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COMMONWEALTH PENNSYLVANIA v. FRANCIS J. KENNY (03/30/84)

filed: March 30, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANCIS J. KENNY, APPELLANT



No. 1549 Philadelphia, 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 1601-1605 October, 1980.

COUNSEL

Kevin P. Kelly, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Brosky and Hoffman, JJ.

Author: Brosky

[ 326 Pa. Super. Page 426]

Appellant was convicted, following a non-jury trial, of the murder of his wife and the poisoning of his infant son. He was sentenced to a term of life imprisonment on the first degree murder conviction and received lesser concurrent sentences on the charges of aggravated assault and possession of an instrument of crime.

At trial and before us appellant admits to having killed his wife, but contends that he lacked the specific

[ 326 Pa. Super. Page 427]

    intent to kill necessary to a first degree murder conviction. He also contends that prejudicial evidence was introduced at trial which entitles him to a new trial. We affirm.

We will begin our discussion with appellant's claim that the murder conviction is not supported by sufficient evidence, since he argues, the evidence shows that he lacked the specific intent to kill.

The well-established test for reviewing claims of insufficiency of evidence was recently stated by our court in Commonwealth v. Hogan, 321 Pa. Super. 309, 312, 468 A.2d 493, 495 (1983) as follows:

"The test of 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 [trier of fact] could properly have based [the] 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. Minoske, 295 Pa. Super. 192, 198, 441 A.2d 414, 417 (1982) quoting Commonwealth v. Frye, 433 Pa. 473, 481, 252 A.2d 580, 584 (1969). Accord: Commonwealth v. Giles, [500] Pa. [413, 415], 456 A.2d 1356, 1357 (1983); Commonwealth v. Wilcox, 310 Pa. Super. 331, 336, 456 A.2d 637, 639 (1983). In reviewing the evidence, we must consider it in the light most favorable to the Commonwealth, which won the verdict in the trial court. Commonwealth v. Durrant, [501] Pa. [147, 151], 460 A.2d 732, 733 (1983); Commonwealth v. Bachert, [499] Pa. [398, 406], 453 A.2d 931, 933 (1982); Commonwealth v. Kennedy, [499] Pa. [389, 392], 453 A.2d 927, 928 (1982).

To convict appellant of murder in the first degree the fact finder must have found that he committed an intentional killing -- i.e. a willful, deliberate or premeditated killing. See 18 Pa.C.S. ยง 2502(a), (d).

In Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614, 606-617 (1981) our Supreme Court explained that

[ 326 Pa. Super. Page 428]

"Since one's state of mind is subjective, the specific intent to kill may be inferred from the perpetrator's conduct, including the intentional use of a deadly weapon in a vital part of the body of another human being."

Furthermore, the Green opinion explains that

Moreover, our cases have held that the period of premeditation necessary to form the requisite specific intent may be very brief, Commonwealth v. Robinson, 468 Pa. [575] at 583, 364 A.2d [665] at 669. Indeed, "design to kill can be formulated in a fraction of a second," and premeditation and deliberation exist "whenever there is a conscious purpose to bring about death." (citation omitted).

Id., 493 Pa. at 415, 426 A.2d at 617.

The evidence adduced at trial indicated that appellant and his wife had been discussing the subject of a marital separation for approximately two weeks prior to Mrs. Kenny's death. During the morning of September 14, 1980 the couple met with Mrs. Kenny's mother to discuss the terms of the separation. Later in the day Mrs. Kenney had dinner at her grandmother's house. The Kenny's infant son, Frank, Jr., was with his mother at dinner, but Mr. Kenny apparently remained at home. Sometime after her return to their home on the evening of the 14th, Mrs. Kenny and her husband apparently argued. Mr. Kenny retrieved a knife from the kitchen. The couple struggled, Mr. Kenny strangled his wife ...


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