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decided: April 13, 1984.


No. 81-3-393, Appeal from the Judgment of Sentence and the Verdict of Death of the Court of Common Pleas of Lancaster County at No. 169 of 1980


John A. Kenneff, Asst. Dist. Atty., Marion E. MacIntyre, Deputy Atty. Gen., Harrisburg, for appellee.

Penn B. Glazier, Lancaster (Court-appointed), for appellant.

Roberts, C.j., and Nix, Larsen,*fn* Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, C.j., filed a concurring and dissenting opinion. Roberts, former C.j., did not participate in the determination of this case.

Author: Larsen

[ 504 Pa. Page 431]


On November 8, 1979, the body of Barbara Jean Frey was found in her automobile in a cornfield in Lancaster County.

[ 504 Pa. Page 432]

She had been beaten and shot in the chest and had died from massive hemorrhaging. Barbara Jean's estranged husband, appellant Roderick Herman Frey, confessed that he had hired someone to murder her and was arrested on December 6, 1979 and charged with murder and conspiracy. A jury trial was convened in the Court of Common Pleas of Lancaster County and, on May 14, 1980, appellant was found guilty of murder of the first degree. The following day, a separate sentencing proceeding was conducted at which the same jury sentenced appellant to death.

The evidence produced at trial discloses the following. Appellant, 43 years of age at the time of trial, and Barbara Jean had married in October, 1956. The couple had two sons who were in their twenties at the time of trial (a third child had died in an automobile accident). For some years, appellant and Barbara Jean had experienced marital difficulties. These difficulties escalated in 1979 and, in October, Barbara Jean filed for divorce. On November 4, 1979, appellant left the marital residence and moved into a trailer-apartment.

In May of 1979, appellant met Charles Zehring through their employment and the two engaged in a series of conversations concerning appellant's wife and marital difficulties. Zehring, a paranoid schizophrenic who collected exotic weaponry and anarchist/survivalist literature, suggested to appellant some two to three months before the homicide that the solution to appellant's problems with his wife was to have Zehring "waste her." One or two weeks before Barbara Jean filed for divorce, appellant made up his mind to have her killed and agreed to pay Charles Zehring $5000 for the murder.

Appellant convinced Barbara Jean that he should get some money as an "advance" (ostensibly for expenses pertaining to his new living quarters) from the upcoming divorce-property settlement and she issued him a check for $5000 drawn from the Colonial Savings and Loan Association. Appellant paid about $3000 to Zehring three or four days prior to November 7, 1979.

[ 504 Pa. Page 433]

On the evening of November 7, Zehring met with appellant at the latter's residence and appellant informed Zehring of Barbara Jean's route to work the next day and the time she would be going to work. It was appellant's understanding at that time that Zehring would be accompanied by another person and that they "were going to rig the car to look like an accident." Notes of Testimony, May 8, 1980 at 711 (reading from appellant's taped statement of December 6, 1979).

In the early morning hours of November 8, 1979, Charles Zehring and Richard Heberlig intercepted Barbara Jean on her way to work and fulfilled the terms of the contract with appellant. The two men ran Barbara Jean off the road, beat her and shot her, and then drove her in the car to a cornfield where they attempted (unsuccessfully) to burn the vehicle. Later that day, appellant met Zehring and paid him the remainder of the agreed-upon contract price.

On December 6, 1979, appellant rendered a full and complete oral and written confession to Troopers Ulrich and Westcott of the Pennsylvania State Police after being advised several times of his Miranda rights and after executing a written "rights" and waiver form. Appellant was then arrested and charged with homicide and conspiracy.

At trial, appellant testified in his own behalf to offer his defense. He denied hiring Zehring to kill his wife. He admitted paying Zehring a total of $5000 but explained that these payments were "extortion" payments, i.e. payments made to Zehring to prevent him from harming appellant or appellant's wife and family. Appellant claimed that Zehring had a bizarre interest in his marital problems and in the comings and goings of his wife, and that Zehring had harassed him and made repeated terroristic threats against his wife, himself and his family. Appellant did not deny making the statements to the police on December 6, 1979, but tried to explain the discrepancy between those statements and his trial testimony to his fear of Charles Zehring and because appellant was "not really thinking what I was

[ 504 Pa. Page 434]

    answering [on December 6, 1979]." N.T. May 13, 1980 at 1144.

The jury rejected appellant's defense and found him guilty of murder of the first degree for the intentional killing of his wife, Barbara Jean Frey. While appellant does not specifically challenge the sufficiency of the evidence to sustain this verdict, we have nevertheless reviewed the record for sufficiency and find compelling evidence to support the jury's verdict beyond a reasonable doubt.*fn1

Immediately after the verdict of guilty was returned, a separate sentencing proceeding was conducted pursuant to section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711. The only aggravating circumstance presented to the jury was § 9711(d)(2), namely, that the "defendant paid or was paid by another person or had contracted to pay or be paid by another person or has conspired to pay or be paid by another person for the killing of the victim." The trial court then instructed the jury as to what matters might, if proven, constitute mitigating circumstances (42 Pa.C.S.A. 9711(e) (1-8)) stating:

The defendant has no significant history of prior criminal convictions.

The defendant was under the influence of extreme mental or emotional disturbance.

The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

The youth or advanced age of the defendant at the time of the crime.

The defendant acted under extreme duress or acted under substantial domination of another person.

Any other mitigating matter concerning the character or record of the defendant or the circumstances of his offense.

[ 504 Pa. Page 435]

N.T. Sentencing Hearing, May 15, 1980 at 1389. The jury was further instructed that it must return a verdict of death if it unanimously found at least one aggravating circumstance and no mitigating, or one or more aggravating circumstances which outweigh any mitigating circumstances. Finding that the aggravating circumstance -- the contract killing -- outweighed any mitigating circumstances, the jury returned a verdict of death. Upon denial of appellant's post-verdict motions, this appeal was automatically docketed in this Court pursuant to 42 Pa.C.S.A. § 9711(h)(1). We now affirm both the judgment of sentence and the verdict of death.

Appellant raises several issues pertaining to the sentencing proceeding.*fn2 Our standard of review of sentencing procedures in cases involving convictions for murder of the first degree is set forth in the Sentencing Code, 42 Pa.C.S.A. § 9711(h), which provides:

(1) A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules.

[ 504 Pa. Page 436]

(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence.

(3) The Supreme Court shall affirm the sentence of death unless it determines that:

(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;

(ii) the evidence fails to support the finding of an aggravating circumstance specified in subsection (d); or

(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.

Initially, we find the evidence compelling in support of the finding of the aggravating circumstance set forth in § 9711(d)(2), namely, that appellant paid another person, Charles Zehring, $5000 to murder his wife.

Appellant's principle contention concerns the lower court's instructions to the jury on "mitigating circumstances specified in subsection (e) as to which there is some evidence." 42 Pa.C.S.A. § 9711(c)(1)(ii). Specifically, appellant asserts prejudicial error in two instances wherein the court's instructions did not exactly track the language of the Sentencing Code, to-wit:

42 Pa.C.S.A. § 9711(e) Mitigating circumstances. --

Mitigating circumstances shall include the following:

(4) The age of the defendant at the time of the crime.

[actual instruction given to jury: "The youth or advanced age of the defendant at the time of the crime."]

(5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution under 18 Pa.C.S. § 309 (relating to duress), or acted under the substantial domination of another person.

[ 504 Pa. Page 437]

[actual instruction given to jury: "The defendant acted under extreme duress or acted under substantial domination of another person."]

(underscored portions indicate the deviation from the statutory language)

While we believe the preferrable practice is, ordinarily, to track the language of the Sentencing Code, variations from that language require this Court to vacate a sentence of death only where the deviation injects "passion, prejudice or some other arbitrary factor" into the deliberative process which factor produces the sentence of death. 42 Pa.C.S.A. § 9711(h)(3)(i); see Commonwealth v. Stoyko, 504 Pa. 455, 468, 475 A.2d 714, 721 (1984). As we stated in Commonwealth v. Zettlemoyer, 500 Pa. 16, 49-50, 454 A.2d 937, 955 (1982), cert. denied, U.S. , 103 S.Ct. 2444, 77 L.Ed.2d 1452 (1983), "the court [is] not required to use the language requested by counsel. Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977) (court free to use its own form of expression; only issue is whether area is adequately, accurately and clearly presented to jury)." A deviation from the language of the statutory instruction or a technical inaccuracy in the jury instruction which nevertheless adequately, accurately and clearly expresses the law to the jury will not invalidate a sentence of death. Commonwealth v. Zettlemoyer, supra at 500 Pa. 46-50, 454 A.2d 937. Nor will an erroneous instruction invalidate the sentence unless it "produces" the verdict of death, 42 Pa.C.S.A. § 9711(h)(3)(i), or unless such instruction "so infects the balancing process [of the judge or jury's sentencing determination] that it is constitutionally impermissible [to] let the sentence stand." Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 3427-28, 77 L.Ed.2d 1134 (1983).

As the United States Supreme Court has instructed in Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2476-47, 77 L.Ed.2d 235 (1983):

Two themes have been reiterated in our opinions discussing the procedures required by the Constitution in capital sentencing ...

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