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filed: February 1, 1988.


Appeal from Judgment of Sentence February 4, 1987, in the Court of Common Pleas of Lebanon County, Criminal, No. 675, 1985.


Joseph M. Farrell, Palmyra, for appellant.

John E. Feather, Jr., Assistant District Attorney, Lebanon, for Com., appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Olszewski

[ 371 Pa. Super. Page 92]

This is an appeal from a judgment of sentence imposed after appellant was found guilty of first-degree murder. On appeal, appellant challenges the sufficiency of the evidence and claims that the trial court erred in (1) admitting appellant's oral and written statements made to police prior to preliminary arraignment; (2) refusing to permit appellant to cross-examine the wife of the victim as to possible motives; (3) refusing to strike testimony of appellant's former girlfriend concerning the contents of letters written by appellant; and (4) not transferring the case to juvenile court. We find that all of appellant's contentions lack merit and, accordingly, affirm the decision of the trial court.

In the early morning of October 8, 1985, the victim, Richard Neidig, was shot in the head and killed while sleeping in his trailer. After discovering the body shortly after 8:00 a.m. on the same day, Joann Neidig, wife of the victim, called the Pennsylvania State Police, who arrived at approximately 8:30 a.m. and began investigation. At 11:30 a.m. Mrs. Neidig and appellant, who is Mrs. Neidig's son and stepson of the victim, signed a consent form permitting the troopers to search the trailer. After the search, appellant and his mother were transported to police barracks for interviews. Appellant's interview commenced at 4:00 p.m., and he was placed under arrest at 4:55 p.m. At 10:45 p.m., appellant was preliminarily arraigned.

[ 371 Pa. Super. Page 93]

Appellant was formally arraigned on November 6, 1985. Pretrial motions requesting suppression of appellant's confession and transfer of the case to juvenile court were filed and denied. Trial by jury commenced on April 7, 1986; during trial, however, appellant entered into a plea agreement with the district attorney whereby he pleaded guilty to a general charge of murder. On April 18, 1986, after a degree of guilt hearing, the trial court entered a verdict of guilty of murder in the first degree. On February 2, 1987, appellant was sentenced to life imprisonment. This appeal followed.

Appellant first challenges the sufficiency of the evidence to support the premeditation element of first-degree murder. Specifically, appellant contends that his voluntary ingestion of LSD prior to the murder negated the specific intent necessary to sustain a first-degree murder conviction. We note, preliminarily, that in reviewing the sufficiency of the evidence, we must view all the evidence, together with the reasonable inferences gleaned therefrom, in the light most favorable to the verdict winner. Commonwealth v. Hamilton, 339 Pa. Super. 1, 488 A.2d 277 (1985). The appropriate test is whether the evidence, when viewed in this light, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984).

It is well settled that evidence of a drugged condition, if believed, may operate to negate the intent necessary for a conviction of murder in the first degree. 18 Pa.C.S.A. ยง 308; Commonwealth v. Stark, 363 Pa. Super. 356, 526 A.2d 383 (1987). A defendant, however, must have been so overwhelmed by the drug to the point of losing his faculties so as to be incapable of forming a specific intent to kill. See id., 363 Pa. Superior Ct. at 364, 526 A.2d at 387. Our Supreme Court has declared that evidence of a drugged condition is submitted for consideration to the fact finder, who determines the validity of the claim. Commonwealth v. Fairell, 476 Pa. 128, 381 A.2d 1258 (1977). The trier of fact may believe any, all, or none of the testimony offered

[ 371 Pa. Super. Page 94]

    at trial. Commonwealth v. Verdekal, 351 Pa. Super. 412, 506 A.2d 415 (1986).

In the instant case, regarding appellant's alleged ingestion of LSD, the appellant testified that he bought the LSD at an unidentified truck stop from someone he did not know. Additionally, appellant never mentioned his LSD experience until at least ten days after after his arrest when appellant's prior counsel found marijuana in appellant's bedroom and asked him if he had taken drugs at the time of the shooting. Also, in the night of the shooting, appellant, while allegedly under the influence of LSD, found the keys to his stepfather's car, took the murder weapon and an extra set of clothes to a friend's house, and acted like "the same Tony [his friend] had always known." Trial transcript at 46.

The trial court, considering the foregoing, acted within its discretion as fact finder and discounted appellant's testimony of drug use and concluded on the basis of the remaining evidence that when appellant "fired the rifle at Richard Neidig's head, he did so with a specific intent to kill." Opinion at 8. We agree that there is sufficient evidence in the record to contradict appellant's assertion that he was so drugged at the time of the shooting that he could not have formed the requisite specific intent. We also agree that there was sufficient evidence to establish that appellant shot his stepfather willfully, deliberately, and with premeditation. Commonwealth v. Moore, 473 Pa. 169, 373 A.2d 1101 (1977). As the Commonwealth's brief aptly sets forth:

The Commonwealth presented testimony from Nannette Beahm, who was the [appellant's] girlfriend until the day of the shooting. The [appellant] had complained to her about his stepfather, that he didn't treat the [appellant] like a son and didn't love him. During the month before the shooting, the [appellant] told her about four times that he was going to "get a silencer gun and shoot him (Neidig) while he was sleeping and put him in his car and then ...

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