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filed: January 31, 1986.


Appeal from the Order of the Court of Common Pleas, Criminal Division, of Berks County at No. 810831301 & A Bill.


Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellant.

Robert L. Moore, Reading, for appellee.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Johnson and Hoffman, JJ. Brosky, J., files a concurring statement. Wieand, J., files a dissenting opinion.

Author: Wickersham

[ 350 Pa. Super. Page 174]

In a per curiam order the Supreme Court of Pennsylvania on June 21, 1985, 508 Pa. 77, 494 A.2d 1049, remanded this case to us "for consideration of the merits of the double jeopardy issue in view of" Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985). We must now determine whether the lower court's grant of a demurrer was proper.

A demurrer to the evidence requires a court to accept as true the evidence presented by the Commonwealth and view that evidence, together with all reasonable inferences therefrom, in a light most favorable to the Commonwealth; then determine whether that evidence is sufficient to support a

[ 350 Pa. Super. Page 175]

    verdict of guilty beyond a reasonable doubt. Commonwealth v. Cugnini, 307 Pa. Super. 113, 452 A.2d 1064 (1982).

With this standard in mind, we now review the facts of this case. Dorcas Clouser was found dead in her Reading apartment on April 9, 1981. When discovered, her body was lying face down on a bed, a burned cigarette and ashes and burn marks on the mattress were observed near one of her wrists, a burnt pack of matches was stuck along side of the bed between the two mattresses, and some burn marks were observed on the mattresses. Parts of her body were discolored. A white, powdery substance was scattered around the bed area. Subsequent investigation revealed that three stereo components, all belonging to Michael Farrell, with whom Ms. Clouser resided, were missing from the apartment. The components, together with an electric clock, had been plugged into a common adapter, which in turn had been plugged into a wall outlet. The clock was plugged into the adapter but not into the wall, and the time shown on its face was 7:12.

On April 7, 1981, two days prior to the discovery of Ms. Clouser's body, appellee, Dennis Staten, made three separate visits to Rodrique Miller. During the first visit, which occurred at approximately 5:00 p.m., appellee asked Miller whether Miller wanted to buy a receiver and a turntable, as appellee planned to obtain these components by getting either a woman named Dorcas or one named Lynn high on dysoxin and robbing her. Miller warned appellee not to take any stereo equipment from Dorcas' apartment, because the receiver Dorcas had in her apartment was the same one that Miller had originally sold to Michael Farrell. Appellee replied that he was considering robbing Dorcas because he knew her boyfriend, Farrell, was in jail at the time. Appellee then purchased some dysoxin from Miller and left.

Appellee returned to the Miller residence at approximately 8:00 p.m. that same evening carrying a green duffel bag, which was later identified as the property of Michael Farrell. Miller gave appellee fifty dollars, at which time appellee departed, leaving the bag in Miller's possession and

[ 350 Pa. Super. Page 176]

    instructing Miller not to open it until appellee returned. An hour later, Miller examined the contents of the bag and found them to be what he later identified as Farrell's stereo receiver and turntable. Around midnight on April 7, appellee again returned to Miller's house and Miller gave him some additional money for the stereo components. Miller did not see appellee again until two days later, when he came to Miller's house, asked whether Miller had read the newspaper accounts of Dorcas' death, and told Miller to throw the receiver and turntable into the river.

Appellee and Dorcas Clouser were also observed emerging from Ms. Clouser's third floor apartment by a witness, John Scott, at approximately 6:00 p.m. on April 7, 1981. Appellee engaged in small talk with Scott in the vestibule of the victim's apartment building. Around 7:30 p.m. that same evening, Scott observed appellee's car still parked in the general vicinity.

Appellee, Dennis Staten, was charged with Dorcas Clouser's murder and with criminal homicide, burglary, theft, aggravated assault, simple assault, and attempted arson. Appellee filed a notice of alibi defense. The burglary charge was eventually dismissed, but appellee was brought to trial on the remaining charges.

Appellee's jury trial commenced on November 9, 1981 before the Honorable W. Richard Eshelman. The Commonwealth presented the testimony of nineteen witnesses. Expert testimony established that the white, powdery substance found around the victim's bed contained sodium hydroxide, as did certain substances present on the clothing of both Ms. Clouser and appellee. Various relatives, friends, and co-workers of the victim testified that the last time they had seen or talked to the victim was on or before the evening of April 7, 1981. Also giving crucial testimony were John Scott, Rodrique Miller, and the victim's boyfriend, Michael Farrell. Farrell testified, inter alia, that on May ...

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