Commonwealth v. BaskervilleCommonwealth v. Baskerville
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- Before:
- Cirillo
Marvin Baskerville appeals from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following his conviction for third-degree murder, robbery, and criminal conspiracy. We affirm.
On or about the night of March 30,1994, Baskerville and his friend, Baron Simmons, were walking through their West
Upon reaching the street corner, Haynes asked Baskerville whether Williams or Anderson was wearing any jewelry. After Baskerville replied that both men were wearing jewelry, Haynes asked Baskerville to return to the auto and ask the occupants for a cigarette. 1 Baskerville agreed, walked to the car and asked Anderson for a cigarette. Meanwhile, Haynes approached the driver’s side window and demanded Williams’ jewelry at gunpoint. As Williams was handing his watch to Haynes, he tried to push the gun aside and drive away. Once Williams stepped on the accelerator, Haynes shot him four times in the back. The car, driven by Williams, crashed into a nearby, parked car. Williams later died from massive blood loss. The day after the robbery, Baskerville saw Haynes in the neighborhood, where he promised Baskerville $50.00 for keeping quiet about the crime and also forgave Baskerville’s $100.00 debt owed to Malloy.
Baskerville was tried by a jury and convicted of third-degree murder, robbery, and criminal conspiracy. He was sentenced to a term of ten to twenty years in prison for the murder charge, and to concurrent terms of five to ten years for the robbery and two to four years for criminal conspiracy.
(1) Did the Commonwealth commit prosecutorial misconduct requiring a new trial when, during closing argument, the prosecutor took off his wristwateh and tried to hand it to the defendants?
(2) Was the evidence presented by the Commonwealth insufficient to sustain a conviction for third-degree murder where there was no malice proved on behalf of the defendant?
(3) Was the evidence presented by the Commonwealth sufficient to prove beyond a reasonable doubt that the defendant did not act under duress?
(4) Was the evidence presented by the Commonwealth sufficient to sustain a conviction for criminal conspiracy to commit murder where the evidence presented only went to show a possible conspiracy to commit robbery?
(5) If the conviction for third-degree murder was premised solely on the conspiracy to commit murder conviction and such a conspiracy was never proved, does not the conviction for third degree murder also fail?
Baskerville first contends that the Commonwealth committed prosecutorial misconduct warranting a new trial when, during closing argument, the prosecutor took off his wristwateh and tried to hand it to the defendants.
This Court has recently defined the standard for ordering a new trial in a case where a prosecutorial statement is deemed improper. Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982). There we concluded that, although a prosecutor’s statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor’s remark prejudiced the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Id., 497 Pa. at 627, 444 A.2d at 92. See also Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981) (New trial warranted when unavoidable effect of prosecutorial comment is to deprive defendant of fair trial);Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973). Furthermore, “[T]he prejudicial effect of the district attorney’s remarks must be evaluated in the context in which they occurred.” Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). However, a reversal is not an automatic formality for every intemperate or improper comment by the prosecution.
Commonwealth v. Chimenti, 362 Pa.Super. 350, 364, 524 A.2d 913, 920 (1987), allocatur denied, 516 Pa. 639, 533 A.2d 711 (1987) (quoting Commonwealth v. Maxwell, 505 Pa. 152, 166, 477 A.2d 1309, 1316-17 (1984), cert. denied, 469 U.S. 971, 105 S.Ct. 370, 83 L.Ed.2d 306 (1984)).
The alleged misconduct occurred during the prosecutor’s closing argument, where the following exchange took place:
MR. CAMERON: ... Darren Williams, a 29 year old man, who is six feet under because of these people. He should be alive. He should be at home with his wife and his mom, whatever. This should have been nothing more than a robbery case, but instead, he is dead. One has to wonder what is going on in this world, in this city, that two young men after work on an evening can’t sit outside of a playground to talk about their day or what happened, but instead have something like this, over a watch, his jewelry, and saying you can have it—
MR. PERRI: I object.
MR. MIRARCHI: Objection. I move for a mistrial.
MR. PERRI: I move for a mistrial also. Let the record reflect that comment was directed at Mr. Haynes.
THE COURT: I will sustain the objection.
MR. CAMERON: They asked for jewelry. The man had a watch. The medical examiner said there was no watch. Robbery was the motive.
MR. MIRARCHI: There was no testimony that Mr. Baskerville said anything. In fact, to the contrary, there was testimony he said nothing.
I will sustain the objection.
From our review of the record, there is no evidence that the prosecutor removed his wristwatch and handed it to Baskerville. Instead, the record indicates that the prosecutor’s remarks were directed at the co-defendant, Haynes, and not Baskerville. Furthermore, Mr. Mirarchi, counsel for Baskerville, appears to be primarily concerned with the prosecutor’s assertion that Baskerville voiced a demand for the jewelry, and not with the prosecutor’s actions which he now attacks.
The failure to include the relevant facts for an analysis of appellate issues precludes this court from conducting a review on appeal.
See
Baskerville’s next three arguments concern the sufficiency of the evidence presented by the Commonwealth. In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the
Baskerville claims that the evidence presented by the Commonwealth was insufficient to prove malice in order to sustain his conviction for third-degree murder. The record belies this assertion.
The Pennsylvania Criminal Code defines third-degree murder as all other kinds of murder, other than first-degree or second-degree murder.
See generally
In the present case, Baskerville entered into a criminal conspiracy to commit armed robbery. At the time of the
Further, as a conspirator, Baskerville is chargeable with the acts of his co-conspirator. Commonwealth v. Glover, 399 Pa.Super. 610, 582 A.2d 1111 (1990). Haynes indisputably acted with malice when, in the process of an attempted armed robbery, he shot the victim four times in the back, mortally wounding the victim. See Commonwealth v. Mercado, 437 Pa.Super. 228, 649 A.2d 946 (1994) (malice, as an essential element of third-degree murder, may be inferred from the use of a deadly weapon upon a vital part of the body). Accordingly, the malicious conduct of Haynes supports a finding that Baskerville also acted with malice. Glover, supra; see also Commonwealth v. Bigelow, 416 Pa.Super. 449, 611 A.2d 301 (1992) (malice could be inferred from the defendant’s actions in planning and participating in the crime, even if the killing blows were struck by someone other than the defendant). The evidence was clearly sufficient to establish malice for Baskerville’s third-degree murder conviction. Young, supra.
Baskerville next contends that the evidence proffered by the Commonwealth was insufficient to prove beyond a reasonable doubt that he did not act under duress. We disagree.
“The elements which must be shown to establish a duress defense are: (1) an immediate or imminent threat of death or
The Commonwealth offered evidence at trial that Baskerville did not voluntarily turn himself in to the authorities. Moreover, it is apparent that there were a number of reasonable opportunities for Baskerville to flee the crime scene and escape any “perceived” harm, however, he consciously failed to do so. Specifically, Baskerville was not forced to acknowledge Haynes when he first called to him; indeed, Baskerville’s friend, Baron Simmons, continued to walk away. In addition, when Baskerville returned alone to the car to ask for a cigarette, he was given another reasonable opportunity to escape. This evidence is especially damaging to Baskerville, in light of his testimony that he believed that Haynes was about to rob the occupants of the vehicle. Based on our review, we find that the evidence presented by the Commonwealth was sufficient to prove beyond a reasonable doubt that Baskerville did not act under duress. See Commonwealth v. Pelzer, 531 Pa. 235, 612 A.2d 407 (1992) (appellant not entitled to a jury charge on duress where appellant failed to withdraw from a conspiracy, despite having numerous opportunities to do so, and where appellant’s own assertions defeated his claim of duress).
Baskerville further contends that the evidence presented by the Commonwealth was insufficient to sustain a
A conspiracy is an agreement to commit an unlawful act; the agreement can be proven by the relation, conduct, or circumstances of the parties. Glover, 399 Pa.Super. at 616, 582 A.2d at 1114. The law in Pennsylvania is settled that each conspirator is criminally responsible for the actions of his co-conspirator, provided that the actions are accomplished in the furtherance of a common design. Commonwealth v. Robinson, 351 Pa.Super. 309, 316, 505 A.2d 997, 1001 (1986); Commonwealth v. Bachert, 271 Pa.Super. 72, 77, 412 A.2d 580, 583 (1979). In addition, despite the fact that an individual co-conspirator did not contemplate to kill, where a killing is a natural and probable consequence of a co-conspirator’s conduct, murder is not beyond the scope of the conspiracy. Commonwealth v. La, 433 Pa.Super. 432, 450, 640 A.2d 1336, 1345, allocatur denied, 540 Pa. 597, 655 A.2d 986 (1994).
In the present case, Baskerville knew that Haynes possessed a gun, Baskerville informed Haynes that Williams and Anderson were wearing jewelry in the car, and Baskerville surmised that a robbery was about to occur. Baskerville approached the passenger-side window and asked Anderson for a cigarette, at Haynes’ request, thus allowing Haynes to approach the car unnoticed. Further, Baskerville positioned himself against the passenger-side door, effectively trapping Anderson inside the car while the robbery was in progress. In addition, as previously discussed, Baskerville participated in the robbery despite having had numerous opportunities to flee the scene. Finally, Baskerville testified that he was relieved of a $100.00 debt owed to a friend of Haynes, and was promised $50.00 to keep quiet about the robbery.
Combining these facts, and the reasonable inferences which may be drawn from them in the light most favorable to the Commonwealth, we conclude that there was sufficient evidence to establish a criminal conspiracy to commit armed robbery between Baskerville and Haynes.
Jarman, supra.
Since the killing of Williams was done in furtherance of the armed robbery, Haynes’ actions are attributable to Baskerville and
Finally, Baskerville contends that if the evidence for third-degree murder was premised solely on the conspiracy to commit murder conviction, and such a conspiracy was never proven, then the conviction for third-degree murder must be reversed. Having already determined that there was sufficient evidence to convict Baskerville of conspiracy to commit murder, Glover, supra; La, supra, we find this argument moot.
Judgment of sentence affirmed.
Notes
. Baskerville testified that prior to approaching the automobile and asking for a cigarette, he believed that the co-defendant, Haynes, planned to rob the occupants.
. Similarly, Baskerville’s reference to a
Philadelphia Daily News
article which alludes to the prosecutor‘s alleged misconduct is not reviewable by this court.
See