COMMONWEALTH оf Pennsylvania, Appellee, v. Jose DeJESUS, Appellant.
880 A.2d 608
Supreme Court of Pennsylvania.
Submitted Aug. 27, 2003. Decided Aug. 17, 2005.
880 A.2d 608
Justice BAER joins this dissenting opinion.
Hugh J. Burns, Esq., Amy Zapp, Esq., Karla Gebel Perrin, Philadelphia, for Commonwealth of Pennsylvania.
BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice CASTILLE.
This matter is an automatic direct appeal frоm a sentence of death imposed by the Court of Common Pleas of Philadelphia County. Without discussing the merits of the claims raised by appellant, this Court remanded the case to the trial court for issuance of an opinion in accordance with
As a preliminary matter, as we noted at the outset of our original opinion, in addition to the two claims of trial court error which the trial court has discussed on remand, appellant raises a total of six claims sounding in the ineffective assistance of trial counsel, and a seventh procedural claim which requests a remand for an evidentiary hearing on the general question of ineffectiveness. See DeJesus, 581 Pa. at 635 n. 6, 868 A.2d at 381 n. 6. Prior to our opinion and order remanding the matter for a supplemental trial court opinion, appellant filed with this Court a Motion to Remand for Evidentiary Hearing on his ineffectiveness claims. In a per curiam order, dated June 10, 2003, we specifically denied that motion without
As we do in all capital direct appeals, we will first review the evidence to ensure that it is sufficient to support the first-degree murder conviction. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970 (1983). We do so notwithstanding that appellant does not challenge the suffi-
The evidence adduced at trial established that appellant and a man known as “Capone” had an on-going dispute in June of 1997. On June 19, 1997, Capone and several acquaintances allegedly opened fire with firearms on appellant‘s house, located at 2902 Palethorp Street in Philadelphia. Sometime before 8:00 p.m. on June 20, 1997, appellant noticed a man, who apparently looked very much like Capone and was wearing a bandana on his head, driving a new, blue Toyota Corolla that appellant knew to be owned by Capone in and around appellant‘s neighborhood. At around 8:00 p.m., after having observed the Toyota driving in his neighborhood, appellant entered a light-colored station wagon parked in front of his house and exited the car carrying an AK-47 assault rifle. Appellant then went into an abandoned house аt 2913 Palethorp and ascended to the roof of the building. About a minute later, the Toyota Corolla rounded the corner of Cambria and Palethorp Streets and began traveling on Palethorp, past the abandoned building. Upon seeing the car, appellant opened fire on the vehicle and its driver, strafing the rifle
While appellant was firing, McKinley Williams, who had been washing his car nearby, heard the shots and, thinking that the sound was that of firecrackers, began walking toward the noise. Upon seeing that appellant was firing a rifle onto the street, Williams turned and began running in the opposite direction but was struck by one bullet in his left calf, two bullets in his left buttock, and one bullet on the left side of his head. Williams continued running towards Cambria Street even after being shot.3 At the same time, fifteen-year-old Angel Correa was riding his off-road motorcycle on the street in front of the 2902 residence and carrying three-year-old Luis Ortiz as a passenger. When Angel heard the gunshots, hе was startled and fell while still seated on the bike and holding the child. Angel covered Luis until the gunshots stopped, but when Angel later returned the child to his mother, it was discovered that Luis had suffered a gunshot wound to his left
After evading police custody for approximately three months, appellаnt was arrested on September 23, 1997, when members of the Philadelphia Police Fugitive Squad surrounded a house at 1537 Ruan Street, where appellant had been staying, and detained him there.5 Following his arrest, appellant was transported to the police station, where he gave a statement to police. Appellant admitted his involvement in the shooting, explaining, inter alia, that Capone had shot at his house the day before, and that when he saw the “Capone wagon,” he “lit it up” because he thought Capone “must be coming back again.” N.T., 7/1/98, at 79.
The foregoing evidence fully supports the jury‘s finding that appellant was guilty of first-degree murder. Carlos Martinez was unlawfully killed; appellant committed that killing, acting with the specific intent to kill, evidenced by the use of an especially deadly weapon upon a vital organ of the victim‘s body; and the killing was done with premeditation and deliberation, as evidenced by appellant‘s motivation, his actions, and his admission to police.
We now turn to the remaining two claims raised by appellant, which have now been addressed by the trial court: (1) that the trial court erred by permitting, over trial counsel‘s
In his first claim of error, appellant argues that the trial court erred in admitting, over the objection of defense counsel, the testimony of two witnesses, both of whom stated that they saw appellant in the possession of a sawed-off shotgun on September 1, 1997, several months after the murder.6 Mylene Gonzalez, appellant‘s then ex-girlfriend, testified at trial that during the summer of 1997 homicide detectives spoke with her regarding their investigation of appellant for the murder of Carlos Martinez. Following her meeting with the detectivеs, she came into contact with appellant on a couple of occasions during which she asked or told appellant to turn himself in to the authorities. On one specific occasion, appellant replied to Ms. Gonzalez: “F— them.” On September 1, 1997, appellant came to Gonzalez’ residence at 2860 North Palethorp and was carrying a sawed-off shotgun. N.T., 7/1/1998, at 10. The testimony of Emma Pichardo, Gonzalez’ sister-in-law, corroborated Ms. Gonzalez’ testimony about the shotgun. N.T., 6/30/1998, at 38-39.
The trial court reasons that the foregoing evidence was admissible because “it tended to prove that the defendant had a weapon similar to the one usеd in preparation of the crime he was currently charged with.” Trial ct. slip op. at 3-4. On appeal, appellant insists that the evidence was not relevant, and in the alternative, that whatever probative value the testimony had was outweighed by its grossly prejudicial effect. Appellant further insists that the trial court‘s error in admit-
It is well settled that the decision to admit or exclude evidence is vested to the sound discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. See Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110, 117 (2001). Relevant evidence is any evidence that tends to make a fact in issue more or less probable, and the relevance of a given piece of evidence is a prerequisite to its admissibility.
In the instant case, appellant makes general assertions regarding the definition of relevant evidence and the meaning of unfair prejudice. He cites only to one non-binding case, however, Commonwealth v. Marshall, 743 A.2d 489 (Pa.Super.1999), as support for his broad contention that a trial court abuses its discretion when it admits into evidence a gun not used to commit the crime in question. In Marshall, the defendant was tried and convicted for first degree murder, and the evidence at trial established that the victim was shot and killed with bullets from a 9 mm handgun. At trial, the Commonwealth was permitted, over the defendant‘s objection, to introduce into evidence a 9 mm handgun, which undisputedly was seized from the defendant prior to the killing and remained in police custody when the murder was committed. On appeal, the Superior Court reversed, noting that the weapon in question was in police custody at the time of the killing and concluding that the gun could therefore not be relevant to show that the defendant possessed the “means to commit the murder.” Id. at 492-93.
Appellant correctly notes the similarity between Marshall and the facts of this case: here, the Commonwealth‘s witnesses referred to a gun, which, like the gun admitted into evidence in Marshall, was unquestionably not the murder weapon. However, appellant overstates the Marshall rule when he cites it for the hard and fast proposition that “where it is impossible for a gun to have been the murder weapon, it should not ... be admitted into evidence.” Appellant‘s Brief at 28. As with any other evidence, the question of admissibility depends to a large extent upon the purpose for which the
Wе are guided by the fundamental principle that relevant evidence is that which tends to make a material fact more or less likely.
Appellant‘s further argument that the testimony, even if relevant, was unfairly prejudicial likewise fails. In light of the totality of appellant‘s post-crime conduct, the probative valuе of the testimony in question was not outweighed by the danger of unfair prejudice. See Boyle, 498 Pa. 486, 447 A.2d 250. Moreover, the trial court admonished the jury during its charge that the testimony was for the “limited purpose” of showing that “the defendant had access to weapons” and not to demonstrate his “bad character” or “criminal tendencies.”
Moreover, even assuming that the testimony should have been excluded, we are satisfied that its admission was nonetheless harmless. In light of the overwhelming body of evidence in this case—notably including appellant‘s confession to having “lit up” the victim‘s car with a semi-automatic rifle—and the trial court‘s cautionary instruction regarding the sawed-off shotgun, we are satisfied, beyond a reasonable doubt, that the trial court‘s allowing the jury to hear the testimony about the shotgun, if error at all, was harmless. See Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d 131, 138-39 (2001) (erroneous admission into evidence of co-defendants’ confessions was harmless error where other properly admitted evidence, inсluding defendant‘s own confession, was overwhelming); Commonwealth v. Miles, 545 Pa. 500, 681 A.2d 1295, 1301 (1996) (same); Williams, 640 A.2d at 1261 (even if admission of defendant‘s possession of guns, other than crime weapon, was improper, error was harmless in light of overwhelming evidence).
Appellant‘s second claim of error is that the trial court erred in rejecting trial counsel‘s request to individually voir dire each juror regarding a grossly prejudicial newspaper article that was published immediately prior to commencement of the penalty phase.
On Thursday, July 2, 1997, following completion of the guilt phase of the trial, the jury returned a verdict of guilty and the court adjourned for the Independence Day weekend. Immediately prior to adjourning, howevеr, the trial court cautioned the jury, as it had prior to the guilt phase, not to let any outside influences affect the jury‘s deliberations during the
The Court: As I told you earlier, I do not want anyone to influence you in any way in any decision that‘s to be made in this case. Now that you‘ve found this defendant guilty of first degree murder, I say the same thing regarding the question of sentencing. Please do not discuss this case with your family or anyone. The next time you are to discuss this case is after I give you additional instructions as to how you are to evaluate evidence ... during the penalty phаse.
....
There is a strong possibility that your decision in this case will be reported by the media in both the print and the electronic, that‘s the radio, television, and newspaper. This case will probably be reported. You are not to read or watch the news accounts of this trial. Got it?
The Jury: (nodding heads.)
The Court: Let the record reflect they nodded their heads in the affirmative.
N.T., 7/2/98, at 105-07 (emphasis added).
On Monday, July 6, 1997, prior to commencement of the penalty phase and outside the presence of the jury, the trial court‘s tipstaff informed the court that the July 3, 1997, edition of the Philadelphia Daily News contained an article discussing appellant‘s trial. Neither the court nor the parties were aware of the article оr its content, and the court requested the tipstaff to acquire a copy. The court then welcomed the jury back from the holiday weekend and the following exchange took place:
The Court: Good morning, Ladies and Gentlemen.
The Jury: Good morning.
The Court: I trust that you all had an enjoyable and remarkable Fourth of July.
The Jury: (nodding heads.)
The Court: I trust that you followed my instructions and did not seek out any media coverage of our trial.
The Jury: (nodding heads.)
The Court: So we‘ll proceed with what we call the penalty phase of this trial.
N.T., 7/6/98, at 4-5. After all penalty phase testimony was completed, and immediately before the defense rested, the trial court held an in camera meeting with the attorneys in order to discuss the nature of the news article, a copy of whiсh had been obtained and which was entitled “Drug Hit Man Convicted of Murder One.” During the meeting, defense counsel read the following excerpt from the article: “DeJesus ... is awaiting trial for the murder[s] of another man and a pregnant woman, and is awaiting a preliminary hearing for a fourth killing.” Id. at 14-15, 640 A.2d 1251. Defense counsel also noted that the article referred to appellant as a “hit man” for a drug mob. Defense counsel requested that the trial court individually voir dire each juror in order to ascertain whether or not he or she had read the article. The court declined, noting that it had cautioned the jury, prior to adjournment, not to expose itself to media coveragе of the trial and that the jury had already indicated its adherence to those instructions.
In its opinion, the trial court concluded that, “[as] the initial group questioning of the jurors did not elicit any response indicating that any of them had been exposed to media coverage, there was no basis upon which to conduct individual voire dire regarding the newspaper article.” Trial ct. slip op. at 3. Appellant contends that the trial court‘s refusal to permit individual voire dire was an error entitling him to a new penalty hearing. The Commonwealth counters that the trial court‘s instructions and the jury‘s collective responses thereto were adequate assurance that the jury was not prejudiced by the single article in question.
In Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976), this Court considered what measures a trial court must take to ensure the impartiality of a jury in the face of prejudicial publicity that arises during the trial. Prior to the trial in Bruno, the trial court granted the defendant‘s motion to suppress his confession but denied his request for a change
On appeal, this Court noted the following relevant facts: the publiсity involved the suppressed confession, about which the jury would otherwise have been uninformed; the publicity was widespread and highly prejudicial, manifested in numerous front-page news articles and on news broadcasts; at the start of trial, the court failed to specifically instruct the jury not to expose itself to media coverage of the trial, but instead merely suggested that the jury not do so; and finally, defense counsel repeatedly requested that the trial court individually question the jurors regarding the publicity. The Bruno Court began its analysis by recognizing the baseline principle that due process requires that “the jury consider only the evidence developed beforе it at trial,” and the potential for heightened prejudice where the jury becomes aware of “inadmissible evidence from outside sources ... because of the absence of any procedural safeguards.” Id. at 49. In ultimately concluding that the trial court was required to individually question each juror as to whether he or she was exposed to the publicity in question, the Court considered crucial the fact that the trial court had failed to adequately instruct the jury in the first place. Id. at 51. The Court explained:
When there is a possibility of highly prejudicial materials reaching the jury, the trial court must take appropriate protective action.... [T]he proper precautions ... must reasonably ensure that no prejudice will occur.
....
Here, details of [the defendant‘s] suppressed confession were the subject of highly prejudicial front page news articles and news broadcasts. Even a random glance at a news rack would have been sufficient to convey the existence of the confession. The court gave an inadequate precautionary instruction to the jury and took no direct action to ensure that they were not exposed to such highly prejudicial information. In such circumstances,
the trial court should have questioned each juror as appellant‘s counsel frequently requested to ensure that the publicity had not in fact reached the jury. The failure to do so denied appellant any chance to show actual prejudice. Such a procedure is required, upon the request of either party.... * * *
The preferred procedure when highly prejudicial material is publicized during the trial and the jury is not sequestered is to question the jurors individually, out of the presence of other jurors. However, questioning jurors as a group or giving special precautionary instructions may be a sufficient precaution depending on the facts of the particular case.
Id. at 265-68, 352 A.2d at 51-52 (citations omitted) (emphasis added). Concluding that the trial court‘s errors deprived appellant of the opportunity to show actual prejudice, the Court reversed and remanded for a new trial. Id. at 267-68, 352 A.2d at 52.
Although appellant does not cite or rely upon Bruno,9 the Commonwealth recognizes our holding in that case. However, the Commonwealth urges that the trial court correctly ruled that, in the instant case, its instructions and subsequent inquiry were sufficient to protect appellant. We agree.
Although the nature of the harmful publicity in Bruno, as here, highlighted prejudicial facts that were not in evidence at trial—i.e., in Bruno, a suppressed confession; here, other alleged murders—the publicity in Bruno was widespread. Indeed, the Bruno court cited four newspaper articles, one of which appeared on the front page of a local newspaper, and noted extensive radio coveragе regarding the trial and the confession, all of which were brought to the trial court‘s
Finally, this Court is required to conduct a statutory review of the death sentence. Pursuant to
(i) the sentence of death was the product of passion, prejudice, or any other arbitrary factor; or (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d).
Id. Here, the jury unanimously found one statutory aggravating circumstance—i.e., that appellant, while in the commission of the offense, knowingly created a grave risk of death to another person in addition to the victim of the offense,
Accordingly, we affirm appellant‘s convictions and sentence of death and dismiss appellant‘s claims of ineffеctive assistance of trial counsel without prejudice to his raising those claims upon collateral review. Jurisdiction relinquished.11
Justice NIGRO files a concurring opinion.
Justice NIGRO, concurring.
I write separately merely to note that I am not convinced that the trial court‘s instruction to the jury regarding the limited purposes of the testimony concerning Appellant‘s possession of a sawed-off shot gun “negated” the prejudice suffered by Appellant from this testimony, which undoubtedly placed him in a bad light. See Majority Slip Op. at 10-11; see also, e.g., Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162, 1166 (1981) (stating that certain clearly prejudicial testimony cannot be cured by instructions) (Nix, J., dissenting); id. (same) (Roberts, J., dissenting). Nevertheless, I agree with the majority that any error in admitting this evidence was harmless in light of the overwhelming evidence of Aрpellant‘s guilt, including, most predominantly, his own confession.