No. 41 March Term, 1978, Appeal from the judgment of sentence of the Court of Common Pleas, Criminal, of Northampton County, at No. 41 January Term, 1974
Richard H. Galloway, Daniel J. Ackerman, Greensburg, for appellant.
Albert M. Nichols, Dist. Atty., John F. Dent, Asst. Dist. Atty., Morrison F. Lewis, Jr., Greensburg, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Manderino, J., files a concurring opinion. Roberts, Nix and Larsen, JJ., concur in the result.
A charge of murder was brought against appellant, Merle Ronald Gilman, in the Court of Common Pleas of Westmoreland County. The case was transferred to Northampton County after a motion for change of venue was granted. Appellant was convicted of murder of the first degree on a theory of felony-murder, pursuant to the 1939 Penal Code, the underlying felony being involuntary deviate sexual intercourse. We reversed and remanded for a new trial on the basis of improper remarks made by the prosecutor in his closing argument. Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977). Appellant was again convicted of murder of the first degree and was sentenced to life imprisonment. He appeals the judgment of sentence.
Appellant was charged in connection with the death of Lee Ann Grimm. According to the testimony of Commonwealth witness Sandra Johnson (now Sandra McClintock), she and the decedent were hitchhiking in Westmoreland County during the evening of July 5, 1973, with the idea of going to Cramer in Indiana County. They were given two rides before being picked up by appellant near Ligonier, Westmoreland County, at approximately midnight. Appellant said he was going to Homer City, which is near Cramer, and agreed to drive decedent and McClintock there. He first drove to a bar in Johnstown, Cambria County, arriving there at approximately 12:30 a. m., bought some beer and continued to drive. He passed the road he should have taken to Homer City and after driving around for some time, he propositioned both women to submit to oral sex with him. Decedent and McClintock both said they would not consent and tried to dissuade him. Appellant continued to drive around and eventually stopped near Bolivar, Westmoreland County. Appellant then demanded that one of the women get into the back seat with him. Both refused. Appellant then got out of the car, opened the trunk and took out a crowbar. Decedent, fearing what he would do with the crowbar, said she would do what he wanted. She
disrobed and got into the back seat with appellant. McClintock heard noises consistent with compliance with appellant's request. After about ten or fifteen minutes, appellant and decedent got out of the car, appellant tried to lift decedent onto the trunk, and the car bounced up and down for a few minutes. McClintock was in the car and did not know what was happening. After this, appellant demanded that McClintock engage in oral sex. She said she would not. He forcibly removed her from the car and she and decedent struggled with him. He beat both of them with an unidentified blunt object. McClintock lay still, as though she had fainted. Appellant continued to beat decedent and dragged her into the woods. McClintock fled and hid in some high grass. Appellant emerged from the woods alone, looking for McClintock with a flashlight. After he passed her by, McClintock went further into the woods, where she stayed until daylight. After trying unsuccessfully to find decedent, McClintock went to a house and called state police. They arrived at the scene, searched the area, and found decedent's body.
Dr. Gallicano Inguito, forensic pathologist, examined the body and found various injuries, including recent lacerations to the clitoris. He determined that death had been caused by blunt force injuries to the head and neck.
Appellant did not deny having killed decedent, but claimed that he acted in the heat of passion and with diminished capacity.
Appellant makes various allegations of error, including grounds on which he claims to be entitled to a discharge. One such ground is that trying appellant a second time constituted double jeopardy. The argument is waived because there was no motion to dismiss prior to ...