Appeal from the Judgment of Sentence order by the Court of Common Pleas of Lackawanna County entered May 22, 1986 at No. 84 Criminal 176.
Thomas D. Brown, Charles Witaconis, Scranton, for appellant.
Ernest D. Preate, Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Larsen, J., did not participate in the consideration or decision of this case.
This appeal comes directly from the judgment of sentence imposed by the Court of Common Pleas of Lackawanna County.*fn1 Sentence of death was imposed after denial of appellant's post-verdict motions which were filed in response
to a jury verdict of guilt on charges of first degree murder and robbery.
In the afternoon of February 17, 1984, the body of Kathy Kurmchak was found in the ladies restroom of Genetti's Manor, a restaurant located in Dickson City, Pennsylvania. The victim, then age 19, was a waitress at the restaurant. She was found slumped in the corner of the bathroom stall in a pool of blood; she had sustained approximately thirty stab wounds.
A subsequent police investigation revealed that a yellow Chrysler LeBaron was seen parked behind the restaurant that day. Routine questioning of all employees revealed that appellant, Steven Duffey, then an employee of Genetti's Manor, had stopped by the establishment that day to drop off a W-4 tax form. It was determined that appellant drove a yellow Chrysler LeBaron and the car behind the restaurant was identified as belonging to him.
Appellant was then asked to come to the state police barracks for further questioning. He was read his Miranda rights and he gave a statement corroborating an earlier statement that he had dropped off a W-4 form and returned home to watch television. He was informed of inconsistencies in his statement, such as the fact that his car was seen behind Genetti's Manor at the time that he claimed he was watching television. He was also informed that a search warrant was obtained for his car and that the police were looking for blood, clothing fibers, etc. Appellant then decided to make a more complete statement.
Appellant was again read his Miranda rights. He then recounted in great detail how he parked behind Genetti's Manor and proceeded into the restaurant. He found Kathy Kurmchak alone in the office. Appellant quietly entered the kitchen where he found a large butcher knife. Appellant slipped the knife into his pants and made his way back into the office.
He approached Kathy Kurmchak and demanded money. He obtained several dollars from the coat check tip jar and Ms. Kurmchak produced several more dollars from her
wallet. Appellant then said to the victim "come with me for a walk" and both proceeded to the ladies bathroom. Appellant told Ms. Kurmchak to walk over to one of the stalls, to open the stall door and to take off her pants. He then told Ms. Kurmchak that he wanted to have sex with her.
Kathy Kurmchak responded "no way" to appellant's suggestion. She then inquired, "what are you going to do, stab me?" Appellant took her watch from her wrist and stabbed Ms. Kurmchak. The victim grabbed the knife with her hands and said "don't, don't." Appellant stabbed her two or three more times and she started to slide down the wall of the bathroom stall. Appellant stabbed the victim five or six more times and the victim began to gasp. Appellant then stabbed her in the throat. Appellant exited the building. He buried the knife in the swamp behind the restaurant, got in his car, and drove home.
Appellant next gave a question and answer-type statement to the police. He recounted how he went to Genetti's Manor that morning to drop off his W-4 form. There were two women present at the time. He returned later to find that one woman had gone. He drove to the rear of the building and parked his car. He then went back into the restaurant to rob it because he thought the victim had the key to the safe.
Appellant went to the kitchen and found a knife. He walked to the office and stood by the door for about twenty minutes. The urge then came over him to "get it done." He proceeded into the office and demanded money from the victim. She gave him three one dollar bills and a handful of quarters from the tip jar, as well as four or five dollars from her purse.
Appellant again recounted how he marched the victim to the ladies bathroom. He told her to turn around. She refused and asked "what are you going to do, stab me?" He responded "yes, if I have to." He further stated, "give me your watch." He stuck the watch in his pocket and took the knife by the handle. He then demonstrated for the officer who was taking the statement, how he held the
knife, how the victim tried to grab it, and how he stuck it into her stomach.
Appellant recounted how the first stab wound was beneath the victim's breast. She looked at him and said "don't, don't." He stabbed her two or three more times and she began to "creep" down the wall. She slid down and hit the flush on the toilet, and blood began to run out of her into the toilet. Appellant further stated: "I then stabbed her around the throat because she was gasping and trying to say something. After I stabbed her near the throat she slid down the rest of the way to the floor."
Appellant then stated "I stood there and felt her face and shirt to see if she was breathing. She was still breathing. I walked out [of] the stall by backing up. I looked back at her and her mouth was open like she was gasping for air. There was blood all over the place." The rest of appellant's statement detailed his actions after he left the crime scene.
I. SUFFICIENCY OF THE EVIDENCE
It is the practice of this Court in all death penalty cases to conduct an independent review of the sufficiency of the evidence. Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, U.S. , 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987); 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 1327 (1983). The test for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985), cert. denied, 480 U.S. 935, 107 S.Ct. 1577, 94 L.Ed.2d 768 (1987).
Murder is an unlawful killing of another with malice aforethought, expressed or implied. Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973). Appellant does not contest the fact that a killing occurred in this case; nor
does he contest that he was the actor who committed the killing. The only issue at trial was whether appellant possessed the requisite intent to satisfy the mens rea element of first degree murder.*fn2
A jury may infer intent to kill from the use of a deadly weapon on a vital part of the body. Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), cert. denied, U.S. , 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987). In this case the evidence indicated that appellant inflicted approximately thirty stab wounds. This evidence, in addition to his confession wherein he stated, "I guess I'll have to kill you," and his graphic description and demonstration of how he carried out the killing, were sufficient for the jury to find intent. Therefore, appellant was properly convicted of first degree murder.
Appellant was also convicted of robbery. Any amount of force applied to a person while committing a theft brings that act within the scope of robbery under our statute.*fn3 This force may be actual or constructive. Actual
force is applied to the body; constructive force is use of threatening words or gestures, and operates on the mind. Commonwealth v. Brown, 506 Pa. 169, 176, 484 A.2d 738, 741 (1984).
Appellant contends that the theft was completed prior to killing the victim, therefore no robbery occurred. The evidence establishes, however, that appellant went to Genetti's Manor that day with the intention of robbing the restaurant. He confessed to taking money from her at knifepoint. He then walked her to the ladies room, stole her watch, and stabbed her to death.
We believe that the Commonwealth has met its burden. Appellant's detailed confession, testimony that money was taken from Ms. Kurmchak, and the fact that appellant held the victim at knifepoint while taking her watch were sufficient for the jury to have convicted him of robbery.
Appellant contends that numerous trial errors were committed, thereby entitling him to a new trial. Appellant first alleges that the trial court erred by allowing into evidence pictures of the victim which prejudiced the jury. He contends that admission of the pictures was unnecessary in light of the fact that the victim's clothing, and a diagram of the victim's wounds were admitted into evidence. The pictures consisted of the following:
1) an 8" X 10" color photo showing the ladies bathroom at Genetti's Manor. Visible is one bloody shoe, and a blood-splattered floor and footprint;
2) a color photo of the bathroom stalls. The victim's leg is slightly visible in the lower right corner of the picture;
3) a color photo of the bathroom stall with two legs protruding. One foot is wearing a bloodstained shoe. Also, ...