M. Appellant was interrogated by the police for a period of time, during which he made no admissions and denied any knowledge of the crime. At approximately 7 A.M., he asked the police for a pencil and some paper, and stated, "I'd better write this, you'd never believe it if I told it to you." Appellant then handwrote a full confession.

At his trial, appellant, while (we repeat) represented by counsel, changed his plea to guilty, and then took the stand and gave a full statement under oath, which substantially corroborated his handwritten confession. He admitted entering the victim's house, striking the victim with a blackjack, taking the wallet and Salem cigarettes, and raping the victim at the bottom of the cellar stairs. He testified that he put a pillow over the victim's face and tried to suffocate her. Failing in this, he stated that he poured the lighter fluid on the pillow and set the pillow afire in an attempt to insure her death. He also testified that after having taken the money from the victim's wallet, he threw the empty wallet into the nearby Delaware Canal, where it was later found by the police.

Appellant raises three questions in this appeal: (1) was it error for the Court below to admit and consider certain incriminating statements and the written confession made by him in determining and finding first-degree murder beyond a reasonable doubt; (2) was there sufficient evidence to establish murder in the first degree if his incriminating statements and written confession were excluded; and (3) was it error to exclude expert psychiatric testimony on a guilty plea when the Court was considering not the penalty, but the degree of guilt.

[ 446 Pa. Page 246]

The issues raised and the contentions made by appellant are completely devoid of merit.

In Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773, we set forth the well-settled test for sufficiency of evidence (page 538): "'It is hornbook law that the test of the sufficiency of the evidence -- irrespective of whether it is direct or circumstantial, or both -- is whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Finnie, 415 Pa. 166, 202 A.2d 85; Commonwealth v. Burns, 409 Pa. 619, 634, 187 A.2d 552; Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861; Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968).'" See also Commonwealth v. Frye, 433 Pa. 473, 252 A.2d 580.

The evidence to prove beyond a reasonable doubt appellant's commission of a willful, deliberate and premeditated murder, as well as a murder in the commission of a felony, was overwhelming. In addition to all the direct and circumstantial evidence hereinabove stated, appellant's own testimony on the witness stand, in which he testified to and admitted virtually all the facts contained in his written confession, proved him unquestionably guilty of first-degree murder.

Appellant next contends that the felony-murder rule should not apply if the intention to perpetrate the felony was not conceived until after the actual killing. There is no merit in this contention. This Court has several times decided that if a homicide occurs in the perpetration of or attempt to perpetrate a robbery or other statutorily-enumerated felonies, a conviction of murder in the first degree will be sustained regardless

[ 446 Pa. Page 247]

    of when the design to commit the robbery or other felony was conceived or the felony committed. Commonwealth v. Slavik, 437 Pa. 354, 261 A.2d 583; Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734; Commonwealth v. Hart, 403 Pa. 652, 170 A.2d 850; Commonwealth v. Stelma, 327 Pa. 317, 192 Atl. 906.

Appellant's next contention is that psychiatric evidence is admissible, in the determination of the degree of guilt,*fn1 for the purpose of proving that appellant did not act and was incapable of acting with deliberation and premeditation. This contention is without merit. See Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98 and cases cited therein; Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540; Commonwealth v. Ahearn, 421 Pa. 311, 218 A.2d 561; Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852; Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728; Commonwealth v. Carroll, 412 Pa. 525, 194 ...


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