Commonwealth v. KennedyCommonwealth v. Kennedy
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- Before:
- Saylor
This is a direct appeal from a sentence of death imposed upon Appellant, Christopher Kennedy, for the first-degree murder of Michael Richardson.
Background
On January 19, 2003, Appellant, James Richardson, his brother Jamaar Richardson, Lavar Brown, and Ronald Vann planned to rob a drug store at which Jamaar Richardson
worked.
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According to
Appellant was tried jointly with Brown and the Richardson coconspirators, who were charged, inter alia, with felony murder. Among other witnesses, Vann testified for the Commonwealth, describing the planning and execution of the robbery from his vantage. Notably, Vann indicated that, during the planning, Appellant said that if Mr. Richardson resisted he would kill him. Store personnel testified that, of the two safes in the manager’s office, Mr. Richardson would have had access to only one-the other was accessible only by armored-car personnel. Although there were no witnesses to the actual killing, store personnel related that they remained in the vicinity and did not witness anyone enter or exit the storefront; the responding officers indicated that they did not see anyone other than Appellant exit the rear of the store; and one of the first officers to enter the store stated that the only person found there besides the victim was a patron who had hidden in a bathroom.
The Commonwealth also presented a ballistics expert who testified, over Appellant’s objections, that the .44 caliber handgun carried by Appellant was primarily used in hunting “deer-size animals” to accomplish deep penetration. The expert also explained that a dried liquid substance was found on the muzzle of the revolver, which a DNA expert confirmed was bodily fluid matching Mr. Richardson’s profile. A medical examiner opined, based on the character of gunpowder stippling around the wound to the victim’s head, that the pistol that fired the shot would have been approximately twelve inches away at the time of discharge.
Appellant testified in his defense. He admitted that he perpetrated the robbery, shot Mr. Richardson in the leg, and brought him to the office to open the safe. Appellant, however, denied shooting the victim a second time and disputed the Commonwealth’s contention that his codefendants were involved in the planning and execution of the robbery. Instead, Appellant claimed that he acted at the suggestion of a friend of his brother’s, whom he could not identify.
During Appellant’s testimony, the trial court called a recess for lunch, at which time the prosecutor requested that Appellant be directed not to discuss the case with anyone, including his counsel. Counsel indicated that, although he did not intend to speak with Appellant about the case, he believed that decisional law required that he and Appellant be permitted
In his closing argument, the prosecutor summarized the evidence, positing that Appellant shot the victim when he was unable to open the second safe believed to contain $40,000 to $50,000. In two instances during the summation, the prosecutor referred to Appellant as a “homicidal predator.”
The jury returned a verdict of guilt on the charges of first-degree murder, robbery, conspiracy, and weapons violations. At the penalty phase, Appellant was represented by co-counsel, who was appointed nineteen days before the start of the trial. The Commonwealth offered as an aggravating circumstance that the killings occurred during the perpetration of a felony, namely, robbery.
See
42 Pa.C.S § 9711(d)(6). Appellant offered as mitigating circumstances claims that he lacked a significant history of prior convictions,
see
Shortly thereafter, Appellant filed a motion for extraordinary relief, requesting that the death sentence be overturned or, in the alternative, that he be awarded a new penalty hearing. 3 The trial court denied Appellant’s motion and formally imposed the sentence of death for first-degree murder, as well as lengthy terms of incarceration for his other offenses. After a substitution of counsel, post-sentence motions were considered on a nunc pro tunc basis and denied.
Presently, Appellant advances six claims, challenging the sufficiency and weight of the evidence; the trial court’s decision to prohibit conferral during recess; the ballistics expert’s testimony concerning the impact of the murder weapon upon an animal; the prosecutor’s characterization of Appellant as a homicidal predator; and the conduct of trial within a brief period of time after the appointment of mitigation counsel.
Sufficiency and Weight of the Evidence
Appellant’s first challenge is to the sufficiency of the evidence to support the first-degree murder. Appellant concedes that he perpetrated the robbery and shot Mr. Richardson’s leg, but he maintains that there was insufficient evidence to establish that he fired the fatal shot. In this regard, Appellant emphasizes that:
To obtain a first-degree murder conviction, the Commonwealth must demonstrate that a human being was unlawfully killed, the defendant perpetrated the killing, and the defendant acted with malice and a specific intent to kill.
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In the present case, certainly Appellant’s admitted conduct in intentionally shooting Mr. Richardson in his leg as part of a robbery scheme demonstrates the degree of his regard for the victim’s health and safety. By Appellant’s own admission, he was squarely in a position to have committed the killing in close temporal proximity to the shooting. Testimony from store personnel, coconspirators, and the responding officers tended to discount the possibility of anyone else having shot the victim. Immediately prior to his apprehension, Appellant possessed a weapon which the Commonwealth’s evidence demonstrated contained bodily fluid indicative of a close-range shot, such as was delivered to Mr. Richardson’s head. Appellant also had money in his possession taken from the office where the victim was shot. Furthermore, the Commonwealth presented evidence to support its theory that Appellant shot Mr. Richardson since the victim was unable to open the second safe. In this regard, as noted, Vann testified that, prior to the robbery, Appellant stated that if the manager resisted, he would kill him; and store personnel attested to the restrictions on access to the second safe. Finally, specific intent to kill is also readily inferable from Appellant’s use of a deadly weapon upon a vital part of the victim’s body. See Commonwealth v. Speight, 544 Pa. 451, 459, 677 A.2d 317, 321 (1996).
Viewing the evidence in the light most favorable to the Commonwealth, it amply supports the jury’s finding that Appellant perpetrated the killing and did so with specific intent.
In a related claim, Appellant maintains that the jury’s first-degree murder verdict
Right to Counsel
Appellant next contends he is entitled to a new trial because the trial court deprived him of his Sixth Amendment right to counsel by prohibiting him from speaking to trial counsel during the recess interrupting his testimony. Appellant concedes in his brief, however, that the record “does not reflect an objection.” Brief for Appellant at 23. Thus, this claim is waived.
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Appellant argues, in the alternative, that trial counsel’s failure to object must be regarded as ineffective assistance per se. Although Appellant recognizes that ineffectiveness claims generally are deferred to collateral review proceedings, see Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002), he asserts that such deferral is not appropriate where counsel had no reasonable basis or strategic objective for failing to object. In this regard, Appellant emphasizes that this Court has held that, even during short recesses, it is reversible error for a trial court to prohibit a defendant from conferring with his counsel. See Commonwealth v. Vivian, 426 Pa. 192, 197, 231 A.2d 301, 304 (1967); see also Commonwealth v. Logan, 456 Pa. 508, 509-10, 325 A.2d 313, 314 (1974). Further, according to Appellant, the prejudice to him was palpable, since effectively he was without counsel at a significant stage in the proceedings.
In reply, the Commonwealth develops that the state of the law has changed significantly since the issuance of the Vivian line of decisions upon which Appellant relies, in that the United States Supreme Court subsequently determined that a defendant who is testifying may be prohibited from conferring with his counsel during a short recess where it is appropriate to presume that nothing but the testimony will be discussed. See Perry v. Leeke, 488 U.S. 272, 284-85, 109 S.Ct. 594, 602, 102 L.Ed.2d 624 (1989); cf. Albrecht v. Horn, 485 F.3d 103, 137-38 (3d Cir.2007) (holding appellate counsel was not ineffective for failing to challenge a trial court’s prohibition against attorney-client contact during a two-hour recess, where the order was not a clear violation of law in light of Perry).
In view of Perry, the categorical approach taken in Vivian and Logan to trial-court orders limiting consultation merits revisitation. In the context of this case, on account of the ineffectiveness overlay, and for the reasons outlined in Grant, such review is best suited to the post-conviction stage.
Firearm Impact
Appellant next seeks a new trial based on the testimony of the Commonwealth’s
Evidence is relevant if it tends to establish a material fact, makes a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact. See Commonwealth v. Stallworth, 566 Pa. 349, 363, 781 A.2d 110, 117 (2001). The decision of whether or not to admit evidence is committed to the sound discretion of the trial court and will only be reversed upon a showing that the trial court clearly abused its discretion. See Commonwealth v. King, 554 Pa. 331, 350-51, 721 A.2d 763, 772-73 (1998) (citing Commonwealth v. Cohen, 529 Pa. 552, 563, 605 A.2d 1212, 1218 (1992)). Here, consistent with the Commonwealth’s argument, the development of the ordinary use of the type of weapon used to kill Mr. Richardson was a matter committed to the trial court’s sound discretion. As that court aptly observed, “any prejudice incurred by the defendant from the subject of [the ballistics expert’s] testimony has as much to do with the brutal circumstances of the crime as to the prosecutor’s ... line of questioning.” Commonwealth v. Kennedy, No. CP-51-CR-0310461-2003, slip op. at 13 (C.P. Phila. June 8, 2007). Upon our review of the record, we also observe that the Commonwealth did not unduly belabor the point during the examination.
Homicidal Predator Remark
In Appellant’s last guilt-phase claim, he argues that he is entitled to a new trial because the prosecutor referred to him on two instances as a homicidal predator in his summation. Appellant submits that the prosecutor thus impermissibly interjected his personal opinion into the proceedings in an effort to unfairly prejudice him. According to Appellant, the prosecutor’s characterization had the unavoidable effect of forming a fixed bias against him in the jurors’ minds, thus preventing them from objectively weighing the evidence. The Commonwealth responds that the prosecutor’s comments were within the permissible bounds of oratorical flair in light of the evidence that Appellant’s .44 caliber revolver was a particularly powerful firearm. The Commonwealth also references Commonwealth v. Miles, 545 Pa. 500, 681 A.2d 1295 (1996), in which this Court found analogous references to predatory behavior on the part of criminal defendants to have been permissible. See id. at 513-14, 681 A.2d at 1301-02. The Commonwealth further contends that, considering that there were only two complained-of characterizations in the argument, and in light of the overwhelming evidence of Appellant’s guilt, he would not be entitled to relief even if the remarks were to be deemed improper.
Prosecutors are permitted to comment on the evidence or appropriate inferences from it, and to employ oratorical flair in their arguments.
See Commonwealth v. Hawkins,
549 Pa. 352, 373-74, 701 A.2d 492, 503 (1997). Further, this Court has imposed on defendants the obligation to demonstrate that actions challenged
Consistent with the Miles decision referenced by the Commonwealth, the prosecutor’s comments in this case were not improper. In Miles, the prosecutor compared codefendants to a pack of predatory animals, an image which the Court found to be consistent with the evidence, and thus, reasonably employed. See Miles, 545 Pa. at 513-14, 681 A.2d at 1301-02. Additionally, the Court observed that comments characterizing defendants as a “murdering, child-killing, backshooting” trio, and as “slaughterers” and “executioners” previously had been deemed proper. See id. (citing and quoting Commonwealth v. Jones, 530 Pa. 591, 617, 610 A.2d 931, 943 (1992)). Viewed in such context, the prosecutor’s argument in this case appears to have been restrained. 4 Moreover, as the Common wealth explains, the prevailing standard requires a defendant raising a claim of prosecutorial misconduct to demonstrate substantial prejudice. Here, we sustain the trial court’s determination that Appellant failed to point to prejudice of such degree. See Kennedy, No. CP-51-CR-0310461-2003, slip op. at 14 (“Nothing else of record suggests that these two references rendered the jury incapable of determining the facts that, as was discussed above, overwhelmingly supported the defendant’s guilt of first degree murder.”).
Absence of Continuance
In his final claim, Appellant maintains that he is entitled to a new penalty hearing, because the calendar and trial courts erred in not acting sua sponte to continue trial, where mitigation counsel was appointed only nineteen days prior to the start of the trial. Appellant argues that, given the brief period of time for preparation, and in light of trial counsel’s failure to conduct any mitigation investigation, mitigation counsel simply could not have been adequately prepared to proceed at the penalty phase. Appellant claims that, although mitigation counsel did not request a continuance, the court had a duty to delay the trial to permit adequate preparation. Further, Appellant notes that, due to prior obligations, mitigation counsel was unable to attend a substantial part of the trial and observe evidence that he asserts would have contributed to the mitigation defense in the sentencing proceedings. Appellant also contends that it is clear on the record that his mental-health expert was unprepared to testify at the penalty phase, in large part because of the time constraints. Finally, Appellant alludes to several instances of alleged deficient stewardship on the part of mitigation counsel.
For its part, the Commonwealth argues that Appellant’s claim should be deemed waived because mitigation counsel never requested a continuance or otherwise objected to the trial date. The Commonwealth notes that, despite the late appointment, there is nothing in the record that would have put the trial court on notice that counsel was in need of additional time. In fact, the Commonwealth observes, mitiga
tion counsel indicated in the hearings on Appellant’s motion for extraordinary relief
Appellant’s tactic to avoid waiver of his direct claim is to argue, in substance, that the time period available to mitigation counsel to prepare was so short that the trial court committed fundamental error and/or that he was effectively denied counsel. This Court, however, has abrogated the practice of reviewing claims of basic or fundamental errors in the absence of a timely objection or exception. See Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974). We have also rejected arguments that appointments shortly before trial rise to the level of a constructive denial of counsel, where meaningful representation is provided. See Commonwealth v. Williams, 597 Pa. 109, 135-36, 950 A.2d 294, 310 (2008) (citing, inter alia, United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (holding that a newly-appointed attorney, who was afforded only twenty-five days to prepare for trial in a case which the government spent four and one-half years investigating and preparing was not per se ineffective)).
In light of Clair and Williams, and in the absence of a timely request or objection, it is apparent that the only appropriate claim which may be available to Appellant is of deficient stewardship on the part of his counsel for failing to ask for a continuance and/or for inadequately preparing. Such a challenge is appropriately deferred to post-conviction review under Grant. 5 Additionally, we decline Appellant’s invitation to create a series of bright-line rules applicable to this context.
Statutory Review
At this juncture, we are required to affirm the death sentence unless we find that: (i) the sentence 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.
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The judgment of sentence is affirmed, and the Prothonotary is directed to transmit the complete record of this case to the Governor in accordance with
Notes
. The Richardson coconspirators (James and Jamaar) were unrelated to the victim, Michael Richardson (“Mr.Richardson”).
. Apparently, the robbery plan called for several measures to be taken to secure control over the premises, but these did not occur as the coconspirators (led.
. The motion centered on an allegation that Appellant’s mental-health expert intentionally presented unfavorable opinions in the penalty phase which conflicted with his written report. The resultant proceedings also touched on mitigation counsel‘s preparations.
. It is this author‘s position that, in its remarks to jurors, the government should confine itself more closely to discussing the evidence and the application of the governing law.
. Although mitigation counsel did address certain aspects of his preparation for the penalty phase at the hearings on the motion for extraordi nary relief, the trial court explained that neither the hearing nor its review at that stage was comprehensive, and that further development on post-conviction review would be appropriate. See Kennedy, No. CP-51-CR-0310461-2003, slip op. at 24 n. 16.