Commonwealth v. DiamondCommonwealth v. Diamond
Lead Opinion
OPINION
This is a direct appeal from an order of the Bucks County Common Pleas Court, imposing two death sentences after Appellant Robert Diamond pled guilty to the first degree murders of Angel Guadalupe and Reginald Woodson. Appellant raises claims of trial court error relating only to the penalty phase of trial, including challenges to the finding of statutory aggravating circumstances and the failure to find mitigating circumstances, challenges to the weighing of aggravating and mitigating circumstances, and a claim that his sentence of death was based on arbitrary factors. As we conclude that Appellant’s issues lack merit, we affirm his conviction and judgment of sentence.
In April of 2008, management terminated Appellant’s employment after he failed to report to work for several days without explanation. Nearly four months later, on the afternoon of August 1, 2008, Appellant made an audio tape of what he referred to as his “last will and testament” as he drove to Simon & Schuster to seek revenge for the purported harassment he had suffered during his employment. In the recording, Appellant stated that he had no place in the world, that the last six years he spent at Simon & Schuster had been a “living hell,” and that time was running out because he lacked money to pay his rent.
Appellant further stated that Crump was “the main perpetrator of all this shit but people gave him the intelligence and the will and the support to f_k with the good white man cause it’d be good for black power, that’s Debra [Vorters] and Reggie [Woodson], and I don’t think I can wait any longer than today.” Commonwealth Exhibit 30. As he drove into the Simon & Schuster parking lot, Appellant stated “[t]hat little black boy’s car is not there, so unless he’s got a ride, I’ll have to hope that there’s higher justice for him.” Id. Appellant ended his oral diatribe by facetiously thanking his mother and sisters for not helping him obtain his inheritance from his aunt. He stated, “if I had one little bit of that money, five, ten, I could get this little kick out of my system, you know, and provide for myself until I either die of natural causes or clean my act up.” Id.
Appellant arrived at Simon & Schuster at nearly 3:30 p.m., the precise time that employees working his former shift would leave for the day. Appellant was well aware that when the shift ended, employees waited in a line at the door to “clock out” and exit the warehouse onto the loading dock platform, which was adjacent to the parking lot. Appellant parked his car in the lot next to the van of Sonia Santiago, who was seated in the vehicle with her three children, waiting to pick up her husband, Miguél Santiago, after his shift. At that time, employee Vanessa Gonzalez observed fellow employee Angel Guadalupe exit the building onto the loading dock, climb down the stairs to the parking lot, and walk towards Guadalupe’s white sports utility vehicle (“SUV”), a vehicle similar to that driven by Crump.
While brandishing a Smith and Wesson .40 caliber handgun, Appellant walked in front of Sonia Santiago’s van towards Angel Guadalupe’s SUV, said “shh” to Santiago, and gestured for her to remain quiet. As Guadalupe backed his SUV out of the parking space, Appellant ran over and began firing shots into the vehicle. Guadalupe attempted to exit the SUV, but Appellant continued firing until at least six rounds had been discharged, and Guadalupe had fallen from the vehicle onto the
Several individuals observed Appellant shoot Guadalupe, including: Gonzalez, who was standing on the loading dock; Santiago, who quickly drove her van away from the scene after she observed the shooting; the driver of a SEPTA bus carrying seven passengers, which was located fifteen to twenty yards away from Guadalupe’s SUV; a resident in a retirement community located approximately twenty to twenty-five feet behind Guadalupe’s vehicle who called 9-1-1 when the shots were fired; a security guard in a nearby guard shack; and individuals smoking cigarettes on the loading dock.
As captured by the Simon & Schuster surveillance camera, at 3:34 p.m., after killing Guadalupe, Appellant walked behind his SUV, released the gun’s magazine catch, checked to see how many rounds were left, and inserted the magazine back into the gun. Appellant thereafter encountered others in the parking lot, but did not fire his weapon. Moments later, Woodson left the warehouse to investigate, walked toward Appellant, and asked him what he was doing. Woodson then abruptly turned away from Appellant, and ran up the stairs to the loading dock in an effort to get back inside the warehouse. When Woodson reached the top step, Appellant, who was then approximately twenty-nine yards away, fatally shot Woodson in the back. Gonzalez, along with other employees, was standing behind Woodson in the doorway of the loading dock when Wood-son was shot, and Gonzalez observed Appellant fire his weapon. Maria Brown, a motorist driving by the warehouse at the time, also witnessed Appellant fire shots at Woodson.
Police officers arrived promptly and observed Guadalupe’s body lying on the road. Upon seeing the officers, Appellant, who was still holding his weapon, raised the gun to his own head. The officers drew their weapons, and Appellant responded by stating, “I’m not shooting anymore.” Notes of Testimony (“N.T.”), Mar. 6, 2009, at 33. When the officers instructed Appellant to lay down his weapon and get on the ground, he complied, acting in a calm manner.
At approximately 3:45 p.m., additional police officers responded to the scene. Appellant told the officers that he had intended to kill himself, but that the officers arrived too quickly. The officers read Appellant his Miranda
Appellant also admitted to shooting Woodson, who was African American. Appellant stated, “Reggie [Woodson] came towards me ... Reggie thought that he was going to talk me down, but saw that wasn’t going to happen and began trucking and ducking away ... and then I shot him too.” N.T., Apr. 14, 2009, at 31-32; N.T., Mar. 6, 2009, at 79. Appellant told the officers that prior to the shooting he pondered whether he should “let them get away with what they did,” and decided to just “go there and do it.” N.T., Apr. 14, 2009, at 29-30; N.T., Mar. 6, 2009, at 80. Appellant further expressed disappoint
Autopsies performed on the victims established that Guadalupe’s cause of death was gunshot wounds to the head and mouth, and that Woodson’s cause of death was a gunshot wound to the back. Further, police officers seized several items, including the book Black Power the Politics of Liberation from the passenger side of Appellant’s vehicle. Officers also seized a three-page hand-written document from Appellant’s home that Appellant had drafted on the day of the murder, which purported to explain the behavior that he planned to execute later that day. The document stated in part, as follows:
I worked at Simon and Schuster and was endlessly harassed and browbeaten, oppressed in every conceivable fashion by one Kalif Crump, who enjoyed lavish and deceptively effective support from Reginald Woodson and Debra Vorters while management gleefully watched from their impregnable seat of rule. How messy would things get for people in power to take action. I AM NO RACIST. May this action save hundreds of innocent whites from tyranny and adversary. (Webster’s) GOD HELP US.
N.T., Apr. 14, 2009, at 106-11; Commonwealth Exhibit 33 (emphasis in original).
On October 16, 2008, the Commonwealth charged Appellant with, inter alia, two counts of first degree murder. Appellant thereafter filed a pretrial motion to suppress his statements to police, which the trial court denied, following a hearing on March 6, 2009. On April 13, 2009, Appellant entered an open guilty plea to two counts of first degree murder, possession of an instrument of crime, recklessly endangering another person, and firearms not to be carried without a license.
Following the penalty hearing, and relating to the murder of Angel Guadalupe (Count One), the court found one aggravating circumstance, that the defendant “has been convicted of another murder committed in any jurisdiction and committed either before or at the time of the offense at issue.”
Relating to the murder of Woodson (Count Two), the trial court found two aggravating circumstances: that in the commission of the murder Appellant created a grave risk of death to another person in addition to the victim of the offense,
The trial court subsequently denied Appellant’s motion for reconsideration of sentence, permitted trial counsel to withdraw, and appointed the Public Defender’s Office to represent Appellant. Appellant thereafter filed in this Court a petition to stay the proceedings due to his incompetency. We denied the petition to stay, but remanded the matter to the trial court for a hearing and determination on whether Appellant was competent to proceed with his direct appeal. Following a hearing on December 14, 2011, the trial court determined that Appellant was competent. Appellant does not challenge the trial court’s determination of competency in this appeal.
In his direct appeal filed in this Court, Appellant raises nine penalty-phase issues, challenging the trial court’s finding of aggravating circumstances, the trial court’s failure to find mitigating circumstances, the weighing process the trial court employed in evaluating the aggravating and mitigating circumstances, and a challenge to the death sentence on the ground that it was based on arbitrary factors.
Before addressing Appellant’s contentions, we consider, as we must in all capital cases, whether the evidence is sufficient to support the convictions of first degree murder. Commonwealth v. Zettlemoyer,
“In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt.” Fears,
To obtain a conviction of first degree murder, the Commonwealth must prove that a human being was unlawfully killed, that the defendant perpetrated the killing, and that the defendant acted with malice and a specific intent to kill. Commonwealth v. Kennedy,
It is clear that the evidence, as set forth above and as developed during the suppression hearing, guilty plea proceeding, and penalty hearing, is sufficient to support Appellant’s two convictions of first degree murder. Appellant accepted responsibility for the two murders and repeatedly acknowledged that he fatally shot Guadalupe and Woodson. At the guilty plea proceeding, the Commonwealth presented the testimony of Detective Randy Morris, Detective David Michael Kemmerer, and Corporal Kurt TempinsM, who relayed in thorough detail the circumstances of the shootings, and referenced the several eyewitnesses who observed Appellant murder Guadalupe and Woodson, as well as the statements Appellant gave to police. The Commonwealth further admitted into evidence the murder weapon and ammunition, the victims’ autopsy reports, the audio recording and written note made by Appellant explaining his conduct on the day of the murders, and the Simon & Schuster surveillance video. Accordingly, we conclude there is sufficient evidence establishing that Appellant fatally shot both victims in a vital part of their bodies with malice and with the specific intent to kill.
II. Challenges to Aggravating Circumstances
A. “Multiple Murder” Aggravating Circumstance
Appellant argues that the trial court erred in finding the
The Commonwealth responds that the trial court properly found the
The trial court agreed with the Commonwealth, recognizing that this Court has consistently held that the
Here, as cogently noted by the Commonwealth and the trial court, the record establishes that the murders of Guadalupe and Woodson were committed during the same criminal episode and within a time span of four minutes. Accordingly, we hold that the Guadalupe murder was committed “at the time” of the Woodson murder for purposes of
B. “Grave Risk” Aggravating Circumstance
Appellant argues there was insufficient evidence to support the trial court’s finding of the
Appellant argues that the facts cited by the trial court in support of the grave risk aggravator are not supported by the record. Specifically, Appellant refutes the trial court’s findings that Gonzales was standing on the loading dock platform when Woodson was fatally shot, and that the bullet could have passed through Woodson and caused serious injury or death to others. To the contrary, he submits that Gonzales was standing in the door frame leading to the loading dock, and that the bullet fired did not have the capacity to harm individuals other than Woodson. Finally, Appellant contends that the trial court erred in relying upon his knowledge of warehouse employee shifts, and by concluding that he “knowingly” created a grave risk of death to others, considering that the trial court likewise found that Appellant was under the influence of extreme mental or emotional disturbance at the time of the shooting.
The Commonwealth refutes Appellant’s contention that the trial court misapprehended the facts supporting the grave risk of death aggravator. It argues that the trial court clearly understood that Gonzalez was originally on the loading dock, had gone inside the building, and was standing in the doorway of the loading dock when she saw Appellant point the gun in her direction and fire his weapon at Woodson. See Tr. Ct. Op., at 9 (stating that “Gonzalez was standing in the doorway on the loading dock when Woodson was shot,” and “Gonzalez stated that a group of employees were standing in the doorway”). The Commonwealth concludes that these facts clearly support a finding that Gonzalez and other employees were placed in jeopardy of suffering physical injury or death from Appellant’s shooting of Wood-son. It further notes that the trial court properly considered that Appellant knew the operating procedures at the warehouse, and was aware that many employees would be in the exact location of his rampage at the precise time he began shooting.
We agree that sufficient evidence supports the grave risk aggravator. “Sufficient evidence to support the application of the aggravating circumstance of creating a grave risk of harm to persons other than the murder victim has been found by this Court in those circumstances where the other persons are ‘in close proximity* to the decedent ‘at the time’ of the murder, and due to that proximity are in jeopardy of suffering real harm.” Commonwealth v. Paolello,
Here, the record amply supports the trial court’s finding that Gonzalez was standing in the doorway of the loading dock behind Woodson, along with other
C. Constitutional Challenge to Aggravating Circumstances
Appellant next contends that the multiple murder and grave risk aggravating circumstances are unconstitutional as applied to him in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 1, 6, 9, and 13 of the Pennsylvania Constitution because the trial court, as fact finder, did not execute its function to determine whether the aggravators were supported by the facts, but rather automatically found the aggravators based on his guilty pleas.
Appellant argues that the trial court did not examine the Commonwealth’s evidence and exercise discretion in finding the multiple murder aggravating circumstance, but rather automatically concluded that the aggravator existed based on Appellant’s guilty pleas to two counts of first degree murder. See Tr. Ct. Op., at 25-6 (noting, “after [Appellant] pled guilty to the two murders that he committed during this single criminal episode, and before the penalty phase hearing began, he agreed that the Commonwealth had established this factor beyond a reasonable doubt”); id. at 26 n.6 (stating that “[b]y stipulating to an aggravating circumstance, effectively declares that the Commonwealth has
In response, the Commonwealth argues that the record refutes Appellant’s contentions because the trial court acknowledged expressly that Appellant’s guilty pleas did not require the finding of any aggravating circumstance. Relating to the multiple murder aggravating factor, the Commonwealth submits that the trial court exercised its discretion, examined the facts underlying both the Guadalupe and Woodson murders, and concluded that those facts supported the finding of that aggravator as to both counts of first degree murder. Concerning the grave risk aggravator, the Commonwealth asserts that the trial court extensively reviewed the evidence, which demonstrated that Appellant’s shooting of Woodson knowingly created a grave risk of death to Gonzalez and the other employees standing near Woodson on the loading dock at the time of the murder. The Commonwealth concludes that Appellant’s “as applied” challenges to
The trial court rejected Appellant’s constitutional challenges based on its finding that the Commonwealth proved the multiple murder and grave risk aggravating circumstances beyond a reasonable doubt by evidence that Appellant 'willfully, deliberately, and intentionally murdered Guadalupe and Woodson during the same criminal episode, and that Appellant knowingly created a grave risk of death to Gonzalez during his homicidal rampage.
We agree with the Commonwealth that the record belies Appellant’s claims. The trial court did not abrogate its duty, as fact finder, to examine the evidence presented by the Commonwealth during the penalty phase of trial and determine which aggravating circumstances were proven beyond a reasonable doubt. While the trial court acknowledged that Appellant admitted the existence of the multiple murder aggravator, as noted supra in the discussion of Issue 11(A), the trial court engaged in a thorough analysis of the facts and relevant law to determine whether sufficient evidence supported that aggravating circumstance.
Relating to the grave risk aggravator, the trial court noted expressly that it was not relying on Appellant’s guilty plea to the crime of recklessly endangering another person, but rather, as noted supra in the discussion of Issue 11(B), based its finding of the aggravator on the evidence presented by the Commonwealth demonstrating that Appellant placed Gonzalez in grave risk of death when he fatally shot Woodson. See N.T., Apr. 13, 2009, at 55 (acknowledging that Appellant’s guilty plea to recklessly endangering another person “does not arise [sic] to admitting the [grave risk] aggravating factor, but it is an admission that the weapon was fired such that it put others in danger of serious bodily injury.”); see also Tr. Ct. Op., at S3 (holding that despite Appellant’s guilty plea to recklessly endangering another person, there was insufficient evidence of the grave risk aggravating circumstance as to the residents in the retirement home near the warehouse or the driver or passengers of the SEPTA bus). Accordingly, Appellant is not entitled to relief on this claim.
Appellant raises three distinct challenges to the weight of the evidence supporting the death verdicts, which we have consolidated for review. First, Appellant argues that the death verdicts are against the weight of the evidence because the trial court, as fact finder, failed to find the mitigating circumstance set forth at
Dr. Weiss testified that Appellant suffered from schizophrenia, paranoid type, as early as 1995, and opined that Appellant’s mental impairment prevented him from having any cogent plan to kill a particular individual. Dr. Dattilio explained how Appellant’s drug usage in early adulthood aggravated his tendency for mental illness, and described Appellant as delusional and psychotic with a history of failed relationships, sporadic employment, and difficulty with finances and family. Dr. Dattilio also believed that Appellant did not appreciate the severity of his actions until he saw blood on the ground and realized what he had done. Appellant emphasizes that while the Commonwealth cross-examined his mental health experts, it did not present an expert of its own to refute his claim of lack of capacity to appreciate the criminality of his conduct.
Second, Appellant argues that the death verdicts are against the weight of the evidence because the trial court, as fact finder, failed to find the following “unrebut-ted” mitigating evidence in support of the
In support of these two weight of the evidence challenges, Appellant relies on Eddings v. Oklahoma,
Third, Appellant contends that the trial court improperly weighed the aggravating and mitigating circumstances and erroneously concluded that the aggravating factors outweighed the mitigating factors. He harkens back to his prior argument that the trial court failed to consider his mental health and life history mitigation evidence, and concludes, as a result, that the trial court’s verdicts of death shock one’s sense of justice.
The Commonwealth responds to all of Appellant’s weight of the evidence challenges in the aggregate by contending that a fact finder in a capital case is not required to find each mitigating circumstance for which the defense presented evidence, but rather has the discretion to believe all, part, or none of the evidence presented. It argues that while the fact finder must consider mitigating factors and lend weight to them, as the High Court held in Eddings, it need not conclude that the mitigation evidence rose to the level of constituting a statutory mitigating circumstance. To do so, the Commonwealth asserts, would permit Appellant to invade the fact finder’s exclusive province of evaluating the evidence. Here, the Commonwealth contends, the trial court considered Appellant’s evidence of lack of capacity to appreciate the criminality of his conduct, as well as the evidence of his troubled life history, and exercised its discretion to conclude that such evidence did not mitigate Appellant’s fatal shooting of two innocent Simon & Schuster employees.
The Commonwealth emphasizes that the trial court credited Appellant’s mental health evidence to the extent that it established that he was under the influence of extreme mental or emotional disturbance pursuant to the
The trial court properly denied Appellant relief on his challenges to the weight of the evidence supporting his death verdicts. “[Mitigating circumstances must be proved by the defendant by a preponderance of the evidence.”
Regarding Appellant’s contention that the trial court failed to give sufficient weight to his mental health and life history mitigation evidence, this Court has consistently rejected such claim. In Commonwealth v. Flor,
As this Court has expressly articulated, “[a] capital jury is not required to find a mitigating factor presented by a defendant, even if the Commonwealth fails to present evidence rebutting the existence of that factor.” Commonwealth v. Walter,600 Pa. 392 ,966 A.2d 560 , 568 (Pa.2009). In more general terms, the fact-finder is free to believe all, part, or none of the evidence, and credibility determinations rest solely within the purview of the fact-finder. Commonwealth v. Treiber,582 Pa. 646 ,874 A.2d 26 , 30 (Pa.2005); Commonwealth v. Williams,578 Pa. 504 ,854 A.2d 440 , 445 (Pa.2004). It follows directly from the above principles that a jury is not obliged to believe testimony, including expert medical or psychiatric testimony, offered by a defendant. See Commonwealth v. VanDivner,599 Pa. 617 ,962 A.2d 1170 , 1177 (Pa.2009); Commonwealth v. Henry,524 Pa. 135 ,569 A.2d 929 , 939 (Pa.1990). Furthermore, the weight to be ascribed to any testimony is a determination that rests exclusively with the finder-of-fact. Treiber, supra at 30; Williams, supra at 445.
Flor, 998 at 626.
Our Court in Flor explained that “an appellate court cannot substitute its judgment for that of the fact-finder.” Id. (citing Treiber,
This Court has also rejected claims that a particular death sentence was against the weight of the evidence because the jury improperly weighed the aggravating and mitigating circumstances to reach a verdict of death. In Commonwealth v. Ballard, — Pa. -,
We held that “[t]his restriction on our authority has caused this Court to reiterate many times that it is exclusively the function of the jury in the first instance to decide whether aggravating and mitigating circumstances exist and then whether the aggravating circumstances outweigh any mitigating circumstances.” Reyes,
IV. Passion, Prejudice and Arbitrariness Review
As noted, this Court is required to conduct an independent penalty review pursuant to
Before we fulfill our statutory obligation in this regard, we must address the specific allegations that Appellant raises under
The Commonwealth asserts that by failing to raise these particular claims of trial court error in his Rule 1925(b) statement of matters complained of on appeal, Appellant has deprived the trial court of the opportunity to address the issues. As such, the Commonwealth advocates that we deem the issues waived, and decline to address them under the guise of this Court’s statutory review pursuant to
We agree. Appellant did not include the four claims of trial court error enumerated above in his 1925(b) statement of matters complained of on appeal, and, thus, they are waived. See Commonwealth v. Castillo,
Appellant’s attempt to avoid waiver of the four claims of trial court error by contending that they rendered his sentence of death arbitrary under
Turning now to our statutory obligation under
Chief Justice CASTILLE, Justices SAYLOR, EAKIN, TODD, McCAFFERY and STEVENS join the opinion.
Justice SAYLOR files a concurring opinion.
Notes
. This Court automatically reviews direct appeals from the imposition of death sentences pursuant to
. Unbeknownst to Appellant, Crump no longer worked at Simon & Schuster at that time.
. Miranda v. Arizona,
.
.Concerning the Guadalupe murder, the trial court concluded that there was insufficient evidence to support the
. Regarding the Woodson murder, the trial court declined to find the mitigating circumstance that Appellant had no significant history of prior criminal convictions,
. The issues set forth infra have been reordered for the sake of clarity.
. Part II of this Opinion addresses Issues G, H, and F, respectively, as set forth in Appellant’s brief.
. The Section 971 l(d)(l 1) aggravating circumstance was the only aggravating circumstance found by the trial court relating to Appellant’s conviction for Guadalupe’s murder.
. Appellant's statement of his issue suggests that he is also presenting a facial challenge to
. Appellant does not relate his claim to the text of any of the aforementioned constitutional provisions or any relevant case law involving those constitutional provisions.
. In a separate issue in his appellate brief (Issue I), Appellant contends that the verdict was not supported by sufficient evidence because the Commonwealth failed to establish
. Part III of this Opinion addresses Issues A, B, C, and D, as set forth in Appellant’s brief.
. In Issue D of his appellate brief, Appellant suggests that the trial court's failure to find the
. The jury in Flor had found four aggravating circumstances, and, thereby, rendered a verdict of death.
. Part IV of this Opinion addresses Issue E as set forth in Appellant’s brief.
. Three members of the Court dissented in Padilla, and opined that they would have addressed the defaulted penalty phase claim because it involved an indisputably flawed aggravating circumstance that had been injected into the jury’s weighing determination, which undergirded the death verdict. See
. The Prothonotaiy of the Supreme Court is directed to transmit the complete record of this case to the Governor of Pennsylvania, See
Concurrence Opinion
concurring.
I join the majority opinion, subject only to the reservation I expressed in Commonwealth v. Ballard, — Pa. -,
Notably, in cases involving the imposition of the penalty of death, the General Assembly has invested this Court with the special responsibility of assuring that a capital sentence is not the result of passion, prejudice, or any other arbitrary factor. See
I acknowledge that it would be a rare instance in which a weight-based claim would prevail under such a regime. Nevertheless, it is my considered position that the statutory review for arbitrariness serves as an essential safeguard against unwarranted imposition of the severest of punishments and that it should not be circumscribed by the sort of blanket proscription which is enforced here. I also maintain the concern with the underpinnings of the per se rule, in that I believe it is derived from an understatement of the competency of appellate courts to weigh evidence adduced in a capital sentencing proceeding.