COMMONWEALTH of Pennsylvania, Appellee v. Shawnfatee Michael BRIDGES, Appellant.
Supreme Court of Pennsylvania.
Argued Nov. 15, 1999. Decided Aug. 24, 2000.
757 A.2d 859
Mark C. Baldwin, for appellee, Com.
Iva Dougherty, Reading, Robert A. Graci, Harrisburg, for appellee, Office of Atty. Gen.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
OPINION
NEWMAN, Justice.
Shawnfatee Michael Bridges (Appellant) files this appeal from the Judgment of Sentence of the Court of Common Pleas of Berks County that sentenced him to death following two convictions for first-degree murder. After reviewing the record sent to this Court, and the claims raised by Appellant, we affirm the sentences of death.
This Court directly reviews all cases in which the death penalty has been imposed. See
I. FACTS AND PROCEDURAL HISTORY
The facts of the instant matter, as ably summarized by the trial court, are as follows:
On Saturday, December 7, 1996, the girlfriend of the [Appellant], Shawnfatee M. Bridges was robbed at gunpoint while she was staying at the [Appellant]‘s home. The [Appellant] was working at the Casablanca Club and not home at the time. The [Appellant] returned home and the girlfriend related to the [Appellant] that during the robbery “a whole bunch of guys ran in with masks and hoodies.” (N.T. 1/28/98 p. 103 1). The [Appellant] then returned to the Casablanca Club and told Co-Defendant Richard Morales what had happened.
At approximately 12 noon on Sunday, December 8, 1996, the [Appellant], Shawnfatee Bridges, and Co-Defendant Richard Morales drove the [Appellant]‘s blue minivan to the home of a mutual friend, George Robles. Also present at the Robles’ home that day was the third Co-Defendant, Roderick Johnson. When Bridges and Morales first arrived, they spoke with Co-Defendant Johnson, but soon thereafter, they called Robles downstairs. Robles testified at trial that Bridges explained, “. . . how the Banks’ boys went in his house with guns to his girlfriend‘s head and his kid was there and how he was going to take care of them right now.” (N.T. 1/29/98 p. 1057). During the same conversation, the [Appellant] said, “I gotta take them out. I am gonna get them and I‘m gonna kill them and I‘m going to put an end to this forever. Because if I let them get away with it now they are going to try to do it again so I‘m going to have to do what I have to do.” (N.T. 1/29/98 p. 1058). Then all three co-defendants tried, unsuccessfully, to
convince Mr. Robles to join them. Despite Mr. Robles’ refusal, the conversation continued with all three co-defendants saying, “we are gonna kill them. We are going to put an end to this.” (N.T. 1/29/98 p. 1058). At approximately this point in the conversation, the [Appellant] pulled out a 9 mm. Glock handgun and continued to say how he was “gonna kill them.“’ (N.T. 1/29/98 p. 1059). As the planning progressed, the three talked about when the killings would take place. According to Robles, Roderick Johnson wanted to implement their plan immediately, but [Appellant] Bridges wanted to “wait until it gets dark because then we don‘t have to worry about as many people.” (N.T. 1/29/98 p. 1061). Later that afternoon, at approximately 5:30, Bridges, Morales and Johnson arrived at the Banks’ house. The [Appellant], Shawnfatee Bridges, went in the house and talked with the victims, Damon and Gregory Banks. Before leaving, Damon Banks went upstairs and, unbeknownst to Bridges, loaded a .32 caliber automatic handgun which he took with him. (N.T. 1/28/98 p. 10). The three co-defendants and the two victims left the home of Damon and Greg Banks at approximately 6:00 PM. All five of them left in the blue Plymouth Voyager owned by the [Appellant]. (N.T. 1/29/98 p. 1012).
According to the [Appellant]‘s statement, the five occupants of the van, “drove down Neversink, pulled in to a little cut in a road.” Roderick Johnson was in the driver‘s seat. The [Appellant], Shawnfatee Bridges was in the front passenger seat. Richard Morales was seated next to the sliding door. Damon Banks was seated behind Roderick Johnson and Greg Banks was seated between Morales and Damon Banks. According to Shawnfatee Bridges’ own statement, after they had pulled over to the side of the road, Roderick Johnson began shooting both victims. (N.T. 1/28/98 pp. 1029-30). Then Johnson ran around the side of the van opened the door and pulled the victims out of the van and continued to shoot. At that point, again according to Bridges’ own statement, the [Appellant] saw a gun on the
floor and began to shoot in the direction of Johnson. When Johnson began to run away from the van, Bridges returned to the van and left. Bridges drove to a street corner in Reading and poured gasoline in the van and set a match to it, completely gutting the van. At that point the [Appellant] returned home. Subsequently, Johnson was located approximately four miles’ away from the scene of the shooting, at the Queen City Restaurant. He was transported to the Reading Hospital, where the bullet was surgically removed. Eventually, the [Appellant] went to the home of Richard Morales and stayed there overnight. The next day, as news about the Banks shooting, the shooting of Roderick Johnson, and the burning of the [Appellant]‘s van began to spread, the [Appellant] called a friend of his to take him to the airport in Philadelphia, ostensibly to visit relatives. Meanwhile, members of the Exeter Police Department, the Reading Police Department, and the Pennsylvania State Police began the process of piecing together what had happened. At approximately 7:20 PM, on the night of the murders, officers from Exeter arrived at the scene. They secured the area and began the process of collecting evidence. Among the evidence collected were eight (8) 9 mm. shell casings. (N.T. 1/27/98 p. 817). In addition, in a separate location, officers located a 9 mm. bullet and another shell casing. (N.T. 1/27/98 p. 820). In addition, Officer Rowe, of the Reading Police Department, was dispatched to the scene of the van fire. That night officers collected one spent shell casing and one shotgun. Subsequently, investigators sifted through the charred remains of the van and discovered an additional bullet. Both of the bullets were analyzed and found to be .9 mm. projectiles.
The bodies of Damon and Gregory Banks were transported to Reading Hospital so that an autopsy could be performed. Dr. Neil Hoffman, Forensic Pathologist, testified that the body of Gregory Banks was riddle[d] with five (5) gunshot wounds. The most fatal of which were the two (2) head wounds. Additionally, he testified that, the body of Damon
Banks sustained thirteen (13) bullet wounds. One of the thirteen projectiles was bullet “D” which entered the victim at the back, right side of the neck where it severed the spinal cord. According to Dr. Hoffman, this instantaneously rendered Damon Banks a quadriplegic. (N.T. 1/29/98 p. 1215). Dr. Hoffman testified that the manner of death for both Damon and Gregory Banks was homicide. (N.T. 1/29/98 pp. 1216 and 1227). Finally, Trooper Kurt Tempinski of the Pennsylvania State Police Laboratory, Ballistics Section, examined two bullets recovered from the van, two bullets recovered from the body of Gregory Banks, and eight bullets recovered from the body of Damon Banks and found that all the marks exhibited by the bullets were consistent with each other and therefore had to have been fired from the same gun. In addition, Trooper Tempinski stated that, in his expert opinion, a Glock is the only weapon that demonstrates the particular markings found on both the bullets and shell casings recovered in this case. (N.T. 1/29/98 p. 1118).
Trial Court Opinion, pp. 4-7. After returning from New York City, Appellant surrendered himself to county detectives on December 16, 1996. He was charged with murder and other offenses on December 23, 1996. His trial began on January 21, 1998. On February 3, 1998 the jury found Appellant guilty of two counts of murder of the first degree,3 four counts of aggravated assault,4 two counts of conspiracy to commit murder,5 four counts of conspiracy to commit aggravated assault,6 and one count each of possessing an instrument of crime,7 tampering with or fabricating physical evidence8 and hindering apprehension or prosecution.9 After a penalty hearing, the jury set the penalty at death for both counts of first
As stated previously, we are required to review the record for sufficiency of evidence. After our independent review of the 1700 page record of Appellant‘s trial, we find that the evidence presented to the jury, viewed in the light most favorable to the Commonwealth, establishes that the Commonwealth presented more than sufficient evidence to support both of Appellant‘s convictions for first degree murder. We turn now to the specific allegations of error raised by Appellant.
II. DISCUSSION
A. PRE-TRIAL ISSUES AND JURY SELECTION
1. Omnibus Pretrial Motion
In his first claim of error, Appellant challenges several rulings of the trial court, which were made in response to his omnibus pretrial motion. Pursuant to
We first note that the decision of whether or not to appoint an expert witness is within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Commonwealth v. Carter, 537 Pa. 233, 643 A.2d 61, 72 (1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). While an accused in a capital case is entitled to the assistance of experts necessary to prepare his defense, there is no obligation on the part of the Commonwealth to pay for the services of an expert. Id. at 73.
We turn now to Appellant‘s claim that the trial court erred in denying his request for a statistician. Appellant requested the expert to assist him in determining the “representativeness of various classes in past and present jury arrays.” Omnibus Pretrial Motion, para. 28. We find no error on the part of the trial court in denying this motion. The trial court stated when it denied Appellant‘s request, “This Court is aware that in this County we use voter registration lists and the motor vehicle license lists” from which the jury is summoned. N.T. 9/19/97 p. 5. As this Court has stated, “a criminal defendant may not attack the racial composition of jury panels drawn from voter registration lists on the theory that blacks are underrepresented in voter lists” because such computer generated lists are compiled without regard to race. Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929, 933 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991). This Court has repeatedly rejected the argument that a jury pool chosen from voter registration does not represent a fair cross section of the community. Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 114 (1998), cert. denied, 528 U.S. 810, 120 S.Ct. 41, 145 L.Ed.2d 38 (1999). For that reason, the trial court did not err in denying this request.
We also find that the trial court did not err in denying Appellant‘s request for a ballistics expert. Appellant claims that, because testimony at trial indicated that four separate weapons were involved in the murders, the appointment of a ballistics expert would have helped the jury better understand his statement to the police and “refute the prosecutor‘s argument concerning inferences to be drawn from the evidence.”
Also included in Appellant‘s omnibus pretrial motion was a Motion to Quash Information, which the trial court denied and which Appellant now claims as error. In this appeal, Appellant asserts that the criminal complaint as originally filed did not charge him with conspiracy to commit aggravated assault, but that he was charged with this crime later in the information filed against him. We note however, that the transcript attached as Exhibit B in support of his motion to quash does list in its “Description of Charges” four counts of conspiracy to commit aggravated assault. This claim, therefore, fails.
2. Denial of Motion to Suppress
In another pretrial claim, Appellant challenges the denial by the trial court of his motion to suppress the statement he gave to police on December 16, 1996. Appellant argues that because his police interrogation began between 12:30 and 1:00 p.m. on December 16, 1996, and his written statement was not given until 8:15 p.m., that statement was obtained in violation of the six-hour Davenport/Duncan rule and should have been suppressed.
Our standard of review in evaluating a trial court‘s denial of a motion to suppress is as follows:
In reviewing a trial court‘s suppression ruling, our initial task is to determine whether the factual findings are supported by the record. In making this determination, we must consider only the evidence of the prosecution‘s witnesses, and so much evidence of the defense that remains uncontradicted when fairly read in the context of the record as a whole. When the evidence supports the factual findings, we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are erroneous.
In Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), this Court held that if the police do not arraign an accused within six hours of his or her arrest, any statement obtained after arrest and before arraignment may not be admitted at his trial. In Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), we modified this rule and provided that if the statement is obtained within six hours of arrest, absent coercion or other illegality, such statement is admissible. See Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1278 (1989). The purpose of the six-hour rule “is to insure that an arrestee is not held indefinitely in a coercive custodial atmosphere without the benefit of an arraignment which provides the arrestee with a full explanation of his constitutional rights and the nature of the charges against him.” Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 312 (1995). Within the facts of this case, Davenport/Duncan is inapplicable.
As part of the murder investigation, the police interviewed Appellant‘s accomplice, Richard Morales, and obtained a statement from him implicating Appellant in the murders of Gregory and Damon Banks. The Berks County District Attorney‘s office wanted to question Appellant about the murders, but he had fled to New York City. On December 13, 1996, the Berks County District Attorney‘s Office obtained an arrest warrant for Appellant for a parole violation.
On December 16, 1996 at 6:00 a.m., Appellant called Jimmie Butler (Butler), a Special Agent of the Attorney General‘s office, who was a friend of Appellant‘s father and was not involved in the investigation of the murders of the Banks cousins. Butler informed Appellant that he was probably in violation of his parole, that his family was worried about him, and that the police wanted to question him regarding the murders. Butler persuaded Appellant to return to Reading and agreed to meet him at the bus terminal. Appellant arrived in Reading the same day between 11:00 a.m. and noon, and was met by Butler, Lieutenant Lionel Carter of the
Reading Police Department, Reverend Frank McCracken, and the parents of Appellant. Butler told Appellant that he was not under arrest, but that everyone present at the bus terminal wanted him to go to the courthouse to “try and clear matters” regarding the murders. N.T. 10/1/97 p. 76. Butler testified that he was not aware that there was an outstanding warrant for Appellant‘s arrest for the parole violation and that he believed Appellant was surrendering himself to the authorities in connection with the murders. The group arrived at the courthouse between noon and 12:30 p.m., and proceeded to the District Attorney‘s office on the fifth floor.At approximately 1:15 p.m., Detective Albert Schade of the Reading Police Department met with Appellant in an interview room of the District Attorney‘s office, along with Investigator Michael Bailey of the Exeter Township Police and Reverend McCracken. Detective Schade advised Appellant that he was then in custody for a parole violation, but that there was no warrant for him for a homicide at that time. At about 1:25 p.m., Detective Schade informed Appellant that he wanted to question him about the murders of the Banks cousins and read Appellant his Miranda warnings and waiver. Appellant was not handcuffed and Reverend McCracken was present in the room. Detective Schade began questioning Appellant and confronted him with information provided by his accomplice, Morales. At 2:00 p.m., Appellant asked to speak privately with Reverend McCracken. Questioning restarted at 2:10 p.m., but was interrupted at 2:45 p.m. when Appellant again asked to speak privately with Reverend McCracken. Accordingly, Detective Schade and Investigator Bailey left Appellant alone with Reverend McCracken in the unlocked interview room.
Detective Schade and Investigator Bailey resumed the interrogation of Appellant at 3:05 p.m. During this round of questioning, Appellant stated that he was with his accomplices, Johnson and Morales, in his van with the Banks cousins, but that he did not know that Johnson and Morales were going to kill them, and that he did not shoot them. This interview session ceased at 4:00 p.m. when Appellant agreed to take a
Detective Stajkowski commenced questioning of Appellant while he was hooked up to the polygraph machine; Detective Schade and Investigator Bailey were not present. At some point during this interrogation, Detective Stajkowski stopped the polygraph interview and informed Appellant that the test indicated that he was acting deceptively in response to questions regarding the murders. Detective Schade and Investigator Bailey returned to Detective Stajkowski‘s office, where Appellant remained connected to the polygraph machine, and again questioned Appellant about the murders of the Banks cousins. During this interview, Appellant admitted that he, Johnson and Morales had picked up the Banks cousins to “f* * * [them] up” in retaliation for the robbery of Appellant‘s apartment.
Following this interview, Appellant submitted to a second round of polygraph testing without Detective Schade or Investigator Bailey present. When this round of testing concluded at 6:48 p.m., Detective Stajkowski again informed the officers that Appellant‘s answers indicated deception. By 7:45 p.m., Appellant left Detective Stajkowski‘s office and proceeded to give a five-page written statement describing his involvement in the murders. Appellant‘s written statement commenced at 8:15 p.m. and concluded at 10:15 p.m., following which Appellant was transported to the Berks County prison in connection with the parole violation.
The Commonwealth did not file the criminal complaint charging Appellant with the murders until December 23, 1996. At trial, the entire text of Appellant‘s written statement was read to the jury.
In denying Appellant‘s pretrial motion to suppress his written statement, the trial court concluded that Appellant was in custody on the parole violation warrant after he voluntarily surrendered himself at the District Attorney‘s Office. However, the trial court also concluded that because Appellant was
The threshold question that we must address is whether the Davenport/Duncan six-hour rule applies where a defendant is subject to a custodial interrogation that is unrelated to the purpose for which he or she has been detained. As previously noted, this Court created the Davenport/Duncan rule to safeguard a defendant‘s right to a speedy arraignment by requiring suppression of statements given more than six hours after arrest but before arraignment on the charges for which the defendant was arrested.11 However, we have held that the protections of the Davenport/Duncan rule are offense-specific, and that the arrest of a suspect for one criminal offense does not commence the six-hour period for questioning regarding a separate criminal offense. See Commonwealth v. Washington, 547 Pa. 563, 692 A.2d 1024 (1997), cert. denied, 523 U.S. 1006, 118 S.Ct. 1190, 140 L.Ed.2d 320 (1998) (refusing to suppress defendant‘s confession to murder on Davenport/Duncan grounds where defendant was arrested on an unrelated charge and confessed during an interrogation that occurred more than thirty hours after his arrest on the unrelated charge); Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308 (1995) (although defendant in custody for forty-eight
We do not believe it wise to extend the protections of Davenport/Duncan to custodial interrogations where the defendant has not been placed under arrest for the crime about which he or she is being questioned. The limited function of Davenport/Duncan simply does not apply where a defendant has not been placed under arrest and his or her right to a speedy arraignment has not been triggered.12 That is not to say, however, that a defendant loses all protections against coercion of statements during a custodial interrogation. Those statements must always be the product of a knowing, voluntary and intelligent waiver of one‘s Miranda rights. See Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994).
Because Appellant was not under arrest for the murders of the Banks cousins when he gave the challenged statement, the statement was not obtained in violation of the Davenport/Duncan rule,13 and since it was given voluntarily, knowingly and
3. Denial of Motion for Change of Venue
Appellant next claims that the trial court erred when it denied his motion for change of venue or venire.
The determination of whether to grant a change of venue rests within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284, 293 (1998), cert. denied, 528 U.S. 836, 120 S.Ct. 97, 145 L.Ed.2d 82 (1999). This is so because it is the trial court that is in the best position to assess the atmosphere of the community and to judge the necessity of any requested change. Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1092 (1998), cert. denied, 526 U.S. 1021, 119 S.Ct. 1258, 143 L.Ed.2d 354 (1999). A change in venue becomes necessary when the trial court concludes that a fair and impartial jury cannot be selected in the county in which the crime occurred. Id.
Normally, one who claims that he has been denied a fair trial because of pretrial publicity must show actual prejudice in the empanelling of the jury. Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 503 (1997). In certain cases, however, pretrial publicity can be so pervasive or inflammatory that the defendant need not prove actual juror prejudice. Commonwealth v. Carter, 643 A.2d at 69. Pretrial prejudice is presumed if: (1) the publicity is sensational, inflammatory, and slanted toward conviction rather than factu-
This is correct. Seventy-five members of the jury panel did respond to a question by the court if they had “ever read anything, heard anything, or seen anything on television” about the homicides. N.T. 1/21/98 p. 34. However, “jurors are not required to be totally ignorant of the facts of a case.” Counterman, 719 A.2d at 293. Instead, what is required is a fair and impartial jury. Here, upon further questioning of the panel, it was revealed that only fifteen of those seventy-five had formed any opinion, and not a fixed opinion, about Appellant‘s guilt or innocence based on the pretrial publicity. All of the fifteen who responded yes to this question were excused for cause prior to the start of individual voir dire. See N.T. 1/21/98 p. 86. Of the twelve jurors and two alternates ultimately selected for Appellant‘s trial, all stated that they would be fair and impartial jurors when hearing the case before them.
We have undertaken an independent review of the entire seven hundred-page transcript of the voir dire proceedings and have concluded that pretrial publicity did not result in the inability to select a fair and impartial jury in Berks County. Accordingly, the trial court did not abuse its discretion in denying Appellant‘s motion for a change of venue or venire, and Appellant is entitled to no relief on this claim.
As a related issue, Appellant contends that the trial court erred in failing to ask potential jurors question twenty-six of his proposed voir dire questions, which asked “If during the course of this trial you recall anything concerning
4. Additional Jury Issues
Appellant next objects to the rulings of the trial court in striking for cause a juror he claims was not unalterably opposed to the death penalty; in failing to strike for cause the individual selected to serve as juror number twelve; and in not declaring a mistrial during jury selection when juror number three became ill.
Appellant first claims that the trial court erred in striking for cause panel member number eighty-three, Pamela Kubacki, who Appellant claims was not unalterably opposed to the death penalty.
It is well settled that a court can exclude, for cause, a juror when the juror‘s views on capital punishment are such as would prevent or substantially impair the performance of his or her duties as a juror in accordance with his or her instructions and his or her oath. Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507, 521 (1999). Here, the following exchange took place between the court and Ms. Kubacki:
THE COURT: ... And the question is, because of any moral, religious or personal beliefs that you may have, would you be unable to consider imposing the death penalty if it got to that point and you were a member of this jury?
A: I think I would find it difficult to personally convict somebody and say that they had to be put to death.
THE COURT: Well, I‘m sure it‘s not a real easy thing. I would not think that it would be an easy thing to do. So it would be a difficult question. The thing that you have to look at and tell us, is would you be unable to do that if the law in Pennsylvania as applied to the facts as you found them in the penalty phase would require it?
A: I probably would find it difficult to do that, yes, and unable to do that.
N.T. 1/22/98 p. 430.
The decision of whether or not to strike for cause is yet another decision that is within the discretion of the trial court and we will not disturb its decision absent an abuse of that discretion. Fisher, 681 A.2d at 137. The trial court makes the determination based on the prospective juror‘s answers to questions and demeanor. Stevens, 739 A.2d at 521. We find based on the above-recited testimony that the trial court did not abuse its discretion when it struck Ms. Kubacki for cause.
Appellant next claims that the court erred in failing to strike for cause juror number twelve, who was a former police commissioner and acknowledged that he had some knowledge of the incident.
The test for determining whether a prospective juror should be disqualified is whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.... It must be determined whether any biases or prejudices can be put aside on proper instruction of the court.... A challenge for cause should be granted when the prospective juror has such a close relationship, familiar, financial, or situational, with the
In his last jury-based claim of error, Appellant claims that the trial court erred when, during jury selection, it did not declare a mistrial after the woman chosen as juror number three became ill and had to be replaced. Appellant claims that the decisions he made during jury selection after selection of juror number three were based on the assumption that juror number three would serve on the jury; that he was left with only four peremptory challenges to select three, rather than two jurors; and that the entire dynamics of jury selection had been altered to his detriment. Appellant relies on Commonwealth v. Saunders, 454 Pa.Super. 561, 686 A.2d 25 (1996), to support his argument that he is entitled to a new trial on this issue. We note, however, that Saunders does not advance Appellant‘s position because that case dealt with the question of whether a trial court may substitute an alternate juror after the original jury has commenced deliberations. In the instant matter, not only had the jury not commenced deliberations, they had not yet been sworn in as jurors. As stated previous-
B. GUILT PHASE ISSUES
1. The testimony of George Robles
On appeal, Appellant objects to the admission of testimony by Commonwealth witness George Robles (Robles). Appellant claims that it was error to permit Robles to testify to additional matters not contained in discovery material. Specifically Appellant claims that prior to the offer of proof made on January 29, 1998, immediately preceding Robles’ testimony, Robles had told no one that he saw the Appellant pull a black Glock 9 mm. handgun from his waistband on December 8, 1996 and waive it around Robles’ house.
We begin, again, with black letter law. The admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court may only reverse upon a showing that the trial court abused its discretion. Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811, 818 (1994). No abuse of discretion occurred in this matter because, after the offer of proof, Appellant made no objection to the admissibility of this evidence.14 Moreover, Appellant has established no prejudice arising from the admission of the evidence and we likewise see none. Finally, we note that defense counsel fully cross-examined Robles regarding new allegations by Robles, extensively exploring the issue of recent fabrication on the part of Robles. N.T. 1/29/98 pp. 1064-70, 1079-80, 1085.
Robles, prior to Roderick Johnson‘s trial, was placed in Berks County Prison in lieu of $200,000.00 material witness bond. After he testified at Roderick Johnson‘s hearing on April 24, 1997, Robles was released on his own recognizance. Appellant claims that there is no way, other than leniency, to describe the treatment of Robles. What Appellant does not do, however, is to cite any Pennsylvania case law in support of his argument that Robles should not have been permitted to testify.15 In Pennsylvania, a witness may be cross-examined as to any matter tending to show the interest or bias of that witness so that a jury can properly evaluate the witness’ credibility. Commonwealth v. Nolen, 535 Pa. 77, 634 A.2d 192, 195-96 (1993). This is precisely what occurred in the instant matter, and the jury was made aware that Robles had been held on a material witness bond and had been released after testifying. N.T. 1/29/98 p. 1072-73. There was, therefore, no error in permitting his testimony.
2. Other testimony
In his next claim, Appellant alleges error by the trial court not permitting the defense to call three witnesses, C.I. Vega, Ruth Ann Natole, and Mark Baldwin, the district attorney prosecuting Appellant‘s case.16
Again, the admission of evidence is within the sound discretion of the trial court and we will not reverse on appeal absent an abuse of that discretion. Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999). Appellant first
Appellant also claims that court reporter Ruth Ann Natole should have been permitted to testify. Ruth Ann Natole was the court reporter in the murder trial of Appellant‘s co-defendant Roderick Johnson, at which trial Robles also testified. Appellant wished Ms. Natole to read a portion of Robles’ testimony given at Johnson‘s trial. Appellant claims that the purpose of this testimony was to demonstrate the omission of certain facts from Robles’ prior testimony, and the inconsistency between the prior testimony and Robles’ testimony at Appellant‘s trial. After reviewing the transcript of Johnson‘s trial, the trial court sustained an objection to much of the proposed testimony, finding that the questioning of Robles during the Johnson trial was not sufficiently specific to establish impeachment by omission. We find no error here. While it is true that a prior inconsistent statement may be used to impeach a witness, a witness’ failure to answer a question not posed at a prior proceeding does not make that testimony inconsistent. Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 682 (1999).
Finally, Appellant objects to the trial court ruling that prohibited the defense from calling District Attorney Mark Baldwin as a witness.17 Appellant claimed that District Attorney Baldwin would have testified on January 29, 1998, that the first time witness Robles informed the Commonwealth that
3. Prosecutorial Statements
In this claim of error, Appellant argues that the trial court erred in not declaring a mistrial during the prosecutor‘s guilt phase closing argument. Appellant claims that the district attorney committed prosecutorial misconduct when he implied that the Appellant was the actual shooter of Damon and Gregory Banks and Appellant had actually only been charged as an accomplice in their murders. See: N.T. 2/3/98 p. 1389.
In reviewing the prosecutor‘s comments, we note that a prosecutor must be free to present his or her arguments with logical force and vigor. Commonwealth v. Miles, 545 Pa. 500, 681 A.2d 1295, 1300 (1996), cert. denied, 520 U.S. 1187, 117 S.Ct. 1472, 137 L.Ed.2d 684 (1997). Comments by a prosecutor do not constitute reversible error “unless the un-avoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility toward
4. Jury Instructions and Exhibits
In his next claims of error, Appellant challenges the accomplice jury charge and conspiracy jury charge of the trial court. First, Appellant claims that the trial court insufficiently instructed the jury regarding accomplice liability for first-degree murder.
It is axiomatic that a jury charge is to be read as a whole and that the trial court has broad discretion in phrasing its instructions so long as the law is clearly, adequately and accurately presented to the jury. Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 603 (2000). This Court will not review a charge by taking isolated comments out of context. Id. To be found guilty of first-degree murder, a jury must find that the accomplice himself, and not just the actual slayer, had the specific intent to kill. Commonwealth v. Huffman, 536 Pa. 196, 638 A.2d 961 (1994). When we review the trial court‘s charge to the jury, we find that the court did specifically inform the jury that in order to find Appellant guilty of first-degree murder “the Commonwealth must also prove that he [Appellant] had a specific intent to kill, even though Roderick Johnson was the actual slayer.” N.T. 2/3/98 p. 1402. (See
Appellant also challenges the trial court‘s instructions regarding conspiracy. At the end of its charge to the jury regarding the crimes of conspiracy to commit murder and conspiracy to commit aggravated assault, the trial court instructed them that they could find the Appellant guilty of “murder and aggravated assaults as a conspirator if you are satisfied beyond doubt, first, that the defendant agreed with Roderick Andre Johnson and/or Richard Morales that they or one of them would commit the crime....” N.T. 2/3/98 p. 1412-13. Appellant claims that this was error and that the jury was inadequately charged that it could not find the Appellant guilty of the substantive crimes simply because he engaged in conduct that met the elements of the crime of conspiracy to the substantive crime. However, after defense counsel informed the court that it may have misspoken when giving the conspiracy charge, the trial court reinstructed the jury of the elements it needed to find the Appellant guilty of conspiracy to commit murder and conspiracy to commit aggravated assault. N.T. 2/3/98 p. 1434-35. Looking at the charge as a whole, as we must, Miller, 746 A.2d at 603, and recogniz-
Next, Appellant claims that the trial court erred when it denied his motion that Exhibit C-106 be sent out with the jury during its deliberation. Exhibit C-106 was a letter written by Commonwealth witness George Robles while he was in jail on material witness bail. The letter was sent to police investigator Angel Cabrera, and in it Robles wrote that he would “do anything” to get out of jail. Appellant argues that this letter cast a dark shadow on Robles’ credibility, was crucial to his defense, and should have been sent out with the jury.
C. PENALTY PHASE ISSUES
1. Constitutionality of Pennsylvania‘s Death Penalty Statute
Appellant next claims that the trial court erred in not declaring that the Pennsylvania death penalty statute violates
Appellant also argues that the death penalty statute is unconstitutional because the decision to seek the death penalty is within the discretion of the county district attorney and a defendant is not given the right to participate in this decision. We first note that Appellant offers no case law or persuasive argument in support of his unusual claim that a defendant should have the right to participate in this decision. Further, during the penalty phase, a defendant may present evidence in support of any of the mitigating factors outlined in the statute.
2. Aggravating Circumstances
In this claim of error, Appellant alleges that the trial court should not have permitted any aggravating circum-
We disagree. The law is that a person is held legally responsible for the conduct of another person when he is an accomplice of such other person in the commission of the offense.
In his next claim, Appellant argues that the trial court erred in denying his motion to strike as an aggravating circumstance
At the time of the killing, the victim was or had been involved, associated or in competition with the defendant in the sale, manufacture, distribution or delivery of any con-
trolled substance...and the killing resulted from or was related to that association, involvement or competition to promote the defendant‘s activities in selling, manufacturing, distributing or delivering controlled substances or counterfeit controlled substances.
To reiterate, aggravating circumstances
3. Allegations of Prosecutorial Misconduct in the Penalty Phase
In this claim of error, Appellant objects to elements of the prosecutor‘s redirect examination of George Robles and to several statements made by the prosecutor in his closing argument during the penalty phase. First, Appellant objects to a line of questioning of George Robles where the prosecutor
The remainder of Appellant‘s claims concerns the prosecutor‘s closing argument. Appellant argues that the underlined language constitutes prosecutorial misconduct, that a mistrial should have been granted, and that he is entitled to a new penalty hearing.
This is perhaps one of my least pleasant duties but it is one which I must fulfill. It is one which the law requires and it is one which I strongly believe in. N.T. 2/4/98 P. 1625.
They went there to rip off his drugs and cash, plain and simple. The drugs, crack cocaine. You probably heard in this case from Mr. Robles, things about a community that we only see in television. People distributing drugs on the street corner. What did Mr. Robles tell you when he was asked who do they sell drugs to? People you could walk out of the courthouse seeing walking by. Crack cocaine, rock cocaine as he called it. A kilo of cocaine. Id. at 1627.
In this case, by your verdict yesterday, you found the defendant was either the killer or an accomplice to the killing, either/or he is equally responsible for the actions and death. Id. at 1628.
And you heard Mr. Maynard ask Mr. Robles what was his reputation in the community? Shawn Bridges was a big time mover. He moved weight. And not to retaliate would affect his reputation. Id. at 1630-31.
He is dealing with it, and he moved ahead and a heart murmur does not give someone an excuse to sell crack cocaine to peddle poison on our streets and to kill men in
retaliation for trying to steal his drugs and his cash.18 Id. at 1632.
We consider these comments in the context of the entire summation, and reiterate that a prosecutor‘s comments will not warrant a mistrial unless they aroused emotions of the jury to such an extent that it was impossible for the jury to impose a sentence based on relevant evidence. Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 107-08 (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996). Also, during the penalty phase a prosecutor must be accorded reasonable latitude in arguing his or her position to the jury and may employ oratorical flair in arguing in favor of the death penalty. Commonwealth v. Cox, 546 Pa. 515, 686 A.2d 1279, 1288 (1996), cert. denied, 522 U.S. 999, 118 S.Ct. 567, 139 L.Ed.2d 407 (1997). A prosecutor has more latitude in presenting argument at the penalty phase since the presumption of innocence no longer applies. Commonwealth v. Rompilla, 554 Pa. 378, 721 A.2d 786, 790 (1998). Viewing the challenged comments in this context, we find no comment so egregious that it would prejudice the jury to such an extent that they could not weigh the evidence objectively. Furthermore, even taking the comments cumulatively would not entitle Appellant to relief. Additionally, the trial court offered the following cautionary instruction that corrected any possible prejudice to Appellant.19
Ladies and gentlemen, there are three matters I want to address with you before we hear the speech from the defense. In the closing argument of the Commonwealth, the District Attorney gave you his personal opinion about the death penalty, that is not permissible argument to you. Personal opinions of either counsel or the Court have nothing to do with your decision and you should not consider
Additionally, there was a reference to the fact that by your verdict you found the defendant to have either been the killer or an accomplice of the killer of the two Banks cousins. As you recall from my instructions yesterday, Mr. Bridges was charged as an accomplice and he was found guilty as an accomplice. So with that correction, keep that in mind when you are evaluating the aggravating, possible aggravating circumstances.
And finally, there were some assertions by the District Attorney concerning the Banks brothers or cousins being involved in competition in the drug business. You must remember that these were assertions by the District Attorney in argument. They were inferences that he is arguing to you, you can legitimately draw from facts in evidence. However, there are no direct facts of drug competition with the defendant. Keep that in mind when evaluating the testimony and arguments. All right. With that in mind, we‘ll call upon the defense.
N.T. 2/4/98 pp. 1640-41. Appellant is entitled to no relief on this claim.
4. Jury Instructions
In another claim of trial court error, Appellant argues that the court erred in denying his request for a jury instruction that, in Pennsylvania, a sentence of life imprisonment does not permit parole. This instruction is commonly known as a ”Simmons instruction,” Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).
This issue has been before this Court numerous times. The law of this Commonwealth is that a Simmons instruction is required to be given only in those cases where the future dangerousness of the defendant is placed at issue.20 Common-
5. Penalty Phase Deliberations
The last two claims of Appellant involve the jury‘s deliberations during the penalty phase of his trial. Appellant first claims that the court abused its discretion and/or coerced the jury into reaching its decision after it indicated that it could not reach a unanimous verdict.
The jury retired to deliberate Appellant‘s sentence at 4:20 p.m. on February 4, 1998. At approximately 8:15 that same evening, the jury foreman informed the court that the jury could not reach a verdict, that it was “split“, and that he did not feel that further instructions would assist the jury in reaching a verdict. N.T. 2/4/98 p. 1667. Defense counsel at that point requested that the court declare a hung jury. Instead, the trial court ended the deliberations for the day and instructed the jury to return in the morning to continue deliberations.
It is well-settled law that the amount of time that a jury is kept together to deliberate is another matter that is within the discretion of the trial judge, whose decision will only be reversed for an abuse of discretion or evidence that the verdict was the product of coercion of an overworked or fatigued jury. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367(Pa.), cert. denied, 502 U.S. 959, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991); Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97 (1995). In Johnson, this Court listed some factors to consider when determining whether the trial court abused its discretion: “the charges at issue, the complexity of the
In the instant matter, testimony began on January 27, 1998 and continued until February 3, 1998, when the jury retired to deliberate Appellant‘s guilt. Penalty phase evidence was presented on February 4, 1998, with the jury beginning deliberation on whether to impose the death penalty or life in prison at 4:20 p.m. that same day. Less than four hours later, the jury informed the court that it could not reach a decision. The trial court determined that “the jury was not hopelessly deadlocked. They had received many days of testimony and the hour was late. Clearly, to the eyes of this Court, some of the jurors were willing to continue deliberations....” Trial court opinion at p. 29.
We find no abuse of discretion in the action of the trial court. The matter being considered was of the utmost gravity. The trial had been long. The hour was late. The jury had deliberated for only four hours. See Commonwealth v. Wharton, 542 Pa. 83, 665 A.2d 458 (1995), cert. denied, 517 U.S. 1247, 116 S.Ct. 2504, 135 L.Ed.2d 195 (1996) (where jury had only deliberated five hours and thirty-two minutes, no abuse of discretion in requiring jury to deliberate further). As in Johnson, the jury here did not indicate that it was hopelessly deadlocked. The trial court did not err in ordering the jury to resume deliberations.
Appellant‘s final claim in this appeal is that the trial court erred in denying his motion to authorize an investigation into the possibility that “extraneous evidence” was introduced into the jury‘s deliberation process.
As stated above, the jury was sent home on the evening of February 4, 1998, after four hours of deliberation. The jury returned to resume its deliberations at 9:30 a.m. the next morning, February 5, 1998. That morning, after the trial judge instructed them to resume deliberations, he asked if they had anything to ask him. The jury foreman responded: “I think we have some questions that we‘ll talk about when we
The trial court held a hearing on Appellant‘s motion on April 28, 1998, at which time Appellant presented absolutely no evidence in support of his theory.22 After the hearing the court denied the motion, which Appellant now contends was erroneous, thus entitling him to a new penalty phase hearing.
The law is clear in this Commonwealth that jurors cannot impeach their own verdict by testifying as to what occurred during deliberations. Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978). There is, however, an exception to this rule that permits post-trial testimony regarding extraneous influences that might have prejudiced the jury during deliberations. Boring v. LaMarca, 435 Pa.Super. 487, 646 A.2d 1199, 1201 (1994), alloc. denied, 539 Pa. 673, 652 A.2d 1319 (1994). While such testimony may be permissible, we agree with the trial court that the failure of Appellant to produce even a scintilla of evidence to support what is merely speculation on his part is fatal to his claim. Furthermore, a jury is presumed to have followed the instructions of the trial court, Commonwealth v. Gease, 548 Pa. 165, 696 A.2d 130(Pa.), cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997),
III. CONCLUSION
We find no error entitling Appellant to relief. There was sufficient evidence to support the jury‘s determination of Appellant‘s guilt and sufficient evidence to support the aggravating circumstance found by the jury in imposing the death penalty. For the foregoing reasons, we affirm the verdicts and the sentences of death imposed upon Shawnfatee M. Bridges by the Court of Common Pleas of Berks County. The Prothonotary of the Supreme Court of Pennsylvania is directed to transmit, within ninety days, the complete record of this case to the Governor of Pennsylvania.
Justice SAYLOR files a Concurring Opinion, in which Justice CAPPY joins.
SAYLOR, Justice, concurring.
I join the majority‘s disposition and reasoning with respect to all issues, except as to the question concerning the application of the Davenport/Duncan six-hour rule to Appellant‘s written confession. With respect to such issue, I join only the majority‘s disposition, as I agree with its conclusion, in footnote 13, that this Court‘s decision in Commonwealth v. Hughes, 521 Pa. 423, 451, 555 A.2d 1264, 1278 (1989), is controlling. In text, however, the majority also holds that the six-hour rule does not apply to a custodial interrogation where the defendant has not been formally placed under arrest for the crime about which he or she is being questioned. I disagree that application of a judicially-imposed, bright-line rule set out to advance the salutary purposes of assuring prompt arraignment and controlling the effects of custodial
Given the present holding, I now favor abandonment of the Davenport/Duncan construct and reversion to the federal model entailing consideration of the totality of the circumstances in every case. See, e.g., Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct. 1246, 1252, 113 L.Ed.2d 302 (1991). I find the federal model vastly superior to continuation of a rule so readily capable of avoidance as to function as no rule at all; indeed, I believe that its maintenance on such terms carries with it the potential for diminishing respect for the courts’ authority in the eyes of those subject to their lawful mandates.
Justice CAPPY joins this concurring opinion.
757 A.2d 884
COMMONWEALTH of Pennsylvania, Appellee,
v.
Brett Eugene STRICKLER, Appellant.
Supreme Court of Pennsylvania.
Argued Nov. 17, 1999.
Decided Aug. 24, 2000.
Notes
§ 2502 Murder.
(a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
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(d) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection;
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“Intentional killing.” Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.