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COMMONWEALTH PENNSYLVANIA v. THELMA STANTZ (05/07/86)

filed: May 7, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
THELMA STANTZ, APPELLANT



Appeal from the Judgment of Sentence entered February 22, 1985, Court of Common Pleas, Cambria County, Criminal Division at No. 0754-84.

COUNSEL

David J. Kaltenbaugh, Assistant Public Defender, Johnstown, for appellant.

Dennis M. McGlynn, Assistant District Attorney, Johnstown, for Commonwealth, appellee.

Beck, Johnson and Montgomery, JJ.

Author: Johnson

[ 353 Pa. Super. Page 98]

Appellant, Thelma Stantz, takes this appeal from the judgment of sentence of life imprisonment, entered February 22, 1985, for the first degree murder of Sara "Tootie" Bartlebaugh. Appellant was found guilty by Judge Joseph F. O'Kicki, sitting without a jury, of causing the death of the fifteen year-old victim, a part-time babysitter and paramour of appellant's husband, by inflicting multiple blows to the skull with a two-by-four.

Appellant raises the following issues for our review:

1.) APPELLANT WAS DENIED A FAIR TRIAL AND ADEQUATE REPRESENTATION BY THE TRIAL COURT'S REFUSAL, WITHOUT A HEARING, OF HER MOTION REQUESTING ACCESS TO MATERIAL WITNESSES.

2.) THE TRIAL COURT ERRED BY PERMITTING THE DISTRICT ATTORNEY TO RENEGE ON A BARGAIN ENTERED INTO PRIOR TO TRIAL IN WHICH APPELLANT AGREED TO A NON-JURY TRIAL IF THE DISTRICT ATTORNEY WOULD SEEK A VERDICT OF GUILT NO HIGHER THAN THIRD DEGREE MURDER, AND BY PERMITTING PREJUDICIAL REMARKS BY THE DISTRICT ATTORNEY ON SUMMATION.

[ 353 Pa. Super. Page 993]

.) THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING, OVER OBJECTIONS, DURING THE DISTRICT ATTORNEY'S CROSS-EXAMINATION OF APPELLANT:

(a) A QUESTION WITHOUT PROPER FOUNDATION;

(b) A QUESTION AS TO WHY APPELLANT'S COUNSEL DID NOT BRING FORTH EVIDENCE ON DIRECT EXAMINATION;

(c) A QUESTION THAT HAD BEEN ASKED AND ANSWERED.

4.) EVIDENCE OF APPELLANT'S INTOXICATION WAS SUFFICIENT UNDER 18 Pa.C.S. ยง 308 TO REDUCE GUILT TO THIRD DEGREE MURDER BECAUSE APPELLANT WAS INCAPABLE OF FORMING THE SPECIFIC INTENT FOR FIRST DEGREE MURDER.

5.) THE FAILURE BY THE DISTRICT ATTORNEY TO REBUT APPELLANT'S TESTIMONY OF HER HUSBAND'S GUILT VITIATES THE VERDICT.

Finding appellant's claims to be lacking in merit, we affirm.

The events which resulted in the death of the victim occurred during the weekend of September 9, 1983. The record indicates that on that date, appellant picked Tootie Bartlebaugh up at her home after school for weekend baby-sitting. On Saturday, September 10, appellant, her three children, and the victim made at least one trip to a local garbage dump to collect aluminum cans. According to appellant's statement of October 1, 1984, appellant's daughter discovered a letter while en route to the dump, written by Tootie to appellant's husband. Appellant, who had been aware of the victim's relationship with her husband for some time, became enraged. According to appellant's statement, while she and the victim were looking for cans, Tootie commented that the dump may have been the place where she had become pregnant by appellant's husband. Appellant knew of the pregnancy and subsequent miscarriage, but at this point she "picked up a board and I swung the

[ 353 Pa. Super. Page 100]

    board and hit her, . . . I think I hit her twice, I'm not sure. Tootie was laying on the ground, she was crying. I left her there, and I went to the car and told the kids we would drive around for awhile and come back and pick her up, but I never went back . . ."

Appellant first argues that the trial court erred by denying her Motion to Allow Visitation with her three children. Appellant contends that her due process rights were violated because her motion was refused without a hearing, and ...


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