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COMMONWEALTH PENNSYLVANIA v. ALFRED K. ALBRECHT (06/23/86)

decided: June 23, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ALFRED K. ALBRECHT, SR., APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division, at Nos. 408-411 of 1980.

COUNSEL

Stuart Wilder, Asst. Public Defender, for appellant.

Michael J. Kane, Dist. Atty., Robert Goldman, Deputy Dist. Atty., Stephen B. Harris, Doylestown, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Papadakos

[ 510 Pa. Page 607]

OPINION OF THE COURT

This direct appeal arises from the conviction and death sentence of Alfred K. Albrecht, Sr. (Appellant) pursuant to 42 Pa.C.S. ยง 9711(h).*fn1 Appellant was found guilty by a jury on charges of murder of the first degree for the killing of his wife,*fn2 murder of the second degree for the killing of both his daughter and mother,*fn3 and arson.*fn4 Prior to Appellant's trial, a Motion to Suppress*fn5 was filed, argued and subsequently denied by the trial judge, Honorable William Rufe, III. Following a hearing at the penalty stage, post-verdict motions were argued, requesting a new trial and arrest of judgment. These motions were denied by the court en banc (Beckert, Rufe, Bortner, JJ.) and this automatic appeal followed.

[ 510 Pa. Page 608]

For the reasons now stated, we affirm Appellant's convictions and sentence of death.

The evidence presented at the guilt stage of the trial established that on May 1, 1979, Appellant's neighbor, who coincidentally was an Assistant Chief for the Perkasie Fire Company, saw smoke emanating from Appellant's home. After calling the fire department, Appellant's neighbor proceeded across the street, where he encountered Appellant dressed solely in his undergarments. While Appellant and this neighbor were talking, one of the firemen responding to the fire alarm arrived and entered the flaming structure where he discovered the charred remains of Caroline Albrecht, Appellant's wife, age 34; Anita Albrecht, Appellant's daughter, age 9; and Marian Albrecht, Appellant's mother, age 72. Medical testimony adduced at trial established the cause of death for all three was from the conflagration.

The Commonwealth's case against Appellant was based upon showing numerous instances of disharmony and acts of violence between the Appellant and his deceased wife. This theory was developed through the presentation of Commonwealth witnesses who testified to the constant arguing between Appellant and his wife and to the oft-observed battered appearance of Appellant's wife. Specifically, Patricia Fullmer, a friend of Caroline Albrecht's for approximately four years, testified that Appellant constantly criticized and ridiculed his wife, and that Appellant admitted he had a girlfriend. Mrs. Fullmer also testified that Caroline had a good relationship with the other members of the family.

In January, 1979, George Weaver, a neighbor of Appellant, overheard Appellant in the Whitehorse Bar referring to his wife as a "dumb bitch, I'm going to get her." Approximately seven months after the fire, Mr. Weaver again saw Appellant at the Whitehorse Bar. Mr. Weaver testified to overhearing Appellant say, he was "glad it's over" and that he was "glad they're gone and that the house was burned." Mr. Weaver also stated that the

[ 510 Pa. Page 609]

    couple was always arguing and, on one occasion, he observed them pushing each other. Larry Wimmer, a friend of Appellant for twelve to fifteen years, testified that Appellant and he were in Herb and Joyce's Park Tavern during the middle of April, 1979, when Appellant complained of domestic problems. He said that he was being forced to move out of his house because he hit his wife, and that he would kill her if he couldn't get back in his house.

Attorney Marc Steinberg had represented Caroline Albrecht and filed a Protection from Abuse Petition in the Court of Common Pleas of Bucks County in his guest to prevent Appellant from abusing his client. The Bucks County Court entered an order directing Appellant to refrain from abusing his wife for one year. Subsequently, on February 6, 1979, Attorney Steinberg saw his client, who complained that her husband was still beating her. He further testified that Mrs. Albrecht had black and blue marks on both her arms, a black eye, and holes in her head where hair had been pulled out.

Carol and Terry Kuhns were neighbors of Appellant. In January, 1979, Caroline Albrecht went to her neighbors, asking that they hide her in their basement because she was nervous and afraid. She stated she was not wearing her dentures because she was afraid Appellant would hit her so hard she would swallow them. The Kuhns noticed black and blue marks on her face, neck, and legs, burn marks on her face, and hair pulled out of her head. Later that evening, Appellant stormed into the Kuhns' residence and demanded to be told the whereabouts of his wife, to which the Kuhns responded, at Caroline's request, that she was not present. On February 1, 1979, Caroline Albrecht again went to the Kuhns' residence. They noticed that she was still very bruised.

Commonwealth witnesses Sara Joraskie and Bonita Waitl also testified as to the battered appearance of Appellant's wife.

The Commonwealth also elicited testimony from Valerie Cullingford, a bartender at Herb and Joyce's Tavern. She

[ 510 Pa. Page 610]

    testified that in December, 1978, she observed Appellant kissing and holding hands with a woman named Linda, whom the witness had seen before on several occasions. Ms. Cullingford overheard Appellant ask the woman to leave with him so that he could "make a little love to her." This witness further testified that the night before the fire, Appellant came into the bar and drank five or six beers at a rate that seemed faster than usual. Appellant proceeded to discuss how he was having problems with his wife, and said that if she tried to remove him from the house again "he would sooner burn the god damned thing down."

A few days prior to the fire, John Wheeler, an employee of Herb and Joyce's Tavern who had known Appellant for approximately one year, observed Caroline Albrecht with a bruise around her eye and heard Appellant state he would rather burn down his house than let his wife have it. Prior to this conversation, Appellant had told John Wheeler that if his wife gave him any trouble he would take care of her. In yet another conversation, Appellant stated that he needed a good lawyer.

Donald Weaver, one of Appellant's neighbors, testified that at the Whitehorse Bar, two or three days before the fire, he heard someone say he was going to go home and "shoot the old lady and burn the house down." He later learned that it was Appellant who made those statements. This witness also testified he heard noises and loud voices emanating from the Albrecht residence on the night of the fire.

Testimony from Paul Serockie, who was an acquaintance of Appellant for a few years, revealed that a few days before the fire, while at the Whitehorse Bar, he overheard Appellant say he was going to burn down his house. At a later date after the fire, Appellant told the witness that he had a good lawyer and that he "would get away with it and nobody could prove it."

On the evening prior to the fire, Police Officer Barry Heckenswiler was summoned to the Albrecht house in response to a call by Appellant's son. Upon his arrival,

[ 510 Pa. Page 611]

Officer Heckenswiler smelled the odor of alcohol on Appellant's breath and noticed Marian Albrecht sweeping up glass from a broken lamp. Caroline Albrecht told the officer she had an argument with her husband, that Appellant threatened to burn her dress, and that she wanted to go to a hospital or local psychiatric institution. Subsequently, the situation calmed and Officer Heckenswiler left. The next morning the house was engulfed in flames and three of the Albrechts had died.

Our independent review of the record convinces us that sufficient evidence exists to support the verdicts of guilt against Appellant. Furthermore, the evidence proves beyond a reasonable doubt the willful, premeditated, deliberate and specific intent to commit murder on Appellant's part. This intent can be inferred from the numerous physical assaults on Appellant's wife and threats made to numerous individuals to kill Appellant's wife and burn their house down.

The first argument Appellant raises is that the suppression court committed reversible error in failing to suppress a gasoline can from the trunk of Appellant's vehicle. The record shows that soon after the firemen had the blaze under control, the Fire Marshall and state police roped off the property for investigation purposes. Included in the roped-off area was a driveway in which a car was parked approximately fifteen feet from the house with the keys in the ignition. This vehicle, along with another vehicle parked in the roped-off area, were later found to be registered in Appellant's name.

On May 2, 1979, the morning after the fire, Appellant signed a consent form allowing investigators to search his premises for the purpose of determining the cause of the fire. The trunk area of Appellant's car was searched, revealing the presence of an almost empty five-gallon gas can. The can was not taken and the keys were replaced in the ignition. Later that day, Appellant's fifteen year old son was questioned by the State Fire Marshall regarding

[ 510 Pa. Page 612]

    the whereabouts of any gas cans on the premises.*fn6 Appellant's son proceeded to show the Marshall a can located in the garage that was propping up a window and had obviously not been used in some time. The Marshall then asked Appellant's son if he knew of any other gas cans, to which the son replied, "There's a hydraulic oil can in the trunk of my father's car." At the Marshall's request, Appellant's son removed the keys from the ignition and opened the trunk where the can was located. Again, the can was not seized.

During the afternoon of May 2, 1979, the State Fire Marshall requested that Trooper Donorovich obtain a voluntary consent or a search warrant for the contents of the vehicle housing the gas can. Appellant, later that day, signed a voluntary consent, altered by his attorney,*fn7 after being advised of his Miranda rights. Based upon the written consent form, the Trooper took possession of the gas can.*fn8

Appellant specifically claims the search of his vehicle and confiscation of the gas can was illegal because, (1) no search warrant was utilized, (2) Appellant's right to privacy was violated, and (3) no valid consent to search the vehicle existed.

The better practice under this factual situation would have been for the investigating officers to have secured a search warrant, which would not have been difficult in this case. However, by acquiring written consent to seize the gas can pursuant to the negotiations of Appellant's counsel, any evidentiary problems which may have arisen by the introduction into evidence of the gas can were cured.

[ 510 Pa. Page 613]

The negotiated consent form, as signed by Appellant, stated in pertinent part:

I, Alfred K. Albrecht, having been informed of my constitutional right not to have a search made of the vehicle hereinafter mentioned without a search warrant and my right to refuse to consent to such a search, hereby authorize Trps. Edward Donorovich and William York Pennsylvania State Police Officers and their assistants to conduct a search of . . . [the vehicle in question].

These officers are authorized by me to take from my vehicle of which I am the lawful owner, any physical objects, materials or substances which may be believed to have been ...


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