Appeal from the Order Dated May 28, 1987, in the Court of Common Pleas of Lackawanna County at 84 Criminal 529 and 84 Criminal 996.
Vito P. Geroulo, Scranton, for appellant.
Ernest Preate, Jr., Dist. Atty., Robert A. Graci, Chief, Deputy Atty. Gen., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.
On March 20, 1985, the appellant, George Edwards, Jr., was found guilty by a jury in Lackawanna County of Murder of the First Degree and Rape. Following the guilty verdict, a separate sentencing hearing was held pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711 and the jury unanimously returned a sentence of death. Post trial motions filed by the appellant were denied by the trial court. The case is now before us on automatic appeal pursuant to 42 Pa.C.S.A. § 9711(h).
In appellant's first argument he raises the issue of the sufficiency of the evidence. He contends that the evidence was insufficient to support a verdict of first degree murder.
The evidence produced at trial established the following: On June 9, 1984, a hot, summer-like, late spring day, the appellant and the victim, Debbie Prislupsky, were together at Rosencrans Landing at Lake Henry, a vacation and recreation area in Lackawanna County where seasonal residents maintain campers and trailers as summer homes. During the early afternoon, the appellant and the victim were observed relaxing at lakeside listening to the radio and alternately swimming and sitting in the sun. Later that afternoon the appellant and the victim left the immediate lakefront area and walked approximately two miles over rural roads to a country tavern known as Phillips Manor. They arrived there sometime between 4:45 p.m. and 5:00 p.m. There was no evidence that either had anything to
drink prior to going to Phillips Manor.*fn1 Both were sober when they arrived.
When the appellant and the victim entered the tavern they went to the bar and ordered drinks. The appellant ordered a shot of whiskey and a beer; the victim ordered a rum and coke. The pair struck up a conversation with other patrons at the bar. Later, the victim started into a game of shuffleboard with some of those other patrons. Sometime later the appellant ordered five quarts of beer to take out. The bartender filled the order, putting the bottles in a paper bag. The bag of beer sat on the bar while the appellant continued conversing with others and the victim continued to play the shuffleboard game. After the appellant and the victim had been in the tavern for an hour or so they became loud and boisterous, using profanities and vulgarities in their conversations. The bartender, judging that the victim had become intoxicated, refused to serve her any more alcoholic drinks. He did continue to serve the appellant who began to order double shots of whiskey. Although the double shots were ordered by and served to the appellant, the victim drank most of them.*fn2 The victim, who was now intoxicated, took the bag of beer from the bar and went outside. A short time later the appellant learned that the victim, either intentionally or accidentally, dropped the bag in the parking lot breaking all of the bottles of beer. This angered the appellant and he stated "I'm going to f___in' kill her." "All f___in' broads need to be put in their place." (N.T. 3/14/85, p. 12.) The appellant then
ordered five more quarts of beer which were placed in another paper bag. The appellant kept this bag beside him at the bar. The victim re-entered the tavern and returned to the bar near the appellant. She and the appellant continued their loud and boisterous conduct, annoying and causing some concern to the others in the tavern. After an unpleasant exchange of words with another tavern patron, the appellant picked up the bag from the bar and he and the victim began to leave. On their way out the appellant banged the victim into the door and door jamb as they proceeded to the outside. Once in the parking lot the victim fell to the ground a couple of times and while she was down the appellant kicked her in her side and rib cage. He pulled her up by the arm and dragged her a distance in the lot. The victim was then knocked to the ground once again, this time she fell with such force that she banged the back of her head on the ground. The appellant pulled her up only to have her go crashing to the ground once again. This time the bandanna she was wearing came off her head and the appellant picked it up and tied it around his head. The appellant picked her up once more and she was staggering as she and the appellant proceeded into the woods. It was sometime between 6:30 p.m. and 6:45 p.m. that the appellant and the victim had left the tavern and disappeared into the woods. Shortly thereafter, fearing that they might return, the bartender called the police. He asked that a police officer stop by the tavern because he feared that the appellant would return and cause trouble.*fn3
At approximately 7:15 p.m., Jefferson Township police officer Gary Pozza, responding to the call, arrived in the Phillips Manor parking lot. He noticed nothing unusual or out of the ordinary upon his arrival. He went into the tavern and learned that the reason why the police were called was because of the boisterous and menacing conduct
of the appellant who had left a short time earlier. Officer Pozza was told by some of the patrons that they believed the appellant and the victim were still in the area. He was informed that they had gone into the woods next to the parking lot. Three patrons of the tavern, Florence Healey, Joyce Davis and Bill Davis went outside with officer Pozza to show him where the appellant and the victim had gone. Florence Healey proceeded into the woods with Joyce Davis lagging behind her. She went in at the same place that the appellant and the victim had entered. A short piece into the woods she observed the appellant with his pants down, kneeling on his hands and knees. She could see his bare back and behind. She could not see the victim. She immediately retreated from the woods and said to the police officers that it appeared that the parties were in there having sex.
Officer Pozza went into the woods and he observed the appellant in a semi-crouched position in a ravine right next to the victim who was partially nude and lying by a stream. The victim's panties were pulled down to her ankles and her top was pulled up so that her breasts were exposed. From his angle of view he could not see her face but he did observe that she had blood on her legs. The appellant had blood on his shirt and about his face, beard and forehead. Officer Pozza was accompanied into the woods by officer Petronchak of the Archbald Borough Police Department. The two officers working together were able to get the appellant to come up out of the ravine. Appellant had some difficulty negotiating the steep slope with an open quart bottle of beer in his hand. When he reached the top, officer Pozza kicked the bottle out of his hand and the appellant was made to lie on the ground. At this point he was cuffed with his arms behind his back. Without anyone asking him a question, the appellant blurted out: "I didn't do anything" and "She's okay." (N.T. March 12, 1985, pp. 18, 19.)
Officer Pozza then went down into the ravine to check on the victim and discovered that she was dead. The victim had been beaten savagely; her face was a flattened mass of
blood, wounds, tears, bruises and broken bones. Subsequent examination revealed that there were seven major fractures and numerous tiny fractures of the victim's face. The rest of her body was marked by at least thirty-five human bite wounds. The victim had been bitten on her chest, breasts, stomach, thighs, pelvis, arms and hands. The bite marks were vicious, deep and penetrating. The bites on her breasts were so deep and cruel that the nipple on her right breast was almost completely removed and the nipple on the left breast was severely lacerated. There were other circular marks in the same general areas of her body which were incomplete and thus could not be identified as human bites. Many of the bites showed bruising around them and bleeding indicating they were inflicted while the victim was still alive. Also many of them showed-slippage or blurring at one edge indicating that the victim was moving when the bite was inflicted. The bites on the victim's arms and hands were defensive wounds indicating that she was trying to defend herself from the merciless attack. Additionally, there were tears and bruises on the victim's vagina. The cause of death was traumatic strangulation with significant conditions being facial and skull fractures, and numerous contusions, abrasions and lacerations. The strangulation was accomplished by a metal choker twisted around her neck with such force that the hyoid bone, which lays on top of the voice box, was fractured. There was considerable bruising and bleeding that extended all the way back to her spinal column. Dr. Thomas DiSilvo, the pathologist who performed the autopsy testified that there was no place on the victim's face that was unmarked by injury. The blows to the face were not random blows. They had a pattern to them so as to systematically cover every area of her face. Further, Dr. DiSilvio testified that considerable force is required to break facial bones as the victim's were broken in this case. The bites, like the blows to her face, were not random bites. Except for the defensive wounds, the bites were systematically inflicted in sexual areas of the victim's body.
In reviewing for the sufficiency of the evidence the test is that:
"[w]e view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt."
Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984). Considering all of the evidence of record, including the foregoing, and applying the applicable standard of review for sufficiency, we have no hesitation in finding that the evidence was sufficient beyond a reasonable doubt to sustain the jury's verdict of guilty of murder of the first degree.
The appellant argues that the evidence failed to establish that the victim, Debbie Prislupsky, had been raped. He contends there was no direct evidence of penetration. He argues that under the relevant statute, without penetration there is no sexual intercourse and therefore, no rape. See 18 Pa.C.S.A. § 3101 and 18 Pa.C.S.A. § 3121.
Sam Marusco and Eugene O'Malley were inmates at Lackawanna County Jail awaiting trial when the appellant was incarcerated there. Marusco testified that he and O'Malley were in O'Malley's cell one evening playing cards when the appellant paid them a visit. A conversation developed among the three prisoners during which the appellant seemed to boast about his responsibility for the death of Debbie Prislupsky. Appellant admitted that, against her will, he dragged the victim into the woods, lowered her panties to her ankles, took one of her legs out of her panties and forcibly started to have sexual intercourse with her. Further, appellant stated that when he was unable to reach a climax and get satisfied he started to punch and bite the victim -- biting her on her breasts, stomach, legs and pubic area. Appellant laughed as he said that
he thought he may have bitten one of her nipples off. He said the victim deserved to die because she couldn't get him to reach a climax. Appellant stated that while he was forcibly having sex with the victim, she was resisting and trying to scratch him. He said that he was lucky that the victim had a habit of biting her fingernails, otherwise he would have scratch marks all over his body.
O'Malley essentially corroborated Marusco's testimony and added that he had a separate conversation with appellant, not in the presence of Marusco. In that discussion the appellant admitted to O'Malley that he killed Debbie Prislupsky by choking her with a choker chain.
Also giving testimony was Lynn Flannery, a former girl-friend of the appellant who visited him at Fairview State Hospital after his arrest. She testified that appellant told her that the victim wanted to sit in the woods and look at and listen to the running water, but he wanted to have sex. (N.T. March 15, 1985, p. 159.) Ms. Flannery further testified that appellant told her that when the victim refused to have sex with him, he beat her and forced himself inside the victim. (N.T. March 15, 1985, pp. 159, 160.)
Appellant argues that since there was no direct evidence of sexual intercourse with the victim, the alleged admissions of the appellant were inadmissible under the rule that a criminal conviction may not be based on the extra-judicial admission of the accused unless corroborated by independent evidence establishing the corpus delicti. Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974). The appellant is correct that a case may not go to a jury merely on the out-of-court confession of the accused where there is no independent evidence of a crime. That, however, is not the case here.
Before introducing an extra-judicial admission, the Commonwealth is not required to prove the existence of a crime beyond a reasonable doubt. Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980).
"The corpus delicti, like other facts, may be shown by circumstantial evidence; it is sufficient if these circumstances are consistent with crime even though they are also consistent with suicide or accident; if it were otherwise it would be impossible in many cases, where there were no eye witnesses, to convict a criminal: [citing cases]." (Emphasis in original.)
Commonwealth v. Boykin, 450 Pa. 25, 29, 298 A.2d 258, 261 (1982).
Officer Pozza testified that when he found the victim she was lying on her back with her clothes in complete disarray. Her pants and panties were down around her ankles and her blouse was lifted up. Her breasts and private parts were exposed. Officer Petronachak, who was with Officer Pozza, gave a similar description of the victim.
Dr. Thomas DiSilvio, the pathologist who performed the autopsy on the victim testified that she had been assaulted in a sexual way. He stated that the bite marks on the victim's breasts, stomach, thighs and pubic area were indicative of a sexual attack. Further, there were tears in the front entrance and back entrance of the victim's vagina. Also there was bruising around the tears which were caused by a hard, blunt object the size and shape of a man's erect penis. Dr. DiSilvio testified that the tears in the victim's vagina were of the kind and nature associated with rape. Additionally, Florence Healey, who was on the scene at the time, testified that when she went into the woods she observed the appellant on his hands and knees, naked from the waist down. He was kneeling right at the spot where the victim was found minutes later.
We conclude there was sufficient independent evidence of rape to admit the incriminating out of court statements of the appellant. Those statements along with the evidence of record recited above were sufficient to sustain appellant's conviction of rape.
The appellant next argues generally that the verdict of murder of the first degree is against the weight of the
evidence notwithstanding the sufficiency of the evidence. The appellant argues that the testimony offered by the Commonwealth that appellant was not intoxicated to such a degree so as to affect his ability to form a specific intent to kill is not supported by the entire record when we look at appellant's conduct at the crime scene and after his arrest and removal. We find that the appellant's argument is without merit.
As the Commonwealth points out in its brief, several police officers testified as to the appellant's conduct and behavior on the night of his arrest. Each of them gave evidence that the appellant was alert and able to understand and follow instructions. When the appellant was asked a question he responded with an appropriate answer. He recognized some of the officers at the scene and was fully aware of his surroundings. Except for his stumbling while climbing up a steep enbankment, the appellant otherwise was able to walk without difficulty. Chief James Phillips of the Jefferson Township Police Department testified that the appellant did not, "manifest anything that would render him intoxicated to a level that he was incapable of safe driving, or not being able to make a rational decision, or anything of that nature." (N.T. March 13, 1985, p. 212.) Further, there was testimony from the bartender at Phillips Manor and some of the patrons who were sitting near the appellant that the amount of alcohol appellant was served and drank was no more than 3 or 4 shots of whiskey and one or two beers.
The credibility of the witnesses is within the province of the jury.
"We have often stated that it is the function of the factfinder to pass upon the credibility of witnesses and the weight accorded to the evidence. The factfinder is free to believe all, part or none of the evidence." (Citations omitted.)
Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). Accord: Commonwealth v. Pitts, 486 Pa. 212, 404 A.2d 1305 (1979). The evidence in this case was clearly
sufficient to enable the jury to conclude that the appellant was not so intoxicated so as to affect his ability to form a specific intent to kill. We find no reason to disturb the jury's verdict.
The appellant argues generally that the trial court, in "death qualifying" the jury, erred by excluding for cause certain potential jurors who expressed reservations against imposing the death penalty. The appellant fails to specifically identify any of the potential jurors who, as he claims, were unlawfully excluded. Appellant argues that the "death qualifying" process resulted in the court empanelling an unfair and prosecution-prone jury. Citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the appellant contends that a potential juror may be excused for cause because of his or her views regarding capital punishment only if it is unmistakably clear that: (1) the juror would automatically vote against capital punishment without regard to the law and the evidence, or (2) the juror would be prevented from deciding the accused's guilt or innocence fairly and impartially. Appellant's brief, pp. 14-15.
We disagree with appellant's assertion regarding applicable law. In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) the U.S. Supreme Court clarified its decision in Witherspoon and held that the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment, "is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 424, 105 S.Ct. at 852, 852, 83 L.Ed.2d at 851, 852. Further, the U.S. Supreme Court has held that: "[T]he "Constitution does not prohibit the states from 'death qualifying' jurors in capital cases." Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1764, 90 L.Ed.2d 137, 147 (1986). We have held that the Pennsylvania Constitution extends no greater rights to an accused in capital cases in this regard than is
required by the Federal Constitution. Commonwealth v. Sneed, 514 Pa. ...