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decided: October 21, 1986.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 2284, 2286, 2288, 2289 February Term 1981.


Robert B. Lawler, Marianne E. Cox, Asst. Dist. Attys., Marion E. MacIntyre, Deputy Atty. Gen., for appellee.

Daniel H. Greene, Philadelphia, for appellant.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion. Hutchinson and Zappala, JJ., file a dissenting opinion.

Author: Papadakos

[ 512 Pa. Page 300]


This direct appeal arises from the conviction and death sentence of Henry P. Fahy (Appellant) pursuant to 42 Pa.C.S. ยง 9711(h).*fn1 Appellant was arrested on January 29,

[ 512 Pa. Page 3011981]

, and charged with Murder of the First Degree,*fn2 Rape,*fn3 Burglary,*fn4 and Possession of an Instrument of Crime.*fn5 The victim was twelve year old Nicoletta ("Nicky") Caserta.

On January 24, 1983, Appellant was tried before a jury with the Honorable Albert F. Sabo of the Court of Common Pleas of Philadelphia County presiding. The jury returned guilty verdicts on all charges on January 29, 1983. After the required sentencing hearing*fn6 was conducted, the jury determined that Appellant be sentenced to death. Sentencing was deferred pending the filing and disposition of post-trial motions which were argued before a court en banc and denied on November 2, 1983. Appellant was sentenced to death on the homicide conviction, ten to twenty years on the burglary conviction, two and one-half to five years on the weapons conviction, and ten to twenty years on the rape conviction. Appellant's burglary and rape convictions were ordered to run concurrently with each other but consecutively to the murder conviction. The weapons conviction

[ 512 Pa. Page 302]

    was to run consecutively to the burglary and rape convictions. This automatic appeal followed.

Appellant first argues that insufficient evidence exists to support a conviction of murder of the first degree. As Mr. Justice Flaherty recently reiterated, "It is well established that the test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt." Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). See also, Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985).

Viewing the evidence in the light most favorable to the Commonwealth, it was established that on January 9, 1981, at 7:15 a.m., Nicky Caserta received a telephone call from her girlfriend during which the girls made plans to meet and walk to school. That meeting never took place. After completing the phone conversation, since Nicky's mother had left for work, Nicky locked the door, as she had routinely done every morning. From a vantage point across the street, Appellant saw Nicky's mother leave for work. He proceeded across the street and was let in the Caserta home by Nicky. Appellant was well known to Nicky because he and Nicky's aunt were living together nearby. Appellant asked Nicky to go upstairs and look for a pair of pliers for him. As soon as Nicky went up the steps, Appellant locked the front door and followed her. Appellant then grabbed Nicky and when she began screaming, forced tissue in her mouth, wrapped a sweater around her face, and had sexual intercourse with her. Upon completing this crime, Appellant commanded Nicky to dress. Due to the child's hysterical state of mind, she put her parochial school uniform on backwards, sending Appellant into a violent rage which resulted in him dragging the child to the basement.

[ 512 Pa. Page 303]

The bloody and battered corpse of Nicky Caserta, sprawled across the basement floor, was found by her stepfather, Paul Piccone. Upon arriving home from work, Paul and Marie Piccone noticed that their house was in complete disarray, their daughter's lunch money and house keys were untouched, and a chair had been placed against the basement door. Further investigation revealed the child's body. The police were summoned immediately. Police investigators found the body with a T-shirt and an electrical cord wrapped tightly around the neck, multiple tears to the vagina and rectum, and eighteen stab wounds to the chest area. Dr. Fillinger, the medical examiner, confirmed these findings and ruled death by homicide.

On January 29, 1981, police investigators at the Sex Crimes Unit interviewed Rosemarie Kelleher, Appellant's live-in girlfriend, questioning her regarding an alleged sexual assault by Appellant upon her six year old son, Christopher. Ms. Kelleher phoned Appellant and requested him to come to the Sex Crimes Unit for questioning regarding this rape allegation. Appellant agreed and upon his arrival fifteen minutes later, he gave his name and asked someone in the hall who he was supposed to see. Officer Carol Keenan then approached Appellant. She testified that he had no difficulty walking or talking, nor did he appear to be under the influence of drugs or alcohol. While Appellant was speaking with Officer Keenan, Detective Chitwood and Sergeant Rosenstein approached Appellant and advised him that there were two warrants for his arrest on charges of rape.*fn7 However, they did not, at this time, tell him the names of the victims.

Appellant was placed under arrest at 10:15 p.m., handcuffed and transported to Homicide Headquarters, where he was placed in an interview room and unhandcuffed at 10:30 p.m. At 10:45 p.m., Appellant was permitted to use the bathroom facilities and get a drink of water. Both

[ 512 Pa. Page 304]

Officers also testified that Appellant appeared normal, not under the influence of drugs or alcohol, and he was generally alert and responsive. At 10:51 p.m., background information was obtained from Appellant and he was advised that he would be questioned about the homicide of Nicky Caserta, as he was the prime suspect. Appellant was fully advised of his Miranda rights. He was told that he had the right to remain silent and not say anything at all, anything he said could be used against him, he had a right to speak to an attorney before questioning and to have an attorney present during questioning, if he could not afford an attorney, one would be provided free of charge, if he chose to give a statement, he could stop at any time he wished. Appellant waived his rights and initialed a printed form containing both the warnings and the questions concerning his understanding of his rights. Appellant wanted to know why he was arrested. He was told he was arrested for the rapes of Nicky Caserta and six-year-old Christopher Kelleher.

Appellant initially denied culpability in any of the crimes; however, after viewing pictures of the victim's body, Appellant began to cry and said, "Alright I did it, I did it." After he regained his composure, Appellant orally related the details of the murder. This was followed by the preparation of a written statement which began about 12:30 a.m., on January 30, 1981. Upon completion of the written statement, Detective Chitwood read it back to Appellant and then gave it to Appellant to read. The Officers required Appellant to read portions of the statement out loud to assure themselves that he, in fact, could read. After reading the entire statement, Appellant then signed each of ten pages and stated that it was a true and correct statement. This was finished at approximately 2:00 a.m. The statement provided the following facts of the murder:

I grabbed her arm and dragged her down to the cellar. I had my other hand around her mouth. Down in the cellar I started choking her around the neck with my hands, but it wasn't working.

[ 512 Pa. Page 305]

I told her, I said, 'Die,' she wouldn't die. I pushed her to the floor. She kept kicking like she was gasping for air, spit started coming from her mouth. She just wouldn't die. I kept telling her, 'Bitch, you Bitch, you're supposed to die.'

So I grabbed a red cord from the washer, but before I did that I took a T-shirt from the clothesline and wrapped it around her mouth. I had the cord. I put it around her neck and started pulling on it, choking her, but it wasn't doing any good.

As I was choking her, I kept saying, 'Die, die.' She kept kicking and stuff came out of her mouth. I put my foot, this foot, (left foot indicated) on the cord. Then I used both my hands pulling the cord up to me real hard. When I thought she was dead, she wasn't moving, I let go of the cord.

Then she started choking for air again. I couldn't understand why she wasn't dying.

So I went upstairs and went into the kitchen and into the drawer in the kitchen sink near the stove. I got a knife and went back down the cellar. Her body was still jerking. I took the knife and I started stabbing her in the chest --

[At this time, he was indicating with his right hand the motion that he was stabbing her.]

-- About seven times. I figured it would be enough.

I went back upstairs and took a piece of paper off the table to dry my hands after I washed them. I washed them in the sink in the kitchen. I used the same paper to open the faucet, the one with the red button.

After I dried my hands I noticed a piece of the knife was missing.

I went back downstairs to find it and I saw the piece laying about a foot away from her.

I picked it up. I saw a pair of green shorts, the color of a[n] army uniform. I rolled up the knife and the broken piece in the shorts and put it in my pocket in the thing I was wearing under my coat . . .

[ 512 Pa. Page 306]

I came up out of the cellar, shut the door, and put a chair up against the door because I thought she could be alive and come back upstairs . . .

I left and got in my truck and drove over to Emerald Street. I'm not sure if it was Clearfield, but I know it was between Clearfield and Allegheny. I put everything in a brown paper bag and then threw it down the Culbert [sic]. It's about a block from Emerald and Orleans. I could probably show you. After that I went and picked up Michael for work. (N.T. 555-558)

At approximately 2:30 a.m., Appellant was given coffee and something to eat. He was then handcuffed at 2:41 a.m. and proceeded to show the Officers the location where he had disposed of the knife used to stab Nicky, which was successfully recovered from the sewer. Upon his return to the police station at 3:10 a.m., Appellant was permitted to use the bathroom facilities and get a drink of water. Appellant then made a telephone call during which he admitted to both his mother and to Rosemarie Kelleher that he raped and murdered Nicky. Appellant was then arraigned at 4:05 a.m.

On January 30, 1981, a criminal complaint was lodged against Appellant charging him with murder of the first degree, rape, burglary, and ...

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