No. 119 Harrisburg, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Dauphin County, at No. 1023, 1980.
Robert Dunne Kodak, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Wickersham, Rowley and Watkins, JJ.
[ 300 Pa. Super. Page 176]
Shortly after ten o'clock P.M. on August 4, 1979, Michael Nelson, Chief of Police of Wiconisco Township, was shot with a double-barrel 12-gauge shotgun as he sat in his parked police cruiser. As a result, Chief Nelson suffered serious and permanent, disabling injuries. He was not able to observe his assailant(s). On July 2, 1980, appellant, Ronald Kaster, was arrested and charged with criminal attempt to commit murder in connection with Chief Nelson's shooting. Appellant was convicted, after a jury trial, and sentenced to five (5) to ten (10) years imprisonment. This direct appeal followed.
[ 300 Pa. Super. Page 177]
Appellant raises five issues on appeal: whether, (1) the trial court improperly admitted a letter from appellant to one, Jonathan Neidlinger, (2) the court improperly admitted a photograph of the interior of the victim's car, taken after the shooting, (3) the court's "ruling" as the admissibility of appellant's prior conviction for theft by receiving was prejudicial error, (4) the court erred in denying appellant's demurrer, and (5) the verdict rendered was against the evidence and against the weight of the evidence. We find all of appellant's arguments to be without merit and therefore, affirm the judgment of sentence.
Appellant's first argument concerns a letter admittedly sent by him to his friend, Jonathan Neidlinger, approximately six weeks after Chief Nelson was shot. Enclosed with the letter was a drawing, depicting Alvin Lubold, the police officer from the neighboring town of Tower City, chained and hanging by a noose in front of a burning house. Written across the top of the drawing were the words, "Nipper of Corse" (sic). "Nipper" was Officer Lubold's nickname. The Court admitted the letter and picture as evidence of malice and ill will towards the police and also because it corroborated the testimony of Mr. Neidlinger. Neidlinger testified that prior to August 4, 1979, appellant harbored ill will towards three specific police officers in the area, Chief Nelson, Officer Lubold and Chief Williard of Williamstown, and that plans had already been devised to kill each of those officers.
As a general rule, evidence, which proves intent, plan, design, ill will or malice is relevant and admissible. Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960), cert. denied 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1960). Appellant argues, however, that because the drawing was sent after the attack on Nelson and because it does not specifically refer to him, it is irrelevant. We disagree. Ill will or malice towards a victim can be demonstrated by establishing the state of mind of the assailant towards certain persons with respect to a particular subject. Commonwealth v. Glover, 446 Pa. 492, 286 A.2d 349 (1972).
[ 300 Pa. Super. Page 178]
Evidence concerning a defendant's involvement in substantially similar schemes, is admissible to show motive, intent or identity. See Commonwealth v. Hawkins, 295 Pa. Super.Ct. 429, 441 A.2d 1308 (1982). In this case, the drawing, in addition to the testimony of Mr. Neidlinger and other witnesses, demonstrated appellant's ill will towards an identified group of police officers and is corroborative of the testimony that there was evidence of a plan to kill each of those officers. Appellant further argues that the letter is irrelevant since it was sent after the attack on Chief Nelson. However, it has been held that evidence of a defendant's actions both before and after a crime may be admissible to show motive and malice. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969). See also Commonwealth v. Hoffman, 263 Pa. Superior Ct. 442, 398 A.2d 658 (1979). Therefore, the letter and the picture were properly admitted both as evidence of malice and to corroborate Mr. Neidlinger's testimony.
Appellant also argues that the admission of a color photograph showing the interior of the victim's car was improper. The question of admissibility of photographs is within the discretion of the trial judge, whose decision will be reversed only if there has been an abuse of discretion. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973). We find no abuse of discretion in this case. We have examined the photograph. It depicts the front seat of the victim's car, empty except for the officer's hat, with a small amount of blood on the seat and on the passenger door. The wounded officer does not appear in the photograph. The picture is not gruesome and it is very unlikely that such a photograph would inflame the minds of the jurors. Furthermore, the time of the shooting was critical and there was considerable ...