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decided: April 3, 1987.


Appeal from Judgment of Sentence of Court of Common Pleas of Erie County, Criminal Division, entered May 7, 1984 at No. 559 A&B of 1983.


Dennis V. Williams (Court-appointed), Erie, for appellant.

Michael Veshecco, Dist. Atty., Frank J. Scutella, Asst. Dist. Atty., Erie, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a concurring and dissenting opinion. McDermott, J., files a concurring and dissenting opinion in which Papadakos, J., joins. Papadakos, J., files a concurring and dissenting opinion in which McDermott, J., joins.

Author: Nix

[ 514 Pa. Page 267]


The appellant, John A. Nelson, was convicted by a jury of murder in the first degree and of possession of an instrument of crime. Following further deliberation, the jury decided that imposition of the death sentence was appropriate, having found the aggravating circumstance of torture. After denying the appellant's post-trial motions, the trial court formally imposed the judgment of sentence of death for the murder; and also sentenced him to a term of imprisonment of from one to two years for the companion crime. There followed this direct appeal to this Court pursuant to section 722(4) of the Judicial Code, 42 Pa.C.S. § 722(4).

In the early evening of February 14, 1983, John A. Nelson was released from a hospital after having spent about three days there for problems of alcoholism. Later that same night he killed his wife, Sara Nelson, while subjecting her to

[ 514 Pa. Page 268]

    a sequence of brutal assaults in the basement of a certain business establishment. He struck her on the head with the claw end of a hammer; then stabbed her repeatedly in the chest with a chisel; and finally, strangled her by wrapping an electric cord around her neck. At trial the Commonwealth's medical testimony established the cause of death as being by strangulation.

The record evidence discloses that about 7:00 P.M. on the night in question, prior to the killing, appellant Nelson had gone to a local bar and engaged in conversation with one David Fuller, an ex-policeman. In that conversation, according to Fuller's testimony at trial, the appellant remarked that he was angry with his wife and inquired as to the penalty for murder. Fuller further testified that the appellant did not appear to be intoxicated during this conversation.

John Nelson left the bar and went to his wife's residence where he was admitted by his stepdaughter, Ms. Dina. In the opinion of Ms. Dina, the appellant was not under the influence of alcohol when he arrived. Sara Nelson was home and did meet with her husband. About 8:00 P.M., Mrs. Nelson agreed to drive her husband to a certain beauty parlor. It was in the basement of the beauty parlor that he subjected her to the brutal, fatal attack that ended her life. Thereafter, he removed Mrs. Nelson's car to another location; and then telephoned his stepdaughter, representing that he was again looking for his wife. A short time later, however, he told at least three friends or acquaintances that he had killed his wife.*fn1 Around 11:00 P.M. the same night the appellant called the local police and confessed to having killed his wife. After being placed in police custody, and after receiving the required Miranda warnings, he twice more stated to the police that he had killed his wife. Prior to trial the appellant filed a motion

[ 514 Pa. Page 269]

    seeking to suppress his statements to the police, but that motion was denied.*fn2

During trial appellant sought to convince the jury that he was so intoxicated on the night of the killing that his actions were not deliberate and premeditated and that he did not possess a specific intent to take his wife's life. In this context, he attempted to establish that he was so afflicted by the curse of chronic, severe alcoholism that his mind had become impaired to the point of being incapable of committing a premeditated homicide or of forming a specific design to kill. The only evidence adduced by the defense in support of this theory of diminished mental capacity was testimony provided by appellant himself and testimony supplied by his sisters, stressing that his hospitalization prior to the killing had been for the treatment of alcoholism. The defense did not offer expert medical testimony to establish the extent to which his alleged alcoholism had impaired his mental faculties. Defense counsel argued to the jury that the homicide could not rise any higher than murder in the third degree based upon the assertion of mental incapacity due to alcoholism. The appellant also argued in the alternative that he killed his wife while in a heat of passion brought on by a marital dispute during which she struck him with a hammer.

The jury's verdict in this case makes it clear that they rejected the appellant's allegations of diminished mental capacity or conduct while in a heat of passion, and that they believed the evidence established an intentional malicious killing. In deciding that imposition of the death penalty was appropriate, the jury expressly accepted the prosecution's theory that the homicide was committed by means of torture and found that there were no outweighing mitigating circumstances.

Before this Court, the appellant raises numerous challenges; some are directed at the guilt stage of his trial but most are concerned with the sentencing phase of the proceedings.

[ 514 Pa. Page 270]

Our review of this case must start with the question of whether the record evidence was sufficient to sustain the verdict of first-degree murder returned by the jury. Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983); Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982). Section 2502(a) of the Crimes Code, 18 Pa.C.S. § 2502(a), states that "[a] criminal homicide constitutes murder of the first degree when it is committed by an intentional killing " (emphasis added). The phrase "intentional killing" is defined as a "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(d). This Court has held that a "willful, deliberate and premeditated killing" is one where the actor has a specific intent to bring about the death of the victim. Commonwealth v. Meredith, 490 Pa. 303, 309, 416 A.2d 481, 484 (1980); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947). The test by which we must determine the sufficiency of the evidence is whether, accepting as true all of the Commonwealth's evidence and all reasonable inferences arising therefrom upon which, if believed, the fact-finder could reasonably have based its verdict, such evidence and inferences are sufficient in law to establish the elements of the crime in question beyond a reasonable doubt. Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978), cert. denied 440 U.S. 938, 99 S.Ct. 1286, 59 L.Ed.2d 498 (1979); Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971).

Under the testimony presented at trial, the Commonwealth's evidence was unusually impressive in establishing the specific intent to kill. The element of specific intent is one that may be proven from the circumstances surrounding the event. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). As we noted in Commonwealth v. Meredith, supra:

Where one does not verbalize the reasons for his actions, we are forced to look to the act itself to glean the intentions of the actor. Where the intention of the actor

[ 514 Pa. Page 271]

    is obvious from the act itself, the finder of fact is justified in assigning the intention that is suggested by the conduct. If a deadly force is knowingly applied by the actor to the person of another, the intent to take life is as evident as if the actor stated the intent to kill at the time the force was applied. (Emphasis added.) 490 Pa. at 311, 416 A.2d at 485.

Here, appellant admitted causing the death of his wife to individuals even before his arrest on these charges. Thereafter, during custodial interrogation, he again confirmed the fact that he brought about the termination of his wife's life. Thus the fact that he was the cause of the death is amply supported by the testimony presented. The circumstances surrounding the event reflect with equal clarity his intent at the time to bring about the death of his spouse. Having first assaulted his wife with a hammer and then a chisel, and being unsuccessful in extinguishing her life, appellant then left the basement, went upstairs and secured an electric cord and returned to the basement where he effectively used the cord to accomplish his purpose. From this sequence of events, the jury was certainly justified in concluding that the assault was designed to terminate the life of the unfortunate victim. See, e.g., Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985). We are satisfied that the evidence produced by the Commonwealth provided ample basis for the jury's determination that the killing was willful, deliberate and premeditated.

Notwithstanding the legal sufficiency of the Commonwealth's evidence to sustain the jury's verdict of first-degree murder, the appellant asserts that the verdict was against the weight of the evidence.*fn3 In support of that

[ 514 Pa. Page 272]

    proposition he argues that, given his evidence concerning the effect of his alcoholism on his mental capacity, the jury should have found that his mind was so impaired that it could not form a specific intent to kill. It is true that in Pennsylvania diminished mental capacity may be a defense to a charge requiring a specific intent. Commonwealth v. Zettlemoyer, supra; Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Brantner, 486 Pa. 518, 406 A.2d 1011 (1979); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). However, the appellant's reliance upon that theory in this case is without merit. Even assuming, arguendo, that the appellant's evidence concerning his chronic alcoholism and its effect, consisting solely of testimony from him and his sisters, could have justified a finding of diminished mental capacity, the jury was not compelled to accept this testimony or to make such a finding. It is a fundamental rule of law that a jury may believe any, all or none of a party's evidence. E.g., Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). Even had the appellant presented expert medical testimony to establish that his mental capacity had been diminished by chronic alcoholism and that the infirmity affected his actions at the time of the killing, the jury would not have been obliged to accept such testimony. Commonwealth v. Walzack, supra.

As a further argument that the verdict was against the weight of the evidence, the appellant asserts that the testimony indicated he killed his wife in a "heat of passion" brought on by a marital dispute, and that with such evidence the jury could have returned a verdict of voluntary manslaughter. It is true that extended provocation brought about by stress, anger and hostility caused by marital problems can provide grounds for a verdict of voluntary manslaughter instead of murder. ...

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