*1 Appellant fact majority also overlooked his wife so that, indeed, he had beaten himself testified and also required hospitalization that once she severely (T.T., pp. it driving car while she was he had rammed her beatings, but had such 668-674). Culp testified Witness hearsay, I fail to see how testimony her though even was admis- light Appellant’s testimony prejudicial point. sions on Pennsylvania, Appellee,
COMMONWEALTH JUDGE, Roger Appellant. Pennsylvania. Court of Argued Oct. 18, 1992. May
Decided J., Zappala, dissenting opinion J., filed which Cappy, joined. *2 Rendine,
Daniel A. Philadelphia, appellant. Barthold, Gaele McLaughlin Dist. Deputy Atty., Ronald Div., Eisenberg, Chief Philadelphia, Appeals Catherine Mar- Graci, shall and Gen., Robert A. Chief Deputy Atty. appellee. FLAHERTY, LARSEN, NIX, C.J., Before jj. CAPPY,
McDERMOTT, ZAPPALA, PAPADAKOS THE OF COURT OPINION LARSEN, Justice. 15, 1987, Roger Judge was convicted appellant, April
On degree first of murder of two counts by jury Immediately follow- crime. instrument of possession hearing pursuant held verdict, sentencing ing the Code, jury and the 42 Pa.C.S.A. Sentencing for each first death sentenced unanimously 12, 1987, post-trial June conviction. On degree murder trial who judge, denied motions were heard and two for each sentenced formally murders.1 sentencing, days after two
On June *3 11, 1987, while still a August custody.2 from On escaped from appeal a se notice fugitive, appellant pro filed presently is incarcer- Appellant judgments. death sentence Canada, serving he is two Columbia, where British ated to Article 6 Pursuant terms for robberies. ten-year prison United States and agreement between the of the extradition to Pennsylvania, Canada, cannot be extradited by death is not degree punishable first murder because Extradition, 3, 1971; amended on Dec. Treaty Canada.3 States-Canada, 27 29, 1974, 28, 1974, July United June R.S.C., 8237; Code, c. C- 983, T.I.A.S. No. Criminal U.S.T. 46, 235(1). s. consecutively. A imposed consecu- death were
1. The two
sentences
years imprisonment was
to five
of two and one-half
tive sentence
possession
imposed
of crime.
instrument
City
by strik-
previously attempted escape from
Hall
Appellant had
sheriff.
ing
while his cohort stabbed a second
several times
sheriff
is
provides:
offense for which extradition
"When the
3. Article
requesting
requested
punishable by
laws of the
is
death under
permit
punish-
requested State
not
such
the laws of the
do
State and
offense,
request-
may be refused unless the
extradition
ment for that
requested
as
State considers
ing
provides such assurances
State
or,
imposed,
imposed,
if
penalty
not
shall
be
sufficient
that the
shall
be executed."
not
22,
On
Court,
December
1989 this
sponte,
sua
en
tered
per
limiting
curiam order
review of the case to
sufficiency
evidence,
propriety
the sentence.4
In derogation
order,
of this Court’s
appellant’s attorney
raised several claims of error for our
Although
review.
this Court has the authority to correct errors at trial which
appellant raises5,
this Court’s rules expressly provide
quashing
appeal
of an
when the appellant
is a
fugitive.
1972(6)6,
Pa.R.A.P.
it is within the discretion
of this Court to take such action
sponte.
sua
Common
Tomlinson,
22,
wealth v.
467 Pa.
(1976).
In
we noted
“[disposition
by dismissal of
pending appeals of escaped prisoners is a longstanding and
principle
established
Id.,
American law.”
6. Rule 1972. on Motion Subject relief), (applications any party may Rule 123 move: ****** (6) generally quash To continue or to because the is a fugitive.
407 Craddock, 522 E.g., 491, 564 v. Commonwealth A.2d Pa. Ciotti, 549, Commonwealth v. Pa.Super. 318 (1989); 151 banc), vacated, 506 10, 483 (1983) (en Pa. Luckenbaugh, v. Pa.Super. Commonwealth 356 (1984); 852 (1986), vacated, 520 Pa. 75, A.2d 1317 355, 550 A.2d 896 514 that once the defendant (1988). Moreover, we have held not recapture pro- does fled, return or subsequent has his appeal. Commonwealth v. reinstating vide a basis Passaro, supra. case,
Although Passaro is nothing not there capital was holding its of the limits language opinion in the broad pending appeals defendants. Dismissal non-capital concept. not escaped from death row is a novel defendants E.g., Allen v. 525, 41 Georgia, 138, 17 L.Ed. S.Ct. U.S. State, 71, (1939); v. Mosley (1897); 189 Ga. S.E.2d see, Jones Jugger, 687, (1950); State v. 217 La. 47 So.2d cert. Commonwealth, 228 Va. (1984), 427, 323 S.E.2d 554 denied, (1985) 86 L.Ed.2d 472 U.S. 105 S.Ct. the defendant only motion to dismiss because (denying court). period by within set surrendered of the However, severity finality because review all death, statutorily are mandated to sentence of 9711(h).7 In to 42 Pa.C.S.A. pursuant death sentences Sentencing provides: 7. The Act (h) Review of death sentence.— (1) subject by review A sentence of shall be automatic Pennsylvania pursuant rules. Supreme to its Court of trial, (2) authority to correct In addition to its errors or Supreme Court either the sentence of death vacate shall affirm provid- proceedings further as of death and remand for the sentence ed in (4). paragraph (3) Supreme of death unless Court shall affirm sentence it determines that: prejudice (i) product passion, or the sentence of death factor; arbitrary any other (ii) finding at least support one the evidence fails (d); specified aggravating or circumstance subsection (iii) disproportionate of death is or to the the sentence excessive cases, considering penalty imposed both the circum- in similar the defendant. of the crime and the character record of stances penalty must If the Court determines that the death none of the aggravating are circumstances be vacated because supported of death is sufficient evidence or because sentence *5 408 cases,
capital
we must also
the sufficiency
review
evidence to sustain a conviction for murder of the first
v. Zettlemoyer,
degree.
Commonwealth
16,
500 Pa.
454
denied,
(1982),
A.2d
cert.
970,
2444,
461
U.S.
103 S.Ct.
denied,
1327,
L.Ed.2d
reh’g
1236,
31,
463 U.S.
104 S.Ct.
(1983).
(1991), this Court held that notwithstanding de appellant’s sire to pursue not appeal order to expedite his execution, we will discharge duty our under foregoing also, standard. See v. Appel, Commonwealth 517 Pa. (1988) (automatic regard review mandatory, appellant’s less of to appeal). desire waive Consequently, appellant’s election flee to does not him allow our subvert goal of insuring that the death comports sentence with the Commonwealth’s death statute. penalty
Therefore, though even appellant has right forfeited his error, to raise any claims of we will nonetheless review the convict, sufficiency evidence sen- appellant’s 9711(h), tence under where has fugi- become a justice, tive from and cannot subject be made to the Court’s jurisdiction. Were delay we decide to pending review appellant’s return jurisdiction, to this which in this case may that, be twenty years, we run the risk should appellant be trial, entitled a new the Commonwealth would have a him, difficult time retrying due to the problems common passage associated of time. reviewing evidence,
In sufficiency must view evidence and all reasonable inferences drawn therefrom, in the light most favorable to the Common winner, wealth as the verdict and must determine whether cases, disproportionate penalty imposed to the in similar then it imposition imprisonment shall remand for the of a life sentence. If penalty Court determines must be reason, any sentencing vacated other it shall remand a new hearing pursuant (a) through (g). to subsections 9711(h). 42 Pa.C.S.A. § find jury every enable the there is sufficient evidence to *6 doubt. Com- a reasonable beyond element the crime (1990). Pa. Bryant, monwealth standard, sufficient find the evidence Applying the verdicts of jury’s a to sustain beyond reasonable doubt degree. murder of the first following. discloses the On
The evidence adduced at trial 13, 1984, Outter- evening September Christopher the girlfriend in conversation with his bridge engaged a Wyoming from house 110 West his at across street Roger Judge, ap- Philadelphia. Appellant, Avenue taunting Christopher. began proached couple he did not want to informed that Christopher appellant him struck fight, away, appellant and as turned to walk he punched appellant, response, Christopher face. In him then retreated to knocking ground; Christopher home, his Christopher his chased into Appellant home. older appellant by Christopher’s was confronted where brother, with Outterbridge. After brief scuffle Kenneth Kenneth, appellant left. evening, returned appellant
Several times appellant told Kia Outterbridge home. On one occasion sister, he would Outterbridge, Christopher’s younger occasion, Christopher. to kill On another be back home a friend and both Outterbridge returned to the Afraid of appeared weapons. a confronta- concealing be mother, his tion, Christopher sought from who assistance Appellant on to confront the men. porch went out Ms. to send her son out- Outterbridge ordered repeatedly refused, side, Outterbridge Ms. and threatened tele- but left, Appellant but informed Ms. Outter- phone police. intended to return. bridge that he approxi- following evening, at September On and his friends were re- p.m., Christopher 11:45 mately shop, one when turning nearby home from sandwich the Outterbridge his near briefly friends saw the home.8 When the group home, arrived the Outterbridge they joined Christopher’s sister Kia on the front porch. later, Moments out jumped bushes, aimed his gun at Christopher, and fired five shots teenagers at the gathered on porch. Christopher Outterbridge was shot back, in the and a friend Christopher’s sister, fifteen year Mitchell, old Tabatha was shot in the chest.
After emptying handgun of ammunition, appellant fled on foot in the direction of Street, Marvine but reversed direction he when realized police vehicles arriving were from that direction. As he passed back in front of the house, Outterbridge one friends, of Christopher’s Calvin Whitaker, unsuccessfully attempted apprehend appellant. *7 Appellant fled down a back alley as Calvin called repeatedly appellant’s out name, street “Dobe.” A police officer arrived on the scene later, moments after hearing gunshots from the direction of the Outterbridge house. Christopher ran down the steps bleeding profusely from his neck and mouth and begged to be taken to the hospital; Calvin stood on the porch waving his arms and shouting Dobe”; “It was and lay Tabatha on her back on the porch with a bullet hole in her chest.
The officer immediately called for police assistance and Christopher and Tabatha transported were to the hospital. While enroute to the hospital, Christopher, though barely alive, managed to tell police that “Dobe” had shot him. Soon after arriving at the hospital, both victims were pro- nounced dead. Christopher died single from a gunshot wound; the bullet right entered the back, side of his trav- eled through right his lung, through large vessel, blood and then lodged the soft tissue of the right side of his neck. Tabatha Mitchell’s life was also ended by single wound; gunshot the bullet entered abdomen, her traveled through her pancreas, liver and grazed backbone, her and damaged two major blood vessels. The bullet finally lodged Douse, Christopher’s 8. Michael a friend of testified that he had ob- appellant sitting served across Outterbridge the street from the home (N.T. 4/9/87, day. 72.) p. earlier Medical According the her back. in the soft tissue of Examiner, was homicide. of both deaths manner crime established a shooting, after officers
Shortly .32 investigation. projec- Two caliber began scene an of recovered; porch one from the the Outter- tiles were home, neighbor’s property. from a bridge the other friends conducted of following day, Christopher’s several had appellant which alley search the back down informal pants and sweat fled, jacket the hooded and recovered flight night during discarded appellant had which shooting. conducted appellant An intensive search teenagers’ identifications upon eye-witness based police, and one- apprehended appellant two the assailant. Police had help Angela Smith. She later half weeks with shooting. testified night She with been 12:00 p.m. 11:00 a.m. sometime between 4/9/87, (N.T. pp. do. stating something had left that he 115, 128). approximately one appellant returned When breath, wearing different he wet and hour later was out discussing incident She clothes. overheard Later, some others to driving while with his friend. Falls, why he had killed asked appellant East Ms. Smith he her he tell responded two would people,” “those 98). (N.T. 4/9/97, smoking p. a joint. he finished after *8 provided requested her with the Although appellant never information, disposed gun of the he her that he had did tell place. the murders took house next door where at the 4/9/87, 98-99). (N.T. pp. later, Smith received a weeks Ms. two
Approximately her that he was call He informed telephone appellant. from bring him some waiting his friends Jersey in New bullet-proof purchase a car so that he could money in himself planned turning if he on asked him vest. She (N.T. “dumb move.” her that would be a he told conversation, 102). Ms. Smith 4/9/87, Subsequent p. police. The homicide detectives interviewed by was appellant them if heard from her call she instructed again. 2, 1984, On October Ms. Smith received three tele- phone calls from informing her that he was on his way to see her requested directions. She immediately contacted police, enabling them to apprehend appellant as soon as he entered Ms. Smith’s Appellant residence. was arrested, given his Miranda warnings, and then made an inculpatory statement to the investigating officer, that it matter if I tell I you why not, did it or I know I’m “[d]on’t (N.T. 4/10/87, 48). done.” p.
On November detectives recovered a rusted .32 caliber Smith and Wesson five-shot revolver from deep the bushes in front of a basement window at West Wyoming Avenue. A microscopic comparison of the mark- ings on the revolver and the recovered,9 bullets previously led a expert conclude, firearms to positively that three of the four bullet specimens came from the revolver found the neighbor’s yard.10 trial,
At testified that he was Angela Smith and five other people at the time the murders took place, and therefore could not have committed the murders which However, occurred at 11:49 p.m. appellant failed to produce witnesses, any alibi claiming that the District At- torney’s office had (N.T. intimidated them. 4/13/87, pp. 49-51, 60, 70).11 Appellant admitted that he he knew was wanted police, even before the arrest and search issued, warrants were but hid from them in order to con- duct his own investigation of the crime. His investigation produce failed to any exculpatory evidence and/or another suspect for the crime. recovered;
9. There were four bullets porch one from the home, Outterbridge neighbor, one from the and one from each of the victim’s bodies. specimen 10. The fourth was too mutilated to make a conclusive determination. Angela testimony contrary appellant’s Smith’s assertion that he place, was with her at the time the murders took since she testified approximately left for one hour and returned after the *9 shooting occurred. en- appellant, establishes evidence foregoing Christopher the he had had with raged the confrontation retaliation, by his of on threats day, good made previous in order to his home victim, in wait at stalking lying his him, firing then five him, at and aiming gun ambush bystand- innocent shots, and an striking his intended victim consistent this attack evinces behavior er. The nature of to cause death. specific intent premeditated, with a on evidence, jury convicted upon Based the degree first of murder of the 15, 1987 counts April of two Our review of of crime. of an instrument possession the was conclude that evidence us to compels record the first support a reasonable doubt beyond sufficient 2502(a). 18 Pa.C.S.A. degree murder convictions. § until we fulfill our statu complete is not Our review (1) following: whether to assess the tory obligation product passion, prejudice, of death were the sentences factor; (2) fails whether evidence arbitrary or other any aggravating least one finding specified support circumstance; the sentences are excessive whether cases, penalty to the similar imposed or disproportionate the crime and the considering both the circumstances of the defendant.12 record character verdict, hearing, following immediately the penalty At following aggravating of the found the existence jury Outterbridge’s regard Christopher circumstances defendant of the offense the “In commission death: person to another grave risk death knowingly created a offense,” 42 Pa.C.S.A. to the victim addition significant history has 9711(d)(7); defendant “The § use or threat of violence involving the convictions felony 9711(d)(9); and “The defendant 42 Pa.C.S.A. person,” offense, or State of another Federal has convicted been of the offense at or at time committed either before or life imprisonment sentence of issue, for which a a sentence undergoing defendant was or the imposable See, supra. n. *10 414
of life imprisonment for reason at time any the commission of the 42 9711(d)(10). offense.” Pa.C.S.A. § regard
With to death, Tabatha Mitchell’s jury the found the of the following existence aggravating circumstances: “In the commission of the offense the defendant knowingly grave created a risk of to person death another in addition offense,” the of 42 9711(d)(7); victim the Pa.C.S.A. § “The defendant has a significant of history felony convic- tions involving the use or of threat violence the person.” 9711(d)(9). Pa.C.S.A. §
The fact appellant that fired repeatedly weapon at a group of children gathered area, in confined porch in his attempt Christopher to kill Outterbridge, the supports find- ing of the jury appellant knowingly grave created risk of death to another person addition victim of Any offense. one of these children was risk of being bullet; and, struck an by fact, errant Mitchell, Tabatha bystander, innocent was struck and aby killed bullet Christopher intended for Outterbridge. Additionally, stray bullets were porch recovered from the of Outterbridge home neighbor’s and from a property.
Appellant’s significant of history violent felony convic- tions was sufficiently established the Commonwealth’s prior evidence of two convictions one robbery, prior aggravated conviction for In light appellant’s assault. of tendencies, violent finding of jury’s aggravating circum- (d)(9) stance was justified. of
Lastly, appellant’s conviction murder of the first de- gree for killing Mitchell, of Tabatha justified jury’s finding regarding the murder Christopher Outterbridge, had been convicted another capital offense either or before at the time offense at issue.
The only mitigating circumstance sentencing jury regard found with to both murders “The was that defen- dant was under influence of extreme or mental emotion- al 9711(e)(2). disturbance.” Pa.C.S.A. The jury then found that the unanimously aggravating circumstances out- circumstance, pursuant weighed mitigating the sole 9711(c)(l)(iv), sentenced Pa.C.S.A. each the two murders.13 and the record of this crime circumstances of death the sentences our conclusion justify nor dispropor are excessive
imposed upon appellant neither See Com in similar cases.14 imposed to the penalty tionate cert. (1984), Frey, monwealth Pa. denied, 469 U.S. 963, 105 83 L.Ed.2d S.Ct. find, thereto).
(and Additionally, attached Appendix *11 record, of death of the sentences after a review that of product and not a were of the evidence product a 42 Pa. arbitrary factor.” “passion, prejudice any or other 9711(h)(3). C.S.A. § reasons, convictions of sustain the foregoing
For the sentences of degree affirm the murder of the first and death.15 CAPPY,
ZAPPALA, J., dissenting opinion a which files J., joins.
ZAPPALA, Justice, dissenting. although view it express my I again,
Once write quash to dismiss or an appellate court may proper be an 1972(6)1 is Pa.R.A.P. fugitive, appeal when 9711(c)(l)(iv) be a provides "the verdict must sentence 13. Section aggravating jury unanimously one of if the finds least (d) mitigating specified circum- in subsection no circumstance aggravating jury unanimously finds one or more or if the stance mitigating outweigh any The circumstances. circumstances which imprisonment in all other cases.” be a of life verdict must sentence Pennsylvania by upon Death information accumulated Based 14. Pennsylva- by of Penalty Study supplied the Administrative Office nia Courts. Pennsylvania of is directed Prothonotary Court 15. trial, sentencing complete record to hearing, imposition the full and transmit Court sentence and review l(i). 971 Governor. Pa.C.S.A. 1972(6) only quash permits the court not The fact Rule fugitive, "to appeal appellant is but also continue because the improper absolutely appeal it is bar an whose disposed petitioning has been so from the court for reinstatement of the attempting good show cause Passaro, v. Commonwealth appeal at a later time. See J., (1984) concur- (Zappala, Pa. 476 A.2d Luckenbaugh, Commonwealth v. 520 Pa. ring); J., (Zappala, dissenting). said, incongruous That I find it that the Court thoroughly not opted quash appeal, here has to dismiss or but to limit the issues and decide them on the merits. As the Court, I is would beyond jurisdiction simply quash appeal.
CAPPY, J., dissenting opinion. in this joins Pennsylvania, Appellee,
COMMONWEALTH EPSILON, al., Appellants. TAU KAPPA et *12 Pennsylvania. Court of Argued May 1991. May
Decided generally”, belies the indicates to me a measure of discretion that majority. espoused by absolutist view