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Commonwealth v. Vandivner

January 23, 2009


Appeal from the Judgment of Sentence of the Court of Common Pleas of Fayette County entered on February 12, 2007, at CP-26-CR-0001229-2004.

The opinion of the court was delivered by: Mr. Chief Justice Castille


SUBMITTED: September 13, 2007


This is appellant's direct appeal from the February 12, 2007 sentence of death imposed following his trial by jury before the Honorable Gerald R. Solomon of the Court of Common Pleas of Fayette County. The issues raised by appellant lack merit; therefore, we affirm the conviction and judgment of sentence.*fn1

Jessica Cable and her mother Michelle Cable lived at 100 East Second Street, Grindstone, Fayette County. On July 5, 2004, Jessica was baby-sitting at a neighbor's home. Between 8:30 and 9:00 p.m., Jessica saw appellant driving in the direction of her home and immediately ran home. When she arrived, she saw appellant get out of his vehicle and walk to the back porch of her home. As Jessica followed, appellant entered the home through the back door and, while walking through the home, encountered a family friend, Larry Newman, in the living room. Appellant asked Larry where Michelle was, and Larry pointed to the front door. Appellant then opened the door and walked onto the sun porch.

On the steps leading to the sun porch from the outside, appellant met Michelle and her son, Billy Cable. As appellant walked onto the porch, Billy told him, "Dude, get off my property." Notes of Testimony ("N.T."), 2/7/07, at 36. Appellant then pointed a gun at Michelle, at which point, Billy pounced on appellant in an attempt to wrestle the gun from his hand. Appellant managed to keep the gun and pointed it at Larry Newman's head. Larry's relative, Kenneth Newman, then rushed appellant, and the gun fired. Appellant, who still had the gun, walked quickly to Michelle and told her he was going to kill her. He grabbed her by the hair, shot her in the head, and, as she fell to the ground, stated, "There, you bitch, I said I was going to kill you." Id. at 39. Appellant smiled and walked away. A motorist who was passing by saw appellant grab Michelle by the hair and shoot her in the head.

Meanwhile, after unsuccessfully attempting to take the gun from appellant, Billy had gone inside the home to look for a weapon to protect his family. When he was unable to find a weapon, he left the home. As he stepped off the back porch, Billy saw appellant walking toward him with the gun in his hand. Appellant pointed the gun at Billy, who turned to run away. Appellant shot Billy in the neck and then left the scene. Police subsequently apprehended appellant in a field and recovered a Jennings J22 handgun. As appellant was being taken into an interview room at the Pennsylvania State Police barracks, he blurted out to Trooper James Monkelis, "This is a death penalty case and I don't want the needle, life for a life. Tell the DA I will plead guilty to life. I would have killed myself if I knew Michelle was dead." N.T., 2/8/07, at 255.

On July 8, 2004, Dr. Cyril Wecht performed an autopsy on Michelle and determined that the manner of death was homicide in that she "died as a result of anoxic and cephalopathy, diminution of oxygen to the brain tissue with degeneration, early necrosis, death of brain tissue, produced as a result of the gunshot wound to the head." Id. at 244. Dr. Wecht recovered the bullet from Michelle's brain and provided it to the State Police for analysis. Corporal David J. Burlingame, an expert in the field of firearm and toolmark examination determined that the bullet recovered from Michelle's brain was fired from the Jennings 22 handgun found in appellant's possession at the time of his apprehension.

Prior to trial, appellant filed a petition to bar the death penalty, alleging that he is mentally retarded and has significant limitations in adaptive skills. He argued that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), the execution of a mentally retarded person constitutes cruel and unusual punishment and requested a pretrial hearing to determine whether the death penalty should be barred in this instance. Judge Solomon held a four-day hearing on appellant's petition at which appellant presented the testimony of two expert witnesses and several lay witnesses, and the Commonwealth offered the testimony of a psychiatrist and an official of the Department of Transportation. Judge Solomon determined that appellant had failed to meet his burden of proving that his limitations, if any, began before he was 18 years of age, as required by the standards for determining mental retardation endorsed by this Court in Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005). Thus, based upon appellant's failure to establish this element, the court denied the petition.

A jury found appellant guilty of the first-degree murder of Michelle, criminal attempt to commit criminal homicide with respect to Billy and the aggravated assault of Larry Newman. At the penalty phase hearing, the Commonwealth presented evidence of two aggravating circumstances: (1) that, in the commission of the offenses appellant knowingly created a grave risk of death to another person in addition to the victim, 42 Pa.C.S. § 9711(d)(7); and (2) that appellant had a significant history of felony convictions involving the use or threat of violence, id. § 9711(d)(9). The jury found both aggravating circumstances and one mitigating circumstance related to appellant's character and the circumstances of his offense, id. § 9711(e)(8) (the "catchall" mitigator), and determined that the two aggravating circumstances outweighed the mitigating circumstance. Thus, the jury returned a sentence of death. On February 12, 2007, the trial court formally imposed the death sentence as well as a consecutive sentence of 20 to 40 years for the attempted homicide of Billy Cable and a sentence of 10 to 20 years to run consecutively to appellant's sentences for first-degree murder and attempted murder, for the aggravated assault of Larry Newman.

Appellant raises eight issues in this direct appeal, five related to the guilt phase and three involving his petition to bar the death penalty and the penalty phase.

I. Sufficiency and Weight of the Evidence

II. Jury Error in Finding Appellant Guilty of Murder

Appellant argues his first two issues together, related to the sufficiency and weight of the evidence and jury error in finding him guilty of first-degree murder. Because the two issues are set forth as sufficiency and weight claims, they will be addressed together as such.*fn2

Appellant claims that the evidence presented at trial was insufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. He contends that it is clear that the jury was confused and could not have found him guilty of first-degree murder based upon what he terms the speculative and unreliable evidence presented, which he claims was inconsistent and contradicted by the physical and testimonial evidence. He further argues that the evidence supports the proposition that he was intoxicated at the time of the crime. Appellant bases this argument on the testimony of his uncle, Donald VanDivner, who testified that he and appellant drank beer at a bar from approximately 11 a.m. until 4 p.m. on the day of the murder, and that of his brother, Albert VanDivner, who also testified to the imbibing, adding that the men began the day with an eight ball*fn3 of crack cocaine and that they occasionally left the bar to smoke the crack cocaine. Due to his alleged intoxication, appellant argues, the evidence was insufficient to convict him of first-degree murder because the use of intoxicants negates the specific intent required for a conviction.

In addition, appellant argues that he was incapable of forming the required specific intent due to his diminished capacity. He points to the testimony of a defense witness, psychologist Adam Sedlock, who stated that appellant's overall level of function is in the mild range of mental retardation and that he has organic functional problems with the frontal lobe of his brain, which controls his ability to think before he speaks or acts. Appellant argues that the Commonwealth did not refute his diminished capacity claim; therefore, he posits, the jury could not have found that he was capable of forming the requisite specific intent.

The Commonwealth responds that the evidence demonstrated that there were several eyewitnesses to the murder. Appellant shot one witness, Billy Cable in the neck, Jessica Cable watched as appellant shot her mother, appellant pointed his gun at the head of a third witness, Larry Newman, and a driver passing by on the street witnessed appellant shooting Michelle Cable in the head. The Commonwealth argues that the jury heard testimony that appellant had consumed alcohol and crack cocaine prior to the shooting but chose not to reduce the verdict, noting that the jury may disregard all, part or some of the evidence. Further, the Commonwealth claims that it established that appellant possessed specific intent to kill in that, while armed with a handgun, he grabbed Michelle by the hair and shot her in the head, thereby using a deadly weapon upon a vital part of the victim's body.

In its Opinion in Support of Jury Verdict and Sentence, the trial court found the evidence sufficient to support the first-degree murder conviction in that all of the elements of first-degree murder were met. According to the trial court, the evidence established that:

(1) two eyewitnesses, Jessica Cable and the driver passing by, testified that appellant approached Michelle, grabbed her by the hair and then shot her in the head with a handgun; (2) Dr. Wecht testified that Michelle died as a result of a gunshot wound to the head and that the manner of death was homicide; (3) the bullet recovered from Michelle's head was fired from the Jennings J22 handgun found in appellant's possession at the time he was apprehended; (4) just prior to shooting Michelle, appellant stated that he would kill her and then, after shooting her, he said, "there you bitch, I said I was going to kill you;" and (5) Dr. Wecht testified that the only gunshot wound Michelle suffered was to her head and that the head is a vital part of the body. The court found that the jury could infer specific intent from the use of a deadly weapon on a vital part of Michelle's body.

When reviewing a claim that the evidence was insufficient, we view the evidence in the light most favorable to the Commonwealth as the verdict winner to determine if the evidence and all reasonable inferences derived therefrom are sufficient to establish all elements of the offense beyond a reasonable doubt. Commonwealth v. Edwards, 903 A.2d 1139, 1146 (Pa. 2006), cert. denied, __ U.S. __, 127 S.Ct. 2030 (2007) (citing Commonwealth v. Bridges, 757 A.2d 859, 864 (Pa. 2000), cert. denied, 535 U.S. 1102 (2002)). To sustain a conviction for first-degree murder, the Commonwealth must prove that: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with specific intent to kill. 18 Pa.C.S. § 2502(d); Edwards, 903 A.2d at 1146. Specific intent may be inferred from the use of a deadly weapon on a vital part of the victim's body. Commonwealth v. Rivera, 773 A.2d 131, 135 (Pa. 2001), cert. denied, 535 U.S. 955 (2002).

The trial evidence overwhelmingly established that appellant killed Michelle Cable and it was amply sufficient to prove that he acted with a specific intent to kill. Four separate eyewitnesses to the murder testified that appellant shot Michelle in the head with a handgun. Upon apprehension, appellant himself freely admitted to police that he had killed Michelle. Dr. Wecht testified that Michelle's manner of death was homicide, caused by the gunshot wound to her head. Specific intent is also supported by the very fact that appellant went to Michelle's home with a loaded handgun, his contemporaneous statement that he had told Michelle he would kill her, and the fact that he promptly followed through on this threat. Finally, the jury properly could infer specific intent from appellant's use of a handgun upon Michelle's head.

Appellant nevertheless claims that his voluntary intoxication and/or diminished capacity negated specific intent. Whether a defendant has established that his "faculties and sensibilities were so overwhelmed with drugs so that he could not form the specific intent to kill is a question of fact solely within the province of the jury, who is free to believe any, all, or none of the testimony regarding intoxication." Commonwealth v. Fletcher, 861 A.2d 898, 908 (Pa. 2004), cert. denied, 547 U.S. 1041 (2006) (citing Commonwealth v. Stoyko, 475 A.2d 714, 720 (Pa. 1984), cert. denied, 469 U.S. 963 (1984)). Similarly, the defense of diminished capacity is a matter for a jury to believe or disbelieve as it sees fit. Commonwealth v. Terry, 521 A.2d 398, 412 (Pa. 1987), cert. denied, 482 U.S. 920 (1987) (overruled on other grounds by Commonwealth v. Frey, 554 A.2d 27 (Pa. 1989)). Thus, appellant's jury was not obligated to believe his claims of intoxication or diminished capacity, and apparently it did not do so.

The evidence presented as to the events leading to and the manner in which the murder of Michelle Cable occurred is not diminished by appellant's claims of voluntary intoxication or diminished capacity, at least for the purpose of sufficiency review. Indeed, appellant's own statement to police shortly after the murder that he killed Michelle and recognized that this case was a death penalty case corroborates his full awareness of what he had done. Accordingly, the evidence clearly was sufficient to support appellant's conviction for first-degree murder.

As to the weight of the evidence, appellant argues that the testimony the Commonwealth presented was inconsistent and contradicted by the physical evidence. He further alleges that the Commonwealth's evidence was of such a speculative and unreliable nature that there could be no reasonable inferences drawn from the evidence. In his intertwined arguments on weight and sufficiency, appellant points to the testimony of defense witnesses that he was intoxicated on the day of the murder and argues that the use of intoxicants negates the specific intent required for a first-degree murder conviction. Further, he contends that the evidence established his diminished capacity through the testimony of Adam Sedlock.

The Commonwealth counters that it is the province of the jury to determine the credibility of witnesses and the weight to be accorded to the evidence produced, and the jury is free to believe all, part of none of the evidence. See Commonwealth v. Tate, 401 A.2d 353 (Pa. 1979). The Commonwealth asserts that the fact that appellant introduced evidence of his intoxication and diminished capacity does not require the jury to credit the testimony. It is apparent from the verdict, the Commonwealth argues, that the jury did not believe appellant's defense testimony. Further, the Commonwealth states that appellant failed to elaborate on his claim that the Commonwealth's evidence was speculative and unreliable.

The trial court noted that the determination of whether a verdict is against the weight of the evidence lies within the discretion of the trial court and that a mere conflict in the testimony does not require a new trial. The court outlined the evidence establishing that several witnesses observed appellant shooting Michelle in the head and found that the conviction for first-degree murder was not against the weight of the evidence.

A verdict is against the weight of the evidence "only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Cousar, 928 A.2d 1025, 1036 (Pa. 2007). As the trial court noted, a weight of the evidence claim is addressed to the discretion of the trial judge. It is the province of the jury to assess the credibility of witnesses, and a trial judge will not grant a new trial merely because of a conflict in the testimony or because he would have reached a different conclusion on the same facts, if he had been the trier of fact. Commonwealth v. Blakeney, 946 A.2d at 652-53 (citing Edwards, 903 A.2d at 1148, and Armbruster v. Horowitz, 813 A.2d 698, 703 (Pa. 2002)). This Court's function on review is to determine whether, based upon a review of the record, the trial court abused its discretion rather than to consider the underlying question of weight of the evidence. Id.

Here, appellant has failed to fully develop this claim in terms of the governing law. He points to no specific conflicting testimony nor to any testimony that was speculative or unreliable. Rather, he merely sets forth the defense testimony of intoxication and diminished capacity. Our review of the record reveals that the trial court did not abuse its discretion in rejecting this claim. The testimony overwhelmingly established that appellant committed the killing, leaving it for the jury to determine the disputed question of whether he possessed the requisite specific intent for first-degree murder. As the Commonwealth argues, the jury was free to believe all, part or none of the defense testimony.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003), cert. denied, 542 U.S. 939 (2004). Apparently, the jury disbelieved the testimony from appellant's relatives regarding his alleged intoxication and the testimony of his psychologist that he suffers from diminished capacity, which is entirely within the jury's authority as the trier of fact. Or, even if the jury credited the defense testimony in whole or in part, it could still conclude that the objective circumstances, including appellant's statements and admissions, proved specific intent to kill. The trial court was in the best position to assess whether this was one of those rare circumstances where a verdict ...

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