COMMONWEALTH of Pennsylvania, Appellee, v. Christopher McNEIL, Appellant.
Supreme Court of Pennsylvania.
Reargued Jan. 22, 1996.
Decided June 25, 1996.
679 A.2d 1253
Catherine Marshall, Karen A. Brancheau, Hugh J. Burns, Jr., Robert A. Graci, Office of Attorney General, for Com.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
ZAPPALA, Justice.
This is a direct appeal pursuant to
The record establishes that late in the evening of December 4, 1990, the victim, John Airasian, and Wanda Douglas were sitting in the victim‘s parked van at 51st Street and Lancaster Avenue in Philadelphia. The two had known each other for four or five months. They had stopped at a gas station to purchase matches. Appellant approached the victim and asked for some change. The victim refused to give Appellant money and Appellant stated, “You‘ll regret it.”
The victim and Douglas then drove to Parkside Avenue and parked near basketball courts to drink beer and smoke cocaine. Douglas then noticed Appellant, whom shе had known from the neighborhood, walk past the van, stop and then walk back, approaching the van from the driver‘s side. Douglas told the victim that Appellant was the same man who wanted money earlier. Appellant again asked the victim for some change. The victim responded that he had none. Appellant then fired a shot through the closed window, striking the victim in the head. When Appellant fired a second shot, the victim collapsеd sideways and cried, “Help, help, I think I am dying!”
Appellant began driving the van and debated aloud about letting Douglas go. He then stole a gold chain from the victim‘s neck and a charm from Douglas. Appellant ultimately stopped near a gas station, warned Douglas not to tell anyone about the killing, and let her out. After Douglas exited the van, she repоrted the incident to a security guard in a nearby apartment building. She did not reveal Appellant‘s identity at that time. The police arrived and Douglas reported the location of the murder.
A short time later, an officer discovered the van with the victim partially hanging out from the rear and radioed for back-up. When medical assistance arrived, the victim showed no signs of life. An autopsy later revealed that the victim had died from four close-range gunshot wounds, each of which was deemed fatal.2 All four projectiles were recovered from the body. It was the medical examiner‘s opinion that the muzzle of the gun had been held about six inches from the victim‘s body and no more than 24 inches away.
Appellant was arrested for the murder and was positively identified as the shooter by Douglas. At trial, the Commonwealth called Wanda Lytle as a witness. Lytle testified that she was driving on Parkside Avenue near the park on the night of the murder and saw Appellant standing next to a van with two people inside. Lytle stated that she had known Appellant since childhood, but did not know Douglas. She
Following his conviction, Appеllant‘s counsel filed post-trial motions and was permitted to withdraw. Current counsel filed supplemental post-trial motions, raising claims of ineffective assistance of counsel. The trial court denied those motions and formally sentenced Appellant to death.
Pursuant to our obligation to review the sufficiency of the evidence in a case in which the death penalty has been imposed, 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 (1983), we conclude that the eyewitness tеstimony and corroborating evidence are clearly sufficient to support the first degree murder conviction.
Appellant first argues that the court erred in refusing a jury view of the crime scene. He contends that a view of the crime scene would establish that Commonwealth witness Wanda Lytle, who placed Appellant at the murder scene at the relevant time, was not in a position to identify him.3
The decision whether to grant a requеst for a jury view is within the discretion of the trial judge. Pa.R.Crim.P. 1112. Absent an abuse of discretion, the denial of a request for a jury view will not be overturned. Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189 (1994); Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978). The trial court stated that it denied the request because it believed that the conditions of the scene at the time of trial were not reasonably similar to the conditions at the time of the murder. We find no abuse of discretion. Moreover, it appears that Appellant‘s argument relates more to Lytle‘s credibility than to the physical configuration of the street.
Appellant first contends that cоunsel was ineffective for failing to object to the prosecutor‘s peremptory striking of six black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant asserts that this is a “racial case” since a black man is charged with the murder of a white man. He concludes that the racial makeup of the jury—ten white persons and two black persons—was favorable to the Commonwealth and that his trial counsel should have objected to the “inconsistent” striking of blаck jurors.4
To prevail on a Batson challenge, a defendant must first establish a prima facie case by showing that the prosecutor discriminated in the jury selection process based on evidence of the use of peremptory challenges. Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993); Batson v. Kentucky, supra. The trial court rejected Appellant‘s claim, concluding that he had not made any prima facie showing that the strikes were discriminatory, noting only that the jurors were stricken. Appellant did not establish the race of potential jurors who were acceptable to the Commonwealth, but peremptorily excluded by the defense, or the race of all of those who were removed by the prosecution. Appellant also did not establish that counsel‘s failure to object was unreasonable or that he was thereby prejudiced. Appellant failed to ask trial counsel, who was called to testify on other matters
Furthermore, although the law is clear that a prosecutor need not state the reasons for his peremptory challenges until the defense has established a prima facie case of discrimination, the prosecutor in the instant case volunteered raceneutral reasons, which the trial court credited.5 Thus, this claim lacks arguable merit and counsel cannot be deemed ineffective for failing to pursue it. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989).
Appellant next contends that counsel was ineffective for failing to object when Detective Hughes testified that the victim‘s family had become friendly with Wanda Douglas and when the prosecutor referred to this testimony in his closing argument. Appellant argues that such testimony was an improper appeal to the emotions of the jury that bolstered Douglas‘s credibility. He concludes that counsel had no reasonable basis for failing to object and that he wаs prejudiced thereby.
The Commonwealth elicited the detective‘s brief comment as a response to repeated defense attacks on Douglas‘s character and credibility. The defense portrayed Douglas as a prostitute and cocaine addict who was not a friend of the victim but was rather selling her services to him. As the trial court properly found that there was a legitimate basis for the prosecutor‘s comments, counsel cannot be found ineffective for failing to object. Moreover, Appellant clearly has not established that the result of his trial would have been different without the challenged testimony or the prosecutor‘s reference to it in his closing argument. Commonwealth v. Pierce, supra.
Appellant also claims that trial counsel was ineffective for failing to object to Commonwealth evidence regarding his
At the time the testimony was taken, the court called both counsel to sidebar and questioned defense counsel about his failure to object and the need for a cautionary instruction. Although he did not convey his strategy, defense counsel clearly stated on the record that he had a reason for not wanting a cautionary instruction. (N.T. 4/2/92, pp. 104-105).
The Commonwealth persuasively argues that trial counsel did not object to the evidence because it enabled him to present Appellant‘s arrest photograph. Douglas had testified earlier that the perpetrator was clean-shaven. In the arrest photo, however, taken less than two weeks after the murder, Appellant appeared with a full beard. Trial counsel was therefore able to impeach Dоuglas‘s testimony by allowing the introduction of Appellant‘s arrest for a minor offense. As counsel had a reasonable basis for not objecting and for not requesting a cautionary instruction, he cannot be deemed ineffective.
Appellant contends that trial counsel was ineffective for failing to object to the following statements made by the prosecutor during closing argument:
A. That Wanda Douglas was abused on the witness stand by Appellant‘s trial attorney. (N.T. 4/7/92, p. 4).
B. That Wanda Douglas was being accepted by the victim‘s family. (N.T. 4/7/92, pp. 46-47).
D. That when Appellant has no defense, his attorney will trash the Commonwealth and police witnesses. (N.T. 4/7/92, p. 48).
E. That for sixteen months Appellant knew everything the prosecutor knew. (N.T. 4/7/92, p. 49).
F. That Appellant‘s trial attorney was trying to hide Appellant from the jury because Appellant looks crazy. (N.T. 4/7/92, p. 61).
G. That Appellant shoplifts from time to time. (N.T. 4/7/92, p. 70).
H. That Appellant could have been mad at white men. (N.T. 4/7/92, p. 78).
I. That Appellant was a street bum. (N.T. 4/7/92, p. 82).
Appellant baldly asserts that the above remarks were inflammatory and diverted the jury‘s attention from the evidence to Appellant and his counsel. He suggests that due to the prosecutor‘s improper comments, the jury could not weigh the evidence objectively and return a true verdict.
The prejudicial effect of a 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). It is well-settled that a district attorney must have reasonable latitude in fairly presenting a case to the jury and must be free to present his or her arguments with logical force and vigor. Id. The prosecutor is also permitted to respond to defense arguments. Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d 1303 (1991). Reversible error exists only if the prosecutor has deliberately attempted to destroy the objectivity of the fаctfinder such that the unavoidable effect of the supposedly offending language would be to create such bias and hostility toward the defendant in the minds of the jurors that they could not weigh the evidence and render a true verdict. Commonwealth v. Carpenter, 511 Pa. 429, 515 A.2d 531 (1986); Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992).
Appellant next argues that his counsel was ineffective for failing to request a jury charge that evidence of lack of motive could be used in determining guilt or innocence.7 The record reveals that the court initially instructed as to motive and the difference between “intent” and “motive” (N.T. 4/7/92, pp. 101-02). The jury thereafter requested another instruction on intent, malice and motive. The court properly reinstructed on those concepts. (N.T. 4/8/92, pp. 2-4). As the evidence suggested possible motives, the trial court would most likely have denied the charge had Appellant‘s counsel requested it. Thus, since the jury was properly instructed, counsel cannot be deemed ineffective for failing tо request an additional charge.8
Appellant next queries whether counsel was ineffective for failing to impeach Wanda Douglas with her prior criminal record. Appellant contends that at the time Douglas testified, she had an open case for prostitution and criminal solicitation “which was in bench warrant status.” Appellant‘s Brief at 38. Appellant argues that the arrest would have established that Douglas lied when she denied being а prostitute and would have showed a motive for bias in favor of the Commonwealth.
Initially, the record reveals that Douglas‘s criminal record at the time of trial consisted of only an arrest for prostitution. Thus, no conviction existed at the time of trial and the arrest was not for a crimen falsi offense. Moreover, as there was
Also, bias in favor of the prosecution in exchange for favorable treatment for an outstanding criminal charge is not apparent since the arrest for prostitution was made in 1987, five years before trial.10 Compare, Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986) (defendant should have been able to cross-examine Commonwealth‘s key witness because of ten to fifteen burglary and conspiracy charges pending against him in the same jurisdiction).
Finally, Appellant contends that counsel was ineffective for failing to object to the victim impact testimony of Joan Frinzi, the victim‘s aunt. During the sentencing hearing, Frinzi essentially testified that the victim was gracious, kind and generous and that he had concern for the underdog and the elderly (N.T. 4/9/92, pp. 34-42).11 Appellant argues that such evidence is irrelevant hearsay that inflamed the passions
We note that victim impact evidence was inadmissible under the procedures established by the Sentencing Code,
Accordingly, we affirm the conviction of first degree murder, vacate the sentence of death, and remand the matter to the Court of Common Pleas of Philadelphia County for a new sentencing hearing.
CAPPY, J., files a Dissenting Opinion in which CASTILLE and NEWMAN, JJ., join.
I respectfully dissent from the decision of the majority. I do not agree with the conclusion of the majority opinion that the testimony of the victim‘s aunt could be considered “victim impact” testimony. The aunt did not offer testimony as to the effect of the murder upon her or her immediate family; she merely testified as to the general good character of the victim. Thus, I do not agree that the trial court erred in permitting this testimony to be heard by the jury.
Further, as I stated in my concurring opinion in Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996), I do not believe that “victim impact” testimony is inadmissible in the penalty stage of a capital case. Thus, even if the testimony at issue could possibly be considered as “victim impact” testimony, I would disagree with the conclusion of the majority that a new penalty hearing is required in the instant case.
CASTILLE and NEWMAN, JJ., join this dissenting opinion.