*1
Decided
Reargument Denied Dec. *10 Yoder, David Chambersburg, Russell for Albert Ezron Reid. Nelson, Chambersburg,
John F. for Commonwealth. FLAHERTY, C.J., ZAPPALA, CAPPY, Before and NIGRO, CASTILLE, SAYLOR, NEWMAN and JJ.
OPINION OF THE COURT Justice NIGRO. 9, 1998, jury
On a found E. Appellant October Albert Reid guilty burglary1 of count of and two first-degree one counts of wife, Reid, killing estranged murder2 for and Carla her fourteen-year-old daughter previous relationship, from a Dei- penalty dra a hearing, jury Moore. After found that the supported aggravating evidence three circumstances and one mitigating regard Appellant’s circumstance with to first-de- gree murder conviction for of the death Carla Reid and three aggravating mitigating circumstances and one circumstance regard Appellant’s first-degree with murder conviction for jury the death Deidra Moore.3 The then determined that § 1. 18 Pa.C.S. 3502. 2502(a). §
2. 18 Pa.C.S. aggravating jury regard 3. The three circumstances found with Appellant the murder of Carla were that: killed Carla in order to prevent testifying prosecution her from as witness a criminal proceeding Appellant charged committing felony, in which with namely pending aggravated charges, indecent assault 42 Pa.C-.S. 9711(d)(5); Appellant felony (burglary), § killed Carla in the course of a 9711(d)(6); first-degree §id. was convicted of the mur- Deidra, der of which he committed at the time he committed the first- Carla, l(d)(10). degree single mitigating § murder of id. The cir- convictions, the first-degree murder Appellant’s for each single miti- outweighed the circumstances aggravating three therefore, two circumstance, sentеnces returned gating 1998, Court of against Appellant. On October death court”) (“trial formally County of Franklin Common Pleas Appellant.4 against sentences imposed two death motions, trial court which the post-sentence subsequently filed from the trial appeals now May denied for both the first- sentencing him to death judgment court’s For the Moore.5 degree murder of Carla Reid Deidra follow, of sen- Appellant’s judgment affirm we reasons tence. death, has we must
As been sentenced whether the Commonwealth review the record determine to sustain necessary has the elements established v. Zettle murder. Commonwealth first-degree convictions for (1982).6 reviewing In moyer, 500 Pa. 454 A.2d first-degree support is whether the evidence sufficient *11 by jury regard of Carla was that found with to the death cumstance convictions, significant history prior Appellant no of criminal id. had 9711(e)(1). § Likewise, aggravating by jury found with the three circumstances regard Appellant killed Deidra in to the murder of Deidra were that: testifying prosecution in prevent her from as a witness order to charged proceeding Appellant was with scheduled criminal in which assault, 9711(d)(5); aggravated § felony of indecent id. ihe offense felony (burglary), Appellant Deidra in the of a id. killed course 9711(d)(6); first-degree Appellant § murder of was convicted of the Carla, first-degree he committed at the time he committed the which Deidra, (d)(l0). jury § also found the same murder of id. 9711 The first-degree regard Appellant’s mitigating circumstance existed with Appellant’s first-degree of Deidra that it for murder conviction found Carla, significant history Appellant had no murder conviction convictions, 9711(e)(1). § prior criminal id. addition, sentence of ten Appellant was sentenced to a concurrent 4. In twenty years prison burglary for his conviction. 9711(h), subject § of death is 5. to 42 Pa.C.S. a sentence Pursuant automatic review this Court. challenge Although Appellant does not whether the evidence was 6. murder, first-degree we support his for are sufficient to convictions this, sufficiency in a case such as required to review the of the evidence appellant has been to death. Id. where the sentenced conviction, murder must we review the light evidence Commonwealth, most winner, favorable as the verdict jury determine whether the could every have found element a reasonable doubt. Commonwealth v. beyond the crime Rivera, (2001). 565 Pa. 773 A.2d To convict a murder, of first-degree defendant the Commonwealth must prove beyond a reasonable doubt that the defendant intention- 2502(a). ally killed § another human. 18 Pa.C.S. A defendant intentionally if killing willful, deliberate, kills another was 2502(d). Id. premeditated. § or The may Commonwealth that a intentionally establish defendant solely killed another evidence, by circumstantial may and the fact finder infer that the defendant to kill a victim intended based on the defen- deadly weapon dant’s use of a on a part vital of the victim’s Rivera, body. A.2d
Here, clearly there was sufficient support Ap- evidence to pellant’s first-degree murder convictions. The evidеnce ad- duced at trial Appellant establishes that and Carla Reid had a tumultuous relationship.7 According to acquain- friends and Carla, tances of both Appellant Appellant controlling of and Pennsylvania abusive toward Carla.8 Several State Appellant began living together approximately and Carla 1991 and eventually were married. Williams, bar, 8. Donnie A. a bouncer at the Madden Hotel testified that times, arguing he often saw and Carla at the bar and at N.T., 10/7/98, Gardner, slap would Carla. at 291. Lisa sister, fights Carla’s testified Appel- about several she observed between fight lant and Carla. One such occurred at the Madden Hotel bar when argued speaking with Carla because Carla was to other men. N.T., 10/6/98, at 242-43. Ms. Gardner stated that she and Carla then go left the bar in Carla's car to to a friend’s house and Gardner, According followed them. Id. to Ms. as she tried to enter her house, her, throat, Appellant grabbed put friend's a knife to her told Carla that he would kill Ms. Gardner and then kill Carla. *12 friends, Brown, Williams, Ferguson, Carla's Candy Diana Donna and Ruby Murray, additionally they testified to incidents witnessed between Appellant and Carla. Diana Brown told the court that once when she bar, working was aas bartender at a local Carla came in the bar and keep Appellant. asked her to According a look out for Id. at 266. to Brown, bar, Ms. about a half hour after Carla entered the appeared physically and forced Carla to leave the bar. Id. Donna Ferguson testified that on onе occasion she at the was Madden Hotel Appellant approached bar with Carla when Carla and asked her to Pennsylvania, testified Chambersburg, troopers from Police 1993, they charges filed terror- 1990 and each that between assault, threats, against Appellant, simple or harassment istic subsequently dropped upon Carla’s charges were though those also evidence presented request.9 The Commonwealth (“PFA”) two from Abuse previously had filed Protection Carla a sought but later and obtained against Appellant Petitions10 10/7/98, N.T., Ferguson explained, when at 300. As Ms. leave the bar. arm, swung her respond Appellant, grabbed her did not he Carla around, Id. slapped her across the face. and helping Carla Candy an incident when she was Williams recounted house, Appellant appeared at the house and move out of Carla’s window, Carla, cutting against pushed up her to kill threatened Appellant then told Ms. Williams stated that her arm. Id. at 320-21. Ruby Murray fight Id. stay or he would kill her too. her to out of the that, Hotel bar and Appellant hit Carla at the Madden testified she saw they kill after had been in a Appellant threaten to Carla also heard physical fight. 429-31. Id. at 1990, Douglas Carla Trooper testified that in November Strickland 10/6/98, N.T., involving Appellant. reported an incident of abuse charges explained of terroris- Trooper Strickland that he filed 247-48. against January simple Appellant, but in tic threats and assault Sergeant charges dropped upon request. Id. at 248. were Cаrla’s February he Phillippy that in was summoned John testified regarding complaints of a domestic distur- Carla home Sergeant Phillippy explained that based on bance. Id. at 251. home, gathered Appellant for terroris- information he at the he arrested However, Sergeant according simple Id. tic threats and assault. request. charges ultimately dropped upon Carla’s Phillippy, the were Id. Kriner, , May trooper, he R. a former testified that John Mr. quarrel at a local store. Id. at 255. received notice of a domestic store, and based on a testified that he went to the local Kriner Carla, charged Appellant Id. complaint by he with harassment. made subsequently approached request- him and Mr. Kriner stated that Carla however, charge, to do the harassment he refused ed that he withdraw Therefore, Kriner, hearing according held to Mr. so. Id. at 256. Justice, request, the charges a District and at Carla's on the before charges. Finally, Sergeant Gary Baker dropped the District Justice Barracks April Carla came to the Slate Police testified that ("Barracks”) According Appellant. Id. at 259. and was followed Baker, charge against Appellant based Sergeant he filed a harassment However, previous complaint by Carla. Id. at 259. like the on a made Op., charge dropped request. Tr. Ct. charges, this was later at Carla’s 9/28/98, at 12. Act, may enter a the Protection from Abuse a court 10. Pursuant any abusing plaintiff stop protective order to a defendant from *13 shоwed, dismissal of Petitions.11 the The evidence further however, 1996, that October Carla filed a third PFA Peti- and, against Appellant previous tion unlike the PFA Petitions filed, had did not a she Carla seek dismissal of this last Rather, 30, 1996, Petition. on October a final PFA order (“PFA order”) entered, consent, with Appellant’s stating that not any could have contact with Carla or her children. This order was in and effect when Carla Deidra were murdered. presented Appel-
The evidence at trial also established that lant had with charged felony aggravated been offense of assault, 3125, § and indecent Pa.C.S. the misdemeanor assault, id. 3126, allegations by § offense of indecent based sexually that had August Deidra assaulted her. In 1994, brought Carla Deidra to the Barracks in Chambersburg N.T., Trooper Stapchuck. the two met with Kenneth M. 10/6/98, According Trooper Stapchuck, at 172. told Deidra Id. at him sexually that had assaulted her. 173. Trooper Stapchuck that informed Deidra he would have to Appellant, interview Deidra indicated that she wanted Id. at 173-74. For present during Carla be the interview. year, Trooper Stapchuck than a unsuccessfully more attempt- Id. an Appellant. ed schedule interview with Carla and parties. minor § children associated with the 23 Pa.C.S. In order, may prohibit having any such an the court that defendant from children, plaintiff grant plaintiff with the contact and the exclusive defendant, possession plaintiff of a home owned with thé grant custody plaintiff parties’ days children. Id. Within ten Petition, plaintiff give after the files a PFA the court must the dеfendant hearing, plaintiff notice of the PFA Petition and hold a at which the prove allegations by preponderance must abuse of the evidence § for a final PFA order to be entered. Id. Need, VanScyoc, legal agency 11. Lori advocate at Woman an violence, assault, provides services victims of domestic sexual or crimes, personal injury agency testified that Carla came several N.T., filing seeking against Appellant. times PFA assistance Petitions 10/6/98, 13, 1991, VanScyoc at 270-71. Ms. noted that on December against Appellant Carla filed a PFA Petition but Petition was Furthermore, upon request. later discontinued Carla’s Id. at 273-74. 26, 1992, presented May there was evidence that on Carla filed another children, against Appellant PFA Petition on behalf of herself and her 3, Petition, sought but on June Carla a discontinuance of the which was granted. Id. at 274-75. Finally, Trooper in December Carla advised 173-74. not want him to with the did continue Stapchuck she had she believed that Deidra fabricated investigation because at 174-75. allegations. Bar- July and Deidra returned to the Carla On Barracks, Id. at While at told 184-85. Carla racks. *14 against Mark that she wanted to file Trooper Grove charges Id. again allegations on Deidra’s 1994. Appellant based Grove, essentially told him that According Trooper to Carla charges in 1995 because had discontinued the December she abusing had after she with stopped spoke Deidra Appellant Trooper Id. testified that Carla Trooper Staрchuck. Grove charges made initially that she to renew stated wanted recently Appellant Appellant in 1994 because had against Therefore, the allegations on assaulted Deidra. Id. based Trooper charges made Grove initially Deidra filed against assault aggravated indecent and indecent assault Id. 225. war- Trooper at Grove obtained a Appellant. Appellant, and that rant for arrest arrested evening, on Id. at Appellant arraigned charges. same was days later, $10,000.00 on Appellant 226. Two was released that not subject bail conditions he would contact Carla participate County and that would a Franklin or Deidra he pre-release program. 12, 1996, August Wayman District Justice John held
On hearing regarding charges against preliminary Carla, Appellant, present. at which Deidra were Based Wayman District testimony, Justice determined Deidra’s trial, proceed that there sufficient evidence to which Shortly for 1996. before was scheduled November the sched- trial, however, Appellant to continue trial until uled moved January money attorney. so that obtain to hire an he could granted for a Appellant’s request trial court continuance The charges trial on the assault for and rescheduled the indecent 6,1997.12 January 19, 1996, August Trooper charges of
12. On Grove filed indecent assault against Appellant allegations Deidra’s based on had N.T., 10/6/98, sexually again in at A assaulted her at presented The evidence trial further showed that follow- ing preliminary hearing on charges, Appellant the assault only not evincing made statements his intent to kill Carla and Deidra, sought purchase eventually but also did pur- gun. Tyrone Kelly, chase a who with Appellant,. often worked had him about as- testified told the indecent against sault charges pending him and stated that he before property, would let all of marital Carla obtain their he would 10/6/98, N.T., wipe Kelly Deidra out. Carla and 209. Mr. also testified that several times between October and Novem- buy ber asked him if gun he would to sell Appellant, and refused to do Trunbaugh, he so. Id. Vonnie Appellant’s, friend of that Appellant testified visited her in the middle of November 1996 and informed her of the indecent assault him. charges against Turnbaugh Id. at 197-98. Ms. said Appellant explained that he was innocent of the charges and that “he would kill before someone he went back jail.”
Anthony 1996, Hurd testified that in Appellant November Carlisle, approached Pennsylvania, him on the street in inquired obtaining gun N.T., 10/8/98, about a him. at from Appellant 499-500. Mr. Hurd said that he told he would look getting gun Appellant into for a actually got but he never gun Jones, for Id. at Appellant. According Mary 500-03. to however, 1996, Appellant December asked her if could she get gun him a and she did in him a gun fact sell and six 10/7/98, N.T., bullets. at 350-54.13 Ms. Jones stated that she did specifically gun not know what type Appel- she sold to observing lant but types guns after several pre- different police, by thought gun sented to her she that the she sold preliminary hearing charges initially based on the was be scheduled to Septеmber January held in 1996 but subsequently was rescheduled for Appellant private 1997 so that could obtain counsel. Id. These charges dropped were later due to murder. Deidra's Id. Short, cousin, Mary 13. Brenda Jones’ that confirmed in December 1996, gun Appellant buy to her came house to from Ms. at Jones. Id. friend, Additionally, Utley, 396-99. Cassandra B. Ms. Jones’ testified Appellant speak buying gun. that she heard to Ms. about at Jones Id. handgun. caliber Industries .380 a Davis Appellant resembled N.T., 10/8/98,at 508-10. al also established at trial presented
The evidence to the pursuant Carla not to contact Appellant was though Carla, he PFA order obtained bail and the of his conditions friend According to Carla’s to do so. continued nevertheless middle of December Williams, night late one Candy N.T., 10/7/98, 323. Ms. crying. telephoned her Carla had fol Appellant stated that Carla testified Williams store, her assaulted grocery local from work to the her lowed kill store, to her. and threatened to enter the attempted as she told Ms. Williams further Id. at 325-37. Carla parked store and was home from the followed her 323-24, 328. Brett Id. at in front of her house. driveway to he went that on December Wagner testified and as he was toys to her children to deliver home Carla’s purple pick in a sitting a man driveway, he saw entering the Wagner at 333-35.14 Mr. truck in front of the home. up toys accept opened the door that when Carla stated the house him, approached from the truck from the man 337-38. stated, “Carla, to talk.” Id. at we need evening in late December thаt one Donnie Williams testified Bar as a Washington House working at the he attempt speak Carla bouncer and observed testified Similarly, Peoples Karen times. Id. at several 23, 1996, 22 or she was evening of December that on the either Washington House bar and at the sitting at a table with Carla approach Carla tjiat Appellant repeatedly during time she saw Peoples stated that Carla Id. at 308-09. Ms. and talk her. and told her that upset after left very became if saw her put lights her out he had threatened Id. at 309-11. talking to another man. *16 26, 1996, p.m. 2:50 until worked from Carla
On December in Mountain Restoration Center job at her at South p.m. 11:20 work, off getting After Township, Pennsylvania. Hamilton Place, Chambersburg. local in at bar stopped Carla Kel’s pick- purplish blue Appellant drove a The evidence established that 14. N.T., 10/8/98, up at 542. truck. friend, Ruby Murray, Carla’s testified that when Carla walked bar, appeared N.T., 10/7/98, into the she distraught. at 439- According Murray, to Ms. Carla said that had followed her the bar and had told her that going he was shoot her and head that she would not live see night. Murray another Id. Ms. testified that she advised Carla leave the bar with her her friends and call the police, but picking Carla insisted on up her children from the babysitter’s house. Id. at 440-42. Murray When Ms. left the bar, Appellant’s she observed truck parked outside the bar. Id. at 443-45. Marlena Linda George Campbell, another Carla’s, friend of also testified she saw sitting in his truck before she entered Kel’s Place at approximately p.m. 11:45 on again December when she left the bar shortly 463-67, thereafter. Id. at 471-72.15 subsequently
Carla left picked Kel’s Place and up her six babysitter’s children16 at the house in Chambersburg ap at proximately 12:30 a.m. on December 27. Id. at 477-78. After assembling minivan, her children her Carla drove to her N.T., 10/6/98, home Hamilton Township. at 157-58. Car son, Jonathon, la’s oldest testified that on the ride home his appeared mother nervous and asked him to look out the back window of the minivan to if Appellant see was following them. Id. at 159. they home, When arrived Carla and her children prepared for bed and went to sleep. Id.17 friend, Daley, Appellant's 15. Carlton testified that he also observed Appellant's truck in a lot outside of midnight Kel’s Place close to December 1996. Id. at 459-61. Deidra; Moore, 16. Carla was the mother of Jonathon who was fifteen murders; years Moore, Joseph old at the time of the years who was ten old; Moore, old; Jeremy Reid, eight years who was Lorrance who was old; Reid, years N.T., five years and Larissa who was four old. 10/6/98 at 61. Lorrance and Larissa were Carla and children and Deidra, Jonathon, Joseph, Jeremy were Carla’s children from a previous relationship. Id. Kuhn, friend, 17. Carrie Marie telephoned Carla’s testified that Carla N.T., got her when Carla home to tell her safely. that she arrived home 10/7/98, However, explained at 484. shortly Ms. Kuhn after Carla called, hang up she had to approximately and she tried to call Carla at 2:00 a.m. but there was no answer. *17 27, morning hours of December during early Sometime single gunshot fatal wound and Deidra each suffered Carla in slеeping was a bed to head while their beds.18 Carla sons, Jeremy and Lor- Jeremy and Lorrance. with her two shot, not and Deidra were but rance did wake when Carla up Jeremy and said he afterwards Lorrance woke sometime N.T., 10/5/98, Jeremy at 137. wanted to talk Deidra. Jeremy room and when and Lorrance walked Deidra’s Deidra, on his hands. Id. at attempted got to wake he blood 31,137. Jeremy mother’s 130- and Lorrance returned their bleeding. also Id. room and discovered that their mother was 131-32.
Jeremy up downstairs to wake their Lorrance went brother, Jeremy up Jonathon. Id. at 132. woke Jona- older dead, thon and told Mm that and sister were but his mother thought merely having night- that his Jonathon brother was 132, 137; N.T, him go mare and told back to bed. Id. at 10/6/98, Jeremy subsequently at 162.19 and Lorrance fell asleep approximately downstairs. Id. at 133-34. At 8:30 a.m. up on December Jonathon woke and discovered that both cold, N.T., bleeding, Deidra and Carla and immobile. were 10/6/98, attempted at 163-64. Jonathon to call 911 but the telephone Consequently, was dead. Id. at 165. Jonathon brothers, up Joseph Jeremy, go told woke them neighbors’ police, they to their homes to call which did. police The arrived at at 8:48 a.m. and the crime scene investigation. police initiated an The found a bullet of .380 body auto caliber near Carla’s and a bullet of the same caliber Mihalakis, pathologist autopsies Isidore a forensic who conducted 18. bodies, on both Carla’s and that both Deidra's testified victims died as a head, single gunshot result of а wound to the and that death occurred 97-99, somewhere between 1:00 a.m. arid 7:00 a.m. Id. at 100-03. neighbors Neither the children nor the to have claimed heard the shots that killed Carla and Deidra. Id. at downstairs, Jeremy that when he testified he went noticed the light driveway, automatically motion over the which turned on for it, when several minutes N.T., 10/5/98, it detected movement front of turn off. Jeremy at 133. looked out the window but did not see anyone. body.20 They from fur- subsequently recovered Deidra’s leading that both a back door to the house into ther learned sliding glass porch basement and a door that led to a N.T., 10/5/98, 56-57, the back of the house were unlocked. house, walking 90-91.21 In around the outside police telephone discovered that the wire and the cable televi- N.T., cut. leading sion wire into Carla’s house had been *18 10/5/98, 65-66, 85-86, at 112. On the left side of the house cut, a police near where the cable wire had been the observed police in mulch. at 112.22 footprint some bark Id. The additionally impression noticed that a dotted had been left on of Id. at 57. utility pipe the PVC outside the house. scene, police investigating Appel- While the were the crime appeared agreed go speak lant and to the Barracks and Troopers Wayne Sheppard Anthony H. and with Manetta. 10/8/98, N.T., Barracks, At at 513. the told the troopers that he was his room at the Rose Lawn Motel from previous evening morning. until a.m. that p.m. 8:30 9:00 Id. at 514-15. He further stated that had not he been near previous evening Carla’s home the and that he had nеver interview, gun. During owned or even shot a Id. at 522. Trooper Sheppard thought Appellant’s jacket he saw blood on therefore, analysis him if would to an asked he consent jacket. Appellant agreed troopers Id. at 516. to allow the jacket his as as his hat. Id. to take well boots and Although analysis jacket an of the revealed that there was it, Schwoeble, manager no blood on Alfred J. a at a materials analysis laboratory specializing electro-microscopy, exam- Baltimore, Corporal Ernst D. firearm and tool mark forensic Police, examiner for the State examined the two bullets and determined they they dislodged were both .380 auto caliber bullets and were N.T., 10/8/98, gun. from the same at 547-56. trial, parties stipulated 21. At to the fact that after home, changed out of ordered Carla’s she had the locks on the front leading sliding glass door and back door to the basement but not on the N.T., 10/9/98, at 712-13. door. police close-up pictures impression 22. The took of the of the shoe track stone, i.e., placed plaster pans, left on the mulch and then dental on impression, replica footprint which created a of the on the dental stone when it dried. Id. at 113. on jacket particles ined the discovered numerous lead rich 594-95, jacket’s Id. at 603. Mr. sleeves. Schwoeble upon findings, testified that based conclusion reasonable jacket exposed could be drawn that the had been to a dis- charged proximity discharged firearm or close to a firearm. Loose, at Sergeant supervisor Id. 606-10. Dennis E. of the print fingerprint latent automated identification sections Laboratory Division, compared the Police testified that he Appellant’s with replica boots made of the shoe track impression in mulch Id. left outside Carla’s home. at 578- Loose, According 581-83. to Sergeant he could not match tracking tracking on the bottom of the shoes with the impression, the shoe track but he that the overall concluded length and width of boots with coincided the shoe track impression. Id. police requested Appellant’s
The also consent search his N.T., 10/6/98, room at Lawn the Rose Motel and his truck. Appellant agreed 211-12. accompanied the searches and troopers several to his searching room at the motel. In *19 room, Appellant’s Trooper Sheppard piece found a of folded paper wrapped cellophane in tape and covered with in a blue notations, Along Carla, left shoe. with other the names of Deidra, Grove, District Justice Wayman, Trooper John Mark Gardner, Lisa and the District Attorney County of Franklin trial, had been on paper. written the At the Commonwealth presented testimony Martinez, from Rafael a consultant to the Florida, Miami County, Dade Department Police for crimes involving religions, Afro Caribbean had who examined the (video paper in deposi- discovered the shoe. Commw. Ex. 24 Martinez). Martinez, tion of According Rafeal to Mr. the paper notations on the were associated with the Voodoo religion practiced primarily they and Haiti invoked assis- from a of gods tance number Voodoo deities or related to death or Id. Mr. darkness. Martinez testified that based on training experience, and he to a believed reasonable de- gree professional certainty of person that who owned the the paper persons paper considered the named on the as enemies Id.23 destroyed or dead. wanted them room and
Following searches of motel truck,24 custody for Sheppard Appellant took into Trooper him as against in violation of the PFA order contacting Carla N.T., 10/8/98, Appellant at 523.25 as his bail conditions. well of and Deidra in Febru charged was with the murders Carla ary 1997. overwhelming presented at find that evidence
We may that from trial and all inferences be derived reasonable evidence, light in the most favorable when viewed Commonwealth, clearly jury for to conclude sufficient were intentionally killed beyond a reasonable doubt above, As both and Deidra. detailed the evidence Carla told others that he would testimony includes go jail would for the kill and Deidra before he Carla him, at charges pending against assault indecent purchase gun and did similar tempted purchase Deidra, kill followed type gun used to Carla and murders, evening Appellant’s jacket of the Carla with particles being lead consistent near contained numerous Thus, presented conclude that the evidence gun. fired we Gordon, defense, testimony Appellant presented Monica H. In from Technology professor at the of Caribbean studies Fashion Institute N.T., 10/9/98, agreed University. at and Walden 686-87. Ms. Gordon symbols. paper Id. at with Mr. Martinez that the had Voodoo However, religion, Gordon testified that both under the Voodoo Ms. Jamaica, religion practiced help a client from a and Obeah seeks by using may practitioner who invoke death on others Voodoo or Obeah magical powers the client does not himself cause death to others. Id. at 700. police Appellant’s only evidence found truck that was 24. The gloves. Sergeant pair white Loose admitted at trial was a of brown and bumps palm gloves with a pattern of rubber on the examined a N.T., pipe. photograph impression left on the PVC of the dotted 10/5/98, 119-22; N.T., 10/8/98, Sergeant at 579-80. Loose could not positively identify gloves impression, the source of the but he did as *20 gloves space bumps the and the find in the size of the similarities N.T., impression pipe. bump with the dotted on the PVC between each 10/8/98, at 579-80. during Sheppard Appellant, with Trooper testified that his interview prior the Appellant indicated that he had contacted Carla to murders. Id.
25 first-degree to convictions for the sustain sufficient of both and Deidra. murder Carla Court, in his with
In first claim raised brief filed this argues that trial court Appellant essentially erred by police during refusing suppress to the evidence found clothes, room, According and truck. mоtel their search not have valid Appellant, his consent to search could been illegal it detention and was involun- because followed an made This tarily. claim fails. a reviewing ruling denying
When
trial court’s
a
motion,
initially
must
determine
suppression
we
whether
supports
findings
the court’s
of fact. Commonwealth
record
(1996).
Jones,
1181,
161,
546
A.2d
v.
Pa.
683
1188
Where the
supports
findings,
trial court’s factual
we
bound
record
are
findings
may only
ruling
those
the trial court’s
reverse
legal
if the
conclusions were erroneous.
Fourth
The
protects
Amendment
the United States Constitution
people
country
right
against
this
be secure
“unreason
Const,
Thus,
searches and
U.S.
amend.
able
seizures.”
IV.
Amendment,
to the
of the
pursuant
protections
Fourth
before
search,
a
police
may
generally
a
officer
conduct
he must
obtain
supported by probable
a warrant
is
cause and authorizes
Bustamonte,
219,
218,
v.
412
the search. Schneckloth
U.S.
93
(1973).
2041, 36
S.Ct.
L.Ed.2d 854
A search warrant
is not
however,
person
required,
proper authority26
where
with the
unequivocally
specifically
to the search. Florida
consents
Jimeno,
248, 250-51,
1801,
500
v.
111
114 L.Ed.2d
U.S.
S.Ct.
(1991);
Strickler,
v.
297
Commonwealth
563 Pa.
757 A.2d
(2000).
884, 888
person
person
authority
A
consent
if
has
to a search
has a
possessory
privacy
person
or
in the
or
interest
area to be searched
explicitly
implicitly
granted permission
give
has either
or
been
by person
possessory
privacy
or
interest in
area to
consent
with
See,
Matlock,
164, 171-72,
e.g.,
States
U.S.
be searched.
United
v.
(1974);
California,
94 S.Ct.
488-90,
L.Ed.2d 242
Stoner v.
376 U.S.
case,
(1964).
26 search,
To establish a valid consensual
prose
cution
prove
must first
given during
the consent was
a
legal
interaction,
police
or if
given during
the consent was
an
seizure,
illegal
that it
seizure;
was not a
illegal
result of the
second,
Strickler,
given voluntarily.
the consent was
888-901;
Fourth jurisprudence Amendment has develop- led to the categories ment of three of interactions between citizens (or police. and the The first of these is a “mere encounter” information) request for which need not supported by be any suspicion, level of but carries no official compulsion to stop respond. second, or to The an “investigative deten- tion” must supported by be a suspicion; reasonable it subjects a suspect detention, to a stop period and a but does not involve such coercive conditions as to constitute the functional equivalent of an Finally, arrest. an arrest or “custodial detention” must be supported by probable cause. Ellis, 285, Commonwealth v. 1043, 541 Pa. 662 A.2d 1047 (1995) (citations omitted). Thus, pursuant to the Fourth Amendment, person may seized, a not lawfully be by either means of an investigative detention, detention or a custodial police possess unless the requisite suspicion. level of
“[L]aw enforcement officers do not violate the
Fourth
merely
Amendment
approaching an individual on
public place,
street or in another
by asking him if he is
willing to answer
questions, by putting
some
questions to him
listen,
if
person willing
is
by offering
or
evidence
prosecution
criminal
voluntary
questions.”
answers
such
Royer,
1319;
When
he
and
Appellant
removed
cars,
handcuffs,
his
from
patrol
friend
the
released the
and
Appellant
notified
estranged
the deaths
his
wife and
stepdaughter. Trooper Sheppard
Appellant
then
if
asked
he
him
investigation
would meet
at the Barracks to- assist in the
Appellant agreed
of the
help
arranged
murders.
to
and
to
Trooper Sheppard
p.m.
meet
at the Barracks at 2:00
Appellant
thereafter, however,
stop. Shortly
then left the scene of the
Appellant drove to Carla’s home where
troopers
several
were
28. Hie characteristics
that a court should consider
include the ac-
education,
Schneckloth,
age,
history.
prior
cused’s
and
criminal
2041; Strickler,
U.S. at
93 S.Ct.
Appellant appears argue the evidence sup obtained from the he to must searches consented be account pressed illegally of the fact that he was on seized morning of stopped the December when was and he However, physically by Trooper restrained Appel Volchako. concedes, lant’s fails even Appellant claim because as himself given Sheppard during his Trooper consent the afternoon causally 27 was not December linked to detention morning by App’t Br., Volchako. Trooper See at 14. Shortly Trooper Appellant, stopped Trooper after Volchako him, him Sheppard released told about the his deaths of estranged stepdaughter, arranged wife and him meet at the p.m., freely Barracks at 2:00 and allowed him to leave the Nonetheless, scene, Appellant proceeded scene. to the crime presence police where the the was and his apparent, exited brief, truck. As admits in his his actions at this point “purely voluntary.” Thus, were because will, drove to crime his own upon scene free we find that sufficiently his consent was attenuated and untainted Strickler, (consent morning at detention. See 757 A.2d preceded by illegal long valid if as even seizure so consent was seizure). not result of however, argues, also while
stop by Trooper may Volchako have been attenuated from his consent, illegally he detained when he went to the Bar Troopers Sheppard racks with Manetta consented clothes, room, the searches motel and truck. We disagree. is troop There no indication record physical ers or any used force otherwise coerced at or at Upon seeing Appellant crime scene the Barracks. at scene, troopers simply the crime him approached go asked him whether he Barracks wanted with them afternoon, previous rather than meet them there later that as ly toway again scheduled. On the the Barracks and once Barracks, they Trooper Sheppard arrived informed
31
and that he
not have to
with them
speak
that
did
Appellant
he
Appel-
his truck
he wanted.
taken back to
whenever
would be
wished to
and
any indication that he
leave
did not make
lant
Furthermore, Appel-
speak
troopers.
with the
proceeded
cigarette
break
the Barracks for
lant left
fifteen-minute
circumstances,
any
all
we
constraints. Given
of these
without
person
Appellant’s position
find
cannot
that a reasonable
Compare
was
to leave.
have
that he
not free
would
believed
(defendant
437-38,
Bostick,
not
2382
501 U.S. at
S.Ct.
and
police approached him on bus
asked
where
seized
any physical
bags
police did
force
search his
as the
not exhibit
he
authority
and told
that
could refuse
signs
or
defendant
(defendant
consent),
at 1326
was
Royer,
with
S.Ct.
police
accompany
asked him to
them to
seized when
officers
roоm,
retaining his
ticket and driver’s
police
while
airline
license,
depart).
did
was free to
and
not tell defendant that he
claim, was
contrary
Appellant’s
he
not seized
Accordingly,
troopers
spoke
he went to the Barracks with the
and
when
Rather,
Appellant and
with them.
the interaction between
encounter,
not
merely
was
a consensual
which did
troopers
supported by
suspicion.33
need to be
reasonable
Although
troopers
the interaction between
encounter,
at the
was a
Appellant
Barracks
lawful consensual
was
Appellant’s
we must still determine whether
consent
voluntarily
sur
totality
made
under
the circumstances
Here,
Strickler,
rounding the
757 A.2d at
consent. See
troopers
asked for
consent
search his
clothes, truck, and motel room
he returned from his
after
Appellant
cigarette
Trooper Sheppard
break.
read to
a con
right
his
explaining
form
his
to refuse
consent and
sent
consent,
signed
gave
form. At
he
the time
subject
if we
to conclude
to an
33. Even
were
Barracks,
investigative
conducting
at the
we find that
detention
suspicion
investigation,
troopers
to detain
homicide
had reasonable
sought
Appellant based on the fact that Carla Reid had
a PFA order
against
sexually
him and
that Deidra
had accused him of
the fact
Moore
begin against
abusing
Appel-
her and criminal trial was scheduled to
Terry
charges
days after
of the
lant on ihose
ten
the date
murders. See
Ohio,
1, 21-22,
1868, 20
392 U.S.
88 S.Ct.
L.Ed.2d 889
v. State of
(1968).
forty-eight-year-old
was а
man and
had
he
been
criminal judicial system
involved with
for
several months
regarding
charges brought against
the indecent assault
him
had applied
granted
October 1996. He
for and was
court-
appointed
in that
Troopers Sheppard
case.
counsel
While
Manetta
he
appeared distraught
testified
when
scene,
appeared
they
at
crime
also
testified
he was
cooperative
N.T., 12/4/97,
conversational
with them.
*26
20-21, 27, 29,
above,
As
45.
noted
no
the discussion
there is
evidence in
that
troopers
Appellant
the record
the
coerced
into
providing
fact,
and in
Trooper Sheppard specifical-
his consent
ly
that
Appellant
right
notified
he had the
to
his
withhold
Mendenhall,
559,
consent.
446
at
See
U.S.
Appellant argues also that if even we find that his 27, valid, his consent to search truck on December 1996 was his once was custody violating consent ended he taken into for Therefore, the outstanding against according PFA order him. Appellant, 30,1996, by the search of his truck on December Trooper scope consent, was of Kevin Scott outside the his and evidence, by the Trooper obtained from Scott his truck was erroneously admittеd.34 This claim fails. an authorized, official properly
When
search is
the
scope
by
of
is
the search
limited
the
of its
terms
authorization.
States,
656,
649,
Walter v.
447
2395,
United
U.S.
S.Ct.
(1980).
L.Ed.2d 410
The
measuring
standard for
the
of
scope
a person’s
is based on an objective
consent
evaluation of what
a
would
person
exchange
reasonable
have understood
the
therefore,
Appellant
failed
raise this claim
and
be
below
it should
Nonetheless,
302(a).
deemed
Pa.R.A.P.
waived. See
because this is
case,
appeal
penally
direct
of a death
we
review the
shall
16,
instant claim.
Zettlemoyer,
Commonwealth v.
(1982).
500 Pa.
454 A.2d
955 n. 19
gave
who
consent.
person
and
the
the officer
between
Jimeno,
at
Here, after
consented
Appellant
truck,
Sheppard,
accompanied Troopers
his
low
of
he
a search
Manetta,
they conducted
Jeffrey Bopp to the truck where
and
search,
troopers and
Following
roadside search.35
Appellant
placed
returned
the Barracks
him.
violating
against
PFA order
custody
for
entered
storage facility.
subsequently
truck was
towed
Appellant’s
troopers
either
any
not make
indication
did
stop
them to
or after the search
he wanted
during
Thus,
N.T., 12/4/97,
truck.
at
searching the
Scott, a
State
Trooper
member
Monday, December
truck
Unit,
further searched
Police Identification
gloves,
which had not
pair
obtained a
brown
white
N.T., 10/5/98,
during
previous search.
been seized
any
his
point
did not at
revoke
119.36 Given
and that
police
to аllow the
to search his truck
consent
relatively
searched
truck within a
short
Trooper Scott
consent,
conclude
span
provided
after
we
time
Appel
Trooper
scope
Scott’s
was within
search
*27
find
and
Accordingly,
lant’s consent.37
as we
that
truck,
knives, machete,
searching
troopers
the
seized some
a
a
In
the
35.
12/4/97,
file,
gloves. Suppression Hrg.,
and some brown leather
However,
Ex. 4.
none of these items were admitted at
Commw.
Appellant's trial.
Trooper
not able to
The Commonwealth asserts that
Scott was
36.
Friday,
December 27
he attended the
search the truck
because
Thus,
evening.
according
victims
to the
autopsies of the
until late that
Commonwealth, Trooper
following
searched the truck the
busi-
Scott
day.
ness
arguendo
assuming
Trooper
Scott's
outside the
Even
that
search was
consent,
Appellant’s
suppress the
scope of
the trial court’s failure to
by Trooper
no more than
obtained
Scott would amount to
evidence
when,
light
"An
in
of the
error.
error is considered harmless
harmless
insignificant
it
overwhelming
guilt, the error was
that
evidence of
so
Rivera,
time his gave that truck, room, a of clothing, consented to search his hotel Trooper Appellant’s that Scott’s search of truck consent, confínes Appellant’s within the trial court properly Appellant’s suppress denied motion to the evidence during obtained those searches and claim fails. argues, manner, cursory next a trial admitting court erred in that criminal charges evidence were previously against Appellant complaints by filed based on charges Carla and dropped upon that those were later Carla’s request.38 disagree. We
The admission evidence is a matter vested court, within the sound discretion the trial and such a only upon showing decision shall be reversed trial Jones, court abused its discretion. 683 A.2d at In admitted, determining whether evidence should be trial court weigh probative must the relevance and value of the prejudicial against impact evidence of that evidence. is if it logically Evidence relevant tends to establish material fact in the or tends to support case reasonable inference Laich, regarding a fact. v. Pa. material Commonwealth 566 (2001). Although A.2d a court find may relevant, may evidence is the court nevertheless conclude that such is evidence inadmissible on account of prejudicial its impact. Ulatoski, v. Pa. Commonwealth 371 A.2d (1977). 192, n. 11 of prior bad
Evidence acts committed a defen dant solely is not admissible to show the bad defendant’s or propensity committing character for bad acts. Com- evidentiary light Accordingly, minimal value. of the other over- whelming Appellant's guilt, evidence of if we even were to find that gloves suppressed, should have been the error was harmless. *28 argument, Appellant solely charges complains In his of the criminal by supra, Appellant testified to law enforcement officers. n. See does any way challenging not in that he indicate is also the PFA Petitions Carla, therefore, by supra, any filed n. regarding see issue admissibility of the Petitions is not before this Court. (1989). Billa, 835, 840 521 Pa. 555 A.2d monwealth v. However, acts is admissible where there prior of bad evidence 1) evidence, such to a for as establish: legitimate is reason 2) 4) 3) accident; motive; intent; of mistake or absence 5) identity. Id. The evidence plan; or common scheme testify- credibility of may impeach also be admissible to prior defendant; show has used the ing that the defendant victim; in situations where bad acts to threaten the sequence bad of chain or of events part acts were were of its natural history part of the case and formed the prior In of bad acts to be M order for evidence development. motive, give “must prior bad acts admissible as evidence currently being ground to the crime sufficient believe any way by prior grew out or was caused considered Schwartz, v. set of facts and circumstances.” Commonwealth (1971). 445 Pa. 285 A.2d Here, filed a motion in limine the Commonwealth criminal it asked the trial court to admit evidence that which against charges previously Appellant filed based were charges subsequently by Carla and those were complaints According upon request. Carla’s to the Common dropped wealth, Appellant’s such evidence was relevant establish that a killing for Carla and Deidra because it showed motive whereby with pattern relationship Carla’s existed on his charges against criminal were filed based subsequently would seek to conduct towards Carla and Carla charges dropped persuaded because she was have the Thus, claimed that to do so. the Commonwealth such killed Carla evidence tended establish not force assault they and Deidra because would the indecent pending against Appellant dropped, be as Carla charges previously charges had with the other criminal filed done against agreed Appellant. The trial court with the Common charges wealth that evidence of the fact that criminal were previously against Appellant dropped filed and later due request support Carla's was relevant to the Commonwealth’s 9/28/98, at 12. theory Op., Tr. Ct. motive. However, trial of the court determined that evidence
36 underlying charges basis for the only was not unnecessary to advance the Commonwealth’s theory but also would be inher- ently prejudicial Appellant given that charges the were proven. Therefore, never 28, 1998, September on the trial court entered an order permitting the Commonwealth to present solely evidence previous the fact that charges had against Appellant been filed and that Carla subsequently had requested they that Order, be withdrawn. Tr. Ct. 9/28/98.39 Pursuant order, trial, to the trial court’s the Commonwealth presented testimony from separate four law enforcement offi- who merely cers that they stated had filed charges based on complaints by made charges Carla and that were later dropped following See request. N.T., 10/5/98, Carla’s at 247- 61.40 order, Appellant September contends that in its 28 the trial court ruled that the present Commonwealth not prior could evidence of the charges of they abuse and the fact that were later withdrawn. As noted above, however, the trial court found that the Commonwealth could present evidence prior charges brought of the fact that the were they subsequently were argue withdrawn. also seems to that the trial regarding court reconsidered its decision the admission of 2, charges 2, in its order entered on October 1998. On October ruling trial court entered an order the Commonwealth could present testimony regarding from prior witnesses their observations of by Appellant abuse of Carla and the fact that complaint Carla filed a charging Deidra, sexually abusing with which she Order, subsequently dropped. had Contrary Tr. Ct. Appel- 10/2/98. claim, order, lant’s in its October 2 the trial court did not reconsider its earlier decision only that the prеsent Commonwealth could evidence of charges
the fact brought against had been and later request. withdrawn at Carla’s See id. 40. We responding question note that in by prosecutor to a about making 1993, Carla complaint Reid's demeanor in April Sergeant to, briefly counsel, any objection Baker referred without defense reasons for complaint. Id. at 260-61. specifi- does not cally challenge However, the admission of these comments. we note merely that because the fleeting comments were reference and be- overwhelming cause of the against Appellant, evidence we do not find that the admission of such comments was erroneous. See Common- Blystone, (1999) (mere wealth v. 555 Pa. 725 A.2d 1204-05 passing prior activity references to criminal require do not reversal prejudiced where defendant not overwhelming because evidence of LaCava, guilt); (1995) Commonwealth v. 542 Pa. 666 A.2d (no ineffective assistance of non-respon- counsel where comments were prosecutor’s sive to question simply but emphasized blurted out and not by prosecutor). of the trial court that the evidence agree with the
We against Appel filed charges previously were fact that criminal charges were by Carla and that complaints lant based on proving request was relevant withdrawn due Carla’s later Clearly, killing and Deidra. motive for Carla against Appellant had filed charges that criminal been fact shortly and that thereafter complaints by Carla basеd request showed that upon Carla’s charges were withdrawn Deidra because to kill both Carla and Appellant had motive *30 charges pending the indecent assault they would not cause terminated, had done Appellant to be as Carla against of fact that that past. Accordingly, we find the evidence brought against Appel previously been charges criminal had request properly lant and later withdrawn Carla’s admitted. argues that his trial counsel were
Appellant additionally admis- failing object for to the Commonwealth’s ineffective not gun properly of a because it was photograph sion of a claim also fails. authenticated. This based on
In for a defendant to obtain relief order counsel, must show that: assistance of he a claim ineffective (2) (1) merit; had arguable is of counsel underlying claim the defendant’s designed no basis effectuate reasonable (3) counsel’s question; for act or omission interests defendant, i.e., but for actually prejudiced the ineffectiveness ineffectiveness, that possibility is a there reasonable counsel’s have been different. proceedings outcome of the would 1188, A.2d 1199 558 Pa. 737 Douglas, Commonwealth v. (1999). strategy and tactics are “Generally, where matters of concerned, constitutionally ef counsel’s assistance is deemed that had some reason particular if he chooses a course fective interest.” Com designed to effectuate his client’s able basis (1998). Howard, 233, 237 Pa. A.2d monwealth v. 719 evidenсe, a trial any As in the admission of other evidence, such may in its admit demonstrative court discretion outweighs any potential if its relevance photograph, as Hudson, 620, 414 489 Pa. v. prejudice effect. Commonwealth (1980). evidence, however, A.2d Demonstrative properly must also be authenticated evidence sufficient to representation show that it is a fair and accurate of what it is 901(a). purported depict. Pa.R.E. Demonstrative evidence may by testimony be authenticated from a witness who has knowledge proclaimed of what the evidence is to be. Pa.R.E. 901(b)(1).
Here, Trooper Sheppard testified at trial September spoke Mary regarding he with gun Jones N.T., Appellant. 10/8/98, that she sold to Trooper at 509. explained that Sheppard specific Ms. Jones did not know the gun type she sold to so he showed her guns any several and asked her whether of them resembled gun to Appellant. According sold Id. to Trooper she Sheppard, that a handgun she indicated .380 caliber looked gun. Consequently, trial, during like the the Com evidence, monwealth introduced into any objection by without counsel, photograph gun defense Ms. Jones Trooper Sheppard gun identified as a resembling the one N.T., Appellant. 10/7/98, she sold to at 356-57. The Com photograph by showing monwealth authenticated the it to Ms. *31 Jones, who photograph testified that the depicted gun the she to Trooper Sheppard identified as resembling the one she sold to Appellant. Id. Given that Ms. personally gun Jоnes sold a Appellant, clearly she had knowledge sufficient to authenti photograph picture gun cate the as a of a similar to the one Appellant. she sold to
Appellant however, also argue, seems to the photograph gun of the was improperly admitted because Ms. definitively could not identify gun Jones the in photograph the gun Appellant. as the she sold to disagree. We The Com presented monwealth photograph never the as a photograph gun of sold to merely presented but it a gun as appearance similar in gun Appellant. sold to Such clearly tending evidence was relevant in to establish that Appellant killed days Carla Reid Deidra Moore because murders, Appellant purchased before their gun a from Ms.
39 caliber, type a of .380 handgun that resembled Jones bullets .380 auto caliber discharging the capable of handgun Further, not find that such we do scene. at the crime found unduly prejudicial as have excluded should been evidence made clear because the Commonwealth rather, a gun but of the actual depiction was not a photograph shoot- gun used merely the actual resembled gun that find we N.T., 10/7/98, Accordingly, because at 357. ings.41 admitted gun properly was of the photograph that the gun Appellant, sold to gun resembling as authenticated arguable for lack of claim fails ineffectiveness merit. claim, essentially argues that
In his final mitigating presenting for counsel were ineffective his trial from a mеntal evidence, that he suffered specifically evidence him re consulted with illness, they properly never because present did not want them and he garding such evidence disagree. We such evidence. right to decide
“A
has the
criminal defendant
on his behalf.”
presented
will be
mitigating evidence
whether
(1993).
Sam,
A.2d
611
v.
535 Pa.
635
Commonwealth
his counsel
Thus,
specifically
has
instructed
where a defendant
circumstances, defense
present
mitigating
evidence of
not to
Id.; Com-
duty to
such evidence.
counsel has no
introduce
Inc.,
Nurseries,
argues
v. Andorra
that the cases of Semet
Rexworks,Inc.,
(1966),
A.2d
v.
Pa.
monwealth v.
523 Pa.
Tedford,
567 A.2d
626-27
(1989).
hand,
On the other
where a defendant has not direct-
evidence,
presenting
ed his counsel to refrain from
mitigating
duty
defense counsel has a
to undertake a reasonable investi-
gation to
mitigation
determine whether
evidence exists. See
668, 691,
2052,
Strickland v.
Washington,
U.S.
104 S.Ct.
(1984);
Basemore,
41 requested the right provide not to had the that not be that he would to trial counsel and his information to do so. Id. at 6-7. ordered trial and the his counsel Appellant clearly informed
While to his want information provide that did not to court he trial phase, penalty there prepare to for the help counsel them trial the February hearing or in the no indication either is trial that his counsel specifically he advised that ever record Appel- evidence. present mitigating not want to did them he Kulla, counsel, during penalty D. stated the Stephen lant’s phase, with person I met him at the have
Numerous times Keller, Trambley, I Mr. to did and believe as Mr. prison, stage, mitigation in the and even information for use gain Friday [Appellant] if there the verdict on asked [I] after to specificаlly bring wanted here any witnesses he me were And me that testify as to character. he advised today that, worry I was any, weren’t and not about there therefore, that strategy pro- formulated we’re we have the any from on our own without assistance mulgating today but without direction him not any is [it] [Appellant] from in this matter. goto forth added). 10/12/98,
N.T., (emphasis Accordingly, at be- 901-02 counsel Appellant’s repeatedly shows that cause the record mitigation of Appellant regarding presentation spoke evidence, uncooperative, Appellant, although never that present mitigation any counsel evidence of kind directed not of penalty phase,42 did so in middle actual we until he presented During penalty Appellant’s evi- phase, trial counsel support mitigating that did not have dence to factor record, 9711(e)(1), § 42 Pa.C.S. and the catch-all miti- prior criminal factor, 9711(8) mitigation ("Any § evidence gating other of Pa.C.S. concerning and record of the defendant and ihe circum- character N.T., 10/12/98, offense.”). support his at 895-96. In stances factor, presented evidence that catch-all trial counsel Larissa, children, 870-71, id. Lorrance and cared about two prison, sought further show well in id. at 906. Trial counsel behaved Id. at Trial from a mental illness. suffered Appellant's girl- testimony from former counsel therefore introduced others Appellant did not like to know his friend who stated that do not believe that trial counsel was for presenting ineffective Indeed, mitigating Appellant’s behalf. evidence we find clearly that trial had a presenting counsel reasonable basis for evidence, specifically, jury might such find a mitigat- ing circumstance mitigating and determine that circum- any outweighed aggravating they stance circumstances also found to exist.43 requested business she ask for "double six nine” when oh she telephoned him at a friend's house. Id. at 871. One *34 erupted day former that a housemates testified fire in the kitchen one Appellant Appellant when alone was home and first blamed the fire on stranger through then her and claimed that ran the home and turned presented the stove on. Id. at 874. Trial also counsel evidence from Appellant's Appellant former co-workers who testified that was difficult along get temperamental. to with and Id. at 876-86. case, Kulla, trying Appellant’s attorney Stephen additionally the D. co-counsel, sought Trambley, testify to call his Robert J. as a witness to however, Appellant. as Appellant, to his interactions with Id. at 907. attorney to waive privilege Trambley refused his client to allow Mr. to therefore, testify and prohibited testifying. the trial court him from Appellant's attempted at 909. trial counsel then to call Abrahm Martin Blumberg, and Neil psychiatrists Hostetter two who had examined
Appellant during competency proceedings, testified the in order to Appellant that establish Nonetheless, suffered from mental Id. at illness. 910. Appellant because the trial that he notified court did not psychiatrists testify, precluded want the to the trial cоurt them from doing point hearing, so. Id. at At Appellant 915-17. that in the present any informed trial that he did want counsel not him to more argue during argument closing or evidence that he suffered from a Accordingly, pursuant mental illness. Id. at 917. to this Court’s Sam, decision in v. Commonwealth 635 A.2d at trial counsel presenting any arguing Appellant refrained from more evidence or that N.T., 10/12/98, from a suffered mental illness. at 927-28. point jury mitigating We out that the did find one circumstance by presented Appellant, Appellant trial counsel behalf of that did not prior history. have a criminal We note the further that while evidence presented by Appellant trial meant to that counsel show suffered from a may portrayed Appellant light, mental illness have in a bad trial counsel presenting had a reasonable for basis such evidence. Trial counsel present testimony Appellant’s intended the from friends and former along testimony psychiatrists co-workers with the of the two who Appellant Appellant’s examined to show that actions were indicative of N.T., 10/12/98, mitigating a mental illness for the catch-all factor. See 895-96, However, at because in the middle of decided phase psychiatrists penalty testify that he did not want the or trial argue during closing arguments counsel that suffered from illness, precluded effectively making a mental trial counsel was from Therefore, presentation. such a because himself decided to claims for relief Therefore, Appellant’s find that as we of merit, must affirm sentence we without are product that was the we the sentence unless determine death factor, arbitrary or the any or other prejudice of passion, aggrava finding of at least one support fails to evidence 9711(h)(3). upon § Based our review ting factor. Pa.C.S. record, of death not that sentence we conclude arbitrary factor. passion, prejudice any or other product at trial. Rather, properly admitted upon it was based evidence trial adduced at additionally the evidence conclude We hearing support the during penalty was sufficient by aggravating factor found finding of at one jury’s least first-degree for the regard Appellant’s convictions jury with Indeed, we find that the both and Deidra. murder of Carla factors aggravating found supports all of evidence sufficiently Deidra both jury. The evidence established testifying during the criminal trial would be and Carla felony charged aggravated Appellant was with the which 187-88, N.T., assault, N.T., 10/6/98, at see indecent 10/12/98, prevent them order to at killed 10/6/98, trial, N.T., during from see testifying them 9711(d)(5). Further, we conclude that § See Pa. 197-98. *35 Appellant both showed that killed Carla the evidence in during felony burglary, of the of that he Deidra the course killing unlawfully with the intent of entered Carla’s home 3502; § 18 42 and Deidra. See Pa.C.S. Pa.C.S. Carla 9711(d)(6). § that was Finally, the evidence showed Deidra, first-degree of which was convicted of murder of which a committed at the time the murder of Carla and for 9711(d)(10). § 42 imposable. of death is See Pa.C.S. sentence Likewise, established that was convict- evidence Carla, of committed first-degree of the murder which was ed Deidra, of for which a sentence of at the time the murder presentation, trial did not slop trial counsel in middle of counsel unreasonably only presenting of the evidence he intended act hall from a illness. in order to suffered mental admit show Szuchon, See, 1377 e.g., v. Pa. A.2d Commonwealth (as (1984) preparation was result of defendant's counsel’s lack ineffective). actions, counsel not death is imposable. See id. We affirm therefore judgment convictions and of sentence.44 Former Chief Justice FLAHERTY did not participate the decision of this case.
Mr. Justice SAYLOR concurring opinion files which joins. Mr. ZAPPALA Chief Justice CONCURRING OPINION Mr. Justice SAYLOR.
I join majority opinion, save for its conclusion that the 30, 1996, of Appellant’s December search vehicle was neces- sarily scope within the provided consent had earlier, days Majority Opinion, several see at 549. gener- See Wayne ally 3 R. A Treatise LaFave: on the Fourth Amend- (3d ed.1996) 8.1, § at 629 (stating “[e]xcept ment unusual expressly circumstances or when the consent indicates otherwise, it would that a may seem consent to search be said upon given understanding be that the search will be only conducted forthwith and that search single will be made”). agree, however, that, I the extent the search invalid, during the admission at trial of evidence obtained the search Majority constituted harmless error. Opinion, See at 549 n.38. joins
Mr. concurring Chief Justice ZAPPALA this opinion. *36 the Prothonotary Supreme We direct of the Court to transmit complete Pennsylvania. of this record case to Governor of See l(i). § Pa.C.S.