COMMONWEALTH of Pennsylvania, Appellee, v. Frederick MAXWELL, Appellant.
Supreme Court of Pennsylvania.
Argued Oct. 20, 1983. Decided May 24, 1984.
477 A.2d 1309
Before ROBERTS, C.J., and NIX, LARSEN, FLAHERTY, MCDERMOTT, HUTCHINSON and ZAPPALA, JJ.
As did the Supreme Courts of Michigan,7 Nevada,8 Washington,9 and West Virginia10 in considering notice of claim statutes in their states, I would hold the notice provision of
I dissent.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., for appellee.
MCDERMOTT, Justice.
The appellant here appeals from a sentence of death.1 If the facts alleged and resolved by the jury are legally predicated, they depict a “wickedness of disposition, a hardness of heart and recklessness of consequence,” that are the very name and nature of murder. With the announced intention of robbery and “killing if necessary,” appellant lured an encyclopedia salesman to his home. The victim came, hoping to show his books to a concerned and loving father. As he sat in appellant‘s home, he knew not the frigid cruelty that was to engulf him. He knew not that on the morrow his own son would find him, thrown into the cellar in a trash bag.
Appellant challenges the verdict below on numerous grounds.2 These challenges center around violation of Pennsylvania Rules of Criminal Procedure Rule 1100, a warrantless search, marital privilege, prosecutorial remarks, and infliction of cruel and unusual punishment due to the imposition of the death penalty. We reject these challenges and affirm.3
The pertinent facts are summarized as follows: In May of 1979, appellant sent a card to Encyclopedia Britannica requesting a salesman to call regarding the purchase of a set of the encyclopedias. Paul Kent visited the appellant and his live-in paramour, Ann Gasper, at appellant‘s house, but no encyclopedias were purchased because neither of them had any funds.
On the morning of June 5, 1979, appellant instructed Ann Gasper to telephone Mr. Kent‘s office and ask Mr. Kent to return to appellant‘s household since they now had the necessary funds to buy the books. According to Ann Gasper‘s testimony, appellant told her and co-defendant Gary Mobley, who had been present in appellant‘s house that day, that he was going to rob the salesman and kill him if necessary. At appellant‘s request Gary Mobley went to a nearby store to buy some trashbags. Appellant told Ms. Gasper to go upstairs and get the children ready as they were going to the store. In the meantime, Mr. Kent arrived at appellant‘s house and for a brief while they discussed the books.
Upstairs Ann Gasper heard two gunshots. When she descended Ms. Gasper observed Paul Kent‘s body slumped in a dining room chair, dead. He had been shot twice in the head at close range. Appellant told Ms. Gasper to wash Mr. Kent‘s blood from the wall, carpet and chair while he and Gary Mobley stuffed the lifeless victim in trash bags and carried it to the cellar, where they removed the victim‘s wallet. Taking Mr. Kent‘s car the trio drove to Wanamaker‘s Department Store in Philadelphia, where they purchased a purse and two television sets with the victim‘s credit card, being the exchange for Paul Kent‘s life. The
The threesome then returned to appellant‘s house. Gary Mobley promised appellant that he would dispose of the corpse the next night when he would be least visible. The following morning, appellant broke the basement door to prevent his teenage girls from entering the basement. Ms. Gasper wrote a note to the children informing them of the basement door and that she and appellant were out shopping and would return later that evening.
Instead, appellant and Ms. Gasper drove the victim‘s car to New York City. Later that same afternoon the victim‘s son went to appellant‘s home to ask the whereabouts of his father. Appellant‘s daughters searched the house and discovered the victim‘s body in the trashbags. The girls went outside to a pay booth to telephone their grandmother. En route they approached two police officers who were observing the house from a car across the street and informed them of what they had seen. The police had been waiting for the arrival of a search warrant for appellant‘s house. The police officers requested permission to enter the house and the daughters granted it.
The fugitives never returned from New York since they were aware from appellant‘s mother that the police were looking for them. Fourteen months later appellant was apprehended by New York Police.
Appellant initially alleges that the trial court erred in denying his motion to dismiss the charges because he was denied his right to a speedy trial. Appellant claims that a complaint was filed against him on June 6, 1979, and that his trial did not commence until April 24, 1981.
Pennsylvania Rule of Criminal Procedure 1100 specifically provides that a defendant must be brought to trial within one hundred eighty days from the date on which the complaint is filed. Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982). Subsection (c)(1), (2) and (3) of Rule
In this case appellant argues that the Commonwealth failed to establish its due diligence since it never communicated to him through the public, by advertisements or legal notices, a warrant for his arrest, and that because of such lack of notice he did not know that he was wanted in the Paul Kent killing. This claim is as frivolous as it is macabre.
The record reveals that appellant was the focal point of a massive manhunt. He was wanted not only by local authorities, but also by state and federal authorities throughout seven states. Furthermore, appellant‘s own testimony contradicts this claim. While in New York, they moved to various addresses in an effort to escape apprehension. From New York Ms. Gasper telephoned appellant‘s mother who told her that her son should turn himself in because the police were looking for them. Ms. Gasper relayed this information to appellant. Nevertheless, appellant continued to elude police over the next fourteen months.
A person who callously kills another human being, flees to another state to conceal his whereabouts, and abandons his normal pattern of living and his children without any explanation cannot later claim he was unaware that he was wanted by the police. Because appellant intentionally concealed himself from this manhunt he cannot now complain. Moreover, under subsection (d)(1) of Rule 1100, the fourteen months that appellant evaded the police after the June 6 complaint was filed are explicitly excluded from calculating the 180 day period. Furthermore, appellant waived this issue when he appeared before Judge Ribner and requested a three month extension of Rule 1100 for the purpose of
Appellant next maintains that his Fourth Amendment right to privacy was infringed by the warrantless search of his home. There the Philadelphia police found the body of Paul Kent, which appellant claims should have been suppressed. The trial judge justified the validity of the warrantless entry on three theories: consent, abandonment, and exigent circumstances. Conversely, appellant argues that the trial court erred on all three grounds.
Appellant first contends that the police intimidated Yolanda, appellant‘s daughter, thus negating her consent. We have previously held that a mere acquiescence to a claim of lawful authority does not discharge the burden that consent must be freely and voluntarily given. Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973), later app. 462 Pa. 543, 342 A.2d 67 (1975). Appellant, however, ignores the uncontradicted evidence that it was Yolanda who approached the police officers in their car and asked them to come inside the house because she wanted to show them what was in the trash bag in the basement. The police neither forced themselves upon Yolanda nor used their authority as a pretext to gain entry into appellant‘s house. The police officers’ actions in searching the house were in direct response to Yolanda‘s directives. There was nothing intimidating in this scenario.
Nevertheless, appellant argues that Yolanda was incapable of giving consent because she was only sixteen years of age. Although age is one element to acknowledge in ascertaining whether consent was given willingly, minority status alone does not prevent one from giving consent. In Re: Anthony F, 293 Md. 146, 442 A.2d 975 (1982) (Sixteen year old sister of juvenile gave consent); Doyle v. State of Alaska, 633 P.2d 306 (Alaska App.1981) (Fourteen year old son gave consent); State of Iowa v. Folkens, 281 N.W.2d 1 (Iowa 1979) (Fourteen year old son in charge of house while mother was absent gave consent); United States v. Bethea, 598 F.2d 331 (4th Cir.1979) cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979); People v. Swansey, 62 Ill.App.3d 1015, 20 Ill.Dec. 211, 379 N.E.2d 1279 (1978).
The record is devoid of any evidence that would indicate that Yolanda‘s age itself prevented her from giving a valid consent. Nor is there evidence of any emotional immaturity or mental instability. On the contrary the record reveals that Yolanda made a very rational decision when she left her house after discovering the body. The evidence establishes that consent existed irrespective of Yolanda‘s age.
Secondly, appellant argues that the doctrine of exigent circumstances is inapplicable to this case because “the police had every reason to believe the decedent was indeed dead“. This mordant hindsight overlooks one of the limited reasons for this warrantless exception.5 Generally, police are allowed to make warrantless searches when a life threatening emergency exists. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Accord Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982) (Permits search “when the officers may in good faith believe that they or someone within are in peril of bodily harm.“)
Appellant next argues that the trial court erred in allowing Ann Gasper to testify against him at his trial. Appellant argues that since he and Ann Gasper lived together there was a common-law marriage and thus she should have been precluded from testifying under the marital incompetency statute
The uncontradicted evidence established in the trial court showed that Ann Gasper, at the time of Mr. Kent‘s execution, was still legally married to one Calvin Brandon. There was no evidence proving that Ms. Gasper and Mr. Brandon had been divorced. As the trial court found, appellant and Ms. Gasper were merely cohabitating. Consequently, appellant has no legal basis for asserting the marital incompetency privilege and the testimony was properly admitted.
Appellant‘s fourth assignment of error relates to the exclusion of potential veniremen who indicated an opposition to the death penalty. Appellant contends that the exclusion of such veniremen resulted in a prosecution-prone jury. This argument is meritless. Simply questioning potential veniremen on their position regarding the death penalty, or excluding those who are strongly opposed to it and cannot impose it under any conditions, does not necessarily produce a prosecution oriented jury. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972); Commonwealth v. Speller, 445 Pa. 32, 282 A.2d 26 (1971).
Appellant complains next about the prosecutor‘s summation, which he claims improperly disparaged his trial coun-
Let me make a couple comments about what counsel said—some of the things counsel said. There is an old adage in the law if you got the facts on your side, you argue the facts, if you got the law on your side, you argue the law, if you have neither, you blow smoke. And that is what counsel did for two hours yesterday. By putting me on trial he was blowing smoke.
(Notes of Testimony at 1072-73.)
Appellant argues that this precise metaphor prejudiced him in the jurors’ eyes and prevented them from rendering an impartial verdict.
This Court has recently defined the standard for ordering a new trial in a case where a prosecutorial statement is deemed improper. Commonwealth v. Upsher, 497 Pa. 621, 444 A.2d 90 (1982). There we concluded that, although a prosecutor‘s statement may be inappropriate, a new trial will not be granted unless it is inevitable that the prosecutor‘s remark prejudices the defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Id., 497 Pa. at 627, 444 A.2d at 92. See also Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981) (New trial warranted when unavoidable effect of prosecutorial comment is to deprive defendant of fair trial); Commonwealth v. Martin, 461 Pa. 289, 336 A.2d 290 (1975); Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973).
Furthermore, “[T]he prejudicial effect of the district attorney‘s remarks must be evaluated in the context in which they occurred.” Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980); See also, Commonwealth v. Brown, 489 Pa. 285, 414 A.2d 70 (1980); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977). However, a reversal is not an automatic formality for every intemperate or improper comment by the prosecution. A trial judge will not be reversed for failing to provide an appropriate remedy
In reviewing the prosecutor‘s statement we do not find it to be such as to require a new trial. The remark complained of was in response to the personal attack made upon the prosecutor during appellant‘s counsel‘s summation. There was nothing inappropriate about the prosecutor‘s comment when reviewed in the situation in which it was made.
Appellant‘s sixth complaint challenges the constitutionality of the death penalty statute9 on the grounds that it violates due process and is cruel and unusual punishment under both the Pennsylvania and United States Constitutions.10
Recently, this Court has thoroughly analyzed these precise arguments and rejected them. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327, reh. den. — U.S. —, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). There this Court held that the death penalty is neither per se cruel punishment nor offensive to due process under either the Pennsylvania or Federal Constitutions. Id., 500 Pa. 66-74, 454 A.2d at 963-67.
Finally, appellant argues that the death sentencing procedure statute11 is unconstitutionally vague because it does not provide an adequate standard of weighing aggravating against mitigating circumstances. Specifically, he points to the language “... if the jury unanimously finds one or
During appellant‘s sentencing hearing neither he nor his counsel presented any evidence of mitigating circumstances. The only evidence presented at this hearing was appellant‘s own testimony denying he killed Mr. Kent, a fact which the jury had previously resolved against him. Consequently, the jury found no mitigating circumstances. Hence, the only consideration required by the jury was whether the Commonwealth had proven two aggravating circumstances beyond a reasonable doubt.12 Because appellant did not introduce any evidence of mitigating circumstances, it became unnecessary to “weigh” opposing circumstances. This Court has consistently held that a claimant cannot challenge the constitutionality of a statute abstractly; he is afforded such right only if it is sought to be enforced in his particular case. Commonwealth v. One 1976 Ford Truck Van, 492 Pa. 541, 424 A.2d 1323 (1981) cert. denied, 454 U.S. 819, 102 S.Ct. 99, 70 L.Ed.2d 89 (1981); Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980); Knowles’ Estate, 295 Pa. 571, 145 A. 797 (1929).
In this case, because appellant did not introduce any mitigating circumstances, the jury never had to consider the application of
We have carefully studied the data compiled by the AOPC and have found that in cases where a defendant did not present any mitigating circumstances and the prosecution proved at least one, and in most cases two or more, aggravating circumstances, the sentence of death has always been imposed. More importantly, in those cases that were identical to appellant‘s, that is where there were no mitigating circumstances and the same two aggravating circumstances (killing a person while in the perpetration of a felony and the defendant having a significant history of felony convictions involving the use or threat of violence to the person
NIX, C.J., files a dissenting opinion.
Former C.J. ROBERTS did not participate in the decision of this matter.
NIX, Chief Justice, dissenting.
I dissent.
No proposition is more fundamental to our accepted notions of due process than the proposition that a person charged with a serious crime is entitled, as a matter of right, to trial by a fair and impartial jury selected from a representative cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed. 2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066 (1980), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979); Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976); Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976); Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973); Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972), cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974); Commonwealth v. Cornitcher, 447 Pa. 539, 291 A.2d 521 (1972);
Appellant‘s challenge to Pennsylvania‘s death qualification procedure cannot properly be disposed of, as the majority purports to do, by a passing reference to Witherspoon v. Illinois, supra. In Witherspoon the United States Supreme Court declined to find that the exclusion of jurors unalterably opposed to capital punishment results in an unrepresentative jury or substantially increases the risk of conviction, concluding that the data made available to the Court was “too tentative and fragmentary.” Id. at 517, 88 S.Ct. at 1774. The Court, however, left open the possibility that “a defendant convicted by such a jury in some future case might still attempt to establish that the jury was less than neutral with respect to guilt.” Id. at 520 n. 18, 88 S.Ct. at 1776 n. 18. The Witherspoon Court thus made it clear that more impressive empirical data would be required before the prosecution-proneness question could be resolved.
In the intervening fifteen years, the Witherspoon Court‘s understandable hesitancy has generated numerous studies of increasing reliability and precision in support of the dual
The prosecution-proneness of death qualified jurors is firmly established by the results of a definitive study of the question reported in Cowan, Thompson & Ellsworth, The Effects of Death Qualification on Jurors’ Predisposition to Convict and on the Quality of Deliberation, 8 Law & Human Behavior 53 (1984) (hereinafter “Cowan“). The participants in the study were 288 adults eligible for jury
The conclusion that death qualified juries are conviction-prone is further buttressed by a number of studies which reveal why death qualified juries are more likely to convict. See, e.g., Cowan, supra; Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Human Behavior 31 (1984) (hereinafter “Fitzgerald“); Thompson, Cowan, Ellsworth & Harrington, Death Penalty Attitudes and Conviction Proneness, 8 Law & Human Behavior 94 (1984) (hereinafter “Thompson“); Bronson, On the Conviction-Proneness and Representativeness of the Death-Qualified Jury: An Empirical Study of Colorado Veniremen, 42 U.Colo.L.Rev. 1 (1970) (hereinafter “Bronson“). One study demonstrated that “death-qualified subjects evaluated the evidence in a way markedly more favorable to the prosecution than did excludables.” Thompson, supra at 103. That study also found that “relative to excludables, death-qualified subjects express less regret for erroneous convictions and more for erroneous acquittals,” id. at 109, “indicating that less evidence is necessary to convince death-qualified jurors beyond a reasonable doubt.” Id. at 111.
Another study reveals “a consistent pattern of differences between death-qualified and excludable jurors.” Fitzgerald, supra at 45. As compared with Witherspoon excludables, death qualified jurors are more punitive, less sensitive to procedural and constitutional guarantees, biased in favor of the prosecutor and against defense counsel,
Like death qualified jurors, Witherspoon-excludables have been shown to share a set of interrelated attitudes toward the criminal justice system. These attitudes are distinct from those possessed by death qualified jurors, even those who express some opposition to capital punishment. Fitzgerald, supra; Bronson, supra; see Grisby v. Mabry, supra. Moreover, it has been established that persons who share such attitudes constitute a sizeable group within the community. Fitzgerald, supra; Bronson, supra; see Keeten v. Garrison, supra; Grigsby v. Mabry, supra. Thus, the effect of the death qualification process is to systematically exclude all members of a cognizable group. As a result of the death qualification process, a significant viewpoint goes unrepresented on the capital jury, rendering that jury unrepresentative.
The strong empirical evidence amassed in the wake of Witherspoon has been well summarized as follows:
The evidence ... clearly establishes that a juror‘s attitude toward the death penalty is the most powerful known predictor of his overall predisposition in a capital criminal case. That evidence shows that persons who favor the death penalty are predisposed in favor of the prosecution and are uncommonly predisposed against the defendant. The evidence shows that death penalty attitudes are highly correlated with other criminal justice attitudes. Generally, those who favor the death penalty are more likely to trust prosecutors, distrust defense counsel, to believe the state‘s witnesses, and to disapprove of certain of the accepted rights of defendants in criminal cases. A jury so selected will not, therefore, be composed of a cross section of the community. Rather, it will be composed of a group of persons who are uncommonly predisposed to favor the prosecution, a jury “organized to convict.” Grisby v. Mabry, supra at 1273.
Notes
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(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
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(b) For the purpose of this Rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere.
(c)(1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
(2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
(3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth and, if the delay is due to the court‘s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
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(d) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant‘s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.
Spouses as witnesses against each other
Except as otherwise provided in this subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other, except that in proceedings for desertion and maintenance, and in any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon the minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them, each shall be competent merely to prove the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other.