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COMMONWEALTH PENNSYLVANIA v. FREDRIC JERMYN (10/15/87)

decided: October 15, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
FREDRIC JERMYN, APPELLANT



Appeal from Judgments of Sentence of Court of Common Pleas of Cumberland County entered April 15, 1986, at No. 15 Criminal 1985

COUNSEL

Dale F. Shughart, Jr., Carlisle, for appellant.

J. Michael Eakin, Dist. Atty., M.L. Ebert, Asst. Dist. Atty., Marion E. MacIntyre, Deputy Atty. Gen., for appellee.

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

Author: Nix

[ 516 Pa. Page 465]

OPINION

This is an automatic direct appeal*fn1 from a sentence of death imposed upon appellant Fredric Jermyn by the Court of Common Pleas of Cumberland County following his conviction of first degree murder, arson and aggravated assault. For the reasons that follow, appellant's convictions and judgments of sentence must be affirmed.

I.

Appellant was arrested on January 4, 1985, and charged with criminal homicide, arson and aggravated assault in connection with the death of his mother, Mrs. Mildred Jermyn, age eighty, at her home at 305 James Street, Mechanicsburg, Pennsylvania, on January 1, 1985. After a preliminary hearing he was held for trial on all counts. A notice of insanity or mental infirmity defense was filed on appellant's behalf on April 9, 1985. Appellant's pre-trial motions to suppress evidence, to bifurcate his trial and to

[ 516 Pa. Page 466]

    have the death penalty declared inapplicable were denied on July 16, 1985. Appellant was tried before a jury from August 12 to 16, 1985, and was convicted of first degree murder, arson and aggravated assault. After a sentencing hearing on August 17, 1985, the jury returned a verdict of death. Post-verdict motions were denied and appellant was sentenced on April 15, 1986, to death, to a concurrent ten-to-twenty year prison term on the arson conviction, and to a five-to-ten year term on the aggravated assault count to run consecutive to the arson sentence and concurrent with the sentence of death. Appellant's subsequent motion to modify the sentences was denied on April 23, 1986. This direct appeal followed.

II.

Appellant raises thirteen issues concerning the guilt and sentencing phases of his trial. Before considering those assignments of error, however, we must, in accordance with our practice in all cases in which the death sentence has been imposed, independently review the record to determine whether the evidence adduced is sufficient to sustain a verdict of first degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1452 (1983). Our well-established standard in conducting this inquiry is whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to establish the elements of that offense beyond a reasonable doubt. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987); Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986). The Crimes Code defines murder of the first degree as "[a] criminal homicide . . . committed by an intentional," i.e., "willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(a), (d). See Commonwealth v. Nelson, supra, 514 Pa. at 270, 523 A.2d at 732.

Viewed in accordance with our standard the evidence presented in the instant case established the following

[ 516 Pa. Page 467]

    facts. Appellant and his mother, the victim, were the sole residents of his mother's house in Mechanicsburg. By late 1984 the relationship between the two had become so strained that Mrs. Jermyn revoked a will, drafted in 1981, which had named appellant as her sole heir and executor, and had her attorney draft a new will devising her Mechanicsburg property and the residue of her estate to a niece. Appellant was to receive half the proceeds of the sale of the real estate only if the niece declined to live in the Jermyn home, with the further condition that appellant would be entitled to those funds only if Mrs. Jermyn died of natural or accidental causes. Simultaneously with the execution of the new will, Mrs. Jermyn had her attorney draft a letter notifying appellant of his eviction in sixty days, i.e., on or about January 1, 1985. Appellant was aware of the terms of the new will and received his eviction notice, which angered him. Appellant told Eugene Gramm, a former employee of appellant's leather business, Fast Fred's Motorcycle Accessories, that he was going to kill Mrs. Jermyn. Appellant made no preparations to move out.

On the evening of December 31, 1984, appellant entered his mother's room, beat her with a blunt object, and strangled her to unconsciousness. He then attempted to ignite her mattress by placing cigarettes under her sheets; Mrs. Jermyn reputedly smoked in bed. When this failed, appellant lit the mattress in three separate locations with an open flame, and left the house. The fire filled the room with soot and produced sufficient carbon monoxide to cause Mrs. Jermyn's death by asphyxiation. After visiting several bars, appellant returned home at about 4:00 a.m. on January 1, 1985, and went to bed. At approximately 1:39 p.m. the following afternoon, appellant called an emergency telephone number and told the dispatcher: "Yeah, there's a funny stink comin' out of my mom's bed room [sic] and she won't answer the door." R.R. 396a. Appellant further stated that the door to his mother's room was locked and he couldn't get in, a statement he repeated to the chief of police when he responded to appellant's emergency call. The police chief used a screwdriver to open the door and

[ 516 Pa. Page 468]

    discovered Mrs. Jermyn's body on the floor just inside. An autopsy subsequently revealed that among the injuries sustained by Mrs. Jermyn were bruises which could have been produced by a studded armband appellant was seen wearing at a bar on the evening of December 31, 1984. A similar armband was recovered during a search of appellant's automobile.

On January 2, 1985, appellant visited Eugene Gramm, whom he had previously informed of his intention to kill Mrs. Jermyn, and told him "I did it." R.R. 593a. Appellant asked Gramm to drive him to New York but Gramm refused. Gramm reported this conversation to the police the following day. While incarcerated in the Cumberland County Prison after his arrest on January 4, 1985, appellant told Dean Barnes, a fellow inmate, he was glad he "torched the bitch." RR 623a, 624a. Appellant also informed Barnes that, in support of his insanity defense, he was going to tell the jury that he had done the world a favor, and that "his mother had come from Satan and he had sent her back to Satan." RR 623a.

The above evidence is clearly sufficient to support appellant's conviction of first degree murder.

We turn now to appellant's arguments in support of the award of a new trial. Appellant's first argument is that he was denied his constitutional right to be heard by the rulings of the trial court, or alternatively, that trial counsel was ineffective in failing to implement a strategy that would have permitted the exercise of that right. In our view, the true nature of this objection is misstated. The right of an accused to testify in his own behalf is a fundamental tenet of American jurisprudence and is explicitly guaranteed by the Pennsylvania Constitution. Pa. Const. Art. I, § 9. The decision as to whether to exercise that right is personal to the accused. See Commonwealth v. Clayton, 496 Pa. 492, 437 A.2d 1147 (1981). We have never held, however, that our constitution confers upon criminal defendants an unfettered right of self-expression in the courtroom during the guilt-determination phase of trial.

[ 516 Pa. Page 469]

Rather, the right to be heard is, as always, circumscribed by the rules of evidence. See Commonwealth v. Greene, 469 Pa. 399, 366 A.2d 234 (1976); Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967), cert. denied, 391 U.S. 920, 88 S.Ct. 1803, 20 L.Ed.2d 657 (1968).

In the instant case appellant, against the advice of counsel and after an unsuccessful attempt to dispense with his attorney, did take the witness stand and was questioned by defense counsel as follows:

BY MR. LYSAGHT:

Q. Mr. Jermyn, please state your full name and address for the record?

A. My full name is Fredric Jacob Berr Jermyn.

Q. And you are currently residing at?

A. Cumberland County Prison, Cellblock B, Cell 4.

Q. Now, prior to the prison where were you living?

A. The Audubon Motel.

Q. Why were you living at the motel?

A. Police said I couldn't stay at my house.

Q. Now, Fred, what is you reaction about what is going on?

A. It's sort of like . . .

MR. EBERT: I'm going to object.

THE COURT: Sustain the objection.

BY MR. LYSAGHT:

Q. Fred, would you like to make any statement to the ladies and gentlemen of the jury?

A. Yes, I would.

MR. EBERT: Objection.

THE COURT: Sustain to the form of the question. Ask questions, counsel.

MR. LYSAGHT: Thank you, Your Honor.

BY MR. LYSAGHT:

Q. Fred, has this experience been stressful to you?

[ 516 Pa. Page 470]

A. No.

Q. Did this experience cause you to write any poetry?

A. Yes.

Q. Would you care to read that poetry?

A. Yes.

MR. EBERT: Your Honor, I am going to object to the relevancy of the poetry.

THE COURT: Sustained. Next question.

MR. LYSAGHT: That's all we have, Your Honor.

RR. 780a-782a.

From the foregoing it is obvious that appellant's quarrel is not with the denial of his right to be heard but with limitations imposed by the trial court as to the content of his testimony. Appellant sought to make a statement to the jury but was required, instead, to comply with the formalities of a normal criminal trial by answering specific questions. When defense counsel nevertheless asked appellant if he would like to read his poetry to the jury, the Commonwealth objected on relevancy grounds. The proper focus in reviewing this assignment of error, therefore, is whether the proferred evidence was indeed relevant.

A trial court's rulings on evidentiary questions are committed to its sound discretion and will not be disturbed on appeal absent a clear abuse of that discretion. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976). The test for determining relevancy is whether the evidence sought to be introduced tends to establish a material fact or make a fact at issue more or less probable. Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980); Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79 (1978); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973). The apparent purpose of appellant's reading of the poem was to support his defense of insanity through his demeanor on the witness stand and the manner in which he read the poem. To be relevant, evidence of appellant's mental state would have

[ 516 Pa. Page 471]

    been required to have a tendency to establish either that, at the time of the commission of the crime, appellant was laboring under such a defect of reason that he was incapable of knowing the nature and quality of his act, or, if he was so capable, that he did not know that his act was wrong. 18 Pa.C.S. § 315(b); Commonwealth v. Metzler, 499 Pa. 122, 451 A.2d 1352 (1982); Commonwealth v. ...


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