Appeal from the Order of the Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, Dated September 18, 1984, Entered at No. 169 of 1980.
Penn Bradford Glazier, Lancaster, for appellant.
Henry S. Kenderdine, Jr., Dist. Atty., John A. Kenneff, Asst. Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.
On post-conviction review we are here faced with the question whether appellant, Robert Frey, convicted of first degree murder by a jury and sentenced to death, which sentence was affirmed by this Court on direct appeal, is entitled to a new trial on the basis of after-discovered evidence.
On November 8, 1979, the body of Barbara Jean Frey, the estranged wife of appellant, was discovered in her automobile in a cornfield in Lancaster County. She had been beaten and shot in the chest, and had died from massive hemorrhaging. On December 6, 1979, appellant confessed to the investigating police that he had paid $5,000.00 to one
Charles Zehring, whom he had met through their joint employment at Turkey Hill Dairies, to murder his wife. Appellant told the officers that Zehring had informed him that he (Zehring) would be assisted by another person at the murder, which would be arranged to look like an automobile accident. Appellant was subsequently arrested and charged with homicide and conspiracy.
At trial, appellant repudiated his confession explaining that he had been confused and frightened, and offered the following as a defense to the charges against him. While admitting that he had indeed paid $5,000.00 to Zehring, appellant characterized the payment as being the result of extortion. Appellant claimed that Zehring had an obsessive interest in appellant's marital problems and had conceived a marked dislike for appellant's wife. As a result of this bizarre reaction, Zehring had threatened to harm either appellant, his wife, or his son unless the money was paid. Appellant testified that he paid $5,000.00 to Zehring in an effort to keep Zehring from harming anyone in his family, and completely denied that he solicited Zehring to kill his wife. Zehring, who was incarcerated while awaiting trial on charges stemming from Mrs. Frey's death, was not called as a witness at appellant's trial.*fn1
Not surprisingly the jury rejected appellant's defense and, on May 14, 1980, found him guilty of murder of the first degree for the intentional killing of his wife. Following a separate sentencing proceeding, the jury sentenced appellant to death.
Appellant appealed directly to this court, pursuant to section 9711(h)(1), 42 Pa.C.S. § 9711(h)(1). After considering appellant's claims on appeal and also conducting an independent review of the record to determine if the evidence adduced at trial was sufficient to ...