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COMMONWEALTH PENNSYLVANIA v. JOHN J. PETRINO (07/20/84)

filed: July 20, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN J. PETRINO, JR., APPELLANT



NO. 215 HARRISBURG 1982, Appeal from the Judgment of Sentence of Dauphin County Court of Common Pleas at Nos. 1450, 1451, June Term of 1981.

COUNSEL

Lawrence A. Kalikow, William J. Fulton, Assistant Public Defenders, Harrisburg, for appellant.

Katherene Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wickersham, Del Sole and Montemuro, JJ. Wickersham, J., filed a dissenting statement.

Author: Del Sole

[ 332 Pa. Super. Page 18]

Appellant was convicted of murder in the third degree and theft by unlawful taking. Post-trial motions were filed and denied. He appeals on several grounds.

The facts are as follows: On June 15, 1981, Appellant left the Coatesville Veteran's Administration Hospital in Chester County, Pennsylvania after a voluntary commitment one month before. Appellant had a history of both voluntary and involuntary institutional commitments. While hitchhiking west near Lancaster, Pennsylvania, Appellant was given a ride by William Porter. The two men stopped at the Congress Inn in Lower Swatara Township in Dauphin County. They had been drinking and, after obtaining a room, they went into an adjoining tavern where they met Wilbert Potter, a homosexual in his early fifties. At about 1:30 a.m. on June 16, the three men returned to the hotel room with one case of beer and continued drinking. At approximately 3 a.m., the body of Wilbert Potter was found in the parking lot of the Brookside Diner, just south of the Congress Inn and about 50 yards from the room the three had occupied earlier. The death was found to be caused by a blow to the back of the head by an immovable object, such as cement paving. At 4 a.m., Appellant was seen by a police officer walking north on the Boulevard near where the victim's body was discovered. When the officer questioned him, Appellant gave his name as John Petrino and said he was staying at the Congress Inn. The officer then asked Appellant to return to the Inn. Less than an hour later, police responded to a report of a man trying to hitchhike on the Pennsylvania Turnpike at Exit 19, one mile from the Inn.

[ 332 Pa. Super. Page 19]

The man gave his name as Charles Archking, but one of the officers, who was called to the turnpike, knew him to be the same man who had earlier identified himself as John Petrino. The Appellant, when asked about using two names, smiled. Appellant told police that a person staying in Room 50 of the Congress Inn could identify him. Police, taking Appellant, went to the room and woke William Porter. Upon seeing Appellant, Porter accused him of stealing his (Porter's) shirt and money. When the Appellant then took the money out of his pocket and handed it to Porter, police noted stains on the shirt which appeared to be blood. The shirt was taken for evidence.

Later on June 16, Appellant asked for an attorney before speaking to police. Because the hotel room (where the theft occurred) and the Diner (where the body was found) were located in two separate police jurisdictions, Appellant's request to the Swatara Township Police was not passed on to the Lower Swatara Police. When he was later interrogated on June 16 by representatives of both departments, Appellant responded that he had beaten Potter to death and knew he was dead because of his experience as an Army medic. This statement was suppressed at trial.

On June 18, however, police again questioned defendant. At that time, a waiver form was given to Appellant, which he signed. At that meeting, Appellant implicated Porter in the murder and denied his own involvement.

On June 24, while being processed after his arrest at the Dauphin County Prison, Appellant asked one of the investigating officers if he wanted to know the events of June 15 and 16, to which the Detective responded, "Oh, yes." Appellant effectively withdrew his June 18 statement by admitting that it was he and not Porter who had killed the victim. The Detective testified that his comment had not been intended to elicit a response. Appellant was also reported to have stated that the police couldn't convict him for the murder because "he was crazy".

It is apparent from the record that Appellant was not given the benefit of representation until July 13, 1981, when

[ 332 Pa. Super. Page 20]

    the Appellant's counsel signed a notice of formal arraignment on behalf of his client.

The main issues raised on appeal are:

(1) Whether the evidence was sufficient to support a finding of guilty of murder in the third degree.

(2) Whether the Suppression Court erred in denying his omnibus pretrial motion to suppress both physical evidence and statements made by Appellant.

(3) Whether the trial court erred in failing to suppress all statements made by Appellant after he requested counsel but before counsel was made available to him.

The first issue raised is whether the evidence was sufficient to support a finding of guilty of murder in the third degree. In particular, Appellant argues that the Commonwealth failed to prove that the circumstances of the death would enable the jury to infer malice necessary to justify a verdict of third degree murder. Malice is defined as "a particular ill-will . . . a hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty," Commonwealth v. Buzard, 365 Pa. 511, 516, 76 A.2d 394, 396 (1950). Where there is no murder weapon, but where only fists are used, there is no presumption of malice, Commonwealth v. Guida, 298 Pa. 370, 148 A. 501 (1930). Instead, malice can be found from considering the circumstances surrounding the acts, Commonwealth v. Buzard, 365 Pa. at 516, 76 A.2d at 396.

The test in reviewing the sufficiency of the evidence is: Whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt, Commonwealth v. Moore, 488 Pa. 361, 363, 412 A.2d 549, 550-51 (1980).

In Commonwealth v. Buzard, supra., the court refused to overturn a conviction based on a finding of malice from a death occurring when a large defendant pursued a

[ 332 Pa. Super. Page 21]

    smaller victim, overpowered him, threw him to the ground and knocked his head against the pavement repeatedly. Also, in Commonwealth v. Moore, supra., under similar facts, the requisite malice was found to exist. The Supreme Court noted evidence that the victim suffered from head injuries and rib fractures and internal hemorrhaging while the defendant was only injured in the hand. In the present case, there is evidence of a similar one-sided fight in that the defendant suffered only slight hand injuries and the victim was beaten about the head, abdomen, and limbs. Also, there was evidence admitted at trial from a crime reconstruction expert who testified that the blood stains on the shirt worn by Appellant would indicate that ...


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