*1 discovery faced of lost in his property capaci- official However, ty. majority penalize chooses to the officer because he was in his official capacity when he found property. I cannot Accordingly, endorse decision. respectfully dissent.
Robert J., ZARPALA, CAPPY, FLAHERTY, C. and Before SAYLOR, CASTILLE, NIGRO, NEWMAN and JJ. THE COURT OPINION OF FLAHERTY, Chief Justice. appeal
This is a direct 1996 conviction homicide, assault, robbery, aggravated recklessly criminal en- by taking another and theft unlawful or dangering April returned a sentence of death. On disposition. 8,1996, the court to death on the homicide sentenced conviction, twenty and sentences of ten to three consecutive robbery aggravated for the and assault convictions. years at trial are as follows. The facts established On June a.m., Hi at about 10:00 Michael Elder arrived at Valor goods Borough, Adventure store Baldwin Shop, sporting lot, saw two cars in the store parking where he worked. He Calabro, primer wagon” belonging “a station and a car to John store, approached co-worker. As Elder he noted Elder’s store, open. the door was When he went inside the however, if something wrong. it seemed as He walked to his lunch in put the back of the store order holding and was confronted a chrome refrigerator at his face. three plated autoloading pistol pointed Within seconds, face, shot in the him uncon- knocking Elder scious, but not him. later,
Minutes two other customers arrived the store and but body, body discovered Elder’s John Calabro, who had been shot dead. Elder was conscious but speak. help. police unable to The customers called for When arrived, paramedics hospital Elder was taken to the body kneeling position Calabro’s dead was found behind a. *5 a single gunshot the counter. Calabro had wound powder glass containing guns with burns. The case forehead subsequently store owner was smashed. The determined stolen, including handguns, were a number of a guns several .380 shotgun. handguns, including rifle and a Colt stored in the case without pistol, glass magazines. were at appellant preliminary hearing Elder identified and trial. Both Elder and the store owner identified as who on previous had been the store several occasions. Brown,
Reginald grown up appellant, who had with testified $1,500 him handguns sold a number of for obliterated, summer 1994. The serial numbers had been was expert but an able to raise most of the obliterated serial from guns. numbers these These numbers were the same as weapons those for the stolen from Valor. Brown indicated guns that some of the from purchased appellant, particular- he ly pistols, magazines the .380 Colt not have did and Brown himget magazines. told that he would crime, After the local police requested gun stores to take anyone notice of purchasing magazines handguns. Harry Moore, manager of Braverman Arms Company Wilkins- burg, July testified that on 1994 appellant purchased two magazines for a Colt .380 pistol. Moore recorded license at the purchase. driver’s time An ATF agent testified that the handguns registered to appellant at this time were two .380 caliber pistols Lorsen and a .40 caliber registered Niberia. No Colts were to appellant.
A expert firearms testified that performed he ballistic tests on bullets removed from Elder and Calabro. He determined certainty they reasonable scientific had been fired from the same .380 pistol. pistol caliber Lorsen This by police Moore, recovered shooting Harry after the Arms, Braverman testified that appellant purchased had on gun June Brown testified that pistol this Lorsen was similar to guns one of the him appellant sold and which Williams,
he, Brown, Williams to clean. gave one Chris gave gun police. turn pistols reported two Lorsen .380 one
Appellant owned 15,1994. of them stolen on June *6 Thus, in pistol the Lorsen used appellant purchased 13, 1994, on gun crime on shot the two victims with this June 30, 1994, in gun Reginald Brown June and sold of 1994. summer that stain concluded blood from the broken analysis
Blood that counter was consistent with blood and Elder this being and were eliminated as the source of Calabro analysis of this blood particular stain. Additional manager laboratory Pennsylvania of the DNA for the state that the taken from the police Greensburg indicated blood of the blood of gun genetic profile broken case matched the appellant. testify, presented capaci- but a diminished
Appellant did appellant mother testified that had ty Appellant’s defense. twice before for mental disease. Dr. Bern- hospitalized been stein, appellant a testified that he examined on psychiatrist, occasions, that his conclusion was that was three was, reason, that form schizophrenic and unable to for first specific required degree intent murder. He testified unresponsive powerful anti-psychotic was condition, drugs severity because of the his drove him to commit the crimes appellant heard voices which in question. objection, played tape
Over the Commonwealth television interview which conducted after his arrest in which he the crimes at issue. any participation denied In in which a every penalty case death has been sufficiency imposed, required this court is review degree evidence for a conviction of first murder. Common 16, 937, Zettlemoyer, wealth v. 500 Pa. 454 A.2d 942 n. 3 (1982). evidence, court must considering sufficiency all determine whether the evidence and reasonable inferences most favorable to the evidence, light in the viewed from the winner, to enable are sufficient as verdict Commonwealth of the offense elements to establish all of the fact finder Hall, Pa. v. doubt. Commonwealth beyond a reasonable stated 190, recently court 269, As this 701 A.2d Koehler, 233-34 Commonwealth (1999): murder, the Com- degree first
To sustain a conviction for acted with defendant prove must monwealth kill, unlawfully being that a human specific intent to that the killed, killing, and that the accused did the to kill is the intent specific It was done deliberation. degree first from lesser distinguishes murder which deadly of a have held that the use grades of murder. We is sufficient to body of a human weapon part on a vital Finally, to kill. the Common- specific establish the intent through kill circum- can intent to prove specific wealth *7 stantial evidence. omitted.)The
(Footnotes presence and citations scene, appellant by identification of blood at the murder Elder, stolen from and sale of firearms appellant’s possession of Elder when Elder Sports, appellant’s shooting Valor that in on the are sufficient to establish robbery walked intent, and deliber- specific premeditation acted with appellant robbery. of a during ation in Calabro the course pre-trial first claim of is that counsel Appellant’s error to conduct a television allowing appellant was ineffective hearing, At hearing. to the coroner’s prior interview trial, but at being shooting, denied involved appellant theory of capacity. Appellant’s his was diminished defense that to conduct the allowing appellant ineffectiveness is interview, viewing by which would be available television for involvement any and which denied crime, capacity counsel undermined the diminished pre-trial that be at trial. presented defense would “A criminal defendant recently
As this court stated: (1) by proving: sustains a claim of ineffectiveness of counsel (2) merit; is of that underlying arguable claim (3) basis; performance counsel’s had no reasonable prejudice.” counsel’s worked to his Common- ineffectiveness Baez, wealth Capital Unitary Penalty
At the Review And Death Cases 10, 1997, hearing April Act on which occurred a little more year degree than a after was convicted first murder, assault, robbery, recklessly theft and aggravated another, testified that he fabricated the endangering entire diminished He testified that when capacity defense.1 presence the forensic evidence indicated the of his blood scene of the he realized he needed a other shooting, defense than that he was present: the denial
Q. you psychiatrist] Did not tell Dr. Bernstein defense [the about pulling trigger? I may
A. Not that recall. I have. You never can get I your straight, you gist, facts of life know. don’t say going want to it is to be hard me to remember I everything thing told Dr. Bernstein because that whole was fabricated.
Q. thing The whole was fabricated? thing A. The told Dr. Bernstein was fabricated. Dr. him Q. you How about Levitt when told he devil forced you to shoot Mr. Elwood? ... again
A. Once
Q. It was all fabricated?
A. Yes. 10.1997). (April
N.T. 58-59 *8 sir, Q. point, you At what did decide to fabricate this? in any particular point you Was there time that decided the mental defense would be the best? Well, said, defense, like I I didn’t want a mental but I
A. I something, thought had to think of and that’s what of. 11, By August permanently suspended order of 1997 this court Capital Unitary Suspension Capital Unitary Review Act. In Re of 1995-32(SSI), Review Act and Related Sections Act No. No. 224 of Criminal Procedural Rules Docket No. 2. meeting counsel]. after I had that right [trial It was go me. I could going I is to believe thinking started —who out, who was my lungs going scream but up there and believe me. was yours? The blood that was left at scene
Q. there, that and they A. blood that was so-called tested know what to things. found it was mine and other didn’t do.
Id. at 60. claim, essence, is that lie he told the news
Appellant’s in court arranged lies he to be told media undermined the medical testimony expert of his through manipulated certain, it is witnesses. Such a claim is unsustainable. When here, appellant’s complaint as it is claim boils down lies, not handling that counsel was ineffective his of we will Counsel, as a of ineffectiveness. question even reach the lies, law, matter of cannot be ineffective in his treatment of truth, course, perversion legitimate accept- of has no or merit. place litigation. arguable ed The claim is without claim of error is that trial Appellant’s second Thomas, calling counsel was ineffective not one Jewel testified, alia, friend, lady who would have inter exhibited behavior consistent with times claim, schizophrenia. prevail order on requirements must not meet for ineffectiveness counsel, above, set out but also he must meet an additional (1) existed; part five test: he must be able to show the witness (2) (3) available; was informed or the witness was counsel (4) witness; should have the existence known would prepared cooperate witness was available and (5) testi appellant; have testified for the absence Crawley, Commonwealth mony prejudiced appellant. Pa. 679-80
This claim fails for a of reasons. too number First, his again complains it fails because once above, lawyer not his As we stated lawyer did facilitate lie. he failed to may be found to be ineffective because *9 addition, But in upon appel- facilitate defense based lies. him lant’s trial counsel testified that ordered not to during guilt phase call this witness of the trial because he job. Trial jeopardize believed that her involvement would her failing counsel cannot be ineffective for to take a course of action which forbade. it
Finally, appellant argues that was error
it
jury
trial court
to instruct
that
could find as an
aggravating
appellant knowingly
circumstance that
created a
person
risk of death to another
addition to the victim
9711(d)(7).
Citing
of the murder.2
Pa.C.S.
Common
Paolello,
(1995),
wealth
The evidence established that when Elder arrived at the store, appellant already inside and that he shot Elder as Elder walked to the rear of the store. Elder did not see his store, co-worker Calabro as he entered the and the Common- presented nearby wealth no evidence Elder was or within when danger Presumably, zone Calabro was killed. was already Calabro dead when Elder entered the store. jury aggravating outweighed 2. The found that two circumstances four mitigating aggravating The were circumstances. circumstances found perpetration that "the defendant committed a while in the of a felony” and that "in the commission offense the defendant knowingly person created a risk of death to another in addition to mitigating the victim of the were offense.” circumstances found convictions;” prior that "the defendant has no criminal "the defendant school;” forces;” average served in the armed "the defendant [did] testimony expert predisposition.” and "unrefuted of mental facts, it was error agree constrained to On these we are (d)(7) that it could find for the trial court to instruct in addition to risk of death to another (creating grave murder) circumstance. as an the victim the *10 two circum aggravating Because the found circumstances, but of the mitigating and four one stances determined, erroneously circumstances was aggravating a new of is vacated and the case is remanded for penalty death 9711(h)(3)(h).3 § 42 Pa.C.S. sentencing hearing pursuant majority with the and files a Justice NIGRO concurs joins. concurring which Justice CAPPY Justice opinion joins majority opinion. CAPPY also concurring dissenting Justice CASTILLE files a opinion.
NIGRO, Justice, concurring. separately solely concur with the and write Majority in his position by address the taken Justice Castille Concur- judge by that the trial did not err ring Dissenting Opinion (d)(7) jury that it find the instructing aggravating could circumstance. in stating
Justice Castille is accurate that what we are statute, namely of a 42 concerned here is the construction 9711(d)(7). (d)(7) § The circumstance aggravating Pa.C.S. when the commission of the offense the defendant applies “[i]n of knowingly person created risk death another 9711(d)(7). § 42 addition to the victim.” Pa.C.S. Justice suggests Castille that the word “offense” within this context interpreted just should be to include more than defen- dant’s murderous acts not use a legislature because did as “homicidal or “homi- particular phrase more such conduct” ll(h)(3)(ii) provides: § 3. 42 Pa.C.S. 97 (3) Supreme the sentence unless it The Court shall affirm of death determines that: (ii) aggrava- support finding of at one the evidence fails to least (d). ting specified circumstance in subsection at issue. crafting cidal acts” in that, purposes Castille contends Accordingly, Justice (d)(7), robbery sporting goods store consti- of which during placed tutes an “offense” the commission he Elder) (Mr. risk of death. third Castille, advocated Justice statutory interpretation however, logic because the “offense” for which a defies to the the death exposed possibility facing defendant can be See, e.g., penalty first-degree is murder. Pa.C.S. 9711(a)(1). addition, § proposed interpre Justice Castille’s (d)(7) referring tation of the term “offense” within as crimes canon other than murder is contravention the well-known statutory penal construction that statutes must be con 1928; See Commonwealth strictly. strued Pa.C.S. Smith, 380, 385, 268, 271 (d)(7) above, when the aggravator applies only
As noted *11 risk of death to another knowingly grave defendant creates “in in addition to the victim the commission of the person 9711(d)(7). § 42 in clearly offense.” Pa.C.S. As we stated Paolello, (d)(7) Commonwealth aggravator applicable the is in are ‘in close only persons those instances where “other ‘at the time’ of the murder.” 542 proximity’ the defendant Thus, 47, 80, notwithstanding Pa. “in argument contrary, phrase Justice Castille’s the plainly “during commission of the offense” means the murder” or “at the time of the murder.” case, correctly that Majority the instant concludes to support
there was insufficient evidence the Common- theory shooting wealth’s fatal of Mr. Calabro in within the store Mr. Elder risk sporting goods placed grave simply showing of death because there was no that Mr. Elder in Mr. put danger was at the time of Calabro’s murder. To be sure, later, in shot put danger Mr. Elder was when “in shooting simply him —but that did not occur the commis- offense,” i.e., during Mr. Calabro’s murder. While sion of the (d)(7) correctly apply Justice Castille observes does are bystanders directly to cases were located behind shot,1 it I believe that person being victim as that is intended unambiguous intent meaning and plain would undermine (d)(7) applies in to find that cases question of the statute one, no indication that a such the instant where there is as during in risk of party placed grave third was death party’s victim due to that third murder the intended to the victim.2 temporal spatial proximity joins concurring opinion. Justice CAPPY CASTILLE, Justice, concurring dissenting. support was sufficient evidence to agree
While
there
that his
was not
appellant’s murder conviction and
counsel
trial, I
guilt phase
disagree
in the
of the
with the
ineffective
majority’s holding
instructing
that the trial court erred
that, in
that it
as an
circumstance
aggravating
could find
offense,
knowingly
of the
created
the commission
risk of
to another
to the
death
addition
9711(d)(7).
majority
§
victim the offense.
Pa.C.S.
support
concludes that there was insufficient evidence to
9711(d)(7)
finding
aggravating
on the
circumstance
no
presented
basis that “the Commonwealth
evidence that
or
nearby
danger
Elder was
within the zone of
when Calabro
more
disturbingly,
majority
Even
cites
killed.”
that,
minimum,
at a
apparent approval appellant’s argument
required
the Commonwealth was
to show that
the second
Elder,
victim,
could have been struck with the bullet that
for this
killed Calabro
order
See,
Robinson,
e.g.,
Commonwealth v.
More Paolello may general understanding be to a of the cases that have 9711(d)(7), it the matter of the arisen under does end
109
cases,
Indeed,
is a line of
there
of the statute.
construction
Commonwealth, but
trial court and the
upon
the
by
relied
has
in which
Court
held
majority,
ignored by the
finding
the
support
a
is
evidence
there
sufficient
the
9711(d)(7)
when
defendant’s
§
circumstance
aggravating
a
or
the act of
created
behavior either before
after
other than the victim.
risk
to someone
grave
of death
McNair,
368,
529 Pa.
603
in
v.
For
Commonwealth
example,
and,
victim
(1992),
fatally shot the
the defendant
A.2d 1014
him,
shots at a friend
additional
dispatching
fired several
after
This
attempting to flee.
Court
of the
who was
victim’s
shooting
the
of the
argument that
the defendant’s
dismissed
for
separate offense
should be considered
victim’s friend
circumstance,
(d)(7)
explaining
aggravating
purposes
fired in
a short time
that,
shots were
such
these
“[b]ecause
safety,
running
were
specific people
and at
who
for a
sufficient evidence exists
justified
concluding
in
was
during
in
risk of death
were
finding
placed
that others
376,
Id. at
dren’s
York
to the
out
carry
Home
returned
Home to
who,
kill a
conspiracy to
counselor
the
con-
conspirators had
cluded,
juveniles.
had been strict
in his treatment
defendant,
While
of
conspirators,
three
the
including the
death,
counselor
guard
stabbed the
to
the fourth
on
stood
the
floor,
kill anyone
second
to
up
instructions
who woke
and
fact,
attempted
help
awoke,
to
the victim.
no one
and the
only person
suffer
was the
injury
murdered counselor.
Even
the victim
though
was stabbed
death with no others in
vicinity,
the
this Court
posed
held that the offense
risk
552, 555,
of death
of
“to
other residents
the home.”
at
Id.
Based on the in theory espoused these there plainly was jury sufficient evidence to permit here to consider the 9711(d)(7) circumstance, though even the bullet that killed Mr. Calabro no posed specific danger Mr. Elder and Mr. was not until Elder shot after Mr. Calabro was The Calabro murdered. Mr. occurred in the course of appellant burglarizing the At time that premises. Mr. store, Elder yet entered had to make his escape. I significant see no difference between appellant’s shooting face, Mr. in Elder to facilitate his getaway, and the Johnson, in shooting pursuers or the separate shootings Robinson, McNair and or danger the inchoate Mitchell. Furthermore, contrary to the majority, believe conduct here warranted submission of the aggravating cireum-
Ill danger theory even under the zone to the stance zone of The the case law Paolello. extrapolated from Calabro; killed Mr. was store where danger Judge As appellant escaped. until did not become safe zone Cercone noted: was within unquestionably that Mr. Elder
We believe proximity in close decedent and was danger, zone the store within Elder arrived at at the time of the murder. Defendant, killed had shot and minutes of its who opening. Calabro, robbery geta- yet completed Mr. had his sec- perhaps o[r] within minutes way. Mr. Elder arrived still onds Calabro’s murder. murderer/robber succeed, complete his rob- If Defendant was to the store. deeds, had to his from his vile he bery escape effect present, a co-worker who other eliminate or of Bolden’s cold- had arrived within minutes seconds last eliminat[ion] blooded act. One witness would need *15 escape. for to good order defendant make on his Unfortu- Defendant, however, to nately complete for he failed task, bring justice a witness would down leaving help who upon him. agree
Trial this Opinion thoroughly Court with analysis. of the of support understanding
Further zone danger provided test is our recent decision Common- Counterman, In wealth Counterman, by the defendant murdered his three children escape. fire house setting preventing to his their We held jury’s finding that there was sufficient to support evidence 9711(d)(7) because, § aggravating by of the set- fire, risk of not ting the defendant created death house, wife, who but also to only his was also not. firefighters neighbors, Obviously, by and his who were fire, that, holding, recognized by so the defen- setting we only until the danger dant created a zone remained who extinguished, extending blaze was but also individuals after of the fire. Similar- setting entered this zone the initial ly, case, in the instant the zone of danger remained until appellant made his escape from the store.
But even if it could be said that the rule Paolello found in
its
survey
earlier cases supported the result
by
reached
majority here, I would still dissent. We are
concerned
the construction of a statute. The cases construing the statute
are
testament
the “factual
generated
situations” that
Paolello,
them.
The plain language 9711(d)(7), §of no less than the case law earlier, cited fully supports the trial court’s decision to submit jury. this issue to the The statutory circum- aggravating (d)(7) governs stance where, factual situations “In the commission of the the defendant knowingly created a offense grave risk of death to another in addition to the victim added). Id. (emphasis It is notable that the offense.” legislature employed for, the broad term “offense” elsewhere statute, in the same legislature used narrower terms such as “a killing,” 9711(d)(6), Pa.C.S. or “homicidal conduct” acts,” § or 9711(e)(6), (e)(7), “homicidal in defining various mitigating circumstances. legisla- Had the ture intended to confine risk of death aggravator risks caused circumstances surrounding only blow itself as the majority suggests, surely it would have employed one of the narrower terms it proved capable employing By elsewhere. using “offense,” the term rather *16 act,” than “killing” or “homicidal requires statute that the (d)(7) inquiry should not be limited to the instant place. took
Finally, provides this case a prime example the wisdom of this aggravating circumstance. Aggravating circumstances exist to provide the appropriate punishment for the most heinous of murders or murderers. Appellant’s conduct here went well beyond that necessary to commit a degree first the intentional shoot- simply “offense” was murder. The Calabro, robbery appellant a which it was ing of Mr. in his anyone path. kill easy willingness an displayed i.e., 10:00 store at goods sporting entered the Appellant a.m.— employees when other open, time it was at a when Indeed, the door the store to enter. likely customers were robbery, the course ajar. During was left case, head shot Mr. Calabro display glass smashed a It of the store. in the front body and left his behind counter foreseeable, enter even that someone would easily likely, was robbery/murder, notice during the store the course case, and discover the display employees smashed look his escape. could make body of Mr. Calabro before occurred, store, escape who entered anyone Until Elder, Thus, implicit in the grave danger. such as Mr. risk of offense elected to commit was death store. The anyone might sporting goods else who enter the This risk person. second victim was such distin- I it is guishes degree this from other first murders. believe type contemplated precisely 9711(d)(7). §by Accordingly, dissent.
Argued Oct. 20, 2000. June Decided