Commonwealth v. Fiebiger
Commonwealth v. Fiebiger
Concurring Opinion
CONCURRING OPINION
I join the majority opinion, save for the finding of sufficient evidence of vaginal penetration of the victim by Appellant to
Nevertheless, the jury was charged that it was not required, for purposes of the in-the-perpetration-of-a-felony aggravator, to conclude that Appellant had personally committed the underlying felony. See N.T., Feb. 24 — Mar. 1, 1999, at 460. Such instruction was consistent with precedent, as this Court previously has held that evidence that a defendant was an accomplice in the rape of a murder ¡victim was sufficient to support a jury’s finding of the Section 9711(d)(6) aggravating circumstance. See Commonwealth v. Lee, 541 Pa. 260, 281-82, 662 A.2d 645, 656 (1995).
. The present situation is distinguishable from that in which the defendant bears only accomplice liability for the killing itself; in the latter case, this Court has deemed the Section 9711(d)(6) aggravator inapplicable. See Commonwealth v. Lassiter, 554 Pa. 586, 593-94, 722 A.2d 657, 661-62 (1998) (holding that the language of Section 9711(d)(6) requires a defendant to have performed the murder himself). Here, as in Lee, the evidence established that the relevant defendant participated in the actual killing. See N.T., Feb. 24 — Mar. 1, 1999, at 194-96, 225-27. Further, sua sponte review of the correctness of Lee is outside the scope of our limited mandate in this case.
Opinion of the Court
OPINION
These are direct appeals
On May 18, 2001, the Allegheny County Court of Common Pleas held a colloquy where Appellant was extensively questioned. The common pleas court determined that Appellant was making a knowing, voluntary, and intelligent waiver of his right to appeal and right to have the assistance of counsel to represent him. See N.T. 5/18/2001 at 33.
Despite Appellant’s waiver of his right to appeal and his right to appellate counsel, this Court is obligated to determine whether the sentence of death was the product of passion, prejudice, or any other arbitrary factor. See 42 Pa.C.S. § 9711(h)(3)(i). In order to fulfill this mandate, this Court will examine the sufficiency of the evidence presented against Appellant, as this Court does in all cases where a sentence of death has been imposed. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982); see also Commonwealth v. Michael, 544 Pa. 105, 674 A.2d 1044 (1996)(holding that even where Appellant expressed a desire to have his death sentence affirmed, this Court is required in all cases in which the death penalty has been imposed to conduct an independent review of the sufficiency of the evidence). The purpose of such review by this Court is to ensure that the sentence comports with the Commonwealth’s death penalty statute. See Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991)(citing Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1989)). Having fulfilled these duties, as detailed below, we now affirm the convictions and judgments of sentence of the Allegheny Common Pleas Court.
This Court must determine whether the evidence was sufficient to establish that the fact finder could have
In order to sustain a verdict of first-degree murder, the Commonwealth must prove that a human being was unlawfully killed, that the defendant did the killing, that the killing was willful, deliberate, premeditated, and that the defendant acted with the specific intent to kill. See id.; see also 18 Pa.C.S. §§ 2501-2502(a).
No. 300 CAP
At trial, the Commonwealth presented evidence that a body was found in Grandview Park, in the Mount Washington neighborhood of Pittsburgh on May 22, 1982. See N.T. at 121. The body was discovered in a shallow, partially covered grave. See id.
The Commonwealth presented the video taped testimony of Dr. Leon Rozin, who performed an autopsy on the victim in 1982. See id. at 128, and also, Testimony of Leon Rozin, M.D., 2/4/1999. Dr. Rozin testified that the victim was strangled and stabbed in the neck. See Testimony of Leon Rozin, M.D., 2/4/1999 at 11-13. The ligature marks on the victim’s throat were consistent with a belt found near the body. See id. The victim also suffered injuries to her genitalia which were consistent with having been caused by a stick or tree branch. See id. at 20. The autopsy also revealed that the victim had consumed approximately seven or eight alcoholic drinks on the night of her death. See id. at 27.
City of Pittsburgh Police Detective Dennis Logan interviewed Appellant on May 28, 1998. After Appellant was given Miranda warnings, Appellant gave a statement in which he admitted to his participation in the murder of Marcia Jones, the victim. Appellant and his friend, Joe Morton, decided that they wanted to go to Grandview Park to molest and rape
After our independent review of the evidence presented at trial, including the above, when viewed in the light most favorable to the Commonwealth, we find that there was sufficient evidence for the jury to find Appellant guilty of the first-degree murder of Marcia Jones.
This Court is also obligated to determine whether the evidence supports the finding of at least one aggravating circumstance from those enumerated at 42 Pa.C.S. § 9711(d). See 42 Pa.C.S. § 9711 (h)(3)(ii). The jury in this case found
No. 281 CAP
In a separate proceeding, Appellant pleaded guilty to the first-degree murder of another victim, Norma Parker. On June 24, 1999, Appellant was colloquied by the trial court, and the court determined Appellant was making a knowing, voluntary, and intelligent plea of guilty. During the colloquy, the court questioned Appellant regarding his understanding of the elements of first-degree murder and his understanding that a guilty plea to first-degree murder might result in a sentence of death, or at least a mandatory sentence of life imprisonment. The court questioned Appellant regarding his understanding of his right to a trial before a jury, and the court questioned Appellant’s understanding of how a jury would be chosen. The court admitted to the record a ten page written colloquy containing 64 questions that relate to Appellant’s constitutional rights and his understanding of the proceedings.
The Commonwealth summarized the evidence that it would have produced, had the matter gone to trial. The Common
The following exchange then occurred between the trial court and Appellant:
THE COURT: Why are you pleading guilty to murder in the first degree?
THE DEFENDANT: Because of the instructions that you gave me. That was my intention.
THE COURT: More specifically, what are you referring to?
THE DEFENDANT: Because that’s the crime that I committed.
N.T. at 21. The court then accepted Appellant’s guilty plea as having been knowing, voluntary, and intelligent.
At the sentencing hearing, the Commonwealth presented arguments and evidence for three aggravating circumstances, 42 Pa.C.S. §§ (d)(9),(d)(10), and (d)(ll). All three of the circumstances have their roots in Appellant’s previous criminal history: that Appellant had a significant history of previous felony convictions involving the use of force, that Appellant had previously been convicted of an offense which resulted in a sentence of life imprisonment or death, and that the Appellant had been convicted of another murder committed before the offense at issue. The Commonwealth presented the court papers regarding Appellant’s trial, conviction, and sentence for the murder of Marsha Jones, as previously described in this consolidated opinion. Additionally, the Commonwealth presented court papers that indicated that Appellant had been convicted of an aggravated assault that was committed on or about May 12, 1986. See N.T. at 27. Appellant presented evidence under the catchall mitigating circumstance, 42 Pa.C.S. § 9711(e)(8), regarding his good character and that the court should take into consideration his confession, which came at a time when, it was argued by Appellant, he may not have been a suspect in the investigation of the victim’s disappearance.
As Appellant’s guilty plea was entered knowingly, intelligently, and voluntarily, with Appellant acknowledging that he committed each element of first-degree murder, we do not find that the conviction was the product of passion, prejudice, or any other arbitrary factor and therefore affirm the conviction. See 42 Pa.C.S. § 9711 (h)(3)(i). As the evidence of record demonstrates that Appellant had previously been convicted of first-degree murder and sentenced to death, as well as a separate conviction for aggravated assault, there is ample evidence to support the trial court’s finding of each of the aggravating factors that it found in this case. Thus, we do not find that the sentence was the product of prejudice, passion, or any other arbitrary factor. Also, we find that the evidence supports the finding of at least one aggravating circumstance. Therefore we affirm the sentence of death. See 42 Pa.C.S. §§ 9711(h)(3)® and (ii).
The Prothonotary is directed to transmit a full and complete record of these proceedings to the Governor, pursuant to 42 Pa.C.S. § 9711®.
. All appeals in cases where the death penalty has been imposed are reviewed directly by this Court. See 42 Pa.C.S. § 9711(h)(1).
. The jury also found one mitigating circumstance, under 42 Pa.C.S. § 9711(e)(8)(Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.). On the jury verdict slip, the jury noted "confession” in addition to the paragraph number assigned to Section 9711(e)(8) by the trial court on the verdict slip, in the appropriate place on the slip to indicate the mitigating circumstance found. The jury found that the unanimously found aggravating circumstances outweighed the mitigating circumstance.
. Rape is defined by 18 Pa.C.S. § 3121, which states:
(a) Offense defined. — A person commits a felony of the first degree when he or she engages in sexual intercourse with a complainant:
(1) By forcible compulsion.
(2) By threat of forcible compulsion that would prevent resistance by a person of reasonable resolution.
(3) Who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring.
(4) Where the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of complainant, drugs, intoxicants or other means for the purpose of preventing resistance.
(5) Who suffers from a mental disability which renders the complainant incapable of consent.
(6) Who is less than 13 years of age.
18 Pa.C.S. § 3121.
. Appellant’s statement indicated that he attempted to have intercourse with the victim but was physically unable to continue with this act.
. We have previously noted that it is the intent to kill a potential witness, fully formed prior to the event, which provides the animus upon which this particular aggravating circumstance rests, as long as that intention is established by direct evidence. See Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1988).
. Where a guilty plea has been entered, a jury will be impaneled and the sentencing proceedings will proceed before the juiy unless waived by the defendant with the consent of the Commonwealth. In such instance, the trial judge hears the evidence and determines the penalty in the same manner as a jury would under 42 Pa.C.S. § 9711(a). See 42 Pa.C.S. § 9711(b).
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellee, v. Anthony James FIEBIGER, Appellant
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- 8 cases
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- Published