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filed: May 20, 1987.


Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County, No. 85-10,203.


James D. Casale, Williamsport, for appellant.

Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellee.

Wieand, Olszewski and Tamilia, JJ.

Author: Wieand

[ 363 Pa. Super. Page 359]

On September 13, 1985, after trial by jury, Newton Stark was found guilty of first degree murder. The conviction arose from an incident in which Stark had gone to the apartment of Larry Hoover, who was dating Stark's estranged wife, and shot him in the chest with a shotgun. Stark filed timely post-trial motions in which he alleged numerous instances of trial error. Post-trial relief was denied on December 18, 1985, however, and Stark was sentenced to a term of life imprisonment. In this direct appeal from the judgment of sentence, Stark contends that the evidence was insufficient to support the verdict and that the trial court committed numerous trial errors. We will discuss seriatim the more significant of these issues.*fn1

[ 363 Pa. Super. Page 360]

"In reviewing the sufficiency of the evidence, we view the evidence presented and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Campbell, 353 Pa. Super. 178, 181. 509 A.2d 394, 395 (1986). See: Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983); Commonwealth v. Mease, 357 Pa. Super. 366, 368-71, 516 A.2d 24, 25-26 (1986); Commonwealth v. Taylor, 324 Pa. Super. 420, 424, 471 A.2d 1228, 1229 (1984).

The evidence in this case showed that Stark and Larry Hoover had been close friends. Their friendship came to an end in October, 1984, when Stark's wife left the marital home and began dating Hoover. In February, 1985, relations between Stark and Hoover became further strained when Stark learned that Hoover had disciplined one of Stark's young daughters. Shortly thereafter, Stark began making threats, in the presence of co-workers, that he would kill Hoover if Hoover did not stay away from Stark's children. On two occasions Stark spoke with Harold Bower, another co-worker, about Hoover and said: "I can't beat him up, he's too big. I'm going to have to use a gun on him."

At or about the same time, Stark and his wife began discussing the possibility of reconciliation. On the morning prior to the shooting, however, his wife told Stark that she had changed her mind and that there would be no reconciliation. That evening, as Stark was leaving work, he told Harold Bower that he (Bower) could have Stark's job because he (Stark) would not be returning to work. When asked "why", Stark replied: "Tonight's the night that [I'm]

[ 363 Pa. Super. Page 361]

    going to do it." A few minutes later, Stark found a letter from his wife inside his car in which she had written that there would be no reconciliation and that she did not wish to see or hear from him again. Stark went to a local bar with a friend where he consumed five or six mugs of beer and a shot of Apple Schnapps. At approximately 10:30 p.m., Stark went to another bar, known as the 227 Bar, where he consumed a bottle of beer. At 11:45 p.m., as Stark was leaving the bar, he stated to Gary Lomison: "Well, I think I'm going to go and kill someone tonight." At approximately 1:00 a.m., Stark fatally shot Hoover at Hoover's apartment.

Shortly after 2:00 a.m., Trooper Chester M. Lampman arrived at the scene of the shooting. An hour later, he began to interrogate Stark about the killing. During this interrogation, Stark told Lampman of Hoover's involvement with Stark's wife and children and admitted having made numerous threats to kill him. Stark also recounted the events preceding the shooting. He stated that after he had left the 227 Bar he had driven to his and Hoover's place of employment and had checked the work schedule to see what time Hoover would be reporting to work that morning. He then drove to his trailer home and retrieved a twelve gauge shotgun and a seven millimeter scoped rifle. The reason he retrieved both guns, he explained, was because he was unsure about whether he would kill Hoover in Hoover's apartment, using the shotgun, or in the parking lot of Hoover's place of employment, using the scoped rifle. When he arrived at Hoover's apartment building, he decided to use the shotgun. He quietly climbed the stairs to Hoover's apartment, so as not to "tip anyone off," and knocked on the door. When Stark identified himself, Hoover opened the door. Hoover was then holding a revolver in his hand. According to Stark's statement, Hoover pointed the gun at Stark's groin and said: "Do you know where this gun is pointed?" Stark replied: "Yes, I guess this is it." He then shot Hoover in the chest. Stark stated that after he shot Hoover, he entered the apartment, sat down at the kitchen table and listened to Hoover moan and breathe.

[ 363 Pa. Super. Page 362]

A short time after the initial interrogation of Stark, Trooper Lampman questioned Stark again and asked whether Hoover had fired his gun. Stark responded that he did not think so and added: "What's this all about? Big deal, I shot a guy. Shotgun's on the table. Used to be my best friend. I was there. He had a pistol. I can't say it's self defense because I went gunning for him. See how my gun is pointed?" Trooper Lampman testified that when Stark made these statements, he did not appear to be intoxicated. Rather, he responded well to questions, did not smell of alcohol, had no difficulty walking, even with handcuffs on, and appeared to be in physical control of himself.

During trial both a tape recorded interview and a videotaped interview with Stark were played for the jury. In these interviews, Stark confirmed his prior statements to Trooper Lampman. In his trial testimony, however, he contradicted portions of the prior statements.

At trial, Stark explained that although he had made numerous threats to kill Hoover, he had not actually intended to kill him. Rather, he said, he had made the threats in the hope that Hoover would hear of them and would leave Stark's children alone. Stark also admitted to having told Gary Lomison on the night of the shooting that he was going to kill someone. He testified, however, that he had not meant it. He also denied that he had gone to Hoover's apartment for the purpose of killing him. He stated, rather, that he had gone there only because he had believed that his wife and children were there and because he had wanted to see his children. Stark further stated that he had taken a gun with him only as insurance that Hoover would not be able to prevent him from seeing his children. According to Stark's testimony, after he saw Hoover point the revolver at him, he believed that Hoover was going to shoot him. Therefore, he tried to move quickly to one side to avoid being shot; and, as he did so, the shotgun discharged.

Stark argues that the evidence was insufficient to support the jury's verdict of guilty of murder in the first degree because neither malice nor a specific intent to kill

[ 363 Pa. Super. Page 363]

    was proven. We disagree. The testimony of the Commonwealth's witnesses and the recorded confessions of Stark reveal that Stark went to Hoover's apartment for the express purpose of killing him. The evidence also showed, Stark's version to the contrary notwithstanding, that he had not fired his weapon in self-defense. Stark had told others that he was going to kill Hoover on the night in question and told Trooper Lampman after the killing that he had not fired his gun in self-defense. In view of the Commonwealth's evidence, the jury could understandably reject as not credible the testimonial explanation offered by Stark at trial. Indeed, given Stark's earlier admissions, it is difficult to perceive how the jury could in good conscience have done otherwise.

The evidence was not such as to require the jury to find that Stark was too intoxicated to form a specific intent to kill. "'Evidence of intoxication, if believed, may operate to negate the intent necessary for conviction of murder in the first degree. [18 Pa.C.S. § 308]'" Commonwealth v. Stantz, 353 Pa. Super. 95, 106, 509 A.2d 351, 357 (1986), quoting Commonwealth v. Fairell, 476 Pa. 128, 133-134, 381 A.2d 1258, 1260 (1977). "However, drinking and intoxication are not synonymous terms. A defendant must be overwhelmed or overpowered by alcohol to the point of losing his or her faculties so as to be incapable of forming a specific intent to kill before an act of murder will be reduced to murder in the third degree." Commonwealth v. Price, 306 Pa. Super. 507, 512, 452 A.2d 840, 842 (1982). See: Commonwealth v. Reiff, 489 Pa. 12, 413 A.2d 672 (1980); Commonwealth v. Fairell, supra; Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975); Commonwealth v. Groff, 356 Pa. Super. 477, 514 A.2d 1382 (1986).

The evidence showed that Stark had been drinking and socializing with his friends from 8:15 p.m. until 11:45 p.m. on the evening preceding the shooting. During this period he consumed five or six mugs of beer, one shot of Apple Schnapps, and a bottle of beer. Blood tests revealed that at 5:00 a.m., four hours after the shooting, Stark had a blood

[ 363 Pa. Super. Page 364]

    alcohol content of .06 percent, and, at 7:55 a.m., almost seven hours after the shooting, his blood alcohol content was .01 percent. The parties stipulated that based upon these test results and Stark's rate of metabolism, Stark's blood alcohol content at the time of the shooting was .12 percent. Stark argues that because the law presumes that a person with a blood alcohol content of .10 percent or greater is intoxicated, the jury could not properly have found that he was capable of forming a specific intent to kill. We disagree.

Merely because the alcohol in a person's blood may permit a jury to infer that he was under the influence of alcohol to a degree which rendered him incapable of safely operating a motor vehicle (see: 75 Pa.C.S. § 3731(a)(4)) does not establish that he was so intoxicated that he was incapable of forming an intent to kill. Commonwealth v. Rose, supra 463 Pa. at 267 n. 3, 344 A.2d at 825 n. 3. The law prohibiting the operation of a vehicle while under the influence of alcohol is concerned with the degree of intoxication which renders one incapable of acting and reacting prudently to changing circumstances and conditions which frequently confront operators of motor vehicles on the public highways. See: Commonwealth v. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986). The statute relating to intoxication as a defense to the crime of first degree murder, on the other hand, is concerned with that high degree of intoxication which renders a person so ...

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