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Commonwealth v. Galvin

December 28, 2009


Appeal from the Judgment of Sentence entered on September 6, 2007 in the Court of Common Pleas, Berks County, Criminal Division, at No. CP-06-CR-: 0002572-2006.

The opinion of the court was delivered by: Madame Justice Todd


SUBMITTED: October 6, 2008


Bryan Sean Galvin appeals the judgment of sentence of death imposed by the Court of Common Pleas of Berks County on September 6, 2007, following a jury trial. The jury convicted Appellant of first-degree murder,*fn1 abuse of a corpse,*fn2 tampering with or fabricating physical evidence,*fn3 theft by unlawful taking or disposition,*fn4 receiving stolen property,*fn5 and unauthorized use of automobile and other vehicles.*fn6 Additionally, the trial court found Appellant guilty of the summary offenses of driving without lights to avoid identification or arrest*fn7 and periods for requiring lighted lamps.*fn8 For the reasons offered below, we find the issues raised by Appellant are without merit. Thus, we affirm the convictions and judgment of sentence.

The evidence of record establishes the following facts. At approximately 3:00 a.m. on January 31, 2006, Officer Nicholas Hine, Sr. of the Cumru Township Police Department, on patrol in the Borough of Kenhorst, Berks County, Pennsylvania,*fn9 observed a maroon 1988 Ford Aerostar van travelling on New Holland Road. The van was heading toward Nolde Forest, a wooded public park and operating without its headlights illuminated. Based upon this violation of the Motor Vehicle Code, Officer Hine activated his overhead lights in an attempt to stop the van. The van made numerous evasive turns through the streets and alleyways of Kenhorst before ultimately coming to a stop.

An individual, later identified through his driver's license as Appellant, exited the van, and walked toward Officer Hine's patrol car. After being ordered twice to return to his vehicle, Appellant returned to the van. Officer Hine radioed for assistance. While waiting for the backup officers to arrive, Officer Hine observed through the window of the van what appeared to be a human leg with a peace sign tattooed on the skin, with a white sneaker on the foot. After observing this body, Officer Hine instructed Appellant, through the P.A. system of his patrol car, for Appellant to turn off the engine of the van and throw the key out of the window with his left hand. The key was on a ring with a "Jello" key fob. Officer Hine also noticed that a piece of plastic was broken off of the van's bumper. Shortly thereafter, Officer Hine was joined by Sergeant Scott Bechtel and Officer James Griffith.

As the officers approached the van, Sergeant Bechtel observed a large, approximately 400-pound white male, later determined to be Kristofer Kolesnik, lying in the back of the van. Kolesnik was wrapped in a large white sheet or tarp which was tied with yellow electrical cord. There appeared to be blood on Kolesnik's chest and on the sheet, and he did not appear to be breathing. After directing Appellant to exit the vehicle and lie on the ground, Officer Hine asked if there was anyone else in the van, to which Appellant responded, "just a dead guy," or "only the dead guy." N.T., 8/6/07, at 59, 106. Subsequently, EMS personnel who were summoned to the scene confirmed Kolesnik was not breathing and had no heartbeat, and determined that he was dead.

Also at this time, Officer Hine and Sergeant Bechtel observed a red gasoline can placed on the front passenger seat, which was later determined to be full of gasoline. Additionally, Sergeant Bechtel saw a Motorola cellular telephone lying in the center console of the van. After Appellant was taken into custody, Sergeant Bechtel noticed blood on Appellant's pant leg, boot, wrist watch, and glasses. The officers transported Appellant to the Cumru Township Police Department. There, Appellant was placed in a holding cell and instructed not to wash his hands in the sink. Later, however, Appellant was observed by a surveillance camera, dunking his hands into the toilet bowel and rubbing them together.

Through Appellant's driver's license, the police were able to obtain the address of Appellant's residence  312 South 18th Street, Reading, Pennsylvania. Investigators were dispatched to Appellant's residence to search for pieces of broken bumper from the van, which had been impounded after the removal of the victim's body. Upon his arrival at Appellant's residence, Sergeant Guy Lehman of the Reading Police Department observed fresh blood leading from the sidewalk to the front door of the residence, and a wooden broom with blood on it, on the sidewalk. Based upon his observation of what he believed to be fresh blood spread across the front of the residence,*fn10 and his fear that there may have been other victims inside the residence who may require medical attention, Sergeant Lehman called for assistance and determined that it was prudent to conduct a security check of the residence.

Thereafter, Criminal Investigators William Strickler and Andrew Shearer arrived at Appellant's residence. Investigator Strickler knocked on the front door of the residence. Initially, there was no response. After knocking a second time, Investigator Strickler heard a faint muffled voice coming from inside the residence. Investigator Strickler pushed open the front door, and three officers entered the residence. The officers proceeded room-by-room in search of individuals in the apartment. The officers checked a living room, a kitchen, a rear bathroom, and a bedroom where they encountered William Galvin, Appellant's father, who was lying on a bed. Appellant's father was not injured or in need of medical care. The officers explained why they were in the apartment, gave him an opportunity to dress, and then escorted him from the apartment so that the security check could be completed.

Proceeding to the next room, which was later determined to be Appellant's bedroom, the officers observed a bullet shell casing and blood on the carpet. After assuring themselves there were no additional victims or persons requiring medical attention, the officers vacated the residence. Outside the residence, the officers found a piece of plastic bumper along the curb and sidewalk directly beneath a damaged porch post, which later was determined the match the damage to the van.

Investigator Shearer prepared a search warrant, and a magisterial district judge issued the warrant authorizing a search of the premises. Pursuant to the search of the residence, the officers recovered from Appellant's bedroom a rifle shell casing, a shell casing on a dresser, a discharged bullet projectile, an impact indentation on the wall directly above the bullet, yellow electrical wire (which later was determined to have been the source of the wire wrapped around Kolesnik's body), yellow wire cutters (which later were determined to have cut the wire used to secure the tarp around the victim's body), a pool of blood at the foot of the bed, a pool of blood on the mattress, and a larger pool of blood on the underside of the mattress. Additionally, the search uncovered a Brinks lock box, which was located underneath the bed in Appellant's bedroom. Subsequently, a district judge issued a second search warrant authorizing the seizure of the contents of the lock box, which we discuss below.

Dr. Samuel Land, a certified forensic pathologist, performed an autopsy of Kolesnik's body. The autopsy revealed that Kolesnik's death was a result of a gunshot wound to the head.*fn11 The autopsy also disclosed that a boot lace was wrapped around Kolesnik's left arm in a fashion associated with intravenous drug use. Injection sites on Kolesnik's arms were observed and toxicology reports revealed the presence of morphine, codeine, and alcohol in Kolesnik's body.

Finally, additional evidence adduced at trial established that, on January 27, 2006, at an A-Plus minimarket on Perkiomen Avenue in Reading, Appellant and Kolesnik engaged in a heated argument regarding $20.00 and a cellular telephone. Three days later, on January 30, 2006, Wendy Hess, the victim's girlfriend with whom he lived, picked up Kolesnik after he finished his shift with the Reading Metro Taxi Company. The two returned to their home in Reading. After eating a meal, Hess and Kolesnik went to bed. When Hess awoke at 1:45 p.m., Kolesnik was gone and had evidently taken Hess' maroon van with him. In the interim, at approximately 12:15 p.m., Kolesnik went to the A-Plus minimarket on Perkiomen Avenue where he was confronted by Appellant regarding the return of a cellular telephone.

Appellant was tried before a jury, commencing August 6, 2007. The jury found Appellant guilty of the above-stated crimes, including first-degree murder. On August 13, 2007, the jury found the aggravating circumstance that Appellant had a significant history of felony convictions involving the use or threat of violence to the person. 42 Pa.C.S.A. § 9711(d)(9). The jury also found as a mitigating circumstance that Appellant committed three of his prior felonies when he was a juvenile. See 42 Pa.C.S.A. § 9711(e)(8). The jury concluded that the aggravating circumstance outweighed the mitigating circumstance and rendered a verdict of death. On September 6, 2007, the trial court formally sentenced Appellant to death and a consecutive, aggregate sentence of no less than 5 nor more than 11 years' imprisonment for the convictions for abuse of a corpse, tampering with evidence, and theft by unlawful taking. The trial court imposed no further sentence on the remaining crimes. On September 27, 2007, Appellant filed a notice of appeal, and, on March 13, 2008, the trial court rendered its 1925(a) opinion, denying Appellant relief. This appeal followed.*fn12

I. Sufficiency of the Evidence*fn13

It is our Court's practice to review the sufficiency of the evidence for first-degree murder in all direct appeals from the imposition of capital punishment irrespective of whether the appellant mounts a sufficiency challenge. Commonwealth v. Champney, 574 Pa. 435, 442, 832 A.2d 403, 407 (2003); Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n.3, 454 A.2d 937, 942 n.3 (1982). In the appeal sub judice, Appellant claims that his conviction for first-degree murder, as well as his convictions for theft by unlawful taking, and receiving stolen property, was not supported by sufficient evidence. In reviewing a claim regarding the sufficiency of the evidence, an appellate court must determine whether the evidence was sufficient to allow the fact finder to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. LaCava, 542 Pa. 160, 171, 666 A.2d 221, 226 (1995). In doing so, a reviewing court views all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. Id. Furthermore, in applying this standard, the Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032 (2007). When performing its review, an appellate court should evaluate the entire record and all evidence received is to be considered, whether or not the trial court's rulings thereon were correct. Additionally, we note that the trier of fact, while passing on the credibility of witnesses and the weight of the evidence, is free to believe all, part, or none of the evidence. Id. at 217, 928 A.2d at 1032-33. With these tenets in mind, we turn to Appellant's arguments concerning the sufficiency of the evidence.

A. First-Degree Murder

First, Appellant claims that the evidence was insufficient to support his conviction for murder in the first degree. Specifically, Appellant offers that there is no evidence to establish either that he killed Kolesnik or that he had the specific intent to kill. No testimony placed him at his residence when Kolesnik was shot, and similarly, no evidence established that Appellant owned a gun or fired a gun as there was no residue found on his clothing or person. Moreover, evidence suggested that Kolesnik had a long history of heroin addiction and that he was despondent over his inability to be free from this addiction. Appellant avers that Dr. Land, who testified on behalf of the Commonwealth, could not tell from the observation of Kolesnik's body whether or not the gunshot wound was self-inflicted.

According to Appellant, while Kolesnik's DNA was found on Appellant's watch, this was consistent with Appellant moving the body, but not that he was present when Kolesnik died. Thus, Appellant complains that the evidence was insufficient to uphold the conviction for first-degree murder.

The Commonwealth responds that its theory of the murder was that Appellant, upset over circumstances surrounding his brother's incarceration,*fn14 shot Kolesnik in the head while Kolesnik was in the process of injecting heroin in Appellant's bedroom. Appellant then loaded Kolesnik's body into the van, intending to destroy both the body and the vehicle. Conversely, Appellant's theory was that Kolesnik shot himself in the head after attempting to commit suicide by overdosing. When viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, the Commonwealth maintains that there was sufficient evidence for the jury to conclude that Appellant killed Kolesnik and that Appellant did so with specific intent.

To prove murder of the first-degree, the Commonwealth must establish that: (1) a human being was unlawfully killed; (2) the person accused is responsible for the killing; and (3) the accused acted with malice and a specific intent to kill. 18 Pa.C.S.A. §§ 2501, 2502(d); Commonwealth v. Kennedy, 598 Pa. 621, 629, 959 A.2d 916, 921 (2008). "Intentional killing" is defined as including killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate, and premeditated killing. 18 Pa.C.S.A. § 2502(d). The specific intent essential to support a first-degree murder conviction may be shown by use of a deadly weapon upon a vital part of the victim's body. Commonwealth v. Rivera, 565 Pa. 289, 295, 773 A.2d 131, 135 (2001).

Upon review, we believe that the evidence adduced at trial, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to sustain the jury's verdict of first-degree murder. The evidence supports a finding that a human being was unlawfully killed, as the victim, Kolesnik, died from a gunshot wound to the head. Evidence further supports a finding that the person accused, Appellant, was responsible for the death of the victim and that Appellant acted with malice and specific intent to kill.

Specifically, the evidence established that 15 hours before Kolesnik's body was found in the back of Hess' van, Appellant and Kolesnik were together at an A-Plus minimarket. Kolesnik was to go to Appellant's house later that day to return a cellular telephone, a source of controversy between the men, and which sparked an argument` between Kolesnik and Appellant a few days earlier at the same store. The evidence places Kolesnik at Appellant's residence where DNA analysis matches Kolesnik's DNA with that of blood on Appellant's mattress and a bullet. A trail of blood led from Appellant's residence to the curb. Appellant was stopped while driving a van, operating without the use of headlights, and while heading towards Nolde Forest, a secluded wooded park. When asked by police if anyone else was in the vehicle, Appellant responded, "just a dead guy" or "only the dead guy." In the cargo area of the van was Kolesnik's body and on the front passenger seat was a container full of gasoline. Kolesnik's body was wrapped in a blood-soaked covering, bound with electrical wire, which matched wire recovered from Appellant's room. Also, located in the vehicle was a cellular telephone belonging to Appellant's brother. Appellant was observed with blood on his pants, watch, and glasses. The blood on Appellant's watch matched Kolesnik's DNA. After being arrested, Appellant was instructed not to wash his hands, yet, Appellant attempted to wash his hands in a toilet bowl in his holding cell. Finally, Commonwealth witness, Dr. Land, an expert in forensic pathology, believed that the circumstances surrounding Kolesnik's death, combined with the crime scene evidence, strongly suggested a homicide. Dr. Land pointed to the fact that Kolesnik had a ligature still tied around his left arm, consistent with present drug use. As Dr. Land opined, because Kolesnik was right-handed, he would have had to have been shooting drugs into his left arm, yet, the entrance wound was in the left side of Kolesnik's head. This evidence, coupled with an attempt to hide the murder and the lack of notice to the police of a suicide, all pointed away from suicide and toward a finding of a homicide. Based upon this evidence, we hold that the evidence supports the jury's conviction of first-degree murder.

B. Theft By Unlawful Taking

Additionally, Appellant contends that the evidence was insufficient to establish theft by unlawful taking. While Appellant acknowledges that he was stopped operating Hess' van and was operating the van with a key attached to Hess' Jello key fob, according to Appellant, it could be inferred that Kolesnik had permission to use Hess' van, because Kolesnik and Hess lived together and were boyfriend and girlfriend. Moreover, evidence existed that Kolesnik and Appellant were friends. Appellant maintains that the Commonwealth did not present evidence that he did not have permission from Kolesnik to use the van or that he intended to deprive Hess of the van. Thus, as the evidence fails to establish that he intended to deprive Hess of her van, Appellant claims that the evidence does not support a conviction of theft by unlawful taking.

The Commonwealth points to Hess' testimony that the van belonged to her, that there was only one key to the van, and that the van key was on her Jello key chain. Moreover, Hess testified that she did not give her key ring to Appellant or give him permission to operate the vehicle. Furthermore, the Commonwealth submits that circumstantial evidence supported the Commonwealth's theory, accepted by the jury it contends, that Appellant killed Kolesnik and placed his body into the van with the intent to dispose of both the body and the van. Supporting this view, the Commonwealth notes that a full gasoline container was found on the front passenger seat of the van, and Hess testified that the gasoline container was previously empty in the cargo area of the van and was filled only if the van ran out of gas.

The trial court found the evidence sufficient to establish Appellant's conviction for theft by unlawful taking. Citing to the evidence offered by the Commonwealth above, the trial court concluded that there was sufficient evidence from which the jury could have concluded that Appellant possessed the requisite intent to deprive Hess of her van.

To uphold a conviction for theft by unlawful taking, the Commonwealth must establish the accused "unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof." 18 Pa.C.S.A. § 3921(a). We find that the evidence was sufficient to establish a theft by unlawful taking. Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, with all reasonable inferences drawn there from, and as set forth by the Commonwealth and the trial court, Appellant was found operating Hess' van, using the only keys to the vehicle, without Hess' permission. Appellant was driving the van towards a secluded wooded area, Nolde Forest, in the early morning hours without its headlights illuminated. In the cargo area of the van was the body of Hess' live-in boyfriend, and in the front passenger seat of the van was a container filled with gasoline. Based upon the evidence of record, as properly considered, we conclude that there was sufficient evidence to establish that Appellant exercised unlawful control over Hess' van with the intent to deprive her thereof. Thus, Appellant's claim fails.

C. Receiving Stolen Property

Finally, Appellant complains that the evidence was insufficient to establish his conviction for receiving stolen property. Appellant points to the short time period from when the van was last seen by Hess and when the police stopped him while operating the van. He also highlights evidence that Appellant and Kolesnik were friends and ...

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