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filed: July 15, 1983.


No. 1074 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County at No. 2572 of 1980.


Michael Alan Klimpl, Doylestown, for appellant.

Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, Wickersham and Cirillo, JJ. Spaeth, J., files a concurring opinion.

Author: Wickersham

[ 318 Pa. Super. Page 58]

This appeal arises out of Robert Todt's challenge to his conviction of attempted homicide; criminal conspiracy and criminal solicitation. Todt alleges that he was denied a fair trial because of errors relating to the admission of evidence, prosecutorial misconduct and ineffective assistance of counsel; he also complains that his sentence is illegal.

Robert Todt was arrested on July 25, 1980 and charged with offenses involving the shooting of his wife, Loretta Todt. Todt applied for a change of venue because of pre-trial publicity which application was denied by a judge of the Bucks County Court of Common Pleas.

The case came to trial before the Honorable Edmund V. Ludwig and a jury and after a lengthy trial, Robert Todt was found guilty of attempted homicide, criminal conspiracy and criminal solicitation. Post-trial motions were presented to the court below; the lower court, sitting en banc, denied these motions. On April 23, 1981, Judge Ludwig sentenced Todt to a five to ten year prison term on the attempted homicide conviction. Todt received another five to ten year sentence on the criminal conspiracy and criminal solicitation convictions to be served consecutively to the conviction for attempted homicide. This appeal timely followed.

[ 318 Pa. Super. Page 59]

Robert Todt was a board certified special education teacher employed as a high school teacher by the Bensalem Township School District. Todt lived in Levittown, Pennsylvania with his wife Loretta and their two children. In the late evening of March 19, 1980, while Robert Todt was out of the house, an individual entered the Todt residence and shot Loretta Todt. Although the bullet fired destroyed her left eye and remains lodged in her skull, Loretta Todt survived the attack.

At trial, the Commonwealth's most important witness was John Chairmonte. Chairmonte, a former student in Bensalem High School's program for students with learning disabilities, was an alcohol and drug abuser with a criminal record. His involvement with the attack upon Loretta Todt was revealed after his arrest on an unrelated charge. John Chairmonte admitted that he shot Loretta Todt at Robert Todt's behest. In exchange for testimony against Todt, Chairmonte was promised that his sentence for shooting Loretta Todt would not exceed five years to be served in the Bucks County Prison.

Chairmonte testified that in March of 1980 Robert Todt offered him $800 to kill a woman Todt described as a babysitter. Todt gave Chairmonte a .32 caliber pistol and some bullets. Three days before the shooting Todt went to Chairmonte's home, woke him up and brought him to Todt's home. Todt and Chairmonte then drove to Frankford Hospital, where Loretta Todt worked. As explained by Chairmonte, the plan was for him to surprise Loretta Todt as she entered her car after work, take her to a back road and shoot her. Chairmonte was, however, too frightened to carry out this scheme.

A new scheme was developed, and Todt gave Chairmonte a key to Todt's house. On March 19, 1980, Chairmonte entered the Todt house through the garage, shot Loretta Todt and rifled several drawers to make it look as though a burglary had taken place.

The Commonwealth offered evidence to explain Todt's motive for wishing to have his wife killed. One witness,

[ 318 Pa. Super. Page 60]

Colleen Fecho, testified that she had been engaged to Robert Todt and had made substantial plans toward marriage, which was to take place on April 19, 1980. Ms. Fecho further stated that Robert Todt spent the evening of the shooting, March 19, 1980, with her and that he did not leave until about 11:35 or 11:40 p.m. Another witness, Judy Worthington, testified that she was also involved with Todt.

When the Commonwealth rested its case, Todt took the stand in his own behalf. Todt admitted that he was carrying on an extramarital affair and that his fiancee, Ms. Fecho, made wedding plans. Todt said that he lied to his wife to cover up the affair with Ms. Fecho and lied to Ms. Fecho about marriage, for actually, he had no intention of marrying Ms. Fecho.

Todt denied hiring John Chairmonte to kill his wife Loretta. Todt admitted that he had gone to Chairmonte's home and brought Chairmonte to his own house but insisted that he only helped Chairmonte fill out an application for a job. Character witnesses called for Todt's defense said that he often helped students to find work. After explaining his contact with John Chairmonte, Todt testified that he spent the evening of the shooting with Colleen Fecho at her house, and that when he got home at 11:45 p.m. he found neighbors attending his injured wife.

Robert Todt's first appellate issue questions the sufficiency of the Commonwealth's evidence. Todt argues that because Chairmonte had given different versions of the shooting of Loretta Todt and because the testimony of Chairmonte, an accomplice, came from a corrupt source, there was insufficient evidence to support Todt's conviction.

Initially, we note the standard of review to be employed in assessing claims of insufficient evidence:

It is well settled that in passing upon a claim of insufficiency we must view the evidence in the light most favorable to the verdict winner. The evidence is sufficient if, accepting as true all the evidence and all reasonable inferences therefrom upon which, if believed, the jury

[ 318 Pa. Super. Page 61]

    could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that appellant is guilty of the crimes for which he was convicted.

Commonwealth v. Dreibelbis, 493 Pa. 466, 469, 426 A.2d 1111, 1112 (1981).

After a thorough review of the voluminous trial record we believe that the Commonwealth's evidence, if accepted by the jury, was sufficient to prove Todt's guilt.

Robert Todt argues that John Chairmonte's testimony was so unreliable and contradictory that it led to a jury verdict based on conjecture and suggests that the case of Commonwealth v. Bennett, 224 Pa. Super. 238, 303 A.2d 220 (1970) is controlling. In Bennett, supra, this court reversed a conviction when the Commonwealth's witness, one Jones

     sought to implicate the defendant by giving several wholly different, conflicting and inconsistent versions of when and how he had told her that the car had been in fact stolen by him. On a previous occasion Jones had denied he had ever conveyed to defendant knowledge of the car's theft. With each new version Jones would recant the previous one and protest that the newest version was in fact the true one. This situation presented the jury not with a mere conflict or contradiction in testimony which was reasonably reconcilable by them, but a situation falling within the rule: ". . . a case should not go to the jury where the party having the burden offers testimony of a witness, or of various witnesses, which is so contradictory on the essential issues that any finding by the jury would be a mere guess . . . when the testimony is so contradictory on the basic issues as to make any verdict based thereon pure conjecture the jury should not be permitted to consider it."

Id., 224 Pa. Superior Ct. at 239-40, 303 A.2d at 220-21 (citation omitted).

Here, John Chairmonte's testimony was not so contradictory on the basic issues as to make the guilty verdict

[ 318 Pa. Super. Page 62]

    against Todt a matter of pure conjecture even though Chairmonte had given different versions of what happened the night of the shooting. When first questioned by the police Chairmonte denied knowledge of the crime. N.T. 12/3/80 at 74-75. Later, Chairmonte told the police that Robert Todt shot his wife while Chairmonte ransacked the first floor of the house. Chairmonte explained that he lied because he did not want to take the "whole rap" for the crime. N.T. 12/3/80 at 77. Finally, Chairmonte told the police that he shot Loretta Todt at Robert Todt's behest. This last statement Chairmonte gave to the police was consistent with his testimony at trial, which was given in exchange for a relatively light sentence.

Although these accounts of the shooting were unquestionably different:

"A mere variance in testimony, or the fact that a witness may have made contradictory statements, goes to the question of the credibility of the witness but does not, in itself, indicate perjury on the part of the witness, or that the defendant was convicted on perjured testimony, and is not, of itself, sufficient to compel a new trial. * * *" However, where the testimony is so contradictory and fantastic to be incredible, the Court has a right to grant a new trial. Commonwealth ex rel. Rook v. Myers, 402 Pa. 202, 167 A.2d 274, 276 (1961).

Commonwealth v. Osborne, 433 Pa. 297, 301, 249 A.2d 330, 332 (1969). See also Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Williams, 290 Pa. Super. 209, 214, 434 A.2d 717, 719 (1981). As the Pennsylvania Supreme Court explained in Commonwealth v. Upsher, 497 Pa. 621, 625, 444 A.2d 90, 92 (1982):

In Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976), this Court held that "where evidence offered to support a verdict of guilt is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, a jury may not be permitted to return such a finding." However, this rule applies only in those

[ 318 Pa. Super. Page 63]

    cases where the testimony is so patently unreliable that a verdict of guilt would be based upon pure conjecture. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). In Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980), this Court held that contradictions by other witnesses and prior inconsistent statements affect the credibility of the witness and do not render his testimony patently unreliable under the Farquharson standard. Issues of credibility are properly left to the jury for determination. Commonwealth v. Hudson, supra.

(Emphasis added).

Our review of Chairmonte's testimony convinces us that his testimony was not so unreliable or contradictory as to render the jury verdict ...

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