Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant initially told police he had no idea who shot him and moved to strike at trial because the prosecution did not exclude the possibility that his wife shot him and then committed suicide, the trial court correctly denied the motion.
“Viewing this evidence in its totality, a rational trier of fact could have found that appellant’s hypothesis of innocence – that Donna committed suicide after first shooting appellant – was unreasonable and that in fact appellant shot Donna, attempted to shape the crime scene to depict a suicide, and then fired shots in the bathroom and shot himself to conceal his guilt and implicate Donna.”
Appellant’s first-degree murder conviction is affirmed.
Commonwealth’s evidence
“The evidence adduced at trial, viewed in the light most favorable to the Commonwealth, demonstrated that Donna was right-handed but was found with a gun in her left hand. Dr. Posthumus, who conducted Donna’s autopsy and testified as an expert in forensic pathology, noted that in the vast majority of cases, self-inflicted gunshot wounds are inflicted using the shooter’s dominant hand.
“Posthumus also testified that bloodstains on Donna’s left hand and forearm were ‘transferred or smeared’ and that these bloodstains were inconsistent with those that would have resulted from a person firing a gun and their firing hand then falling.
“Further, there was smeared blood on Donna’s left palm beneath the firearm and on the outsides of her fingers, which was also inconsistent with such a series of events.
“Posthumus testified that she would not have expected to see smeared blood on Donna’s palm or fingers unless she had engaged in additional movements after being shot; however, the nature of Donna’s head wound was such that Donna would not have been capable of voluntary movements and would not have experienced seizures.
“Photographs of Donna’s body and the gun also demonstrated that the tip of the gun was positioned slightly under Donna’s abdomen. …
“Further, the evidence adduced at trial did not demonstrate that Donna was suicidal. Dr. Posthumus testified that there was no known prior history of depression or suicidal ideation in Donna’s case.
“Although the evidence demonstrated that the Penteks faced challenging financial circumstances and had had a difficult relationship in recent years, Donna had taken affirmative steps to address those challenges and difficulties. She recently had filed for bankruptcy and was making plans to initiate a divorce.”
Appellant’s hypothesis
“Appellant’s hypothesis that Donna shot herself also fails to account for the shooting of appellant. Although appellant argued in his motion to strike that Donna first shot him before shooting herself, the evidence, viewed in the light most favorable to the Commonwealth, does not support this assertion. “Appellant repeatedly stated to police and others that he did not see or hear anyone prior to being shot and did not know who had shot him.
“Additionally, while appellant attempted to demonstrate at trial that Donna was suicidal, and implied that she shot appellant as part of a murder-suicide, for the reasons discussed above the evidence does not support such an impulse and actions on Donna’s part.
“Instead, the circumstantial evidence supports the conclusion that, in fact, appellant was the person who shot Donna. The evidence adduced at trial demonstrated that appellant had a history of belligerence towards Donna and of belittling her to herself and others. One of Donna’s supervisors testified that appellant frequently yelled at Donna on the telephone. …
“Dr. Rizzo, the trauma surgeon who treated appellant’s injuries, testified that appellant had suffered a gunshot wound to his abdomen, a laceration between two fingers on his left hand, and an injury to his leg. Appellant’s leg injury exhibited powder burns.
“Dr. Hauda, who testified as an expert in forensic medicine, also stated that appellant had gunshot residue embedded in his left leg from ‘a very close wound, meaning with[in] centimeters [of] the gun barrel.’
“He further testified that the laceration between appellant’s two fingers could have been caused by the operation of the slide mechanism of a firearm or by a bullet passing between the two fingers; the latter instance could occur ‘with you holding the barrel of the gun.’
“There was no evidence at trial that appellant struggled with anyone who was pointing a firearm at him.”
Conclusion
“[B]ecause a ‘rational factfinder could believe the incriminating interpretation of the evidence and disbelieve the exculpatory one,’ it cannot be said that the trial court erred in denying appellant’s motion to strike and submitting appellant’s case to the jury. …
“Further, it is self-evident under the facts and circumstances of this case that, if the evidence appellant murdered Donna was sufficient for that issue to be submitted to the jury, it was also sufficient for the issue of appellant’s use of a firearm in the commission of the murder to be submitted to the jury.
“Accordingly, we find no error in the trial court’s denial of appellant’s motion to strike.”
Affirmed.
Pentek v. Commonwealth, Record No. 0971-21-1, Aug. 30, 2022. CAV (Malveaux) From the Circuit Court of Fairfax County (Ortiz). George L. Freeman IV for appellant. Katherine Quinlan Adelfio, Jason S. Miyares for appellee. VLW 022-7-361, 23 pp.
