COMMONWEALTH of Pennsylvania, Appellee, v. Charles Eugene CROSS, Appellant.
Supreme Court of Pennsylvania.
Decided Aug. 14, 1985.
Reargument Denied Nov. 12, 1985.
496 A.2d 1144
Argued Sept. 11, 1984.
Edward Tocci, Dist. Atty., John Lee Brown, Jr., Asst. Dist. Atty., for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
PAPADAKOS, Justice.
Charles Eugene Cross was found guilty by a jury of murder of the first degree for the killings of Denise Lucic and her two children, Danielle Lucic, aged seven (7) years and John Lucic, Jr., aged three (3) years. After the jury rendered the verdicts of guilty, the required sentencing hearing was conducted on March 3, 1982.1 At the sentenc
Defense counsel presented evidence in an effort to establish four mitigating circumstances, specifically: (1) that the defendant had no significant history of prior criminal convictions,
After hearing the evidence, and deliberating thereon, the jury, finding that the two aggravating circumstances outweighed any mitigating circumstances, determined that the defendant be sentenced to death upon all three counts of murder. This direct appeal followed.2
For the reasons stated herein, we affirm Appellant‘s convictions of murder of the first degree, and uphold the sentences of death.
The evidence presented at the guilt stage of the trial established that on August 4, 1981, between the hours of 5:00 p.m. and 6:15 p.m., Denise Lucic and her two small children, Danielle and John Jr., were slain in their home at 1530 Duss Avenue in the Borough of Ambridge, Beaver County, Pennsylvania. Denise Lucic died as a result of
The scene of these killings was the house where the victims lived with John Lucic, Sr., the husband and father of the victims. The Ambridge police arrived at the scene at 6:15 p.m. on August 4, 1981. The bodies of Denise and John, Jr., were discovered side by side on the floor of a small bedroom at the top of the stairs on the second floor. The bodies were covered with blood, and there was blood on the walls and ceiling of the room. The body of Danielle was found in a small adjoining bedroom with a blood-smeared pillow stuffed into her mouth.
Appellant raises numerous issues in his appeal. First, he challenges the sufficiency of the evidence to sustain a conviction of murder of the first degree.
The record presents the following tragic tale. Appellant and John Lucic, Sr. were employees of the F.D. Strano Company. Appellant was employed as a roofer and Lucic was a foreman. In the fall of 1980, the two had a work-related confrontation. On August 4, 1981, Appellant approached another employee, Raymond Ours, and told him he was going to kill Lucic‘s wife and children and asked Ours if he would help him do it. Ours refused, and told other members of the work crew what Appellant had said. At the end of the work day at 5:00 p.m., Appellant left work and went to the Lucic residence, which was about a ten minute walk from the F.D. Strano Company premises.
Two fellow employees observed Appellant at 6:00 p.m. coming from the direction of the Lucic residence, and running through a park in Ambridge, toward the F.D. Strano Company property. Appellant was very excited and he was not wearing his glasses. His hand was wrapped in a white rag and there were red stains on the back of his shirt which
The next day, a search warrant was obtained for the F.D. Strano building, and a utility knife was found in the rafters of the bathroom that Appellant had used the previous evening after coming from the Lucic house. The utility knife was one commonly used by workers at F.D. Strano to cut shingles, and was marked with the name “Cross” on it. It was identified as belonging to Appellant. Blood residue on the knife was identified by expert testimony as being a mixture of the blood of John, Jr., and Denise Lucic. Further expert testimony established that there was blood from all three victims on Appellant‘s shirt and pants. The pillow found on Danielle was sent to the F.B.I. Crime Laboratory in Washington D.C., and a fingerprint expert from that laboratory testified at trial that Appellant‘s palm print was on the pillow.
Appellant took the stand in his defense and testified that on August 4, 1981, he left work at 5:10 p.m. to go to the Lucic house to give an estimate for repair work on their bathroom. He stated that he had received a phone call a week or two earlier from a caller he assumed was Denise Lucic because the caller had asked for John Lucic. The
He testified that, at this point, he broke down and cried. He reached for a handkerchief in his back pocket and when he pulled it out, his utility knife and a screwdriver that he had in his pocket came out and fell into a pool of blood on the floor. He picked up the knife and screwdriver and walked into the little girl‘s bedroom where he found her lying on the floor with a pillow stuffed in her mouth. Appellant testified that he removed the pillow and checked to see if she was breathing. There was no movement so he replaced the pillow “the way (he) found it.”
He then returned to the bedroom where he had first found John, Jr. and Denise Lucic, and moved the bodies because “(he) figured (he‘d) better put all the bodies back the way (he‘d) found them.” Appellant then testified that as he was going downstairs he fell down the steps and broke his glasses.
The jury found Appellant guilty on each of three counts of murder of the first degree, and the same jury determined that Appellant be sentenced to death on each count.
We find the evidence to be more than sufficient to sustain the jury‘s verdict of murder of the first degree. The evidence proved beyond a reasonable doubt that Appellant committed these murders. Furthermore, the evidence
Appellant next argues that the trial court erred in denying his suppression motion regarding two search warrants issued on August 4, and August 7, 1981. We disagree.
Both search warrants were issued after he was in custody in the Beaver County jail pursuant to a valid arrest. He was arrested and brought to jail on August 4. On that same date, the police obtained a search warrant, to be executed at night, to seize and search Appellant‘s clothing, hair samples, and fingernail scrapings and clippings.
Appellant contends that the items seized at night must be suppressed because the search warrant was facially defective. He claims that no reasonable cause is shown thereon to justify a nighttime search and seizure.3 Appellant ignores the fact that he was in custody, pursuant to a lawful arrest, and that a search warrant was unnecessary to support the actions of the police.
In Commonwealth v. Bundy, 458 Pa. 240, 245-6, 328 A.2d 517 (1974), we held that the defendant‘s clothing, which he was wearing at the time of the arrest, could properly be seized as part of a search incident to a lawful arrest. Citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1968); Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972); Commonwealth v. Brayboy, 431 Pa. 365, 246 A.2d 675 (1968).
Furthermore, in Commonwealth v. Hrynkow, 457 Pa. 529, 330 A.2d 858 (1974), we applied the rationale of the United States Supreme Court in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), which
“... it is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their custody as the result of a lawful arrest.
...
In upholding this search and seizure, we do not conclude that the warrant clause of the Fourth Amendment is never applicable to post arrest seizures of the effects of an arrestee. But we do think that the Court of Appeals for the First District captured the essence of situations like these when it said in United States v. DeLeo, 1 Cir., 422 F.2d 487, at 493:
‘While the legal arrest of a person should not destroy the privacy of his premises, it does—for at least a reasonable time and to a reasonable extent—take his own privacy out of the realm of protection from police interest in weapons, means of escape and evidence.‘” (Emphasis added).
With respect to the hair samples and fingernail scrapings and clippings, we feel that their seizure was so minor an imposition as to constitute only the slightest intrusion, if indeed such constituted an intrusion. A warrantless seizure of the hair samples and the fingernail clippings and scrapings was reasonable under the facts of this case to protect possible evidence connected with the foul deeds. The hair and fingernails could easily have been washed and brushed clean of any traces of relevant evidence.
Appellant‘s sole complaint about the August 7, 1981, warrant is that it is invalid since no testimony or evidence was presented in support of the warrant at the suppression hearing. This argument ignores the express language of
“(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in
determining whether probable cause has been established, may not consider any evidence outside the affidavits. (Emphasis added). (b) At any hearing on a motion for the return or suppression of evidence obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided in paragraphs (a).” (Emphasis added).
Nothing outside the written search warrant affidavit may be considered in determining the existence of probable cause. Commonwealth v. Luddy, 281 Pa.Superior 541, 554, 422 A.2d 601, 608 (1980), (alloc. denied 2-18-81), cert. den. 454 U.S. 825, 102 S.Ct. 114, 70 L.Ed.2d 99. Appellant‘s contention that the affiant‘s testimony is required is therefore without merit.
Appellant‘s next arguments concern the constitutionality of Pennsylvania‘s Death Penalty Statute,
Specifically, Appellant argues that the Pennsylvania Death Penalty Statute violates the Eighth Amendment prohibition against cruel and unusual punishments in that it represents a mandatory sentencing system. We find this argument to be without merit.
”Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg v. Georgia, 428 U.S. 153, 189, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 859 (1976).
The Pennsylvania Legislature, in order to meet the requirements of Furman, the 1976 quintet of same-day United States Supreme Court decisions,5 Lockett v. Ohio, and our Supreme Court‘s holding in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), enacted
Appellant asserts that it is the very use of the phrase “must be a sentence of death” that renders this statute mandatory and therefore unconstitutional. We are not persuaded by this argument. In Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976), Mr. Justice Stevens stated:
“A sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, post, 428 U.S. 280, 303-305, 96 S.Ct. 2978, 2991 [49 L.Ed.2d 944 (1976)]—Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, post. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.”6 (Emphasis added).
In contrast, by its thorough list of mitigating circumstances combined with the opportunity for the defendant to go beyond the listed mitigating circumstances and introduce any other evidence of mitigation, the Pennsylvania Death Penalty Statute clearly meets the requirements of the Eighth and Fourteenth Amendments by providing the sentencing authority with the means to give an individualized sentence which considers the character and record of the defendant and the circumstances of his offense. Appellant‘s argument that
Appellant further contends that the death penalty statute does not provide for adequate appellate review. Appellant, however, offers no arguments as to why our review is inadequate, only that our review is constitutionally required to be adequate.
“This Court does not treat lightly its statutory and constitutional duties and will conduct an independent evaluation of all cases decided since the effective date of the sentencing procedures under consideration (Septem
ber 13, 1978). This independent review mandated by 42 Pa.C.S. § 9711(h)(3)(iii) will utilize all available judicial resources and will encompass all similar cases, taking into consideration both the circumstances of the crime and the character and record of the defendant in order to determine whether the sentence of death is excessive or disproportionate to the circumstances.” 500 Pa. 16, 454 A.2d at 961.
Another argument by Appellant concerns aggravating circumstance nine: “The defendant has a significant history of felony convictions involving use or threat of violence to the person.”
“Appellant further contends that certain language employed in the statute‘s enumeration of aggravating and mitigating circumstances, to be weighed by the jury in determining whether the death penalty should be imposed, are (sic) so vague as to invite arbitrary and capricious imposition of the death penalty. The challenged language includes, inter alia, the phrases “significant history of prior criminal convictions” (
42 Pa.C.S. 9711(e)(1) , “extreme mental or emotional disturbance” (42 Pa.C.S. § 9711(e)(4) , “participation in the homicidal act was relatively minor,” (42 Pa.C.S. § 9711(e)(7) , “capacity of the defendant ... to conform his conduct to the requirements of law ...” (42 Pa.C.S. § 9711(e)(3) . In reviewing an identical claim of vagueness asserted against the corresponding portion of the death penalty statute of the State of Florida, which employed virtually identical language, the Supreme Court of the United States rejected the vagueness claim, noting that a jury‘s evaluation of the aggravating and mitigating circumstances as enumerated, requires no more line drawing than is commonly required of a factfinder in any lawsuit....
Proffitt v. Florida, 428 U.S. 242, 257, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913, 925-926 (1976). We agree.” (Emphasis added).
Appellant further contends that the jury‘s finding of aggravating circumstance nine,
Appellant‘s next arguments involve aggravating circumstance ten,
By putting in the language “or at the time of the offense,” the Legislature clearly intended this aggravating circumstance to include the case of multiple murders. In Commonwealth v. Travaglia, 502 Pa. 474, 495-501, 467 A.2d 288, 298-300 (1983), we held that:
“[t]he clear import of the first part of subsection (d)(10) is to classify the commission of multiple serious crimes as one of the bases upon which a jury might rest a decision that the crime of which the defendant stands convicted, and for which they are imposing sentence, merits the extreme penalty of death.”
Additionally, we held that the term “convicted,” as used here, means “found guilty of,” not necessarily “found guilty of and sentenced.” Id.; See also, Commonwealth v. Leslie C. Beasley, 505 Pa. 279, 479 A.2d 460, 464 (1984).
Appellant next contends that
Appellant next contends that the trial court instructions regarding aggravating circumstance ten were prejudicial to the defendant, in that the court instructed the jury that aggravating circumstance ten concerns multiple homicides. As discussed above, aggravating circumstance ten does cover multiple homicides; therefore, the trial court‘s instruction was not prejudicial. Furthermore, we have carefully reviewed all the trial court‘s instructions and find no prejudice to the Appellant.
Finally, Appellant contends that the verdict form as executed by the jury was unclear and ambiguous. We disagree. The jury was presented with evidence of two aggravating circumstances
As is our duty under
Furthermore, as stated above, we find that the evidence fully supports the finding of an aggravating circumstance specified in
Affirmed.
NIX, C.J., files a concurring opinion in which FLAHERTY, J., joins.
HUTCHINSON and ZAPPALA, JJ., concur in the result.
NIX, Chief Justice, concurring.
I agree with the majority that evidence of the use of an extraordinary amount of force during the commission of a violent felony is not required to satisfy aggravating circumstance (9),
In interpreting the statutory language it is essential that the underlying purposes of the death penalty statute be appreciated. “[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community‘s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” Gregg v. Georgia, 428 U.S. 153, 184, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976) (plurality opinion). However the death penalty must be administered in a way that can rationally distinguish between those cases in which death is an appropriate sanction and those in which it is not. Spaziano v. Florida, 468 U.S. 447, —, 104 S.Ct. 3154, 3163, 82 L.Ed.2d 340, 352 (1984); see also Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Thus to prevent the arbitrary or capricious imposition of the death penalty the discretion of the sentencing jury must be carefully limited and channelled. Gregg v. Georgia, supra at 189, 96 S.Ct. at 2932.
Our legislature has provided guidance to juries in capital cases by identifying a limited number of factors relating to the nature of the crime or the character of the defendant which, in the legislature‘s judgment, not only engender extreme moral outrage but also strike at the very fabric of an ordered society.
One of the factors the legislature has deemed to be such an aggravating circumstance is a “significant history” of violent felony convictions.
It is implicit in our holding in Goins that the sentencing jury or judge must determine whether the number of the defendant‘s prior convictions of crimes of violence is “significant.” The plain meaning of the term “significant” is “having or expressing a meaning.” Webster‘s New World Dictionary of the American Language (2d Coll. ed. 1982). Clearly the number of prior convictions must be sufficient for the sentencer to draw a conclusion as to the defendant‘s character.
Since only felonies involving the use or threat of physical violence may be considered, the prior convictions proven by the Commonwealth will share two characteristics in common. First, they are serious offenses; second, they are violent in nature. In my view the legislature has determined that a prior criminal record which reveals a pattern of repeated violent crimes of a serious nature should be an aggravating factor in the sentencing determination. Multiple convictions of such crimes would establish not only the defendant‘s contempt for society‘s laws, but also his propensity for violent behavior and callous disregard for the sanctity of human life. Such individuals present a clear danger to society and are beyond remorse or rehabilitation.
The Commonwealth‘s evidence in support of a “significant history” in this matter was patently inadequate. The only evidence offered was that appellant had been convicted of a rape-sodomy in Virginia in 1974. Appellant countered with evidence that he had successfully fulfilled the conditions of his parole following a period of imprisonment. I reject the notion that proof of one prior remote and isolated incident involving a single victim could support the finding of a “significant history” of violent felony convictions as that term is contemplated by the General Assembly.
FLAHERTY, J., joins in this concurring opinion.