Thomas W. Houser, Bethlehem, for appellant.
John E. Gallagher, 1st Asst. Dist. Atty., Salvador Salazar, Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones did not participate in the decision of this case.
Tina Anderson, age eight, was found dead at 1:15 P.M. on December 12, 1973, in a stream behind the Western Electric Plant in Allentown, Pennsylvania. As a result of the investigation which followed, appellant was arrested, tried by a jury, and convicted of murder in the first degree, rape, kidnapping, and deviate sexual intercourse. After the dismissal of post-trial motions by the lower court, en banc, the instant direct appeal followed.*fn1
The first issue we consider is appellant's challenge to the sufficiency of the evidence supporting the verdict. In reviewing the sufficiency of the evidence, we must view the evidence in a light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1972). The test of the sufficiency of the evidence was articulated in Commonwealth v. Pitts, 450 Pa. 359, 301 A.2d 646 (1973), wherein this Court stated:
". . . the test to be applied in determining the sufficiency of the evidence is whether accepting as true all of the evidence, be it direct or circumstantial or both, and all reasonable inferences arising 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 accused is guilty of the crime of which he has been convicted." Id. at 361, 301 A.2d at 648, quoting, Commonwealth v. Williams, 443 Pa. 85, 87, 277 A.2d 781, 783 (1971).
At about 5:45 P.M. on December 11, 1973, appellant arrived at the home of the victim, Tina Anderson, age eight, located at 1110 Merriman Court, Bethlehem, Pennsylvania. After appellant had socialized with the Anderson family for about fifteen minutes, Tina left the home to visit a neighbor. Seconds later, appellant also departed from the Anderson home. It was subsequently learned that Tina never reached the neighbor's home. However, at 6:20 P.M., a Bethlehem motorcycle patrolman stopped appellant's vehicle on Stefko Boulevard in Bethlehem for a traffic light violation. The officer observed a passenger in appellant's vehicle and recorded the number "two" in the "occupant" square on the citation. He later described the passenger as about an eight year old female wearing clothing which matched that worn by Tina Anderson when she left her home.
At 8:30 P.M., appellant returned to the Anderson home with his wife. He introduced his wife to Thelma Anderson, Tina's mother, and told Mrs. Anderson that he could not take her to the movies that evening as had been arranged during the appellant's earlier visit. During this conversation he made no mention of having Tina with him in his car earlier that evening. At about 9:30 P.M. that same evening, Mrs. Anderson reported Tina missing. Despite an intensive police search, she was not located that night. The next day, December 12, 1973, Tina was found dead at 1:15 P.M. in a stream behind the Western Electric Plant in Allentown, Pennsylvania, by an employee of the City of Allentown. Her body was partially submerged in the shallow stream and a large rock had been placed on her chest in an apparent attempt to prevent the body from floating to the surface.
A criminologist stated that a hair found in appellant's car appeared to come from the same source as a hair found on Tina's thigh. He also testified that certain fibers found in
the trunk of appellant's car matched the fibers in the clothing Tina was wearing at the time of her disappearance. A pathologist testified that there had been penile entry in the mouth, vagina, and rectum of Tina. He further testified that there were lacerations in both the anus and vagina as well as injuries to the mouth. Based on these findings he concluded that Tina's death was caused by asphyxiation. It was his judgment that asphyxiation was caused by either penile choking; suffocation resulting from another person's public or lower abdominal regions covering Tina's face; or suffocation resulting from another person's body on Tina's chest. Additionally, he testified that he could not conclusively rule out the possibility of drowning, but that he believed that possibility to be highly unlikely since seminal fluid was found in the mouth and in the event of drowning the fluid would most likely have been washed away. Another Commonwealth witness was Charles LaFever, appellant's cellmate at Northampton County Prison. LaFever testified that on or about March 10, 1974, apparently during an altercation, appellant said to LaFever: "I killed one. I can kill another."*fn2
The attack upon the sufficiency of the evidence by appellant is essentially two-pronged. First, appellant, noting that the Commonwealth had proceeded under a felony-murder theory,*fn3 contends that the evidence presented was insufficient
to establish any of the requisite underlying felonies. Secondly, it is argued that the evidence fails to establish that death resulted from a criminal ...