IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

TRIAL DIVISION - CRIMINAL SECTION
 
 

COMMONWEALTH OF PENNSYLVANIA
                                                                                          FEBRUARY TERM, 1994
V.

FREDERICK A. THOMAS                                               NOB. 0969 - 0992
 
 
 

                                                            OPINION

STOUT, J.
 

                                                   Procedural History

On February 27, 1995, following a jury trial presided over by this Court, the defendant, Frederick Thomas, was convicted of murder in the first degree and possession of an instrument of crime.   A penalty phase hearing was held the next day and the jury, after deliberations found two aggravating circumstances and no mitigating circumstances and set the penalty at death. Formal sentencing was continued pending the receipt of presentence and mental health evaluations.  On November 30, 1995, the sentence of death was formally imposed on the murder bill and sentence was suspended on the weapons bill.

                                                  Summary of Facts

The evidence at trial established that on December 21, 1993, the victim, William Moyer, a driver for the Federal Express Co., was delivering a package in the area of 3058 North 9th Street in Philadelphia.  The defendant was observed by two local people, Willie Green and Charles Rowe, standing by the store at 9th and Clearf ield Streets in the vicinity of the Federal Express truck. The witnesses, who had known the defendant for several years, heard a bang and then saw the defendant run from behind the truck and down an alley while tucking something under his jacket.  when the two men walked over to the truck they observed William Moyer, lying in the street, mortally wounded, his legs moving spasmodically. Not wanting to get involved they left the area.  Police arriving on the scene discovered the lifeless body of the victim lying face up with a large bullet hole to the left cheek.   According to the medical examiner the gunshot wound had occurred at close range and went through the cheek into the base of the skull and entered the brain.  A large size bullet was removed from the brain.

Police, familiar with the area, began looking for the two witnesses  who  were  known  to  frequent  that  corner.    After interviewing the two men, an arrest warrant was issued for the defendant on December 23, 1993. Testimony was presented concerning police efforts to locate the defendant who surrendered to the police in the late evening hours of December 24, 1993.

The defendant testified and presented two alibi witnesses. Defendant verified that he had been at the scene but insisted he left the area an hour before the shooting occurred. He stated that he went to the home of Carl Fooks and Odell Reid and began drinkinq   The three continued drinking from an hour before the shooting until approximately four (4) hours after William Moyer was killed.  Fooks and. Reid testified that the defendant did not leave the apartment once he arrived until well after the killing.  The jury obviously rejected this testimony.
 

                                              Discussion of Law

In the context of a death penalty case the evidence must be reviewed to determine if it is sufficient to support the jury's verdict.  As stated by our Supreme Court of Pennsylvania:

In reviewing the sufficiency of the evidence, we must determine whether the evidence and all reasonable  inferences  deducible  therefrom, viewed in the light most favorable to the Commonwealth as verdict winner,  are sufficient to establish all of  the elements  of the offense   beyond a reasonable doubt.  Commonwealth V. Brown,   Pa.   , 676 A.2d 1178 (1996) citing Commonwealth V. Syre, 5.07 Pa.299, 489 A.2d 1340 (1985).

To prove murder in the first degree, the Commonwealth must show that a human being was unlawfully killed,  that the accused committed the killing, and that he did so in an intentional, deliberate,  and  premeditated  manner.   The  key  element distinguishing first degree murder from other degrees of criminal homicide is the willful, premeditated, and deliberate intent to kill.  Commonwealth V, Showers,   Pa. super.      A.2d  , 1996, W.L. 338809, at *2, citing Commonwealth V. Paolello, 542 Pa. 47, 665 A.2d 439 (1995).

The use of a deadly weapon on a vital part of the body is sufficient to establish the specific intent to kill necessary to sustain a first degree murder conviction.  Commonwealth V. Walker1 Pa.  , 656 A.2d 90 (1995), certiorari denied, 116 S.Ct. 156, 133 L.Ed.2d 100 (1995).  "If a deadly force is knowingly applied by the actor to the person of another, the intent to take life is as evident as if the actor stated the intent to kill at the time the force  was  applied."   Walker,  supra,  citing Commonwealth V. Meredith, 490 Pa. 303, 416 A.2d 481 (1980).

The defendant shot his victim, William Moyer, at close range in the face. The large size bullet, which was recovered from the victim's brain, went through the cheek into the base of the skull.   The victim died at the scene.  The jury's finding of a willful, deliberate and premeditated killing was supported by the evidence.

Likewise, the finding of aggravating circumstances was supported by the evidence beyond. a reasonable doubt.  The jury found the evidence at the penalty phase hearing established that:

[The defendant has a significant history of felony convictions involving the use or threat of violence to the person (42 Pa. C.S.A. § 9711(d)(9)) and the defendant has been convicted of voluntary manslaughter as defined in 18 Pa. C.g. 5 2503 (relating to voluntary manslaughter), or a substantially equivalent crime in any other jurisdiction, committed either before or at the time of the offense at issue (42 Pa. C.S.A. S 9711(d)(12)).

At the penalty phase hearing the Commonwealth offered evidence of defendant's prior convictions for aggravated robbery on Auqust  29,  1969,  burglary on April  18,  1974,  and Voluntary  manslaughter on June 23, 1983   This evidence was introduced by presenting the official court record for each of the cases.  "Since it is... solely within the province of the jury to determine
whether  (defendant's  three prior  convictions  for  aggravated robbery,  burglary  and  voluntary  manslaughter)  served  as a sufficient basis to conclude that he had a significant history of felony convictions," Commonwealth V. ~i1l,   Pa.   , 666 A.2d 642 I (1995), the aggravating circumstance was established.  Also, as stated in Commonwealth V. Brown, 538 Pa. 410, 648 A.2d 1177 (1994), " .  . a conviction of voluntary.. manslaughter satisfies the  aggravating circumstance of 42.Pa. C.S. S 9.711(d) (12).

Def endant objected to the admission of evidence of flight.  (See N.T. 2/22/95. at 87).  "It is a well-settled rule of law that if a person has reason to know he is wanted in connection with a
crime,  and proceeds to flee or conceal himself from the law  enforcement authorities, such evasive conduct is evidence of guilt and may form a basis, in connection with other proof ,from which
guilt may be inferred." (Cit. om.)  Commowealth v. Harvey, 514 Pa. 531, 526 A.2d 330 (1987).  Testimony was presented concerning efforts to locate the defendant following the crime.   Despite placing the defendant's identification on the teletype as a wanted person  and checking locations where defendant was known to frequent, the police were unable, to locate, him until he surrendered   in the late evening hours of December 24, 1993.  The admissibility of evidence is a matter within the sound discretion of the trial court,  which will not be disturbed absent an abuse of that discretion.  Commonwealth V. Carter, 443 Pa.  Super. 231, 661 A.2d 390 (1995) appeal denied, Pa. 675 A.2d,1242 (1996). Moreover, in charging the jury on. how they should; consider the evidence of flight, this Court stated:
 

I charge you now on flight as evidence of consciousness of guilt.  If. you, find that the defendant fled, you may infer from this flight a consciousness of guilt.

The law is that when a person commits a crime, knows that he is wanted, therefor and flees, such   conduct   is   evidence  of consciousness of guilt,  and may form the basis, in connection with other proof, from which guilt may be inferred.

You are not required to draw such an inference,  however.   The  inference  of consciousness of guilt does not arise from evidence of flight, unless the evidence shows that the defendant knew he was wanted for the crime.   However, circumstantial evidence may be used to show that the defendant knew that he was wanted at the time of the flight.

It is not necessary for the Commonwealth to prove that the defendant, who has fled, had actual knowledge that the police knew of his crime.  It is sufficient, under this doctrine, that the circumstances justify an inference that the accused's actions were motivated as a result of his belief that the officers were aware of his wrongdoing and were seeking him for that purpose.

You may not find the defendant guilty solely on the basis of evidence of flight. Flight is not limited to fleeing from the jurisdiction.   The term also includes the evading  of  the  course  of.  justice by voluntarily  withdrawing  one's  self  from regular haunts.  (.T. 2/24/95 at 72-74).

Thus, the evidence was properly admitted and the jury was properly instructed on how to consider the evidence.

Defendant argued that it was error for this Court to deny his request for a jury instruction on voluntary manslaughter.  At trial defendant testified and called witnesses to establish an alibi defense. There was no evidence presented which would support either an "unreasonable belief" or "heat of passion". voluntary manslaughter verdict.   As stated  by  the  Supreme Court of Pennsylvania in Commonwealth V.Browdie,   Pa., 671 A.2d 668 (1996), "instructions regarding matters which are not before the court or which are not supported by the evidence serve no purpose other than to confuse the jury.  (Browdie overruled Commonwealth v.Manning  477 Pa. 495, 384 A.2d.1197 (1978) and Commonwealth V. Jones, 457 Pa. 563, 319 A.2d 142 (1974), which allowed a heat of passion charge upon request even in the absence of evidence to support it.)  The court in Browdie, stated:

Today, consistent, with Carter, we hold that a trial court shall only instruct on an offense where the offense has been made an issue in the  case  and  where  the  trial  evidence reasonably would support  such  a  verdict. Therefore,  only  where  an  instruction  is requested and only if the evidence supports "heat of passion" voluntary manslaughter, is an instruction thereon required.    (Carter refers to commonwealth V. Carter, 502 Pa.3433, 466 A.2d 1328  (1983)  which held that the "Unreasonable belief" charge should only be given upon request and where evidence exists that would support such a verdict.)

This courts refusal to charge the jury on voluntary manslaughter was not error.  For the reasons stated, defendant's judgement of sentence was imposed.

BY THE COURT__________