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Commonwealth v. Ogrod12/30/2003
he mistrial fails because the underlying claim lacks arguable merit. Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).
Sufficiency of the Evidence
"As in all cases in which the death penalty has been imposed, this court is required to conduct an independent review of the sufficiency of the evidence even where, as here, the defendant has not specifically challenged the conviction on that ground. 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 the elements of the offense(s) beyond a reasonable doubt." Commonwealth v. Jones, 683 A.2d 1181, 1186-1187 (Pa. 1996) (citations omitted).
The jury found Appellant guilty of attempted involuntary deviate sexual intercourse and murder. The Crimes Code defines these terms. We begin by defining the word "attempt." The statute provides that " person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901. "A person commits a felony of the first degree when he or she engages in deviate sexual intercourse with a complainant: (1) by forcible compulsion; . . . or (6) who is less than 13 years of age." 18 Pa.C.S. § 3123(a). Deviate sexual intercourse includes forcing someone to have oral sex. 18 Pa.C.S. § 3101; Commonwealth v. Perrin, 398 A.2d 1007 (Pa. 1979). Appellant confessed his crimes to police and to a fellow inmate. He admitted to his fellow inmate that he had stalked Barbara Jean before and wanted to molest and kill her. Further, Appellant said that he attempted to make her have oral sex with him but she became frantic so he grabbed and struck her and then tried to have vaginal sex with her but she was too small. N.T. 10/4/96 at 11-22.
Appellant told police that he rubbed his penis against the leg of Barbara Jean and tried to force her head down to his penis so to have oral sex with her. Given the confessions of Appellant, it was reasonable for the jury to have believed that Appellant intended to force Barbara Jean to have oral and vaginal sex with him and that he took actions "which constitute a substantial step toward " that goal. 18 Pa.C.S. § 901. Consequently, we hold that there was sufficient evidence for the attempted involuntary deviate sexual intercourse conviction.
We now turn to the murder conviction and whether there was sufficient evidence to support it.
The elements of first-degree murder are that the defendant unlawfully killed a human being, the defendant killed with malice aforethought, and the killing was willful, deliberate, and premeditated. The willful, deliberate, and premeditated intent to kill is the element that distinguishes first-degree murder from other degrees of murder. The Commonwealth may prove this specific intent to kill by circumstantial evidence. The use of a deadly weapon on a vital part of the victim's body may constitute circumstantial evidence of a specific intent to kill. Commonwealth v. Wesley, 753 A.2d 204, 208 (Pa. 2000) (quotations and citations omitted).
The evidence was sufficient for a jury to believe that the killing was premeditated, willful, and deliberate. Appellant admitted that he planned to sexually assault and kill Barbara Jean, to frame Mr. Fahy and have a relationship with Mrs. Fahy. Appellant admitted that when Barbara Jean began to scream, he looked for the electrical cord, which he had planned to use to kill her. However, when he could not find it, he struck her repeatedly with a metal bar and disposed of her body. Med
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