*1 66
fore, pursuant admissible to the excited utterance properly hearsay to the rule. exception
Accordingly,
disagree
Majority
Appellant’s
I
with the
failing
object
for
claim that counsel was ineffective
Alfred
hearsay
as inadmissible
has
merit.
arguable
Jr.’s statements
See
ground.
I would find that
claim fails on this
Appellant’s
Johnson,
v.
118, 122,
1303,
Commonwealth
A.2d
(1991) (counsel’s assistance is
constitutionally
deemed
it
claim
underlying
effective once
is determined
is not of
merit). However,
arguable
Majority ultimately
since the
re-
jects
claim on the basis that he was not
Appellant’s
prejudiced
statements,
object
trial counsel’s
to these
I
agree
failure
by Majority
with the result reached
on this issue.
joins
Concurring Opinion.
Justice CASTILLE
Orlando Supreme Pennsylvania. Court
Argued Oct. 1996.
Decided Nov. 1998.
Reargument Denied Jan.
81 Lancater, Eaby, for O. Baez. Thelia Jean Gen., Millersville, Graci, Atty. Kenneff, A. A. Robert John for Com. ZAPPALA, CAPPY, FLAHERTY, C.J., and
Before CASTILLE, NEWMAN, and JJ. NIGRO THE
OPINION OF COURT CASTILLE, Justice. of County in Lancaster Court jury a trial the
Following Pleas, first-degree of guilty was found Common 27, 1993, On March murder the death of Janice Williams.1 unanimously found jury the following sentencing hearing, a and further found that these aggravating circumstances two mitigating outweighed circumstances three aggravating penalty of death. jury imposed The then circumstances.2 post-verdict new counsel was and Subsequently, appointed 1996, February 5, the trial court motions filed. On were to 42 Pa. denied motions. Pursuant appellant’s post-verdict 9711(h), jurisdiction § to review this has automatic C.S. Court trial of a sentence of death. judgment court’s penalty in all death has been
As cases which the required to undertake imposed, independently this Court is of of Commonwealth v. sufficiency review the the evidence. 2502(a). § 1. 18 Pa.C.S. (1) aggravating jury 2. The two circumstances that the found were: killing perpetration felony, 4 while in of defendant committed a 9711(d)(6); (2) by § Pa.C.S. the offense was committed means
2 torture, 9711(d)(8). mitigating § 42 Pa.C.S. The circumstances found convictions, (1) prior significant history 42 were: no 9711(e)(1); (2) concerning any mitigation § Pa.C.S. other evidence of his and record of the defendant and the circumstances the character offense, 9711(e)(8); (3) 9711(e)(8). § mercy, § 42 Pa.C.S. 42 Pa.C.S. 82 16, 937,
Zettlemoyer, n. 454 26-27 A.2d 942 n. 3 denied, (1982), cert. 103 S.Ct. U.S. L.Ed.2d reviewing sufficiency The standard for evidence is whether the all evidence admitted at trial and therefrom, reasonable inferences drawn when viewed winner, light most to the favorable Commonwealth as verdict *14 is sufficient to all of the offenses support beyond the elements a reasonable v. Pa. Carpenter, doubt. Commonwealth 429, (1986). 435, 531, 515 A.2d 533-34
Evidence to a is sufficient sustain conviction for first- degree murder the where Commonwealth establishes that the kill, a specific defendant acted with intent to that a human being unlawfully killed, that was the accused the person did killing, and that the was with killing done deliberation. 18 2502(d); Mitchell, 546, § Pa.C.S. v. Commonwealth 550, record, 599 A.2d After a review of the we following find that the support evidence sufficient to appel lant’s conviction. night
On January appellant Henry the and (“Gibson”) Gibson visited Janice in on apartment Williams her East King Street in County, Pennsylvania. Lancaster Gibson arrived, appellant testified when he and first they ob- the two served victim’s children on asleep the couch. Subse- quently, appellant speak asked to to in the Williams bedroom. Gibson, room, remained in living who the that approx- testified later, voices, imately fifteen minutes he heard loud a “thump,” and screaming, the victim “he’s me.” killing Gibson immedi- ately bedroom, ran where appellant standing he saw the. victim, over stabbing the her with knife. repeatedly a Gibson testified that both and appellant the victim were nude from room, down. Upon noticing waist Gibson appellant leave, if threatened Gibson that he appellant did would kill him immediately as well. Gibson the apartment. exited
Approximately after five minutes exited the apart- Gibson began home, ment and walking towards his appellant caught up to him and him a give tried knife with a broken handle. knife, When Gibson refused take the it appellant threw Appellant and Gibson walked nearby a sewer drain. down residence, further where together appellant’s he anything if he said about what ever threatened Gibson seen, murder. in the implicate would Gibson had young children discovered morning, The next victim’s nearby pedestrian. body and summoned their mother’s dead victim, the observing and entering apartment After shortly there- police The arrived pedestrian police. called autopsy her An victim on bed. after and found the conducted, blunt force that the victim had suffered revealing fifty-eight injuries to head and had been stabbed trauma her chest, abdomen, times her and fifteen times her back Also, her throat face, in her torso. twenty-eight times been slit. had Lancaster apartment, of the victim’s
On front door bloody sample. County police fingerprint officers collected fingerprint a match between this Expert established During had from appellant. been taken fingerprints victim, a hair from the was recovered autopsy pubic *15 hair testimony that this vagina. Expert victim’s established samples hair “microscopic shared same characteristics” as 1992,3 “very and it from in 1988 and that was appellant taken unlikely” who the same micro- to find two individuals shared The also established that scopic characteristics. was inconsistent with sample vagina hair from the victim’s type. Gibson’s hair occurred, 1991, had years
In late over four after the murder had the victim. police appellant informed that killed Gibson reported the murder that late date testified that he at Gibson In of afraid. being because he was tired threatened and 1992, of February repeated in denials spite appellant’s of been in the and denials that he had ever victim’s involvement mur- charged with the apartment, appellant was arrested he arrest, again that appellant der. At the time of his denied or he knew apartment the victim’s even had ever been samples earlier arrest 3. The 1988 had been taken in connection with an conduct; samples taken had been for different criminal the 1992 pursuant arrest for this murder. to the 84 However, trial,
the victim. testified that he had appellant engaged in consensual with victim intercourse but Gibson subsequently had killed her. evidence,
The light aforementioned viewed most winner, favorable to Commonwealth as verdict is sufficient beyond establish a reasonable doubt that deliber- ately times, stabbed the victim over one hundred including multiple stabbings parts light on vital of the In body. victim’s evidence, the overwhelming physical which corroborated eyewitness Gibson’s testimony, jury was entitled to disbe- lieve appellant’s night question, account which itself conflicted appellant’s prior with accounts. The enti- inter on, tled to appellant’s specific infer intent to kill based alia, deadly his use of a weapon upon part a vital Butler, See v. Commonwealth body. 374, 378, victim’s Pa. 800, (1972). Thus, 288 A.2d the evidence is sufficient establish that unlawfully deliberately caused the victim’s death. See 18 Pa.C.S. Commonwealth v. 2502(d); § Mitchell, 599 A.2d
DENIAL OF PRE-TRIAL MOTION TO SUPPRESS
APPELLANT’S STATEMENTS trial Appellant argues court erred failing suppress post-arrest exculpatory denying statements professing the murder and his ignorance of the add victim’s ress.4 Specifically, appellant urges that his post-arrest state (1) ments should have suppressed been because: police detec administer Miranda tives did not warnings to him he before (2) made the in question; statements the statements were (3) uttered; and, involuntarily the statements improperly were appellant specifically obtained after right invoked his re main In reviewing motion, silent. on a ruling suppression *16 is standard review whether the factual findings and legal conclusions drawn therefrom are supported by the evi Bond, v. Commonwealth 299, 305-07, dence. Pa. 539 652 A.2d appellant's 4. The Commonwealth impeach used statements of denial to appellant's testimony apartment at trial that he had been at the victim’s night on the of the murder but that was he not the murderer.
85 (1995). failure 308, regarding A court’s error suppression 311 require accused rever- will suppress statements to Commonwealth reasonable beyond if can establish sal v. was harmless. See Commonwealth that the error doubt 473, (1975). 158, 161, 474 Pa. 344 A.2d 463 Fay, Pennsylvania that volunteered It well established though the are admissible even spontaneous utterances or Bracey, Commonwealth v. not “Mirandized.”5 declarant was 356, 775, (1983); v. 369, 461 782 Commonwealth Pa. A.2d 501 303, (1974); 242 v. Yount, Commonwealth 455 Pa. 314 A.2d 910, (1973)(this Clark, held Court 311 A.2d out when spontane statements were admissible blurted given warnings). being while was Miranda ously appellant Here, reveals that after Lancaster Coun the record February 24, on ty police appellant officers arrested holding him in and they police placed took him to the station an moved office appellant cell. officers Subsequently, began for As a detective questioning. the detectives’ division rights, interrupted his reading appellant appellant Miranda detective, innocence stated that he had proclaimed his After this apartment. never been to the victim’s unsolicited statement, twenty- call telephone lasting made a appellant tried Subsequently, repeatedly as detectives seven minutes. case he they inform him that not discuss his unless could rights, pro his knowingly appellant again waived Miranda had never claimed his innocence and asserted that he been were Although appellant’s victim’s statements apartment. “Mirandized,” amply the record fully made before he finding court’s statements supports suppression at investigators while were spontaneously were volunteered warnings immedi his Miranda tempting give appellant Therefore, the completed phone after his call. ately Moreover, the trial court properly were admitted. statements several statements properly exculpatory admitted other (and had after he police made to before arrest Arizona, 436, 86 Miranda 384 U.S. S.Ct. L.Ed.2d v. *17 86 Mirandized) fully
been which were virtually identical sub- Hence, stance to the if challenged statements. even the admitted, challenged improperly statements were the error was harmless.
Appellant next even if argues that the statements were uttered, spontaneously were they involuntarily nevertheless they inherently uttered since were the of an product coercive Specifically, appellant environment. claims that the initial arrested, handcuffs, of being combination forced to wear and confined, coupled with subsequent by confrontation two in an detectives enclosed office while he from suffering was an him injury finger,6 involuntarily to his make caused exculpatory question. statements There is no single litmus-paper test in determining statement; of a it voluntariness must be established to speak product the decision free and unrestrained choice its maker. Hughes, See Commonwealth v. 423, 442, A.2d All circum attendant surrounding considered, stances the confession in must be cluding: interrogation; the duration and methods of the length delay arrest arraignment; between detainment; conditions of the attitudes of toward police defendant; state; the defendant’s physical psychological and all other conditions which present may serve drain power suggestion one’s of resistance to or undermine one’s Here, self-determination. See id. appellant’s spontaneous were not involuntary utterances rendered simply because he minor pair had handcuffs on his hands and a preexisting cut on finger. they uttered, his Even if had been involuntarily we note again putative such error be would harmless beyond a reasonable appellant’s virtually doubt since identical pre-arrest denials properly were admitted. Appellant finger had prior a cut on his index from a accident with a saw. Medication for this cut was administered while was in custody. Appellant allege injury does not that the caused him undue or being discomfort disorientation which resulted in his statements involuntarily coerced. him police told argues next after
Appellant
incident, he
him
invoked
with
about the
they
speak
wanted to
, no, I
he stated
don’t
to remain silent when
right
his
“f —
proclaiming
anything,”
the course
to talk about
want
at that
he should
point
contends that
innocence.
cell and the
holding
police
returned to the
promptly
have been
further
How
him in
conversations.
engaged
have
should
*18
statement,
not
ever,
made this
detectives did
appellant
after
Instead,
him
any
him
further.
detectives allowed
interrogate
minutes.
twenty-seven
a
call which lasted
telephone
to make
call,
spontaneously
Immediately
telephone
appellant
after this
he
innocence
his assertion that
had never
reiterated his
not
apartment.
in the
the detectives did
been
victim’s
Since
statements,
did
any
designed
they
to elicit these
take
action
infringe
right
in
on
to remain silent.
any way
appellant’s
not
369,
(spontaneous
ALLEGATIONS OF DURING THE GUILT PHASE during guilt trial court erred Appellant alleges to introduce phase by allowing of trial the Commonwealth hair, blood, testimony concerning fingerprint samples him of an during investigation collected from the 1988 unrelat- argues that the testi- rape charge. Specifically, appellant ed the 1988 was admitted mony regarding samples improperly jury it was suggested appellant because involved activity. criminal prior evidence of other crimes is admissible
While
crime, it
propensity
criminal character or
to commit
prove
for
v.
may
purposes.
be admissible
other
Commonwealth
(1981).
Morris,
715,
425
of
493 Pa.
A.2d
719-20
Evidence
claim,
separately
appellant
alleges
In a
headed
further
that the trial
by denying
prosecu-
on
court erred
his motion for a mistrial based
claim,
pertaining
right to
silent. This
tor’s statements
to his
remain
presented
prosecutorial
which is
as a
miscon-
properly
more
claim
duct, is addressed infra.
alia,
prove,
distinct crime
admissible if
is
offered
inter
motive, intent,
the identity
person charged
or
with the
being
commission of the crime
tried.
Id. at 720. Evidence
if
purpose
probative
introduced for
its
this
admissible
value
prejudicial
tends to
its
Id.
outweigh
value.
We are mindful
throughout
analysis of the
in our
presumption
this
law that
the trial court’s
follows
instructions. Commonwealth
Steele,
61, 78,
v.
559 A.2d
Here, no witness ever indicated that the 1988 samples
investigation
stemmed from
appellant’s involvement in
separate
matter.8
criminal
Since the victim was killed in
merely
evidence of
taken
tended
samples
to demon
strate that a
police investigation
underway
was
as a result
Thus,
the victim’s
we
no
death.
find that
suffered
prejudice as a
of the challenged testimony.
result
To the
extent
any
suffered
we
prejudice,
find that such
prejudice
substantially outweighed
probative
was
value
of this
on the issue of
testimony
appellant’s identity
issue
—the
with respect
this
properly
which
offered.
*19
Morris,
See
supra,
Appellant additionally urges prosecutor that the explicitly indicated that 1988 and 1992 hair blood samples the were cases, from him thereby prejudicing different directly. Specif- ically, he the points following question posed by prose- the cutor cross-examining expert: “Doctor, while maybe defense cases, problem the are separate is there two 1988 and by any 8. The possibly most notable reference that could witness connect separate activity sample testimony the 1988 with criminal was the of samples the detective who collected the The detective stated number, sample that a hair was "marked has K-10 and it the incident However, number, assignment testimony on it.” this does not suggest sample assignment that the or the hair number were connected separate investigation. to a criminal Immediately K-5 on them?” number] [identification both with held, during conference was this a side-bar following question, counsel a mistrial. Defense requested counsel which defense question, stating the rephrase offer to prosecutor’s refused the it further prejudicial more because would that this would be The court inappropriate comment. highlight previous the the Following for a mistrial. side- appellant’s motion denied conference, rephrased question as prosecutor bar follows: this, FBI
Doctor, clarify used just try apparently subsequently K case numbers and there separate two My from question ’88 and K numbers ’92. numbers from is, you hairs did measure? you pubic which FBI two case separate that the used rephrasing suggests The not samples, be- separate there were two numbers because investigations. separate two criminal cause there were issue, Moreover, of the court session at at the end regarding prosecutor’s court issued a curative instruction the instruction it had repeated The trial court also question.9 prosecutor’s the trial —that a state beginning at the of given not and that the do constitute evidence questions ments reference that was not accord jury disregard any should In of the testimony. light with their recollection which and the curative instruction question rephrasing jury regard- following to the Court curative instruction 9. The issued ing this matter: trial, you beginning this adjourn though, we as I told at the Before your you It’s recollection of the facts as the are the fact finders. controls, attorneys represent- my recollection nor that of the your you rely upon your ing parties. In deliberation must own memories of what witnesses said. questions posed of the There was an issue raised in the course of expert as to the content and extent of defendant's fiber expert concerning the characteristics of the hair that he the FBI ques- Attorney posing the Again, the Assistant District examined. *20 relying upon memory. your memory of what was was his It's tions important. something that he raised which said that is So if there is be, you testimony you it to then are was not included in the as recall disregard references to that. before, given by you I it is the answers as witnesses on the As told consider, questions testimony you that are to not the stand that is posed. followed, to have find that no presumed we appellant prosecutor’s accrued to as a result prejudice initial question. allowing that the trial court erred in
Appellant argues next (“Chirinos”) testify appellant Tina that had stated Chirinos just to her that she was a “bitch” like the victim and that she police statement to the in 1989.10 reported appellant’s had suggested is that this evidence somehow Appellant’s premise prior activity been involved in criminal with that he had argues further that even if respect to Chirinos.11 is deemed insufficient to that suggest such evidence alone act, in a criminal appellant prior was involved the combination on testimony breaking crying of this with Chirinos’ down and improperly suggested the witness stand that Chirinos was the prior activity by appellant. victim of criminal con
Having carefully
testimony
reviewed the
by appellant,
testimony
duct alluded to
we find that the
itself
any way
appellant
did not in
indicate that
was involved
contrary,
criminal
with Ms. Chirinos. To the
prior
episode
that
and Chirinos
involved in
suggests
appellant
evidence
were
Thus,
ordinary relationship.
appellant
any
an
did not suffer
testimony
undue
as a result of Chirinos’
or conduct.
prejudice
Additionally,
testimony
since the
at issue tended to establish
victim,
hostility
that
felt towards the
the evi
appellant
highly probative
respect
dence was
with
to the issues
intent,
motive and
since
had told detec-
particularly
trial, appellant’s
preserved
by objecting
10. Prior to
this
counsel
issue
proposed
testimony.
Chirinos'
line of
The trial court found that her
testimony
unduly prejudicial
was not
and that it was
because it
relevant
necessary
appellant's previous
police
to refute
statements to
that he
victim,
had little or no contact with the
Janice Williams.
complained
police
11. Chirinos had indeed
to the
in 1989 that
raped
apartment,
them
had
her
informed
that the statement
regarding
appellant glanced up
the victim had been made when
at a
However,
picture
during
rape.
of her
the record reveals that the
strictly
trial court
limited Chirinos’
at trial. Chirinos never
any testimony
suggested
any way
appellant’s
offered
state-
Instead,
separate
episode.
ment was made in the course of a
criminal
testimony suggesting
Chirinos offered
statement was uttered
lying
appellant’s
while she was
on
bed after she had been out on an
ordinary date with him.
*21
Accordingly,
at all.
he
not know the victim
tives that
did
any
from the
appellant
prejudice
that
suffered
the extent
activity,
prejudice
criminal
such
prior
of
putative implication
value of the
outweighed by
probative
substantially
was
intent —two of the
respect
to motive and
testimony with
may
of
crimes
prior
for which evidence
permissible purposes
Morris,
164,
Appellant roommates, of former Shir allowing testimony appellant’s Sanchez, appellant and Elba ley Toomey, Wendy Sanchez life activit right performed ordinary hand when he used his witnesses im Specifically, appellant claims that these ies.12 the occurrence of unrelated criminal properly suggested prior However, limit the trial court episodes involving appellant.13 they witnesses to whether had testimony ed the these with his appellant performing ordinary observed activities hand, testimony suggest prior did not right ensuing testimony criminal at all. To the extent that the could activity prejudicial any way, be construed as we find that such prejudice substantially outweighed by probative value testimony respect identity, of this with to the issue of since that he could not have committed possibly claimed Therefore, being the crime view of his left-handed. we find this claim to without merit.14 be limit-
Appellant argues erroneously next that the trial court Gibson, Henry ed ability impeach defense counsel’s witness suggested presented 12. Evidence had trial assailant stabbed right Appellant the victim with the hand. claimed at trial that he was left-handed. Appellant's objected testimony on counsel to each of these witnesses’ 13. activity would revealed. The trial basis unrelated criminal be objections appellant would court overruled the because it found that any prejudice testimony not suffer from this undue that each purposes rebutting appellant’s witness' was relevant for he claim that was left-handed. alleges allowing also that the cumulative effect of errors in prior new there no error crimes evidence warrants a trial. Because issues, regard any appellant’s with of these claim is without merit. under Amend-
thereby violating appellant’s right Sixth Constitution to confront witnesses ment to the States United argues that he should against Specifically, appellant him. alleged cocaine use at the prove have allowed to Gibson’s been by calling impeachment the murder wit- time of and before Also, alleges that he should have been nesses. Gibson about Gib- permitted impeach to cross-examine and *22 King.15 son’s and sexual abuse of Valerie physical First, prior claims that the evidence of cocaine use in his prosecutor’s suggestion open- relevant to rebut the had a cocaine and alcohol ing developed statement that Gibson murder, to and had to the problem only subsequent gone at police guilt having his at witnessed the murder was because cocaine The trial court ongoing problem.16 the root of his regard allowed to cross-examine Gibson with (when the murder whether he had used cocaine before 1987 represented 15. Defense counsel that in the event that Gibson denied cross-examination, present allegations prepared he was these on pre-existing witnesses who would have verified Gibson’s alcohol and problems cocaine as well as his abusive behavior towards women. King Among proffered were and Detective Jan witnesses Valerie Walters, who would have testified to an assault Gibson committed (his filing against King then-girlfriend) that resulted in of criminal charges protection assault and a from abuse order. The trial court could concern- determined that defense counsel cross-examine Gibson ing prior seeking use insofar as it related to his his cocaine treatment allpw addiction, drug regarding for but did not cross-examination protective charges by King subsequent assault filed and the order. See 1915-16, 1165-68, T.T. at 2043-44. The trial court refused to allow the any impeachment testify regarding call witnesses to Gibson's defense to use, prior finding cocaine this to be a collateral issue. See T.T. at 1685. objected Defense counsel to these restrictions on cross-examination and impeachment. statement, prosecutor opening commented on In his Gibson’s 16. going police motivation for to the as follows: problem police that he He tells the had a cocaine alcohol over years the course of the since the death of Janice Williams and that in problem the summer of he obtained some treatment for that by and that he was advised the counselor at the treatment center that him, get problem get in order to this behind he would have to off his bothering says And he chest whatever it was that was him. that this police early January, is the force which caused him to call the in prosecutor See at 982. The elicited from T.T. Gibson support theory. this See T.T. at 1100-1105. occurred), such See any usage. well as the extent of had as 1170, 1177-78, consistently 1182-85. Gibson T.T. murder, to the usage prior cocaine any significant denied prosecutor’s opening theme of the state- consistent with the dated to the time of the problem ment that Gibson’s cocaine witnesses who would sought murder. Defense counsel call severity problem years cocaine testify to the Gibson’s murder, proof and made an offer of to that end. before the objection, the trial court determined that such Over counsel’s it related to impeachment testimony was warranted since a collateral issue. testimony regard claims that Gibson’s issue,
ing prior cocaine use concerned not a collateral but of whether had indeed been a witness to a central issue Gibson by murder committed since the witness claimed that appellant, the cocaine dated to and was allegedly abuse caused judge murder. A trial must deal eviden witnessing the with of the tiary questions light purposes such as this judicial ultimate inquiry and does so the exercise discre Commonwealth, 613, 615, tion. Levinson v. 151 A.2d *23 Thompson 455 v. American (1959)(quoting Steel (1934)). Co., 7, 11, Pa. A. A judge Wire 543 trial excluded, take that nothing long should care relevant is so as admission its not unduly jury will distract the attention of the from its main A inquiry. judge See id. trial must determine which, though logically whether evidence relevant on the issue, may ultimate nevertheless be excluded because its general jury by effect on the trial will be to confuse the distracting its attention from away jury’s primary the concern to the collateral issues. Id. of the often difficult Because task, nature of judge’s this the conclusion or decision on such will points appeal not be interfered with on save for abuse of discretion. See id.
Here, a of review of the record reveals no abuse evidentiary discretion which would warrant reversal on this issue. Even if the of cocaine use was a prior issue Gibson’s case, non-collateral issue under the circumstances of it this ultimate issue of whether to' the was of limited relevance that the Assuming murder. first-degree appellant committed in his statement asserting opening prosecutor was correct murder, to the time of the cocaine use dated that Gibson’s stemmed cocaine abuse could have dictates that logic or witnessing the murder from trauma due either Gibson’s himself, the latter the murder guilt committing from his due to theory appellant’s of being consistent with alternative began to abuse cocaine simple The fact that Gibson defense.17 or not tend to either establish disestab- after the murder does who committed the and not Gibson lish that it was testimony purport- Consequently, impeachment murder. use would timeframe of Gibson’s cocaine ed to establish the jury very The could well consequence. have of no also been witnessing his testimony regarding have believed Gibson’s witnessing that his the murder believing murder without prof- of the drug usage. Allowing caused “unduly have served to witnesses would impeachment fered inquiry” of the from the main distract the attention of unnecessary quantity of an required “the ascertainment facts,” limited and non- given the particularly subordinate drawn from testi- inferences that could be Gibson’s probative id. sum, In no mony regarding cocaine abuse. See we find to limit judge in the decision of the trial abuse of discretion timeframe of his on the issue impeachment Gibson cocaine abuse. prior
Second, by criminal filed prior complaint regarding assault, to an respect alleged with King against Valerie Gibson allegation, this he by exploring prior claims that was biased and that could have established Gibson by being motivated his fear of accused testimony was himself, violent murder since he had been accused similar claims that against past. Appellant crimes women prosecutor’s theory the murder. 17. The was that Gibson witnessed *24 fact Appellant's theory that Gibson committed the murder. The murder, believed, simply began abusing the if that Gibson cocaine after juror help select one of these theories over the would not a reasonable regard, prosecutor tell the other. In this we note that the did not proffered it draw from the fact that Gibson’s what inference should cocaine use dated to the time of the murder. Gibson, improp- of the trial court any inquiry such precluding Amendment. erly appellant protections denied Sixth Alaska, In v. 415 U.S. 94 S.Ct. 39 L.Ed.2d Davis (1974), Supreme Court reviewed a the United States trial on cross-examination of challenge judge’s to a limitations a material witness under Sixth Amendment’s Confronta- in of tion Clause. The Davis had been accused Green, stealing prosecu- a safe from a bar. Richard a crucial witness, that he had seen a appellant standing by tion testified “something Chevrolet with like a crowbar” in his hands blue near same which the safe was later found with its spot contents removed. The safe was found near the home of stepfather, judge Green’s with whom Green resided. The trial granted protective seeking motion for a order prosecutor’s prior adjudication to exclude reference to Green’s of delin- quency burglarizing strength for two cabins. On the of physical showing paint Green’s and evidence chips appellant’s the trunk of the rented Chevrolet could safe, originated have from the stolen was con- victed of burglary grand larceny.
The Supreme United States Court determined that appellant had been denied his Sixth Amendment right against confront witnesses him when the trial court refused impeachment allow for stemming Green bias from his own conviction for burglary. explained: The Court trial,
The of a partiality subject exploration witness is “always and is discrediting relevant as the witness and affecting weight testimony.” of his have recognized We that the exposure of a witness’ motivation in testifying is proper important function of the constitutionally pro- right tected of cross-examination.
The claim sought of bias which the defense to develop here was admissible to afford a basis for an inference of undue pressure proba- because Green’s status as a vulnerable tioner, possible might as well as Green’s concern that he subject investigation be ... While counsel was *25 biased, whether he was counsel was to ask Green
permitted why Green argue a record from which unable to make of degree or otherwise lacked that biased might have been at trial ... counsel should of a witness impartiality expected facts from to the permitted expose have been credibility, of fact and could jurors, as the sole triers which reliability to the of a relating inferences draw appropriately witness. 316-17, 1105. 94 S.Ct.
Id.
Here, principles that the same appellant argues conclusion in Davis mandate the Supreme Court guided right probe denied his Sixth Amendment that he was charges the basis of assault that Gibson’s for bias on Gibson him. dis King, against had filed We Valerie ex-girlfriend, Davis, that cross-examina Supreme In Court held agree. as to improperly had been limited so tion of a crucial witness conviction and the prior to that witness’ preclude reference on Since presently probation. the witness was fact any as to prohibited making inquiry from defense counsel was on the witness’ presently probation, the witness was whether subject any having of ever been the of denial “categorical unchallenged.” interrogation went similar law-enforcement Here, does not aver that Id. at S.Ct. assault, or that was ever convicted of Gibson Gibson was merely urges that probation. Appellant of serving period filing complaint against of a criminal Gibson—which prior by complainant might subsequently discontinued — testimony in this case. motivated or biased Gibson’s have to how argument fails to offer a rational as Gibson Appellant testify against appellant as a result might have been biased prosecuted which were not charges of these unrelated prior essence, to create outstanding. In invites us nor allow a witness’ character to be black new law which would if an was ever any simply allegation criminal trial ened criminal past regarding the witness in the against raised likely result in an activity. sweeping rule law would Such merits of unrelated regarding series of minitrials endless Moreover, the criminality the witness. allegations against materially not distracting of these sideshows would outcome or motive possible into the witness’ bias inquiry advance the Therefore, judge find that the trial did testifying. we testimony on the by refusing to allow abuse his discretion a wom- previously assaulted collateral issue whether Gibson an. trial court erred argues next that the and a black-and- photographs certain black-and-white
allowing *26 guilt phase. the jury during to shown to the white video be videotaped evidence de admissibility photographic The of or trial sound discretion the a crime scene is within the picting an of that discretion will constitute only court and abuse Buehl, 363, 391, v. 510 Pa. reversible error. Commonwealth (1986). admissibility photographs A.2d 1181 The First, court must decide analysis. a the two-step involves If inflammatory by very its nature. photograph whether a is the court must deter photograph inflammatory, the is deemed photo of the evidentiary mine the essential value whether im photograph the likelihood that the will graph outweighs jury. the minds and of the See properly passions inflame Marshall, 336, 341, v. 643 A.2d Commonwealth evidentiary photo first contends that four in which emphasized way of the victim which the the graphs legs spread unduly inflammatory victim’s arms and were were to The four jury prejudicial appellant. to the and black-and- issue offered the Common photographs by white were the of Detective Dennis description wealth to corroborate the in which regarding Arnold the crime scene and condition Furthermore, the victim was found. defense counsel called pathologist testify as to the conclusions that could be drawn patterns from the smear seen on the victim the blood a pathologist The also called photographs. Commonwealth contrary expert. conclusions to those of the defense who drew jury point the with a of reference photographs provided The conflicting expert of these by which to evaluate the ap- the for jury photographs witnesses. The viewed two of (27) proximately twenty-seven seconds and the other two (41) photographs forty-one jury for seconds. The not permitted photographs they take the with them when adjourned In light dispute deliberate. the between the the extent to pathologists photographs limited which these by jury, were viewed we find that trial court did by its discretion determining evidentiary abuse value photographs outweighed possible effect.18 prejudicial Accordingly, this claim merits no relief.
Next, appellant
contends that the trial court erred
jurors to
allowing
depicting
view black-and-white video
body. Appellant urges
victim’s
the video should have
it
unduly inflammatory
merely
been excluded because was
However,
cumulative of
photographs previously
shown.
prosecution
both the defense and the
participated
redacting
Moreover,
inflammatory portions of the video.
the court
limiting
issued a
instruction to the jury prior
showing
video,
jurors
cautioning the
as to its narrow relevance and
clearly instructing them not to allow the video to stir their
prejudice
emotions to the
of the defendant.19
Since
photographs
directly
dispute
18. Even if the
had not related
to the
pathologists, they
between the
would have been admissible for their
*27
probative
concerning
appellant's specific
value
the issue of
intent to
kill, notwithstanding
prejudicial
effect. See Commonwealth v. Ches
ter,
578,
(1991),
denied,
959,
526 Pa.
99 Steele, instructions, supra, at the court’s to follow presumed 913, court did not err find that the trial 61, we 559 A.2d at shown. allowing the video be DURING OF ERROR
ALLEGATIONS PHASE THE PENALTY by allowing trial court erred argues that the Appellant next re- testify with pathologist forensic the Commonwealth’s pain and and the victim’s of the attack to the duration gard circum- aggravating attempt in an to establish suffering testi- expert’s of torture. contends stance (1) it was: speculation because mony upon pure was based (2) secondary infor- upon based expertise; his area of beyond of victims from other individuals’ observations gleaned mation (3) death; degree of a reasonable upon based prior this claim does not merit find that certainty. medical We relief. a matter expert of an witness is qualification
The will of the trial court and be within the sound discretion of discretion. Commonwealth only reversed for a clear abuse (1977). 419, 373, Bennett, 423, It is 471 Pa. 370 A.2d 375 v. qualifi for Pennsylvania that the standard well established applied to be an is a liberal one and the test expert cation of specialized pretension has a reasonable whether the witness does, If he he subject investigation. knowledge on the under the trier of of that is for may testify weight and the Gonzalez, 116, Pa. v. 519 fact to determine. Commonwealth (1988). 26, that an It is also well established 546 A.2d experi opinion training an based on expert may render ence; subject required. on the matter is not formal education 480-81, Tavern, Inc., v. Brass Rail Miller A.2d your pleasant at. You should not let it stir It’s not a video to look *28 prejudice verdict must be of the defendant. Your emotions to the rational, of all of the evidence and
based on a fair consideration defendant, against or passion prejudice the the Commonwealth on or anyone else connected with this case. Here, trial, during guilt phase appellant’s the Dr. qualified Mihalakis was and testified as a pathologist forensic or voir dire cross-examination from any objection without appellant’s During questioning trial counsel.20 of Dr. Mihalak is at penalty phase, experience he testified as to his and in knowledge investigating leading up circumstances Thereafter, death and the ultimate causes of death.21 over objection, defense counsel’s the trial court Dr. qualified Miha lakis as an assist in expert determining duration of the attack pain suffering and the amount of and that a have typical person experienced would as a result of the stab wounds this during reviewing inflicted attack. After Dr. Mihalakis’ concerning expertise regarding his issues on which he provided testimony, we find that the trial trial, During guilt phase appellant's Dr. Mihalakis testified 20. (1) school; (2) years that his credentials included: fours of medical (3) two-year internship; four-year residency, which was a formal (4) training program pathology; years pathologist for two as staff at an (5) army hospital; years three as assistant medical examiner for (6) Maryland; years pathologist State of twelve as staff at Sacred Heart Allentown, (7) Hospital Pennsylvania; post-mortem director of exam.- Lehigh Valley Hospital past years ination services at for the ten where perform autopsies he and his associates monwealth; for ten counties of this Com- (8) 1971; pathologist board certification as a forensic (9) (10) practicing pathologist twenty-two years; as a forensic for over being,previously expert pathologist Maryland, an certified as forensic Missouri, and, (11) Jersey; being previously New York and New certi- expert pathologist fied as an forensic in all the eastern counties of this Commonwealth. previously qualified Dr. Mihalakis testified that he had been and expert juries regarding testified as an pain to assist the amount of and suffering by types twenty thirty caused certain of wounds between during sentencing phases capital times cases. Dr. Mihalakis experience subject further testified that his in this matter stemmed from Moreover, training general. and education in the medical field in upon experience Dr. Mihalakis specific elaborated how his on the issue pain suffering stemming types from certain of wounds had been enhanced thirty-year information that he had obtained over his emergency pathologist, career as an room resident and as a forensic including explorations numerous first-hand and evaluations into the leading up causes of death and the circumstances to death. He also gleaned paramedics, emergency information from discussions with deaths, physicians, room witnesses to and statements obtained from prior victims to their deaths.
101 Dr. Mihalakis by qualifying its discretion did not abuse court an expert. as actually testimony that the alleges also
Appellant degree a reasonable was not within Dr. Mihalakis by proffered prevailing must be under as it certainty, medical of 210, Edmiston, 222- 535 Pa. v. Commonwealth See standard. experts to 1078, require do not 1084 We 634 A.2d opinions. their expressing “magic words” when use Mitzelfelt (1990). Instead, Kamrin, 54, 66, A.2d 894 584 v. to determine testimony of their look to the substance we Id. requisite standard. it meets the whether had person that the who Here, testified Dr. Mihalakis death, how to cause obviously knew the stab wounds inflicted small, (43) non of a of these wounds were forty-three that but Dr. Mihalakis testified experience, his variety. Based on fatal attempt an more consistent with wounds were that these with death. Consistent attempt an to cause pain cause than to the likelihood testified further testimony, this Dr. Mihalakis and was conscious instantaneously die victim did not that the attack, possible as the as well part at least during (58) wounds, fifty-eight stab of the infliction sequence (2) (43) wounds, cuts, force blunt jab two forty-three Dr. Mihalakis did Although the victim suffered. injuries that legal of the stan in the exact terms his express opinion were on a dard, opinions that his based testimony indicates than mere certainty rather of medical degree reasonable Thus, claim fails. appellant’s speculation. court’s error that the trial argues further
Appellant compounded Dr. to restrict Mihalakis’ declining circumstance aggravating on the jury instruction by vague its However, that it is charge reveals review of torture. this Court definition of torture very identical to the Chester, Pa. 587 A.2d v. in Commonwealth provided (1991).22 that the definition fails to establish Appellant Chester, stated: In this Court torture, aggravating the Common- circumstance To establish to inflict a considera- prove the defendant intended wealth must Therefore, upheld improper. Chester was this claim does not merit relief. next claims that the trial court erred
allowing photographs certain color referenced during be sentencing phase of the trial they unduly preju because were However, dicial. appellant admits that at photographs issue jury were never submitted to the during their delibera fact, tions. In admits that the never viewed Therefore, these photographs all. even assuming *30 trial court by admitting erred these photographs issue on —an finding which we make no error patently harmless —such jurors and this claim is frivolous since never observed them.
IV. ALLEGATIONS OF PROSECUTORIAL
MISCONDUCT
Appellant next contends that the trial court erred
by
denying
numerous motions for mistrial
upon
based
allegations
prosecutorial
misconduct.
It is within the dis
cretion of the trial court to determine
a
whether
defendant has
prejudiced by
been
misconduct or impropriety to the extent
Simmons,
that a mistrial is warranted. Commonwealth v.
541
211, 246-47,
621,
(1995).
Pa.
662 A.2d
638
by
Comments
a
prosecutor do not constitute reversible error
un
unless the
avoidable effect of such comments would be to prejudice the
jury, forming in their
a
hostility
minds
fixed bias and
toward
they
defendant such that
could not weigh the evidence
objectively
Sam,
and render a true verdict. Commonwealth v.
350, 362,
603,
(1993),
denied,
535 Pa.
635 A.2d
608
cert.
511
1115,
2123,
114
(1994);
U.S.
S.Ct.
First, prosecutor argues that appellant hearsay referred to an inadmissible improperly summation Lytle, Lisa witness made Commonwealth statement that the trial court argues the victim.23 friend of portion Lytle’s to a objection defense sustained a on sever reaction to negative the victim’s regarding hearsay. There inadmissible being as based on al occasions fore, following portion prosecu avers that the hearsay: summation on inadmissible was based tor’s incident[24] by Lisa Patsy’s Cafe offered The second me, me, with an you’re coming home come with Lytle; Inter People intercede. big argument. gesture, obscene A negative reciprocated? for. that desire ested desire Was from Lisa do we know prove but what thing is a hard time, Yeah, from time to ran into him downtown Lytle? we *31 and she used the talking to Janice up come and start he’d uses, That was Janice’s oh. young person a expression him, reaction, type to with that I don’t want be [sic]. Oh you. suggesting Mr. Baez is reaction is what trial court sus- notes that the Although appellant correctly testimony, a Lytle’s to a objection portion an as tained was able to prosecutor that the of the record indicates review nega- victim’s directly observed the Lytle elicit that properly Thus, occasions. on several appellant tive towards reaction argu- for the laid a foundation appropriately the prosecutor appel- Lytle's testimony contradict offered 23. The Commonwealth relationship ongoing with engaged in an assertions that he was lant's the victim. prosecutor by was an incident incident referred to the 24. The first opinion. next of this is discussed in the section the Elk’s club which ment he made in the challenged portion of his summation. Accordingly, this claim merits no relief. argues prosecutor next that the committed
prosecutorial misconduct by stating that an incident which occurred at the Elk’s Club25 an preceded incident that oc Cafe, Patsy’s curred at unfairly thus and improperly sug an gesting escalating pattern of violence by appellant that However, in culminated murder. the portion relevant of the summation prosecutor indicates the did not rank in the time; rather, cidents in prosecutor order of the merely listed the incidents in they the order which presented had been Moreover, at trial. prosecutor did not argue that there Therefore, was an escalating pattern of violence. this claim prosecutorial misconduct does not merit relief. Appellant next argues prosecutor that the commit ted misconduct during by his summation stating life, had said to Tina Chirinos the victim had ruined his when in fact only Chirinos had testified that had stated, “you just are bitch like the woman in picture.” See T.T. at 2410-11. A prosecutor’s remarks must be evaluat ed in the context in which they occur. v. Commonwealth 40, 48-49, Carpenter, 1263, 533 Pa. 617 A.2d context, Viewed we find that discrepancy between the testimony as summarized and the testimony proffered as inconsequential. The prosecutor qualified challenged by immediately stating, statement “or words to that effect ...” statement, T.T. at 2711. qualified Since he prosecutor did not intend to perpetuate fallacy the minds jurors of the and therefore did not commit prosecutorial Simmons, misconduct. See Commonwealth v. (1995)(no 662 A.2d prosecutorial misconduct
where evidence does not show that misstatement of the fact deliberate). Moreover, was repeatedly cautioned prosecutor both the and the trial they court that should rely exclusively upon evidence, their own recollection 25. Wanda approximately prior Williams testified that two months *32 death, Club, accompanied victim's she had the victim to the Elk’s where repeated appellant's the victim declined sexual advances.
105
The
anyone
or
else.
prosecutor
recollection
the
not the
was to remove
these curative instructions
effect of
cumulative
prose
have inured
the
might
that
otherwise
any prejudice
249, 662 A.2d at
See
at
misstatement.
id.
cutor’s inadvertent
922,
578,
574,
318
A.2d
640;
Talley,
v.
Commonwealth
(1974).
that the unavoidable
we do not believe
Finally,
924
the
prejudice
to “so
of the comment
issue would be
effect
hostility
fixed
toward
in their minds a
bias
jury, forming
the
weigh
that
could not
evidence
they
defendant such
the
v.
a
render
true verdict.” Commonwealth
objectively and
(1993),
denied,
603,
Sam,
cert.
635 A.2d
Pa.
There
1115, 114
He said was a Year’s [Gibson] Street; Living on he Spruce week after New Year’s. Yeah, I early. left moved there in 1986. Chino had a little I Delphine go 10:30. had to work. went outside about go get I argument. had an decided to out of house I lets walk. fine. away say from it. Mr. Baez said take a girl He said there was he wanted see. objected on the immediately
T.T. at 2731. Defense counsel reading statement prosecutor basis was from Gibson’s not moved The trial police, which had been into evidence. objection. prosecutor The then reminded court sustained their which that it was recollection of the evidence binding. transcript A entire review the indicates legitimate sum- prosecutor’s statements amounted to a testimony, mary properly of Gibson’s admitted since Gibson prosecutor himself had testified to the facts summa- Therefore, rized. the reference at issue did constitute prosecutorial misconduct.
Next, appellant argues that prosecutor committed pros- ecutorial during closing argument misconduct mis- by characterizing appellant’s testimony. Specifically, alleges he that the of following portions prosecutor’s summation were not upon based the evidence: said something
[Defense counsel] about touching the neck Baez, Mr. getting finger blood on his and that’s how the blood in the door got where the blood print got on the door. That’s what Mr. leg Baez said. Mr. Baez said his profusely was bleeding leg, so that blood from his own door, remember that my he said was blood on the blood from his is what leg got own on his hand and on got what the door ... he admitted and that he’s or bleeding profusely enough go through the clothing get it on his hands. A review of record prosecutor’s reveals that state- ments accurately represented Thus, appellant’s testimony.26 this claim does not merit relief.
Appellant next argues prosecutor that the committed prosecutorial misconduct when he summarized of part another appellant’s testimony, relating to appellant’s state of mind after Gibson allegedly stabbed the victim and then appellant, “[W]ell, as I guess follows: I mind, had the of presence this mind, somebody who is a I guess comatose I had the presence of mind to walk around the blood at spots.” T.T. trial, 2742. At had “I I appellant out, testified that: freaked just froze, shock,” I was in state of and “I I don’t know. tried, I tried might have not to step [the on at blood].” T.T. Here, 2135 & 2241. the use of exact words to which appellant testified would not have point diluted the that the prosecutor making was someone with “frozen” state —that mind very engage cannot in planned, activity. well deliberative Therefore, we that the prosecutor’s find use of the words “comatose mind” instead “froze” or “state shock” did not have the effect of unavoidably prejudicing the jury with fixed testified he had touched the victim’s neck and lifted Moreover, her head to see if was still she alive. at T.T. 2139-43. bleeding profusely testified that he was and the blood on his leg. hands was from the stab wound to his Id. 2239-41. Consequently, appellant appellant. hostility towards bias and claim. this entitled to relief on is not prosecutor’s argues during Appellant next summation, appel intentionally referred improperly he jury. to the closing in his statement silence post-arrest lant’s the prosecutor occurred while complained-of The reference committed the defense Gibson discussing appellant’s was another room the victim’s murder while prosecutor stated: apartment. Specifically, *34 now You know what the situation is. You’re arrested. now Well, that in you point you do at this don’t know What do? to other It’s out Henry Gibson there’s evidence. addition You what there. You are happened on the table. know lies? things police. you the Do volunteer volunteering to you say the or I know you police volunteer lies to do Do there, hap- I I know happened, know who was what what you police. Maybe want to tell the pened? Maybe don’t you enough say Maybe you them don’t trust to it. hold you tell Do tell that he you things back but do untruths? may say, in the You has admitted courtroom are untrue? I’m keeping myself. waiting you I’m it to for trial but don’t tell know the is. you lies unless don’t what evidence T.T. “I’m Appellant by stating, at 2744-45. contends that it to to keeping myself,” prosecutor improperly the referred However, post-arrest reflects appellant’s silence. the record prosecutor commenting appellant’s post- that the was on silence, on post-arrest arrest but his statements. Once a suspect police elects the respond questioning, import his the responses properly jury’s is available for consideration. Jermyn, Commonwealth v. 533 A.2d prosecutor suggesting Since the merely here was appellant’s post- certain conclusions could not be drawn from statements, thereby engage arrest did not prosecutor Next, any appel- misconduct and claim no this merits relief. summation, argues prosecutor lant committed of Ernie prosecutorial by misstating misconduct Specifically, appellant challenges Cole.27 prosecutor’s Cole if statement Ernie would have remembered he had returning seen a Gibson at blood-drenched the house 2:30 record, Upon a.m.28 find prosecutor review of we that the upon properly seeing remarked Cole’s failure to remember on the on The night question. prosecutor Gibson did not in way Therefore, any miseharacterize Cole’s failed recollection. not entitled relief on this claim. next that a trial argues granted new should be prosecutor prosecutorial because committed misconduct asking following questions during cross-examination of Delphine Rosario:29 Now,
Q. keep did you butcher and kitchen knives around your house 1987? I
A. Sure did. Did from Q. those knives time to time turn up missing? T.T. 2365. Appellant contends that these questions were inappropriate they suggested may because that knives have missing been from Ms. Rosario’s kitchen and that one these missing may knives have been the murder which weapon, was found. never
However, if question unfairly prejudi even this point cial—a on we judgment which make no trial court —the *35 immediately objection sustained defense ques- counsel’s to this 27. Cole lived during Ernie in the same house as Gibson the relevant period. time He was offered as a defense witness to rebut Gibson's spoken returning night claim he had with that Cole after the home on of killing. seeing the Mr. Cole testified that did not he remember or having night question. a conversation with Gibson on the in See T.T. at 1993-94. According appellant's testimony, 28. Gibson was with covered blood and, upon leaving apartment depar- the victim's based on the of time ture, would have returned to his before home 2:30 a.m. The Coles a.m., they although testified were awake at their home 2:30 around they seeing prosecu- did not remember Gibson re-enter the house. The properly tor if surmised that Gibson had indeed returned home before a.m., blood, likely 2:30 covered with the Coles would most have seeing remembered him. appellant’s girlfriend 29. Rosario Ms. was and resided him at with the time of the murder. question that the was it Given tion, and was never answered. answered, jury questions the and the court instructed not evidence, find the we by counsel are not themselves posed misconduct prosecutorial at did amount question issue no relief is warranted. warranting Accordingly, reversal. prose- committed prosecutor next that the argues Golub, of Dr. during cross-examination cutorial misconduct his committed misconduct prosecutorial a and expert, defense First, demeaning appellant his comments. through allegedly to murder referred a improperly that the argues prosecutor as testified a defense previously trial in which Dr. Golub had in an the referred to Norton case expert.30 prosecutor The testimony in this was Dr. Golub’s case attempt show that the Norton case. previous his inconsistent with to discredit Dr. Golub’s Specifically, prosecutor sought analysis” term “fiber use and broad definition current use of the same term it with his and definition comparing Appellant contends that this Norton. See T.T. at 1835ff.31 jury with a fixed reference to the Norton case inflamed hostility may because the have appellant bias and towards responsible Dr. was for ultimate inferred that Golub acquittal of Norton. the defendant to the Norton case passing We find that the reference against unavoidably prejudice did not form fixed bias The took jurors. in the minds of the Norton trial years appellant’s prosecutor four trial. The here place before Norton, other than to upon did not comment all facts Timothy prosecutor to the case of Commonwealth v. The referred Norton, (Lanc.Cty.1989), murder Crim. Action No. controversial Appel- acquitted. County in was trial in Lancaster which defendant support newspaper allegation that offers articles to his lant numerous However, publicized. extremely controversial well the case was any way jurors that the here were fails to demonstrate in verdict, they case much less that were familiar with the Norton or familiarity against expert with Nor- prejudiced appellant's due to their ton, they against appellant prejudiced himself and even less that were expert. alleged prejudice against as a result prosecutor explained trying was to show that Dr. Golub 31. The that he industry being "trying bootstrap experience in the fiber into *36 expert when he is not.” See id. hair contrast the inconsistencies of a technical nature in inherent Furthermore, Dr. testimony. Golub’s earlier the prosecutor specified never whether Dr. for the or Golub testified defense the Commonwealth in Norton. sum, In not prosecutor the did all, engage misconduct at much less would misconduct that trial, simply warrant a Dr. testi- by referring new to Golub’s in Norton. mony Therefore, this claim fails.
Second, argues the prosecutor’s allegation that that Dr. had evidentiary Golub removed a Commonwealth exhibit from the courtroom this trial was to during designed inflame passions jury against the Dr. Golub.32 Howev- er, the challenged record reveals that the remarks were made Therefore, while the present. jury the could not have been possibly prosecutor’s influenced the allegations.
Finally, that appellant alleges prosecutor’s the de meaning during remarks his cross-examination of Dr. Golub his summation prosecutorial constituted misconduct. However, record, reviewing after the we do not find that prosecutor any exceeded the level of appropriate civility at point time.33 trial, During sample.
32. lost Commonwealth a slide of a hair prosecutor alleged The that Dr. Golub had the slide him taken with completed testimony after he his he since was the last one to use the eventually A projector. slide. court officer found the in the slide Typical appellant complains remarks about which is the following during prosecutor's reference to Dr. Golub summation: you briefly suggest I you talked to about Dr. Golub before. I qualifications, simply qualified for all he his is not to do the hair analysis performed by eight as the FBI. Remember we listed what specialization dealing he carried as fields of on his Not resume. one training analysis right with hair. No in hair ... he have Does only qualification kind of not but as the said FBI does he have training? Does he have someone who checks his work? he Does periodic maintaining take tests to make sure is that he his skills? He Compare suggest you does none of that. that to FBI.... I travelling county testifying that he's submitted for to the also for against FBI $200 for an hour. Is that a bias or motivation to perhaps experts wrong, slant a little bit ? ... One of the you suggest and I it is Dr. Golub. prosecutor’s comparing See T.T. at 2726-29. None of the comments competence expert, addressing Dr. Golub’s of the FBI or possible testifying, improper. bias and motive for were
Ill of the effect argues that cumulative Finally, appellant requires misconduct alleged prosecutorial aforementioned However, have determined since we of a new trial. grant misconduct, is not enti- no prosecutorial there was cumulative miscon- of the asserted on basis tled to relief 318, Pa. 657 Murphy, v. 540 See also Commonwealth duct. collectively (1995)(no may number of failed claims A.2d 927 not they individually). if do so attain merit could COUNSEL OF INEFFECTIVENESS OF ALLEGATIONS assis of ineffective raises claims several of a claim sustains of counsel. A criminal defendant tance (1) underlying by that the proving: of counsel ineffectiveness (2) had merit; performance that counsel’s arguable claim is of and, (3) basis; ineffectiveness no that counsel’s reasonable LaCava, Pa. v. 542 prejudice. worked to Commonwealth his v. 178, 221, (1995)(citing A.2d 229 Commonwealth 666 (1993)). Edmiston, 210, 237, Trial A.2d 1092 634 if the constitutionally is deemed effective counsel’s assistance reasonably designed particular course chosen counsel was Pierce, v. to effectuate his clients’ interests. Commonwealth (1987). 153, 158, presumes law Pa. 527 A.2d The Miller, 494 v. that trial counsel was effective. Commonwealth 229, 431 Pa. A.2d 233
First, for that trial counsel was ineffective appellant alleges several inconsis- failing Henry prior Gibson with impeach specific In claims place appellant’s tent statements. order to context, conduct- we note that defense counsel proper their following on the ed cross-examination Gibson extensive (1) testimony trial inter inconsistencies between points, alia: description of the regarding Gibson’s and earlier statements (2) murder; inconsistencies used to commit the knife incident; night others the regarding his statements (3) trial and his statement inconsistencies between stop appellant; tried to regarding detective whether he a (4) from the discharge his his falsehoods about dishonorable (5) alarms; setting his fire Corps; Marine false United States (7) (6) by overdosing drugs; on his to commit suicide attempts (8) California; robbery for his violation conviction (9) his parole; charges conditions of his pending forgery; (10) and his abuse of drugs. alcohol and Trial counsel also testify reputa- called numerous witnesses to as to Gibson’s bad for tion truthfulness honesty.
The alleged discrepancy regards first Gibson’s preliminary hearing testimony that he a in appel saw knife trial, lant’s hand he During as stabbed the victim. Gibson hand, denied a knife in seeing appellant’s that he testified only saw appellant’s moving stabbing bare hand motion. Trial will be failing counsel deemed ineffective for such impeach impeachment only high witness when would *38 light damaging portions of the testimony. witness’ See Com Good, 533, 529, 30, monwealth v. Pa. 481 393 A.2d 32 Here, reasonably trial counsel declining pursue acted to inconsistency, since it on would have focused the possibility appellant that had a knife time his hand at the of the murder. respect
With to the alleged inconsistency, second preliminary Gibson testified at the that hearing he did not remember what color or of type night coat he wore on the of trial, however, the murder. At Gibson testified that he thought wearing he had been coat a Appel blue with hood. lant has failed to demonstrate trial that counsel acted unrea sonably by declining to minor press inconsistency. this
Moreover, in of light attempts the aforementioned to on numerous impeach significant Gibson points, appellant has failed to demonstrate impeach the failure to seek to on Gibson the inconsistencies at to issue worked his ultimate Thus, prejudice. is appellant entitled to no on relief his claims regarding prior ineffectiveness inconsistent statements. Moore, See Commonwealth v. 1119 A.2d (1993), denied, cert. 513 U.S. 115 S.Ct. 130 L.Ed.2d (1995) (attorney failing not ineffective for impeach to accomplice on minor pre-trial inconsistencies between state ment and testimony). trial
Appellant next claims that his trial counsel was inef failing fective for to cross-examine Gibson with evidence that bail issued to orders pursuant incarcerated had been Gibson urges that appellant Specifically, 4017.34 under Pa.R.Crim.P. that Gibson was have tended show this evidence would that would testify motive in a manner had a biased and However, 4017, material Rule under prosecutor. please or incarceration bail under no threat of further witness testified, of the con- regardless orders once that witness has Thus, demon- fails to testimony. appellant tent the witness’ by declining argue unreasonably that counsel acted strate a Rule 4017 witness. because he was was biased Gibson was ineffective for next claims that trial counsel guilt stating closing argument during phase in his murder. Specifically, hands after the Gibson washed his argues that defense counsel undermined own appellant himself had with this assertion because credibility wearing testimony that Gibson was provided uncontradicted in question. gloves night at all times on record, clear it is that counsel’s Upon review handwashing part respect statement with Gibson’s showing for that someone an to account the evidence attempt something had from at the sink the kitchen washed blood it Trial to show that could have attempted area.35 counsel appellant’s at the been who off sink because washed *39 found on the door and bloody fingerprints subsequently were Furthermore, he did not the lock. had testified that the 34. issued in this case stem from Commonwealth’s The bail orders likely jurisdiction proffer flee the unless incarcerat- that Gibson was to trial, appellant’s was incarcerated ed. At the time of Gibson not posted adequate security. had See Exhibits E-I. because he Specifically, argued as follows: 35. counsel on, Now, talking up you you heard Mr. Baez here. Do think come here, up running wiping here he had been around his hands off that if dishwashing to the next him and stood the sink here with lotion rag, rag on that had human blood it but and the now remember whose, wipe okay, going his off? He’s couldn't tell that he’s hands bloody wipe going going off. to leave them such them He's it, you lock out puts mean saw the blood that was on the that he —I going going fingerprint, wash he’s there and the if he’s them his hands. wash them. Gibson washed See T.T. at 1052. any to the sink or go wash blood from his own hands. Therefore, sink, in for the in accounting only blood the the argument available to defense was to suggest counsel that in Gibson—the other the only person apartment washed —had off having himself after committed murder. Appellant’s the testimony that Gibson had been wearing gloves certainly own account, inconvenienced this but this does not the fact alter that defense the pursued only counsel reasonable alternative available to him light client’s the physical evidence case.
Moreover,
above,
as stated
the trial court
in-
repeatedly
that
jury
arguments
structed the
of counsel do not constitute
The
presumed
evidence.
to follow the trial court’s
Baker,
supra,
instructions.
DNA TESTING Appellant argues next that his conviction should be vacated pending performance analysis of DNA certain on found on the body.36 hairs victim’s Specifically, appellant Sixth, Fifth, contends Eighth, and Fourteenth Constitution, Amendments to United States well as as justice,” “general principles mandate that the conviction and testing.37 sentence be vacated DNA pending Appellant cites Brison, Appellant upon Super. relies Commonwealth v. 421 Pa. 36. (1992) Brison, authority A.2d as for his claim. In the trial repeatedly indigent court and Commonwealth denied an defendant’s request testing. Superior for DNA The Court held that the trial court post-conviction testing granted erred and that DNA must be since the indigent requested testing, defendant the conviction rested evidence, largely on technology identification and the advanced of DNA Here, testing definitely could establish the defendant's innocence. rather, requested testing; appellant requests has not DNA judgment pending trial court's of sentence be vacated DNA testing. request testing performed any did not DNA to be time *40 prior during to Opin. trial or trial. See PCRA Court at 35.
115 solely a conviction court vacated appellate no in which an case provide nor does he pending, DNA were because tests testing DNA will that argument demonstrate substantial not made an has even likely Appellant his innocence.38 reveal testing to conduct DNA possible that it would be proof offer of sum, specula- not appellant In is entitled in this case. requests. tive relief that he UNCONSTITUTIONAL
VENIRE PANEL SELECTION
guar
argues that his
Amendment
Appellant
Sixth
jury
violated because minorities
impartial
antee of an
trial was
panel.39
on his
venire
Mere
under-represented
were
minority
jury panel
of a
on
does
group
under-representation
per
discrimination
se. Com
not constitute unconstitutional
862,
Jones,
473, 480,
465
350
866
v.
Pa.
A.2d
monwealth
Alabama,
202, 208,
380
85 S.Ct.
(1976)(citing Swain v.
U.S.
(1965)).
824, 829,
a jury
BATSON CLAIM next Appellant argues that the Commonwealth unlawfully used peremptory challenges its to exclude one juror African-American and prospective one His prospective from final panic juror jury panel violation of Batson v. 79, 1712, (1986). Kentucky, 476 106 U.S. S.Ct. 90 69 L.Ed.2d In claim, a order establish colorable Batson must a identifying first make record race of persons the venire Commonwealth, by stricken race jurors of prospective defense, acceptable the Commonwealth but stricken by the racial composition jury. and the of the final Commonwealth v. Simmons, 211, 231, 621, 541 Pa. 662 A.2d 631 (1995)(citing 233, 246, Spence, 1176, Commonwealth v. 534 Pa. 627 A.2d (1993)). Appellant 1182-83 has failed to meet the threshold requirement of a developing record of race of the prospec jurors tive acceptable the Commonwealth by but stricken the defense and has also failed to make a the racial record of of final composition jury. Appellant does not establish jurors that one of the two issue was a member a cognizable group purposes Thus, for of a Batson challenge.40 appellant has not stated colorable Batson claim.
JURY CHARGE AS UNANIMITY TO JURY
OF VERDICT Appellant next claims that he is sentencing entitled to a new hearing because the trial court failing clearly erred jury they instruct the thoroughly did not to reach have unanimous verdict in order to sentence to life im- Appellant juror asserts that number 123 was stricken because she Hispanic-American. Hispanic- an Even if this Court had held that cognizable group purposes Americans were a for Batson it has —which juror Hispanic not —the record does not reveal that number 123 was of origin. See N.T. Voir 244-46. Dire
117 argues further rather than death. prisonment pur- for unanimity required slip improperly verdict also imprisonment. to life sentencing appellant poses revers jury A instruction constitutes trial court’s or an is an abuse discretion only error where there ible Jones, 542 Pa. law. Commonwealth v. inaccurate statement of be taken as a Jury 491 instructions must A.2d 668 an isolated predicated cannot be on and an error whole 16, 454 A.2d Zettlemoyer, v. excerpt. Commonwealth denied, (1982), 103 77 cert. U.S. S.Ct. (1983). Here, the trial court’s instructions L.Ed.2d procedures were consistent with concerning unanimity *42 of legislature. Section 9711 the espoused by our instructions that: Sentencing Code mandates degree murder of the first is recorded a verdict of
[A]fter the the court shall conduct a jury discharged, and before is the hearing jury in which shall deter- separate sentencing to death or whether the defendant shall be sentenced mine life imprisonment. 9711(a)(1). Further, the jury’s § consider- prior Pa.C.S. verdict, court instruct the sentencing
ation the the must of jury that: discretion, discharge jury if may, court in its the it is
[T]he
will not result in a
opinion
of the
that further deliberation
sentence,
case
agreement
unanimous
as to the
in which
imprisonment.
court
sentence the defendant
life
shall
9711(c)(l)(v). Thus,
§
code man-
sentencing
Pa.C.S.
jury
cannot
dates that when the court determines
verdict,
impose
imprison-
the court must
life
agree upon
A
of
record reveals that
the trial court
ment.
review
a
jury
instructed
that the
could return
less
properly
verdict,
trial
then
than unanimous
and that the
court would
be
law to
of life
required by
impose
imprisonment.41
sentence
specifically
41. The trial court
instructed:
may
prison or
you
unanimous verdict of life in
death it
While
return a
agree
your
a unanimous
right
is
absolute
under
the law not
on
lead
If I then
further deliberations will not
to a
verdict.
determine
death,
imprisonment
life
I’m
of
or
then
unanimous
verdict either
proper
The trial court’s instruction
of the
statement
law.
not
on
Consequently, appellant is
entitled to relief
this claim.
CUMULATIVEERROR
suggests that
aggregate,
argu
mandate
and a
presented
ments
his brief
reversal
remand
However,
for a
trial.
of appellant’s
new
all
claims of error
have
for lack
individually
failed
of merit. These
meritles's
gain any
merely
they
claims do not
merit
because
are woven
appellant’s brief. Common
into one fabric for
purposes
(1995)(no
Murphy,
wealth v.
SECOND SUFFICIENCY OF EVIDENCE REVIEW Appellant urges that in where cases errors have been found harmless, but deemed this Court should undertake a second sufficiency evidence review under a more stringent Again, standard. any since the Court has not found error in matter, adopt this we decline to appellant’s proposed method sufficiency further of the evidence review.
PROPORTIONALITY OF SENTENCE *43 Finally, 9711(h)(3), 42 pursuant § Pa.C.S. this duty Court a to affirm has the sentence of death unless we that: determine
(i) product the sentence of death was the passion, preju- of any factor; arbitrary dice or other (ii) the support evidence fails to of at least finding one (d); aggravating specified circumstance in subsection or required judicial impose impris- under the code a sentence of life onment Orlando on Baez. p. clearly T.T. 3010. The trial court also instructed that required unanimity aggravating find order to an circumstance but circumstance; purposes finding mitigating not for of slip the verdict 3010, 3015; reiterated this instruction. See T.T. at 3012 & Exb. J. of App.’s Brief.
119 (iii) disproportionate death is excessive or the sentence of cases, both the considering in similar penalty imposed character record of the crime and the and circumstances of the defendant.42 9711(h)(3). below, record we reviewing § After
42 Pa.C.S. not the imposed product that conclude the sentence addition, factor. In any arbitrary or other prejudice passion, of two jury’s finding unanimous supports the evidence first, appellant that committed aggravating circumstances — 42 felony, of a Pa.C.S. killing perpetration while 9711(d)(6), second, killing that committed the appellant § 9711(d)(8). torture, § 42 The means of Pa.C.S. Common- by had presented repeatedly evidence that wealth her. T.T. at raping stabbed and slashed the victim while See 1264ff, 1095ff., 2868-69. The evidence further established was stab- the victim was conscious alive while causing over bing pain her with the knife with the intent Thus, id. See and above that sufficient cause death. supported aggravating of these circumstances. evidence each 63, Zettlemoyer,
Finally, supra, accordance with 961, required proportionality 454 A.2d at we are to conduct review sentence. statutory
This not take and consti- lightly Court does its tutional will conduct an evaluation of independent duties and the sentencing all cases since the effective date of decided 1978). 13, (September consideration This procedures under 42 independent by review Pa.C.S.A mandated (h)(3)(iii) § all judicial 9711 will utilize available resources cases, taking and will all similar into consider- encompass ation both the circumstances of the crime and the character and record of the defendant in order to determine whether 1997, 25, legislation signed repeals June 42. On the Governor proportionality penalty deleting review from the death statute all of 25, (h)(4). (h)(3)(iii) portion subsection and a of subsection Act of June 28, 1997, (Act 28). § No. Section 28 states act "[t]his 1 3 of Act However, immediately.” take this Court determined shall effect has applied penalty 28 that Act should not be to death cases where the 25, prior imposed sentence death was to June Commonwealth Gribble, 19, 19, 550 n. A.2d 440 n. 1997 Pa. v. Pa. LEXIS at *38 n. *44 the sentence of death is excessive or disproportionate to the circumstances.
Id.
In
regard,
this
we have conducted our
proportionali
own
ty
by
review
independently
cases,
similar
examining
by re
viewing the
underlying
murder,
facts
the first degree
by
considering the sentencing data compiled by the Administra
(AOPC)
tive Office of
Pennsylvania
Courts
pertaining to
similar cases. We conclude that the sentence of
im
death
posed upon appellant is not excessive or disproportionate to
imposed
sentences
similar cases.43 See Commonwealth
428,
v. Frey,
443,
700,
504 Pa.
707-08,
denied,
475 A.2d
cert.
963, 105
360,
469 U.S.
S.Ct.
Justice NIGRO files a concurring opinion.
NIGRO, Justice, concurring.
With the exception of footnote
which relates to the
Majority’s discussion of Appellant’s
claim,
join
Batson
.1
Majority’s opinion.
See,
Marinelli,
e.g.,
Commonwealth v.
547 Pa.
44. The Supreme Court is directed to as possible, complete soon as record in this case to the Governor of Pennsylvania. l(i). § 42 Pa.C.S.