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decided: October 4, 1985.


Appeal from Judgment of Sentence of Court of Common Pleas of McKean County, Pennsylvania, Criminal Division, at No. 163 Criminal 1982, dated November 10, 1983.


William J. Kubiak, Asst. Public Defender, Smethport, for appellant.

Jay P. Kahle, Dist. Atty., Smethport, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a concurring and dissenting opinion. McDermott, J., files a concurring and dissenting opinion in which Larsen and Papadakos, JJ., join. Papadakos, J., files a concurring and dissenting opinion in which Larsen, J., joins.

Author: Hutchinson

[ 508 Pa. Page 530]


Appellant was arrested on August 18, 1982 and charged with criminal homicide, 18 Pa.C.S. § 2501, in the death of his girlfriend, Karen Meeker. Appellant was tried before a jury and convicted of first-degree murder, 18 Pa.C.S. § 2502(a). After the separate sentencing hearing required by our death penalty statute, 42 Pa.C.S. § 9711, appellant was sentenced to death. This direct appeal followed. 42 Pa.C.S. §§ 722(4) and 9711(h). Based on the arguments raised by appellant and our independent review of the case as required by Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), we affirm the conviction for first-degree murder but vacate the death sentence.

Appellant and Mrs. Meeker, his victim, had lived together approximately two years. Mrs. Meeker's previous marriage ended in divorce, finalized shortly after she moved in with appellant. Her relationship with appellant was not always a happy one, and she occasionally broke it off, only to

[ 508 Pa. Page 531]

    return at a later time. Disagreements between appellant and the victim's family led appellant to file criminal charges against members of Mrs. Meeker's family. The victim herself had charged appellant with destroying some of her property. These charges were still pending at her death, although she had attempted to withdraw her complaint.

The day she was killed, the victim was seen in several places with appellant. They were seen arguing, although nobody could give any specifics about the arguments. At about 3:30 p.m. the victim was discovered lying by the side of a country road. She had been shot and mortally wounded. Her intestines were protruding from her abdomen, and she had lost quite a bit of blood. She was helped by Claudia Rice, who happened to be driving in the area. Mrs. Rice left to call for help. She returned with Ed Crafton who also was in the area. The two of them were talking with the victim in an attempt to calm her until help arrived. During these conversations, the victim identified appellant as the one who shot her. She said appellant asked her to come into the woods so he could show her something and then shot her at close range. The victim also made similar statements to the paramedics and ambulance attendants, the doctor at the hospital and several of her relatives. The victim died during surgery shortly after the police had arrested appellant.

Appellant first claims that the trial court improperly admitted the statements made by the victim just before her death. In all those statements she identified appellant as her killer. The standard rule for the admissibility of such statements are that the declarant believes that she is going to die, that death is imminent, and that death actually results. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Commonwealth v. Little, 469 Pa. 83, 364 A.2d 915 (1976). The declarant need not say specifically that she will die, Commonwealth v. Hawkins, 448 Pa. 206, 292 A.2d 302 (1972), nor must she say it to every witness who testifies. The belief in impending death can be inferred

[ 508 Pa. Page 532]

    from the surrounding circumstances without a direct statement of that belief by the witnesses. Commonwealth v. Gause, 459 Pa. 595, 330 A.2d 856 (1975). The admissibility of those statements is a matter of trial court discretion. Commonwealth v. Bastone, 466 Pa. 548, 353 A.2d 827 (1976). However, once admitted, the jury determines what weight they should be given. Id.

The court below held an evidentiary hearing out of the jury's presence to determine whether the statements incriminating appellant were admissible. Four witnesses testified at that hearing. Claudia Rice stated that Mrs. Meeker told her she was not going to make it. Ed Crafton, who also helped at the scene of the crime, corroborated that testimony. The ambulance attendant testified that the victim also told him she was dying. The doctor testified that when the victim reached the hospital she knew that she had a protruding wound in her abdomen. From all of this testimony, it is apparent that there was sufficient evidence to support the trial court's finding that the victim believed her own death was imminent. Therefore, the testimony was competent and properly admitted.

Appellant also argues that because there were some inconsistencies among the various statements made by the victim the testimony should have been excluded. However, inconsistency is not a proper basis for excluding dying declarations. Commonwealth v. Douglas, 461 Pa. 749, 337 A.2d 860 (1975). Once the court has ruled on the inadmissibility, the jury is free to determine whether or not to believe them, in whole or in part. Bastone, supra. Here, the victim was consistent in identifying appellant as the person who shot her. The inconsistencies on other matters went to weight, not admissibility, and apparently did not destroy the jurors' belief that the victim correctly identified the appellant as her assailant. There was no error in admitting the victim's statements.*fn1

[ 508 Pa. Page 533]

Appellant also contends that the trial court improperly refused to instruct the jury that the prosecution had the burden of proving an absence of passion as an element of first-degree murder. The requested instruction is said to be required by Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). Mullaney held, based on In re Winship, 397 U.S. 358 (1970), that the prosecution must prove absence of passion beyond a reasonable doubt in order to avoid reducing a homicide from murder to voluntary manslaughter, which is defined as a killing committed during the heat of passion, 18 Pa.C.S. § 2503(a).

Mullaney states, however, that the issue of passion must be properly presented before the instruction is required:

[T]he Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue ...

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