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COMMONWEALTH PENNSYLVANIA v. DONALD MITCHELL TEDFORD (12/13/89)

decided: December 13, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
DONALD MITCHELL TEDFORD, APPELLANT



Appeal from the Judgment of Sentence and Order of the Court of Common Pleas of Butler County, Pennsylvania, Dated March 20, 1987, and April 29, 1988, at Criminal Action No. 241 of 1986.

COUNSEL

Peter H. Shaffer, Office of the Public Defender, Butler, for appellant.

David L. Cook, Dist. Atty., David A. Hepting, Robert F. Hawk, Asst. Dist. Attys., Butler, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.

Author: Larsen

[ 523 Pa. Page 309]

OPINION OF THE COURT

On February 6, 1987, the appellant, Donald Mitchell Tedford, was convicted by a jury of the First Degree Murder and Rape of Jeanine Revak. Following the guilty verdicts, 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. The appellant did not file timely post trial motions. On March 20, 1987, the lower court sentenced the appellant to death on the First Degree Murder conviction, and a consecutive term of imprisonment of 8 1/2 to 17 years on the Rape conviction.

[ 523 Pa. Page 310]

Subsequently, the appellant sought and received permission to file Post Verdict Motions, nunc pro tunc which he filed on April 27, 1987. The appellant amended his nunc pro tunc Post Verdict Motions on November 23, 1987, again on January 4, 1988 and still again on February 19, 1988. The lower court, in a Memorandum Opinion and Order dated April 29, 1988, denied appellant's Post Verdict Motions setting the stage for this automatic appeal pursuant to 42 Pa. C.S.A. § 9711(h)*fn1 which followed.

I.

The facts of this case are as follows: In the fall of 1985, the victim Jeanine Revak, a 22-year-old woman who had been married for eight months, was seeking to pursue a career in interior decorating. She had studied interior design at the Art Institute of Pittsburgh and was attempting to obtain full-time employment in that field. During that time she held two part-time jobs. She worked as a part-time floral designer at a flower shop known as By Janice Flower Shop. Also, she worked part-time as an interior designer for a company called Decoratif's.

In late October or early November, 1986, Jeanine Revak visited an interior design and decorating store in the Cranberry Shopping Plaza, Cranberry Township, Butler County, known as The Finishing Touch. The Finishing Touch store in Cranberry was a part of a two store interior decorating business owned by Robert Sasso. There, Jeanine Revak met the appellant Donald M. Tedford who was employed by Robert Sasso, and was in charge of the Cranberry Plaza store. At that time, the appellant was an inmate at the State Correctional Institution in Greensburg, Pennsylvania, but had achieved acceptance into a work release program which permitted him to leave the prison daily to work at his job at The Finishing Touch. The victim presented her

[ 523 Pa. Page 311]

    portfolio to the appellant and inquired about possible employment. The appellant interviewed the victim and examined the portfolio with her. Although the victim was not offered a position at that time, she apparently was encouraged by the appellant that a job may soon be available and that she should keep in touch with him.

On Friday, January 10, 1986, the victim was recovering from an illness which caused her to be absent from her two part-time positions all of the previous days of that week. Because of her illness, she was not scheduled to work at either of her jobs. When her husband, James Revak, left for work at 7:30 a.m. that morning, she told him that she intended to stay at home all day. During the day, from his job, James Revak telephoned home to talk to his wife but there was no answer. Also, Grace Labrise, who worked with the victim at By Janice Flower Shop attempted to reach the victim by telephone five or six times during that day. Ms. Labrise's first call was in the morning at approximately at 10:00 o'clock a.m. Her last call was placed sometime in the afternoon. Each time Grace Labrise called she did not get an answer. When James Revak returned home from work at approximately 5:30 p.m., the victim was not there. Her nightgown was on the bed and some of her clothes were strewn about on the upstairs floor. James Revak testified that it was very unusual to find his wife's clothes thrown about on the floor. Further, he found no note explaining her absence.

Meanwhile, at approximately noon on Friday, January 10, 1986, Gary Scheller, a truck driver for Bennett Supply Company, stopped at The Finishing Touch in Cranberry Plaza with a delivery of a container of glue. When he arrived he parked his truck and carried the product to the door. He attempted to enter the store through the front door but found that the door was locked. Just as he set the container on the ground, the appellant opened the door and let him in the store. Mr. Scheller saw a very attractive young lady in the store with the appellant. The appellant admitted that the attractive young lady in the store at the

[ 523 Pa. Page 312]

    time of the delivery was the victim Jeanine Revak. Mr. Scheller asked the appellant if the store was closed for lunch. The appellant answered that they, the young lady and he, were getting ready to go out on a service call.

Lynn Kampers, an employee of The Finishing Touch at the other location at Babcock Boulevard, Allegheny County, testified that she saw the appellant on the morning of January 10, 1986, when she brought his pet cat back to him at the Cranberry store. Because of a sensitive burglar alarm the cat could not be left alone in the store overnight. As a favor to the appellant, she had taken the cat home with her the previous evening. Lynn Kampers testified that, on that Friday morning, she noticed the appellant looked rather tired and smelled of alcohol. Later that day, at approximately 4:30 p.m., she spoke to the appellant on the telephone when he called the Babcock Boulevard store and asked for permission to close early. Appellant told Ms. Kampers it was a quiet day; that he was not busy at all. It is unclear from the record whether appellant was given permission to close early.

Elizabeth Manuel, a friend of the appellant Donald Tedford, telephoned the appellant at The Finishing Touch on Friday, January 10, 1986, after she arrived home from work. It was approximately 5:30 p.m. when she placed the call. She remembered, that the appellant answered the phone that day by just saying "hello." Every other time she had called him at the store he answered by saying "The Finishing Touch," even when the store was closed. She asked appellant if they were going to get together later that night. Appellant told her he was real busy, and he asked if he could call her later. Since she had to leave the house and run some errands, she called appellant again at about 6:00 p.m. Appellant said he was swamped with work and he would call her later. When Ms. Manuel left to go on her errands, she drove past The Finishing Touch. She noticed that the store was dark. She said that normally, the store is lit up at night, with spotlights on the displays. Appellant did call her twice later that evening and then

[ 523 Pa. Page 313]

    visited her house, arriving at about 9:30 p.m. He was wearing jeans, a ski sweater and boots. The appellant stayed until about 11:00 p.m. when he told Ms. Manuel he had to leave and go to the north side of Pittsburgh to meet a friend. He mentioned that he belonged to a Vietnam Veterans group and one of the persons in that group was in some trouble.*fn2 He asked if he could come back later. Ms. Manuel agreed to leave the door open for appellant and he did return at about 4:00 a.m. When he arrived back, Ms. Manuel was in bed. She did not notice what the appellant was wearing when he returned. The next morning, however, as he was leaving, she did notice that he was wearing shoes instead of the boots he was wearing the previous evening. Ms. Manuel identified the ski sweater offered in evidence as the sweater the appellant was wearing when he was at her home on Friday evening, January 10, 1986.

Linda McNamee, a friend of the appellant, testified that she stopped by The Finishing Touch on Friday, January 10, 1986, to pay a social call on Donald Tedford. It was approximately 5:30 p.m. when she arrived. She observed that the inside of the store was dark except for a light shining in the office toward the rear of the premises. Every other time that she had been to or had gone by The Finishing Touch after dark, the premises were well lit. On this particular evening, the premises were dark. She knocked on the door and stood outside for about three minutes. Just as she was preparing to leave, she noticed one of the buttons on the telephone begin to blink, indicating an incoming call. When the blinking stopped and the line remained lit, she knew that someone was in the store and had answered the phone. She knocked again and waited a while longer. The appellant, wearing jeans and a

[ 523 Pa. Page 314]

    ski sweater finally came to the door and, by means of hand signals, he told her that he could not let her in the store because the door was locked and he did not have the key. The appellant indicated that the owner of the store had been there earlier and had taken the key to the door with him when he departed. Ms. McNamee left and went home. Later, at about 7:00 p.m., she placed a phone call to The Finishing Touch. The appellant answered the phone. He explained again that he could not open the door and let her in when she was at the store earlier because the owner had taken the key. Contrary to appellant's explanation, the evidence established that Robert Sasso, the owner of the store, was not at The Finishing Touch premises in Cranberry at any time on Friday, January 10, 1986, and the appellant's story about the owner taking the key was a fabrication. Further, even if the front door was locked and he did not have the key, the store had a rear door with a panic bar which the appellant could have easily opened to allow Ms. McNamee to enter.

Later that evening, when the victim did not come home, James Revak attempted to locate her. He called the places where she was employed without success. At about 11:30 p.m. he called The Finishing Touch. The appellant, who identified himself as "Don," answered the phone. James Revak explained who he was and asked the appellant if he remembered his wife Jeanine. The appellant indicated that he did remember her; that she was a very talented girl; but, he had not seen her that day. On Saturday morning James Revak called the Cranberry Township Police and reported his wife Jeanine missing.

Raymond Eppinger, testified that he was employed at the Gulf service station next to the Shopping Plaza where The Finishing Touch is located. He began work at 10:00 p.m. on Friday, January 10, 1986. At approximately 1:00 a.m., one hour past midnight on Saturday, January 11, 1986, the appellant stopped at the Gulf service station in a dark color 280-Z automobile and bought a pack of Pall Mall cigarettes. He had a brief conversation with appellant about a truck

[ 523 Pa. Page 315]

    that was parked in the shopping plaza and then left. Other evidence established that the appellant did drive a dark color 280-Z and smoked Pall Mall cigarettes.

Alice Sloan worked at The Finishing Touch with the appellant. On Saturday morning January 11, 1986, her automobile was being repaired. Ms. Sloan, knowing that she would not have her automobile for transportation on Saturday morning, arranged to have the appellant drive her to work. Appellant, as arranged, picked up Ms. Sloan at her home in his green, 280-Z Datsun automobile. She remembers that appellant's vehicle was very clean, inside and outside, and she mentioned this to the appellant. The appellant told her that he had just cleaned his car.

At about 9:30 or 10:00 a.m. on Saturday morning, Mr. Revak, along with his father-in-law, went to The Finishing Touch. There they met the appellant, identified themselves, referred to the phone call the previous night, and inquired about the victim. The appellant reiterated that he had not seen her. The appellant asked for a telephone number where he could reach Mr. Revak in case he would happen to see the victim. James Revak wrote his unlisted telephone number (which was also the victim's number) on a piece of paper and left it with the appellant. Evidence showed that this request was unnecessary as appellant already had the victim's telephone number written on his desk blotter. Later, James Revak found the victim's automobile parked some distance away in the Pines Plaza Shopping Center, but no trace of the victim.

On Saturday, January 11, 1986, David Lijewski and his brother Harry were out hunting small game in State Games Lands in Washington County, Pennsylvania. (It was the last day of the extended small game season.) The weather that Saturday was rather pleasant for January. It was generally a nice day, with the temperature between the mid 30's and 40 degrees. At approximately 12:30 p.m., while walking along the shoulder of a single lane, rural, black top road, David Lijewski came across a young woman's body. The shoulder of the road consists of gravel and earth,

[ 523 Pa. Page 316]

    running over a slight embankment and turning into brush. According to David Lijewski, the body was lying about 6 or 7 feet off the shoulder of the road. The rigid state of the body and its discoloration led Mr. Lijewski to believe that she was dead. Neither he nor his brother touched or disturbed the body or the area around the body. The dead woman was wearing a red jacket, black slacks, and a white blouse. After making this grim discovery, David and Harry Lijewski gathered their hunting dogs and walked back to the car. David stayed at the car while Harry walked to the nearest house and called the police.

Edward S. Peters, a Pennsylvania State Police Criminalist Investigator arrived at the scene of the body at approximately 1:00 p.m. When he arrived, State Trooper George Titler, who had arrived a short time earlier, was photographing the scene. David and Harry Lijewski were also at the scene. The body of the victim was lying in the exact position that it was found. She had on a red jacket, a silk blouse, black slacks, one mesh stocking, gold earrings, gold necklace and wedding band. She was not wearing shoes. The missing stocking and missing shoes were never found. When the body was turned over it was discovered that her slacks were unfastened and the zipper was down. When the investigator checked under her blouse he found that her bra was pushed up over her breasts. The slacks and jacket were relatively clean except for the presence of some foreign items which were identified as blood, weeds, and thin, fiber type material. The body was examined at the scene, placed in a plastic body bag and transported to the Washington County Hospital Morgue where an autopsy was performed.

The Chief Deputy Coroner of Washington County, Ernest L. Abernathy, performed the autopsy and determined the cause of death to be ligature strangulation. A cord ligature, a rope-like structure, was placed around her neck and tightened very tightly until it produced death. An external examination of the body revealed that the victim had bruises on her left shin -- sort of an abrasion, scraping mark.

[ 523 Pa. Page 317]

There were bruises on her right leg. There was considerable reddish discoloration of the left hand. A laceration on the back of the head had produced a great deal of hemorrhage. A small depressed mark in the form of a little scratch or bruise was noted above the left eyebrow. The autopsy further revealed that the victim's lungs were completely collapsed in the chest cavity. The collapsed lungs indicated that air was cut off and totally blocked. There was sharp line on her larynx corresponding to the ligature mark on her neck. There were hemorrhages in the thyroid gland and some small hemorrhages in the conjunctiva of the eye. There was bloody fluid in her windpipe. Examination of the brain revealed a contrecoup wound. The coroner explained that this is a wound which occurs when someone is hit on one side of the head and the brain hits against the opposite side of the skull, so the damage is produced on the side opposite from the external impact. There was a heavy blow with hemorrhage on the right back of the head and hemorrhage over the brain mostly on the left front of the brain. The hemorrhage overlying most of the left front of the brain was quite extensive.

The body, when found, was sprawled and in an unnatural position. This suggested that the victim died elsewhere, and rigidity was complete when the body was dropped where it was found. The Deputy Coroner stated that since this was a violent death and the victim was a young woman with well developed muscles, that rigor mortis would come on quite quickly -- possibly within an hour or two.

The Commonwealth introduced into evidence the slip of paper which set forth the name "Jim Revak" and his unlisted telephone number. This was the paper given to the appellant by the victim's husband on Saturday morning, January 11, 1986 when the appellant asked him where he could be reached. Also introduced into evidence was an old calendar page taken from a blotter on a desk at The Finishing Touch with the victim's unlisted phone number written in the appellant's handwriting in the lower left hand corner. The victim's unlisted phone number was known to

[ 523 Pa. Page 318]

    the appellant before it was given to him by Mr. Revak that Saturday morning. (R. 111.)

From January 10, to January 12, 1986, the appellant had a furlough from prison. He was scheduled to be back in his cell at 9:00 p.m. on Monday, January 13, 1986. He did not report back at that time. His failure to return was reported immediately to the State Police. Since the appellant was employed in Cranberry Township, the State Police transmitted the report to the Cranberry Township Police Department that appellant was considered an escapee.

On Monday night, January 13, 1986, Elizabeth Manuel was interviewed by the state police at the Cranberry Police Station. After her interview, officer Jeff Widdowson of the Cranberry Township Police escorted Ms. Manuel home from the police station. When they arrived at her residence both of them noticed a white Ford automobile parked between Ms. Manuel's residence and the neighboring house. Officer Widdowson found the appellant asleep behind the wheel with the motor running. After radioing for assistance and waiting a reasonable time for help to arrive, Officer Widdowson arrested the appellant and took him into custody. The appellant was arrested on the basis of the state police advisory that he was a fugitive for failing to return to prison when his furlough ended.

Pursuant to a Search Warrant, authorities seized head hairs, public hairs, blood and saliva of the appellant. The pubic hair found on the victim's panties was consistent with the pubic hair of the appellant. Two stains on the victim's slacks were examined and found to contain seminal fluid. Tests of the vaginal area including vaginal swabs indicated the presence of sperm cells and seminal fluid. Tests involving blood groupings and genetic characteristics revealed that the seminal fluid could have been deposited by the appellant. Those same tests ruled out the possibility of the seminal fluid being deposited by her husband.

Additionally, appellant's ski sweater, removed from appellant's car pursuant to a search to which he consented was introduced into evidence. Red synthetic fibers removed

[ 523 Pa. Page 319]

    from the victim's blouse and red synthetic fibers removed from appellant's ski sweater were found to have the same microscopic characteristics. The ultimate source of those fibers could not be determined. Certain polyprophyrin fibers obtained from the victim's jacket and from carpet backing from The Finishing Touch were microscopically examined and it was determined that they matched. Certain vegetable fibers found on the victim's clothing were microscopically examined and compared with vegetable fibers taken from The Finishing Touch and it was determined that they were similar. The clothing of the victim was loaded with lint and was not in a condition that you would expect a person to wear. The victim's house and wardrobe were examined and it was determined that the fibers found on her clothing could not have come from her home or wardrobe. Pennsylvania State Police Criminalist Scott Ermlick testified that it is unusual to find three different types of foreign fibers on a victim's clothing. He testified that, contrary to popular belief, it is not very common to find a cross transfer of fibers and hairs.

Michael Ferry, a prisoner at the Armstrong County Jail testified that sometime after appellant's arrest, he met and got to know appellant while he and appellant were together in the Butler County Jail. (TT., p. 379.) He played cards with the appellant and helped him and others with legal questions and court papers. (TT., p. 380.) Michael Ferry testified that the appellant told him that the victim, Jeanine Revak, had come to The Finishing Touch seeking employment. The appellant said that he promised to give her a job. (TT., p. 380.) On the day in question, appellant said he phoned the victim and told her he was on the road working and he needed her help. (TT., p. 380.) If she wanted to work she was to come and meet him at a place that was away from the store. (TT., p. 380.) He did not meet her at The Finishing ...


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