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HomeMy WebLinkAbout99-1257 criminalCOMMONWEALTH OF :IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA :CUMBERLAND COUNTY, PENNSYLVANIA v. No. 99-1257 Wayne Franklin Rideout, Defendant CRIMINAL ACTION OPINION PURSUANT TO Pa. R.A.P. 1925 HOFFER, P.J. The matter complained of on appeal states the following: The evidence at trial was insufficient as a matter of law to support the conviction of third degree murder in that there was insufficient evidence of malice to support the conviction. Before we proceed to the above issue, we will outline the background of this case. A jury found defendant, age 32, guilty after a trial on January 18-20, 2000, of third degree murder and aggravated assault in the death of Paul Suhr, age 72. (Transcript at 241,100). On Saturday, May 29, 1999, during the early morning hours, defendant visited the house of Cheryl Rudd at 338 B Street in Carlisle, PA. Mike Hodge, defendant's cousin, arrived at the house sometime around 1:00 am, and he and the defendant went to get some beer. After defendant had left, Rudd heard her dog barking in the yard at the right hand side of the house. Rudd followed the dog to the side of the house, where she saw a white male with gray hair, a blue jacket, jeans, and boots, whom she had previously seen standing in her yard. She testified that the man walked past her and left the yard, saying nothing as he left. Rudd called the defendant and told him what had happened. As Rudd lost sight of the man, Hodge and the defendant pulled up in an automobile. When Hodge and the defendant arrived, Rudd pointed in the direction that the man had traveled and told them that "the man was back." Hodge and the defendant then pulled away in the car. Hodge dropped the defendant off in the alley, then pulled away. Hodge then told Rudd he was going home. In a statement that the defendant gave to Detective Egolf of the Carlisle Police Department later in the morning of the 29th, the defendant stated that he confronted the victim, pushed the victim to the ground and kicked him twice, and told him not to come around any more. He stated that he had pushed him down "pretty hard," and that he had just wanted to "scare him to keep him from coming around;" the defendant then returned inside the house and called the police. Officer Michael Clepper testified that he arrived at 338 B Street at approximately 1:20 am in response to a prowler call. Rudd and the defendant pointed down Oak Avenue, the alley the man had traveled down. Officer Clepper observed a body lying on the ground at the intersection of Oak Avenue and another alley, Third Avenue, with a pool of blood and some hair fragments nearby. The officer immediately called emergency services because of the condition of the body. Officer Clepper testified that the victim's face was bloody, swollen, and had black and blue marks all over. 2 Several hours later, Brian Farabaugh, a registered nurse at Carlisle Hospital, cut the defendant's nails for evidentiary purposes. The defendant then told Mr. Farabaugh that he had nothing to do with the incident, although the police thought he did. He also told Mr. Farabaugh that either he or his girlfriend had seen a bunch of people chasing someone and that they had beaten up the victim. The victim died on June 1, 1999, as a result of his injuries. Larry Suhr, brother of the victim, testified that the victim "had trouble" with his legs and had difficulty walking. The brother also testified that the defendant sent a letter to the Suhr family apologizing for the family's pain and suffering.~ DISCUSSION A person may be convicted of third degree murder where the killing is neither intentional nor committed during the perpetration of a felony, but when there is malice aforethought. Com. v. Bigelow, 416 Pa. Super. 449, 454, 611 A.2d 301, 304 (1992). Malice in its legal sense exists not only where there is particular ill will, but also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Id. Courts have held that a single blow, without a weapon, is ordinarily not sufficient to establish malice. Com. v. MacArthur, 427 Pa. Super. 409, 414, 629 3 A.2d 166,168 (1993), appeal den'd 537 Pa.608, 641 A.2d 308 (1994), accord, Com. v. Moore, 488 Pa. 361, 412 A.2d 549 (1980), Com. v. Buzard, 365 Pa. 511, 76 A.2d 394 (1950). However, courts have found that malice exists in cases where there is evidence similar to that of this case, resulting in the death of the victim. In a case where a defendant admitted to initiating a fight with a victim, and participating in beating and kicking the victim, which eventually caused the death of the victim, the defendant was found guilty of third degree murder. Comv. Bigelow, 416 Pa. Super. at 454, 611 A.2d at 304. In Bigelow, the court found that malice could be inferred from the defendant's actions in planning and participating in the beating of the victim, even though the Commonwealth did not prove that the defendant delivered the killing blow. Id. at 455, 304. In another case where the evidence established that the victim, the defendant's three and a half month old child, died of blunt force trauma to the head; that the victim had several bruises and abrasions on his face, head, chest, shoulder, back, penis, thigh, knee, feet, and toes; that the victim's eight ribs were fractured; and that the victim's skull was fractured and there were several contusions and hemorrhages in relation to the brain, the Commonwealth had presented evidence sufficient to establish malice. Commonwealth v. Shaffer, -- Pa. Super.--,--, 722 A.2d 195, 199 (1998). 1 A copy of the letter was admitted into evidence as Commonwealth's Exhibit 12. 4 In this case, Doctor Anthony Guarracino treated the victim in the early morning hours of May 29. Dr. Guarracino testified that the victim appeared to be suffering from multiple injuries, that his face was swollen, and that he had blood coming from the back and side of his head that prevented him from breathing on his own. Dr. Guarracino testified that he did not send the victim to Hershey right away because if the victim's airway was not stabilized, he could suffer aspiration from the blood, which was pouring down the back of his throat from his facial injuries. After Dr. Guarracino stabilized the victim, he was then transferred to Hershey Medical Center. Doctor Wayne Ross, the forensic pathologist for the coroner's office in Dauphin County, testified that the victim sustained the following injuries: tears behind his left ear; a pattern injury or bruise to the right side of his face; some bruises and tears in his limbs; some bruising and abrasions to his nose; dark bruising around the eyes which suggested head trauma; bruising to the shoulder region; and bruising on the lower limbs. Dr. Ross testified that the fractures to the anterior, medial, and lateral wall of the right maxillary sinus were caused by pressures of 150-500 lbs.; that the fractures to the left inferior orbital rim and left lamina papyracea were caused by pressures of 250-500 lbs.; fractures to the medial septum and the right nasal bone were caused by pressures of 400-1000 lbs.; fractures of the left ribs caused by pressures of up to 1000 lbs.; skins tears caused by 460-920 lbs./square inch; bilateral subdural hematoma and 5 hemorrhages of up to 1000 G's of force; and a left clavicle joint separation of several hundreds of pounds of force. The defendant had admitted to kicking and pushing the victim, but insisted he had not intended to cause serious injuries to the victim. (Transcript at 253, 266). The defendant attempted to minimize the amount of force he used upon the victim. However, Dr. Ross concluded that the injury patterns vastly exceeded that of those suggested by the statement of the defendant. Additionally, some of the testimony presented at trial conflicted with the defendant's version of the events of that evening. Officer Clepper testified that he had asked the defendant whether he had been back in the alley, to which the defendant replied "no." Later, at the Carlisle Hospital the morning of the 29th, the defendant told Mr. Farabaugh that either he or his girlfriend had seen a bunch of people chasing someone and that they had beaten up the victim. In a statement to Detective Egolf several hours later, the defendant told the Detective that he had in fact been in the alley, and that he had struck the victim. In light of the lengthy testimony of Doctors Guarracino and Ross as to the condition of the victim's body, and with regard to the defendant's inconsistent versions of the events of that evening, the jury properly found malice sufficient to convict the defendant of aggravated assault and third degree murder. 6