COMMONWEALTH of Pennsylvania, Appellee, v. Salvador MORALES, a.k.a. Simon Pirela, Appellant.
Supreme Court of Pennsylvania.
Decided June 18, 1985.
494 A.2d 367
Argued April 17, 1985.
The record is remanded to Commonwealth Court for appropriate consideration of appellant‘s request for review of the Unemployment Compensation Board‘s order denying benefits.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION OF THE COURT
LARSEN, Justice.
On May 18, 1983, a jury in the Court of Common Pleas of Philadelphia County found both appellant, Salvador Morales, and his co-defendant, Carlos E. Tirado, guilty of murder of the first degree, criminal conspiracy and possession of an instrument of crime. The following day, the same jury sentenced appellant to death for the murder of Jorge (“Georgie“) Figueroa in a separate penalty proceeding as required by the Sentencing Code,
The record discloses, largely through the testimony of Elizabeth (“Lisa“) Colon and her brother, Heriberto (“Eddie“) Colon, the following facts. Appellant and his brother, co-defendant Carlos Tirado (known as “Cobo“), sold heroin in North Philadelphia. Georgie Figueroa, the victim, owed them some money for drug purchases. Although the victim‘s mother had already given appellant some $600 on behalf of her son, appellant was unsatisfied. Accordingly, he summoned the victim, through a fourteen year old drug dealer in appellant‘s employ, to a house on North Orianna Street where Cobo lived with Lisa and Eddie Colon. The victim was led to the house at approximately 11:45 p.m. on August 29, 1982, entered, and went into the basement with
In about five minutes, appellant came upstairs to the kitchen and took a large kitchen knife back down to the basement. After Cobo and Dice beat the victim, accusing him of “snitching” and of owing them money, appellant told Dency to kill the victim. When Dency refused, appellant slapped Dency in the face, and stabbed the victim numerous times with the kitchen knife until appellant announced he was dead. The group then returned upstairs. A short while later, the victim emerged from the basement, covered with blood. When he tried to escape by jumping out the window in the living room, Cobo grabbed him by his hair and stabbed him repeatedly with the same knife, killing him.
Elaborate efforts were made to clean up all of the blood in the basement and living room, including dismantling the living room couch and removing panelling in the basement. The victim‘s body was tied up, covered with plastic bags, put in a shopping cart and taken to the basement of an abandoned house only five doors away.
Acting on a tip from an anonymous caller, police discovered the victim‘s body, badly decomposed, in the abandoned house on North Orianna Street on September 9, 1982. An autopsy revealed that the victim had been stabbed at least twenty times and that the weapon had been wielded by two different persons. Investigation of the Colon home discovered a small human blood stain on a bureau in the basement that had apparently been overlooked.
Neither defendant testified at trial. Counsel for both men cross-examined the eyewitnesses at length in an attempt to impeach their credibility. Appellant‘s counsel elicited Lisa‘s admission that she and Cobo had been lovers and suggested that she had implicated appellant because she was protecting Cobo and her brother Eddie. Co-defendant‘s counsel attempted to show, through cross-examination, that Lisa was out to “get” Cobo because Cobo had jilted her for
The jury believed the testimony of the eyewitnesses, however, and found both defendants guilty of murder of the first degree, conspiracy and possession of an instrument of a crime. Based upon the foregoing record evidence, we have no hesitation in finding that evidence sufficient beyond a reasonable doubt to sustain appellant‘s conviction for murder of the first degree, as well as the other convictions.2
The following day, the penalty phase of the proceedings were conducted. The Commonwealth did not offer any further evidence against co-defendant Tirado in support of the death penalty. Against appellant, however, the Commonwealth introduced as aggravating circumstances evidence that he had been convicted by a jury in the Court of Common Pleas of Philadelphia County on April 7, 1983 of murder of the first degree for the unrelated killing of Julio Cruz, and had been sentenced to life imprisonment for that murder. Appellant did not testify at the penalty proceeding, nor did he permit his attorney to offer any evidence in his behalf.
Closing arguments were made by counsel for the defendants and for the Commonwealth, and the jury received instructions from the court. In less than three hours, the jury returned with a sentence of life imprisonment for co-defendant Tirado and a sentence of death for appellant. The jury found that the Commonwealth had met its burden of establishing two aggravating circumstances beyond a
Our standard of review in cases of murder of the first degree in which a verdict of death has been rendered is established by the Sentencing Code,
(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence.
(3) The Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of an aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
Applying that standard, we now affirm appellant‘s convictions, his sentence of death and his sentences on the nonhomicide convictions.
Appellant first asserts several instances of pretrial error. Initially, appellant alleges a speedy trial violation and claims that the court erred in granting the Commonwealth‘s petition for extension of time filed pursuant to
Appellant next argues that the court erred in denying his motion to sever the consolidated trial. This argument has no merit.
A. Standards
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(2) Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction constituting an offense or offenses.
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Of course,
Severance of Offenses or Defendants
The court may order separate trials of offenses or defendants or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.
Comment: This rule provides the procedure whereby the court may, because of prejudice to a party, order separate trials of offenses or defendants that otherwise would be properly tried together under Rule 1127. A defendant may also request severance of offenses or defendants on the ground that trying them together would be improper under Rule 1127. (emphasis added)
This Court has consistently held that the decision whether to sever trials of co-defendants is one within the sound discretion of the trial judge and will not be disturbed on appeal absent a manifest abuse of that discretion. Commonwealth v. Tolassi, 489 Pa. 41, 49-50, 413 A.2d 1003 (1980) (see cases cited therein); Commonwealth v. Iacino, 490 Pa. 119, 415 A.2d 61 (1980); see also Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983) and Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984).
With the foregoing in mind, it is clear that the court did not abuse its discretion in denying appellant‘s motion to sever his trial from co-defendant‘s. The evidence against appellant was virtually identical to the evidence against co-defendant, and the Commonwealth‘s case against one
The probability of antagonistic defenses is one of the factors that a court should consider in deciding whether to grant severance. See, e.g., Commonwealth v. Hamm, supra, 325 Pa.Superior Ct. at 411, 473 A.2d at 133; ABA Standards for Criminal Justice Relating to Joinder and Discovery § 13-3.2(c) and Commentary. However, more than a bare assertion of antagonism is required. In the instant case, not only does appellant fail to indicate the manner in which his defense “conflicted” with co-defendants‘, the record does not support an inference that he was hindered in any way from presenting whatever defense he wished to present. Neither defendant took the stand to testify. Both defense attorneys vigorously attacked the credibility of the Commonwealth witnesses. Co-defendant Cobo‘s defense was that Lisa Colon named Cobo as the murderer because he had jilted her and in order to protect her brother. Appellant‘s defense was that Lisa named him because she was protecting her former lover Cobo as well as her brother. While these defenses might be seen as mildly antagonistic, in important respects they complement each other. That their defenses may have been mildly antagonistic did not, in and of itself, pose such a significant possibility of prejudice to appellant in this case so as to require the court to grant the motion to sever. Joinder was most appropriate, therefore, and the court did not abuse its discretion in denying the motion to sever.
On May 2-3, 1983, a suppression hearing was held, following which the court denied appellant‘s motion to suppress. Before voir dire commenced, appellant objected to
(1) In trials involving joint defendants, the defendants shall divide equally among them that number of peremptory challenges that the defendant charged with the highest grade of offense would have received if tried separately....
(2) In trials involving joint defendants, it shall be within the discretion of the trial judge to increase the number of peremptory challenges to which each defendant is entitled up to the number of peremptory challenges that each defendant would have received if tried alone. (emphasis added)
The court acted within the discretion expressly granted it by
The court also acted within its discretion in refusing to allow appellant to waive a jury trial.
Waiver of Jury Trial
In all cases the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record. (emphasis added)
This Court has recently set forth the parameters of a trial court‘s discretion under
[T]he decision whether to grant a defense request for a non-jury trial must be made solely by the trial court, which is charged with the constitutional responsibility of assuring the fair and orderly administration of justice.
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While the prosecutor‘s concurrence in or opposition to a defense request for a non-jury trial is a relevant consideration in determining the mode of trial, amended Rule 1101 does not deem any one fact or circumstance controlling. Rather, the decision whether to permit a non-jury trial is to be made by the court, taking into account all relevant considerations. See, e.g., Commonwealth v. Pettiford, 265 Pa.Super. 466, 402 A.2d 532 (1979), Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978), and Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976) (jury trial waivers properly denied where records indicated “judge shopping“).
Commonwealth v. Sorrell, 500 Pa. 355, 358-59, 456 A.2d 1326 (1982); see also Commonwealth v. Bell, 328 Pa.Super. 35,
As we have held, the joint trial of appellant and co-defendant was proper, as was the court‘s refusal, on March 28, 1983, to sever defendants’ trials. The request to waive a jury trial was not made by appellant until May 3, 1983, after the court had denied his suppression motion and his request for additional peremptory challenges. The court viewed appellant‘s belated request as “a shallow attempt to circumvent the denial of a severance“, Opinion of the court denying post-verdict motions at 13, and the record supports that view. Appellant‘s co-defendant refused to waive his right to a jury trial. Finally, it is obvious there is no inherent prejudice in proceeding to trial by jury as opposed to trial before a judge. Commonwealth v. Bonacurso, 500 Pa. 247, 255, 455 A.2d 1175 (1983). Under all of these circumstances, the court properly withheld its approval of appellant‘s purported waiver of jury trial.6
Appellant also argues that the process of “death-qualifying” the jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) (that is, the process of excluding for cause veniremen who could not impose the death penalty under any circumstances or whose attitude toward the death penalty would prevent them from making an impartial decision as to the defendant‘s guilt) resulted in a “prosecution-prone” jury which did not represent a fair cross-section of the community.7 Appellant offered no evidence below to support this contention, and relies solely on the decision of the federal district court for the eastern district of Arkansas in Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983). This Court has consistently
Appellant claims that the scientific and sociological surveys and data currently available have now conclusively established the “prosecution-proneness” of “death-qualified” juries and asks this Court to take judicial notice of this data to find his conviction impermissibly tainted. This we decline to do, as we have consistently done in the past. (citations omitted) Appellant has made no showing on the record that the process of “death-qualifying” a jury tainted his conviction in any way, and his “judicial notice” concept must be rejected—such “a loose concept of ‘judicial notice’ would make a mockery of the adversary system....” Commonwealth v. Story, supra at 497 Pa. [273] 289, 440 A.2d 488[ (1981)] (Larsen, J., dissenting).13
Appellant‘s remaining allegations of error concern the penalty phase of his proceedings. Initially, he challenges the constitutionality of the bifurcated death penalty proceeding, alleging it violates due process because it is conducted immediately after trial with little or no time to prepare. This argument is without merit. The bifurcated sentencing procedures have been thoroughly dissected and their validity upheld by this Court. Commonwealth v. Zettlemoyer, 500 Pa. 16, 39-43 and 57-60, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). We see no reason to disturb that decision.
Appellant next argues that the court erred in refusing his request to instruct the jury that his conviction of murder of the first degree for the killing of Julio Cruz was
In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), this Court rejected Travaglia‘s argument that, because sentence had not yet been imposed on his plea of guilty to homicide charges in another county, the Commonwealth could not proffer that plea as a “conviction” under
While this argument has superficial appeal, it must fail upon closer inspection. The clear import of the first part of subsection (d)(10) is to classify the commission of multiple serious crimes as one of the bases upon which a jury might rest a decision that the crime of which the defendant stands convicted, and for which they are imposing sentence, merits the extreme penalty of death. ... By including offenses committed contemporaneously with the offense in issue, the legislature clearly indicated its intention that the term “convicted” not require final imposition of sentence, but cover determinations of guilt as well....
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For these reasons, we find that, as used in 42 Pa.C.S. § 9711(d)(10), the legislature evidenced a clear intent that “convicted” mean “found guilty of” and not “found guilty and sentenced.”
502 Pa. at 496-98, 467 A.2d 288 (footnote omitted).
Subsequently, we applied the same reasoning in the context of subsection (d)(9). In Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984), we stated:
There is no reason to believe that the meaning accorded by legislative references to convictions was not consistent in consecutively enumerated provisions listing aggravating circumstances within the same sub-section of the sentencing code. Thus within 42 Pa.C.S.A. § 9711(d), conviction for purposes of (d)(9) should be construed as having the same meaning as does conviction for purposes of (d)(10), thus allowing verdicts of guilt for which judgments of sentence have not yet been imposed to be considered by the jury as part of a defendant‘s history of felony convictions involving the use or threat of violence to the person. Under this approach, no error accrues unless the subsequently entered judgments of sentence are overturned on appeal. This comports with the traditional function of the penalty stage to focus upon aspects of a defendant‘s character. See Commonwealth v. Bell, 417 Pa. 291, 296, 208 A.2d 465, 468 (1965). Character is reflected in verdicts of guilt, regardless of whether judgments of sentence have yet been entered.
Id. at 505 Pa. 287-288, 479 A.2d 464 (emphasis added).
As Travaglia and Beasley make clear, the character of the defendant is established by the determination of guilt, not by subsequent proceedings. Thus, the fact that a conviction for murder of the first degree is not final because it is at the post-verdict motion or appellate stage does not divest said conviction of its character as an aggravating circumstance.8
Appellant raises several other arguments concerning the court‘s instructions to the jury at the sentencing phase, which consisted of the following. As required by the Sentencing Code, the court instructed the jury, correctly, as to the respective burdens of proving aggravating and mitigating circumstances.
Finally, we have examined the record of all proceedings below, and determine that appellant‘s sentence of death was not the “product of passion, prejudice or any other arbitrary factor”
For the foregoing reasons, we sustain all of appellant‘s convictions and affirm the sentence of death for the conviction for murder of the first degree and the judgments of sentence of imprisonment for the remaining convictions.12
HUTCHINSON and ZAPPALA, JJ., concur in the result.
NIX, C.J., filed a dissenting opinion.
NIX, Chief Justice, dissenting.
I am compelled to dissent from the majority‘s affirmance of appellant‘s conviction. I must again stress my continued objection to the death qualification process, which produces juries which are both prosecution prone and unrepresentative of the community. See Commonwealth v. Colson, 507 Pa. 440, 470, 490 A.2d 811, 826 (1985) (Nix, C.J., dissenting); Commonwealth v. Szuchon, 506 Pa. 228, 260, 484 A.2d 1365, 1382 (1984) (Nix, C.J., dissenting); Commonwealth v.
I must also dissent from the majority‘s affirmance of the jury‘s sentencing verdict. I cannot condone the trial court‘s failure to orally explain to the jury the statutory aggravating and mitigating circumstances they might find on the basis of the evidence received. Merely providing the language of the statute without the benefit of the trial court‘s explanation of the meaning of the language contained therein or its relationship to the evidence properly before the jury is totally inadequate. Just as it is essential at the guilt determining phase that the jury be fully instructed as to the elements of the crimes charged, it is crucial to a valid sentencing determination that there be no misconception on the part of the jurors in interpreting the statutory definitions or in determining what evidence may legitimately support the finding of an aggravating or mitigating circumstance.
Contrary to the majority‘s assertion that the statutory language furnished to the jury is “unambiguous,” many of the statutory terms employed by the legislature are indeed open to more than one interpretation. This is borne out by the fact that it has been necessary for this Court to deter-
Given the ambiguities inherent in the statutory language, it is essential to meaningful appellate review that the record reflect the interpretation employed by the jury of relevant aggravating and mitigating circumstances. This is best achieved by a full and accurate charge to the jury. Without the guidance of the trial court, the jurors in the instant case were left to formulate their own interpretations of the statutory language. We have no way of determining how those terms were interpreted or even whether the jurors
Notes
(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.
(4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court‘s business, and the record shall so indicate.