*1 A.2d 242 Pennsylvania of COMMONWEALTH v. SCARFO, Appellant.
Nicodemo Pennsylvania of COMMONWEALTH v. IANNARELLA, Jr., Appellant.
Francis Pennsylvania of COMMONWEALTH v. LIGAMBI, Appellant.
Joseph Pennsylvania of COMMONWEALTH v. MERLINO, Appellant. J.
Salvatore Pennsylvania of COMMONWEALTH v. NARDUCCI, Appellant.
Philip Pennsylvania COMMONWEALTH v. NARDUCCI, Jr., Appellant.
Frank Pennsylvania COMMONWEALTH v. MILANO, Appellant.
Nicholas Pennsylvania COMMONWEALTH MERLINO, Appellant. Lawrence Superior Pennsylvania. Court
Argued 1992. Jan. 17, 1992. Filed June Aug. 1992. Reargument Denied *12 McGlaughlin, George Newman, David M. Philadel- Henry Iannarella, in phia, appellant for No. 1444. Gelman, Scarfo, Philadelphia, appellant
Norris for No. 1481. Natali, Ligambi,
Louis M. for Philadelphia, appellant No. 1483. Merlino, I. for
Ramy Djerassi, Philadelphia, Salvatore appellant in No. 1516. Shmukler, Philadelphia, Narducci,
Stanford for Philip ap- pellant Narducci, No. 1518 and Frank in No. appellant 1519. Jr., Milano,
F. Emmett Fitzpatrick, Philadelphia, ap- for pellant in No. 3136. Merlino, Tinari, appel- for Philadelphia, Lawrence
Nino V. in No. 3480. lant Lebowitz, Atty., Philadelphia, Dist.
Ann Asst. C. Com., appellee. ELLIOTT, CIRILLO, JJ. TAMILIA and FORD
Before CIRILLO, Judge. Merlino, Merlino, Scarfo, Lawrence
Nicodemo Salvatore Iannarella, and Narducci Ligambi, Philip Francis Joseph Narducci, from appeal Nicholas Milano each Frank and in the of Common of sentence entered Court judgments following Philadelphia their convictions County Pleas of Murder, Possession and First-Degree Conspiracy Criminal All received Instrument Crime. defendants an murder imprisonment life for the mandatory sentence of conviction. claims, a reaching merits of the defendants’
Before addressed. These defendants preliminary matter must be however, court, appeals. consolidate This sought to their filed individual denied that motion. The defendants then reference party extensively adopted by briefs which each parties. Consequently, the other arguments the various have, one for the party issues which have been raised the others shall be ad- part, adopted by most been concurrently. dressed
I. FACTS1 death shooting
The facts of the instant case concern the D’Alfonso. of Frank “Frankie Flowers” Nicodemo Scarfo Nostra organization headed the local La Cosa (“LCN”), the mafia Non- otherwise known as or the mob. hopefuls “proposed initiated mafia are called members” (are organization organization) ties to the “with” the have into yet requirements but have to fulfill the of initiation *13 synopsis many 1. The factual statement is a facts contained explain voluminous record. We shall facts from the record as further they particular resolve the to which are needed to issues they relate. During regime, proposed LCN. the Scarfo had member participate killing to order to fulfill initiation require- ments.
Scarfo first informed the other mafia officers of his command to kill D’Alfonso at a at meeting the Wok Restau- in Philadelphia. rant on Street In Walnut attendance at the Scarfo, meeting Merlino, (Sal- Larry were Salvatore Merlino brother), and Iannarella and vatore’s Thomas DelGiomo.2 cooperating DelGiomo was a Commonwealth witness at the trial. ordered the killing
Scarfo D’Alfonso because his D’Alfonso, long-held dislike of a friend of former mafia Bruno, Angelo boss because he was upset at publicity D’Alfonso had received after killing. Bruno’s This publicity suggested that D’Alfonso towas become or had Philadelphia become the family’s boss. Scarfo had already D’Alfonso, become boss and was disturbed that who was LCN, not even a receiving member such notoriety. Scarfo ordered that proposed members Nicholas Milano and Philip Narducci out carry killing with the aid of Frank (“Gino”) Narducci and Eugene Milano.3 Lawrence Merlino suggested that Ligambi Scarfo “use Joe” and that Ligambi ready” become a member. Scarfo authorized Li- “was gambi’s addition to the assassination team. prom- Scarfo ised to initiate the proposed Philip Narducci, members— (“the killers”) Nicholas Milano and Ligambi had they —after killed D’Alfonso.
In preparation killing, for the helped pro- Iannarella cure the murder weapons and DelGiomo assisted Ligambi in obtaining a getaway car. Over several months of sur- stalking brothers, veillance and by thé Milano the Narducci Ligambi, brothers and proved victim a difficult be target. After several kill attempts unsuccessful D’Al- Philip meeting 2. charged Leonetti also attended the but he was not this case. Eugene cooperating 3. Milano became a to the witness before the prior arraignment sworn and of the defendants. *14 fonso, impatient. Iannarella echoed Scarfo’s Scarfo became and the killers to work harder.4 concern wanted opportunity the killers found their as D’Alfon- Ultimately, neighborhood outside of a delicatessen on a South so sat gunmen, Ligambi street comer. The two and Philadelphia Narducci, out of the car driven Frank Philip jumped D’Alfonso, hitting and at him in repeatedly Narducci fired and with several bullets. D’Alfonso body the head murdered on the sidewalk outside of the delicatessen while selling to its owner. A talking young boy he was delicatessen, of the “water ices” on the sidewalk front present shooting another was also at the scene. boy minor from boy powder gun The second received bums discharges away during as he ran from the scene took his cart shooting. boy The first cover behind water ice ran shooting for five to ten minutes after then from The boy the scene of the crime. who received the bums shooting gunman testified that after the he saw a walk shooting. down an to the scene of the alley adjacent back In police a vacant lot situated on this recovered two alley, After guns being shooting. later identified as used for Li- killing Scarfo conducted initiation ceremonies gambi, Philip Narducci and Nicholas Milano. convictions, Depart-
Prior to their state the United States ment of on successfully Justice convicted these defendants charges.5 government the federal had listed Initially, RICO killing many its indictment the D’Alfonso as one of acts for state predicate required RICO convictions. The trial; trial was scheduled to the federal originally precede however, defendants, due to caused delays chiefly federal trial occurred first. Prior to the federal trial the approve 4. Salvatore Merlino contends that he did not of the murder However, plan. suggests preparation evidence that he aided in the plan nothing conspiracy put a and did to withdraw from the or stop may proceed slowly to it. He have been inclined to more than stop Scarfo wished. Salvatore Merlino the Milano told brothers searching just since one had D’Alfonso of the brothers received subpoena looking federal and federal officials were for the other. Corrupt Organizations 5. RICOstands for the Racketeer Influence Act. See footnote infra. murder the D’Alfonso from deleted prosecutor federal not to interfere with the act so as predicate as a indictment prosecution. state federal trial followed the RICO D’Alfonso murder the Honorable jury, tried before They were
proceedings. Clarke, The selection presiding. H. Jr. Eugene During voir three weeks.6 jury spanned eighteen-member *15 their beliefs questioned were about dire, potential jurors the selection of the Between the regarding penalty. the death defendants, Eugene Milano arraignment of the and the jury Jersey New and Philadelphia, with cooperate decided to against his testify enforcement officials and Federal law “family” former members. trial, present- the Commonwealth the three-week
During Among people sources. the who many ed from testimony officers who were involved police testified various were homicide, were police of the officers who investigation the examiner, medical wit- figures, to monitor LCN a assigned shooting day of the nesses who the events observed victim, the concerning stalking the and the earlier events Eugene and Thomas DelGiomo cooperating witnesses trial, returned jury guilty At the close of the the Milano. against on all counts all defendants. verdicts penalty-phase hearing court held a day The next the trial con- evidence jury at which the heard Commonwealth’s circumstances for which the death cerning aggravating however, Clarke, imposed. Judge could removed penalty be motion. upon this issue from the the defendants’ im- sentence of life Judge imposed mandatory Clarke motions filed and denied. prisonment. Post-sentence were appeal This followed.
II. ISSUES RAISED
In these the defendants have raised a voluminous appeals parties adopted specific of issues. Most have by number general arguments par- and/or reference the of the other jury. 6. Six alternates were chosen for the have been waived virtue of Also, issues ties.7 where trial, at those contemporaneously issues object failure to have, alternatively most raised part, for the been claims. On ineffective assistance counsel context of following extensively have been briefed issues8 appeal, panel: this and, large part, argued before rights under 18 Pa.C.S.A. appellants’ 1. Were §§ 111 violated in that: to join failed the instant case a. upon involving appellant homicide case prior with required the state com- acquitted he was as which and, rule? pulsory joinder in- prior racketeering prosecution federal b. where encompassing conspiracy an all which volved notwithstanding govern- part instant case was a from feder- predicate ment’s of this act withdrawal prior to trial? prosecution al rights under the double appellants’ jeopardy 2. Were of the federal and state constitutions violated clauses *16 agreed and federal government where the Commonwealth prosecute appellants thereby the increas- successively multiple punishment? the likelihood of conviction and ing misconduct, prosecutorial the incidents of 3. Whether whole, unfairly appellants as a served to prejudice viewed quest in their for a fair trial. bolstering credibility of the of improper
4. Whether compels Commonwealth witnesses reversal. argument adopt by appellant
7. Prior to oral Scarfo moved to refer- the issues raised in Iannarella’s brief. At that time we denied ence argument After an review of that motion. oral exhaustive record, adopt we now amend that order and allow Scarfo to these waived, arguments. specifically The issues were not and Scarfo right arguments incorporate brief reserved the these in his as Furthermore, yet had to file a brief. some of the issues Iannarella adopted by by directly reference been raised in his own have Scarfo We, therefore, issues brief brief. shall address the in Iannarella’s as they relate to Scarfo. following represents compendium by 8. The list issues raised of the captioned appellants the six above. trial deprived a fair where defendants been 5. Have its opening speech impeached in its the Commonwealth used the unauthenti- improperly and then witnesses own grand jury before the as testimony of witness cated rec- pretext refreshing under the substantive evidence witness, has prosecutor and where ollection being sworn? testified without improperly in Whether, facts outside of the record by introducing 6. summation, arguing jury, those facts to his process due of law. appellants denied prosecutor in permitting prose- the trial court erred 7. Whether to the from the negative jury to raise a inference cutor to commit attorneys’ improprieties defense refusal court. failing by upon the the trial court erred
8. Whether may that circumstantial evidence be request charge as well as convict. acquit used denied effective assistance trial appellants 9. Were issues? object preserve counsel’s failure to and/or motion denying appellant’s 10. Did the trial court err a co-defendant en- to dismiss or for severance because selection? guilty plea jury tered a after to hold an evidentia- failing 11. Did the trial court err changed if his hearing to determine co-defendant who ry disclosing plea appellants’ right violated the to counsel strategy defense and confidences?
12. the trial court err in permitting prosecutor Did change plea to remind the Milano’s jury Eugene closing his and in during testimony argument? Did Milano to allowing Eugene
13. the trial court err that he tried to make a deal for his brother who testify appellants? then on trial with 14. Did the court err in failing to instruct *17 Milano’s Eugene guilty plea could not be used as evidence other the com- against men with whom he sat at mencement of trial? admitting
15. Did the court err in evidence of other crimes, victim, including a 1981 attack on the and testimo- members had to commit mur- that “made” ny [initiated] der? prejudicial commit misconduct prosecutor
16. Did the of criminals? appellants group as a closing by referring commit misconduct prosecutor prejudicial 17. Did the “wolves,” pack” as “the closing referring appellants “wolfpack?” and a ethnic references to permitting
18. Did the court err place used in the of evidence “Italian Males” be guilt? existence of a con- charge
19. Did the court’s that the evidence, inferred from the circum- spiracy may be stances, violate the parties conduct and relations of the clause? process due appellants’
20. court err in motion for denying Did the co-appellant that Scarfo had testimony severance after beating the 1981 of the victim? ordered of a 1981 admitting 21. Did the court err evidence article stated that the victim was the newspaper which of Philadelphia’s Organized Family? head Crime admitting 22. Did court err in state- extrajudicial deter- against appellant co-conspirators ments before conspira- that there of a mining independent evidence cy?
23. under extrajudicial Was the statement inadmissible Pennsylvania prosecution Constitution because the failed to establish the of the declarant? unavailability 24. ruling prosecution’s Did the Court err in designation of the as and charges capital legitimate not a sham?
25. they oppose When a court strikes veniremen because if penalty they death but the court did not know trial, a fair would be fair at has the court assured impartial jury?
26. When the Commonwealth knows before voir dire proof penalty aggravating there is no of death circumstances, require does the court to interfere justice quash death-qualification voir dire? *18 prevent trial counsel fails to has prejudice,
27. When waiving provided by counsel effective assistance the issue by improper prior of error caused admission of testimony Margaret Jackson? testimony Trooper 28. Was of a State admissible where qualified expert? he not as an disqualified 29. Should DelGiomo have been as Thomas incompetent an witness?
III. AND DOUBLE STATUTORY JEOPARDY BARS TO
PROSECUTION Iannarella, Scarfo, Merlino and Salvatore the Narducci argue prosecutions first that their for the D'Alfon- brothers are statutorily by so murder barred both the constitu- doctrine of jeopardy. tional double
A.
argues
Iannarella
the Commonwealth should
joined
have
the D’Alfonso murder
trial with the homicide
killing
trial
for
of Salvatore Testa.
The Common
so,
contends,
wealth’s failure to do
Iannarella
acts as a bar
prosecution pursuant
to 18 Pa.C.S.
110.9 The Common-
§
prosecutions
9. Section 110 of the Crimes Code addresses
barred
prosecutions
provides:
earlier
different offenses. Section
Although prosecution
provision
is for a violation of a different
prosecution
of the statutes than a former
or is based on different
facts,
prosecution
following
it is barred
such former
under the
circumstances:
(1)
prosecution
acquittal
The former
resulted
an
or in a convic-
subsequent prosecution
tion ... and the
is for:
(i) any offense of which the defendant could have been convicted
prosecution;
on the first
(ii) any
arising
offense based on the same conduct or
from the
episode,
appropri-
same criminal
ate
if such offense was known to the
prosecuting
officer at the time of the commencement of the first
jurisdiction
single
trial and was within the
of a
court unless the
offense;
separate
charge
court ordered a
trial of the
of such
or
(iii)
conduct,
the same
unless:
(A)
formerly
the offense of which the defendant was
convicted or
acquitted
subsequently prosecuted
offense for which he is
requires proof
required by
each
of a fact not
the other and the law
defining
prevent
substantially
each of such offenses is intended to
evil;
different harm or
or
failure to
issue
waived for
that the
responds
wealth
However, since
or
motion.
post-trial
in any pre-trial
it
raise
alternative as an
also been raised
claim has
this
claim, we must determine
assistance of counsel
ineffective
merit. See Common-
is of
arguable
the contention
whether
*19
Durst,
2,
(1989)
citing
A.2d 504
v.
522 Pa.
559
wealth
Pursell,
212,
trials for offenses stemming from the same criminal episode; and
(2) as a matter of judicial administration and economy, to
finality
assure
without unduly burdening the judicial pro-
(citations
cess by repetitious
litigation,
omitted).
Hude,
In this case the criminal episodes bear no logical or temporal relationships with one another. The conception planning and of the D’Alfonso murder did not commence until several months after the Testa shooting. The only connection between the killings two were some of people charged and their alleged mafia relationships. facts the two required cases proof. different The proof part in by witnesses,11 different provided and concerned the deaths of different victims in separate two locations. See Purnell, Commonwealth v. 358 Pa.Super. 516 (where (1986) A.2d 1203 “acts resulting in separate prosecu- tions had occurred locations, at different before different witnesses, and involved different victims” separate criminal existed). episodes In addition, a substantial amount of evidence in the Commonwealth’s case for the D’Alfonso homicide concerned the stalking of the victim. This evi- dence was needed order to identify who the killers were and to corroborate the testimony “polluted source” wit- 11. testify against cases, Thomas DelGiorno did the defendants in both however. clearly unrelated evidence was The identification nesses. D’Alfonso was not to murder plan cases as the two homicide. The factual the Testa after until formulated and who stalked the murder planned issues of who and therefore duplicative substantially not victim are to the temporally related logically not D’Alfonso case is of two were the result The two murders Testa case.12 Hude, 500 Pa. at A.2d episodes. criminal separate prosecution was subsequent 180. The claim at is therefore meritless.13 section 110 by barred
B. their trial raise the issue of whether next Appellants 111. barred under Pa.C.S. statutorily should have been § is prosecution that a Commonwealth directs Section prosecution jurisdiction.14 former another barred prosecuted had both of 12. We note that if the Commonwealth together, opportunity of issues for confusion homicides potential prejudice appellants been substantial. to the would have claim, argument arguable is no merit to the alternative 13. Since there failing is to raise this issue that trial counsel was ineffective for Durst, equally supra. meritless. 14. Section 111 states: juris- offense within the concurrent When conduct constitutes an or another diction of this Commonwealth and of the United States state, prosecution any jurisdiction a bar to a such other is following subsequent prosecution in this Commonwealth under circumstances: (1) prosecution acquittal in an or in a conviction The first resulted subsequent prosecution same conduct ... and the is based on the
unless: (i) formerly convicted or the offense of which the defendant was subsequently prosecuted acquitted and the offense for which he is *21 required by requires proof other and the law each defining of a fact not substantially prevent a each of such offenses is intended to evil; different harm or or (ii) the former the second offense was not consummated when began. trial terminated, (2) prosecution The former after the indictment found, by acquittal judgment an order or for the or a final aside, reversed or vacated and defendant which has not been set acquittal, judgment necessarily required which final order or determination inconsistent with a fact which must be established Scarfo, Iannarella, the Merlino brothers and the Narducci prosecuted by government brothers were the federal on charges prior federal RICO prose- Commonwealth’s predicate cution.15 The list of acts used support RICO convictions contained the D’Alfonso originally homi- However, dropped predicate cide. this homicide was as a act to the federal prior trial order to maintain the D’Alfonso murder as a homicide case for the viable Com- monwealth. After the federal trial the defendants were on charges. convicted the RICO The defendants now con- tend that section 111 prosecu- bars the D’Alfonso murder tion because it concerns a matter part that was their continuing enterprise common and criminal which was the subject of the federal RICO trial. There are several rea- sons why argument defendants’ lacks merit.
(i) Burden of Proof on
Scarfo contends behalf of the defendants that the proof burden of onwas aby Commonwealth establish preponderance of the evidence that section 111 did not bar their prosecutions. state ruling In on pre-trial defendants’ motions, Judge a specific, Clark made written finding that jeopardy double issue was frivolous. Common argues wealth this finding it of any relieves burden since the defendants prima raised frivolous facie case.16 subsequently conviction of the offense which the defendant is prosecuted.
18 Pa.C.S. § 111.
Joseph Ligambi
15.
charged
complaint
was not
in the federal RICO
and, therefore,
join
does not
this
issue.
argues
16. The Commonwealth also
that the defendants waived the
pre-trial
post-trial
issue
their failure to raise it in
or
motions. We
561,
Savage,
note
Pa.Super.
355
Judge
to review whether
Clarke’s
Thus,
constrained
we are
prima
raised a frivolous
facie
defendants
finding that
erroneous.
section 111 claim was
Brady,
v.
336,
In Commonwealth
Pa.
508 A.2d
510
appeal from an
(1986),
supreme
quashed
court
an
286
our
on
charges
to dismiss the
double
order
a motion
denying
court decided that where
supreme
The
grounds.
jeopardy
from an order
which the trial
an
emanates
appeal
such
frivolousness, no
at
appeal
finding
a written
court makes
Id.,
346,
A.2d
291.
Pa.
508
at
point
allowed.
510
at
that
is
issue, even where deemed
However,
jeopardy
the double
court,
direct
ripe
the trial
is
for review
a
frivolous by
Brady
Id. rationale struck a
court’s
post-trial appeal.
interest
in the
“overriding
the public’s
between
balance
of the
accused” and
individual’s
prompt
criminally
trial
without bur
of freedom from successive trials
expectation
motions to
dening
justice system
dilatory
with
the criminal
Id.
grounds
jeopardy.
of double
dismiss on
Savage,
561,
v.
Commonwealth
Pa.Super.
388
In
(1989),
566
272
stated that:
A.2d
we
supple-
original
cognizant that the
post-trial
We are also
motions.
Savage
days
decision which
mental
were filed two
after the
motions
may
enough
supplemental motion
been
not have
time
include
However,
support
post-trial
based on that case.
the brief in
16,
January
two months after
motions was not filed until
1990—over
Savage
easily
incorporated
discus-
filed.
have
this
Scarfo could
point.
Gravely,
sion
that
486 Pa.
in his brief at
(1979) (where
raising
presented
post-
404
brief
issues not
A.2d 1296
arguments,
trial
was filed
court
those
motions
and the trial
considered
waived).
issue was not
Also,
decided,
simply
Savage
yet
case
to be
this did
because the
had
not
In Commonwealth v.
excuse Scarfo’s failure to raise that issue.
banc),
Mascaro,
(en
Pa.Super.
(1978)
court
260
when defendant facie prosecution may claim that a barred under 18 be Pa. *23 111, a prosecution prove C.S.A. the bears burden to by § the either the preponderance a evidence that “same of involved, is or exception conduct” not that a statutory reprosecution on statutory applies. the bar 284 (emphasis supplied). Therefore, Id. at 566 A.2d at any proof, before the has burden Commonwealth of the put must forth a non-frivolous facie prime defendant claim prosecution may by that the be barred section 111. In this case, trial deemed court that the defendants failed to aver a non-frivolous facie that trials prima may case their be barred section 111. with agree
While we the trial court in the result it issue, reached double regarding jeopardy we conclude that the trial court erred frivolous motion finding dismiss.
A a claim clearly frivolous claim is and palpably without merit; it is which no presents question. a claim debatable claims, Such futile interposed for the mere presumably of or purposes disruption, are to delay expressly be through identified court trial a written finding. The then opt request defendant a from may stay Pennsylvania Supreme challenge Court to preliminarily the trial court’s finding written of frivolousness and may appellate secure review the double claim on jeopardy following direct review retrial. Gains, Pa.Super. 208, 217,
Commonwealth v. 383 556 A.2d (1989) (en banc) 874-75 citing Brady, supra.17 Gains was a constitutional jeopardy double case and was not pursuant brought believe, however, to section 111. We analysis the term frivolous in that case comparable is to that which was intended for section claims.
The crux the defendants’ section claim is that the killing of part D’Alfonso was of the overall criminal enter- proof and, prior disposition
burden therefore, issue was not raised to this it is waived. present given 17. In the opportunity by case the defendants were Judge appeal finding Clarke to his of frivolousness. The defendants appeal filed an but later withdrew it. the federal RICO the basis for constituted prise which the tentacles of over the reach of Confusion convictions.18 abounds, only has re- and Pennsylvania statute the RICO RICO section interrelationship of cently addressed Traitz, 305, 597 A.2d 528 Pa. In 111. prosecution barred a state (1991), supreme our court Act, 18 Organizations Pa.C.S. Corrupt under § in feder- already had been convicted the defendants because Traitz recognized court for violations. al court RICO concerned inquiry in their section 111 step the first (RICO) Corrupt Organizations Act 18. Influenced and The Racketeer provides: person any (a) any received who has It shall be unlawful derived, directly indirectly, pattern or of racketeer- from income ing activity person through in which collection of an unlawful debt such or invest, principal directly participated use or as ... has *24 income, any any part acquisition indirectly, such in of interest or of affect, in, merce____ foreign of which interstate or com- or the activities (b) through pattern any person a of racke- It shall be unlawful for teering through acquire activity or of an unlawful debt to collection maintain, any any directly indirectly, in or of or interest control or enterprise affect, in, engaged the which which is or activities of foreign interstate or commerce. (c) person employed any by of which for or associated It shall be unlawful affect, in, any enterprise engaged or the with activities commerce, foreign directly participate, interstate or to conduct or enterprise’s through indirectly, in the or conduct of such affairs pattern racketeering activity of or collection of an unlawful debt. (d) any conspire any person to violate of It shall be unlawful for to (a), (b), (c) provisions or of this section. the of subsections 1962(a)-(d). provides U.S.C. Section 1961 certain relevant defini- § tions for the RICO statute: (1) involving "racketeering activity” any means act or threat mur- der, arson, extortion, bribery, kidnapping, gambling, robbery, deal- matter, dangerous ing dealing in or obscene or narcotic other drugs, imprisonment chargeable punishable State and which is under law year; for more than one (4) association, racketeering uals associated of this (excluding any period prior (5) "pattern U.S.C. "enterprise” includes act of chapter § 1961(1), (4), or of activity, racketeering other racketeering activity” requires at and the fact [******] legal entity, one which occurred after the effective date of and although last which any imprisonment) of activity; (5). of individual, and not a any legal occurred after the commission of union or partnership, corporation, entity; least within ten group two acts of of individ- years for sought whether the conduct which the Commonwealth govern- to the the prosecute was same as which federal Id., prosecuted. ment had 528 Pa. at already 597 A.2d argue at 1133. Defendants that since this homicide was scheme, part RICO regardless overall whether it act, a predicate was included as the federal encom- trial passed illegal all of the conduct. The defendants maintain prosecution scope that state for illicit activities within the enterprise infra, is therefore barred. As discussed this merit, argument agree lacks cannot but we with the trial Gains, supra. court that it is frivolous.19 We, therefore, agree must with Scarfo’s contention that proof the burden of was on the to show that the conduct for it intended to prosecute which was not the same that for as which defendants were convicted However, federal RICO action. the trial court a hear- held ing pre-trial on the motion the attorneys for the defen- dants and the Commonwealth relied principally argu- on the ments they given had their briefs related to this motion. note, however, may 19. We that the trial court have considered the motion to dismiss frivolous due defendants’ efforts to orches- litigation point prosecution trate the where the federal had to precede specific findings prosecution. the state homicide The trial court made no however, finding; this was the reason for its proof delay may discloses record substantial that this tactic been have position employed to the federal trial first. The record reveals that counsel, delayed prosecution unavailability the defense of '‘mental" for lack preparedness part on the of trial due counsel Scarfo schedule, busy opposition his trial to a summertime trial. When arrived, agreed upon the on date conduct the trial case was federal *25 proceedings again and postponed. trial the state once had to be may trial delay by court have considered that this the initiated prosecution proceed defense counsel which allowed the federal to prompted jeopardy the double section and 111 motion. The trial this, explicitly never Though court stated nor is it relevant. defense may dilatory counsel’sconduct have produce been and calculated to prior proceeding prosecu- trial the federal to state to test whether the barred, dismiss, time, tion point was the motion to at not Indeed, purposes delay for ities complex- the or frivolous in nature. the litigations involved in all the maña related in both the state courts, required and federal both counsel for the defense and counsel prosecutions strategies for the timing coordinate create for the why This separated trials. is the D’Alfonsohomicide was from the RICO case at the outset.
359
correctly
trial court
denied
arguments
these
the
Based on
relief,
finding that the Common-
111
implicitly
thus
section
of proof.
had met their burden
wealth
111
(ii)
Section
Claim
Merits of
affirmed
Traitz,
Supreme Court
Pennsylvania
In
the
v. Ab
adopted
111
Commonwealth
analysis
the section
(1983). Traitz,
479,
bott,
supra.
(3) designed offense defining Is the law the state harm or than the prevent substantially different evil defining the other offense? jurisdiction's law 312, (citing Traitz, 528 Pa. at at 1132-33 597 A.2d Com- A.2d Abbott, Pa.Super. monwealth v. (1983)). however, not inquiry, Each need be addressed. Abbott, In we stated:
If is not subsequent prosecution conclude that we prosecution, based on the same conduct as federal the statute makes analysis then our is concluded since subsequent prosecution that in such clear situation however, If, not we conclude Commonwealth is barred. “is subsequent prosecution by Commonwealth which appellant on the same conduct” for based government, prosecution prosecuted by the federal following can if conditions exist: proceed only both of (1) not prosecutions proof of the a fact requires each other; (2) upon the statute which the required is intended to pre- based is prosecution than is the federal substantially vent different harm It an affirmative answer statute ... would seem that prose- inquiry subsequent initial lowers the bar to the *26 360 only response
cution and that
an affirmative
both
remaining inquiries
can lift the bar.
488-89,
Abbott,
Pa.Super.
319
at
(emphasis
In Mascaro we defined the term “the same conduct” to
mean “any and all criminal behavior
in support
committed
” Mascaro,
of a ‘common and continuing scheme.’
260
427,
Pa.Super. at
394
at
Abbott,
A.2d
1001. See also
319
493,
Pa.Super.
Otherwise,
at
In other cases we subsequent have barred Common- prosecutions wealth where the type same of criminal con- duct occurred at different points time but constituted the same of criminal type See, transaction. e.g., Savage, supra (state trial barred where prove Commonwealth did not criminal conduct of conspiracy different from that *27 court); in tried federal appellant for which conspiracy doctor, (Commonwealth trial barred where Abbott, supra drug federal distribu- of state and with violations charged federal trial episodes, criminal for the same tion laws stated, conviction). in As we have Traitz in resulted prose- barred Traitz’s state Pennsylvania Court of Supreme Corrupt Organi- pursuant charges brought of cution already Traitz had (“COA”), 18 Pa.C.S. 911. zations Act § which court for RICO violations tried in the federal been After examin- of conduct. the same course resulted from statutes, supreme court de- ing the RICO and COA clared: crime that organized target Act and COA
The RICO conduct, recogniz- illegal of patterns by varying surfaces organized by obtained power ing money It is the legitimate used to businesses. crime are subvert conduct, individual underlying not the illegal course of the two statutes. acts, are the criminal focus of therefore, examined, is of the conduct The conduct to be racketeering activity. of evincing a pattern an individual the individual offenses significance lies not with in racketeering but pattern activity, of culminating in the of racketeer- pattern scheme that is promoted ing activity. added).
Traitz,
(emphasis
Pa. at
RICO (“Nothing this systems of the States. See 84 Stat. 947 State, Federal, or supersede any provision shall title affording or civil imposing penalties other law criminal title”). for in this provided remedies addition to those Thus, to exercise RICO, under remain free States police powers
their to the fullest constitutional extent in defining and prosecuting respective crimes within their That some jurisdictions. may of those crimes also consti- predicate RICO, tute acts racketeering under is no on separate restriction administration jus- criminal tice the States. 9,n.
Id. at 586
S.Ct. at 2530 n. 9.
case,
Turning to the facts of this
we first acknowl
edge that
the D'Alfonso homicide was deleted from the
predicate
RICO indictment as a
act
the federal case.20
had, therefore,
The facts of this murder case
never been
litigated. The sole
or
overlapping
testimony
conduct
in the
*28
alleged organized
connection,
two cases
the
was
crime
particular the
the
Philadelphia family,
purpose of
which
to illustrate the motive for the murder. The conduct in the
RICO case concerned numerous other acts of racketeering
in no way
which
were related to
this case. The conduct
the murder case concerned the planning, stalking, and even
reiterate,
tual execution of Frank D'Alfonso. To
when
addressing
of organized
pursuant
RICO,
issues
crime
the
illegal conduct,
is
course of
not the underlying
“[i]t
individual criminal acts”
inqui
which are the
of the
subject
Traitz,
ry.
22. Although final two a there is no need for discussion Abbott, Traitz, supra; supra, we analysis, see tions of section begin by complete analysis. briefly We will address them required recognizing requires proof of fact not prosecution that each enterprise. required proof See of an other. The federal trial proof. required such supra. no The Commonwealth trial footnote conspiracy prove existence The Commonwealth had to *29 aof criminal murdered. The existence the fact that D’Alfonso was may conspiracy different than the existence to commit murder be 1, Wetton, Pa.Super. enterprise. A.2d at 1073 an (existence See 405 at 591 conspiracy charge). enterprise of criminal is immaterial to case, Also, murder, predicate the federal proof if act in the of the not a deleted from the is to the case. The murder was not relevant federal and, thus, required charge different facts the two cases federal RICO Traitz, Abbott, supra. proven. supra; to be substantially Finally, defining the two offenses address the laws Turkette, Supreme States or evils. In the United different harms cope primary with the purpose “the of RICO is Court declared that 591, legitimate 101 S.Ct. at U.S. at infiltration of businesses." 452 was, therefore, enterprises designed stop criminal 2533. RICO exerting power sphere entering legitimate from the businesses Murder, however, through illegal was made a crime to deter means. public against protect the physical citizens and invasions individual Thus, safety. crimes were purposes evil for which the two the and Traitz, Abbott, sepa- supra; supra. Because the created are distinct. charges requirements of the two met the rate the Commonwealth 364
C.
The
also
defendants
contend
their state trial
jeopar
was barred
the constitutional doctrine of double
In
jeopardy
order to resolve a double
we
dy.
question,
turn
Corbin,
test
v.
two-prong
Grady
the
articulated
495
2084,
508,
(1990).
U.S.
110 S.Ct.
Where the Blockburger subsequent test does not bar a us prosecution, Grady instructs to make a inquiry second government, to determine to establish an “[whether] charged essential element of offense subse- [a quent] prosecution, prove will conduct that constitutes an offense for already prose- which the defendant has been government cuted”. Id. on Where the relies the same prior conduct for subsequent prosecution, double jeopardy bars the subsequent prosecution. While offenses, first inquiry focuses on the elements of the on second focuses necessary prove conduct each offense. Bellezza, 469, 483, 412 Pa.Super. (1992).
A.2d Our resolution of the section 110 claims requirements address the of the two-prong we, Grady thus, test and rely on that discussion to support our determination that defendants’ double claims jeopardy are meritless. DEATH-QUALIFIED
IV. JURY The defendants next raise issues concerning the jury selection which involved “death-qualifying” jury- chosen *30 inquiries,
final claim defendants of bar under sec- Traitz-Abbott tion 111 lacks merit. Id. are persons in which the venire is one death-qualified jury A where, given ap- if the situation regarding questioned a the facts of follow, could evaluate they to law propriate a sentence impose potentially murder case and first-degree contend that trial essentially The defendants of death. a prosecution to seat not have allowed the should court or knew the Commonwealth jury because death-qualified that prior to selection jury have known reasonably should to circumstances war- aggravating there were insufficient penalty. the death capable imposing a choosing jury rant impar- denied a fair and they that were They argue further excusing potential for cause trial court’s jury tial a inability in or an to render indicated a disbelief who jurors of death. sentence penalty. Judge death did not receive the
The defendants its evidence at Clarke, presented after the Commonwealth motion hearing, granted the defendants penalty phase purview jury out of the to take the death sentence aggravating failed to show the Commonwealth because of such an imposition warrant necessary circumstances however, contend, that The defendants extreme sentence. jury of the they death-qualification prejudiced were sentencing death-qualified jury due to their that belief guilt phase an in the prone against is more to find accused aof trial.
A. the death- We shall first address the issue whether constituted sham qualification reasonably knew or should have known that the prosecution imposition aggravating factors were insufficient warrant of the death penalty. contends that defendants’ joint
Salvatore Merlino offense elements of pre-trial capital motion dismiss the to force the charges was not intended he capital. Instead, argues this elect whether case interven- the motion intended to seek the trial court’s *31 366 whether
tion
determination on
there was a potential
argument,
penalty
however,
death
issue
this case. This
has
standing
lacks merit. The trial court
no
to make such a
In
determination.23
Commonwealth ex rel. Fitzpatrick Bullock,
292,
(1977),
471 Pa.
Furthermore, certainly the Commonwealth could approached capital allowing have this case as for a death- In qualified jury. Commonwealth v. 480 Pa. Kingsley, 560, 391 (1978), A.2d 1027 our supreme court was faced determining with whether it appropriate to question persons willingness venire about their impose a verdict which would require a sentence of life imprisonment.24 The court stated: point At Pennsylvania this we must consider Rule 352 of the
23. Rules requires of Criminal Procedure. Rule 352 the Commonwealth to defendant, notify arraignment, any aggravating at or before sentencing hearing, circumstances it intends to Commonwealth at the offer unless attorney does not become aware of the information arraignment until after the or the trial court extends the time for rule, however, shown. applies cause Pa.R.Crim.P. 352. cases arraignment July in which occurred on or after 1989. In the present arraigned case defendants were in March of before well Therefore, the effective date Rule 352. we shall address notions of procedures pursuant trial court error employed prior to the law to the effective date of Rule 352. Kingsley during period was decided death-penalty 24. after declared prior Supreme unconstitutional and to the United States sup- its evidence could believed that the Commonwealth degree____ murder of the first We can finding port allowing question concern- find no error reversible of a life sentence. ing imposition 573, 391 at 1033-34. therefore Id., 390 Pa. at A.2d We is death-qualification appropriate conclude that first-degree murder and the person is tried where to be reasonably aggravating believes there dire. at the voir factors *32 of whether aggrava
We
turn to the question
now
It is an
factor to commit
aggravating
factors existed.
ting
knowingly
grave
“the
created a
an offense where
defendant
to
person in addition
the victim of
risk of death to another
9711(d)(7). It is
42 Pa.C.S.
clear from
the offense.”
§
the
supreme
persons
our
court that
other
by
cases decided
harm, however, they
subject
not
actual
must be
need
suffer
See,
Morris,
v.
522
grave
e.g.,
ed to
risk.
Commonwealth
533,
(life
(1989)
endangered
by
Based section the Judicial Code decisions, supreme court’s the Commonwealth in this could have this reasonably case believed that case, first-degree worthy death-qualification. murder At shooting the scene of the of neighborhood outside delica tessen, people there several present were close proximity gunmen. One was a thirteen old year boy, Frank Broceo. One assailants was so close to Broceo powder that he received burns from the discharged material gun. Maranca, the assailant’s Another Paul hid boy, under a water ice cart front of the store for many as as ten the shooting minutes after before fleeing uninjured. Morris, Marsella, See Alex supra. proprietor, the store’s he, well; was near victim at the time of shooting as too, hearing fled after a shot. Logan, supra. Testimony *33 also revealed that Mr. Marsella’s daughter-in-law was inside store, business, the tending and that there were other children proximity within the of Any the store. one of these people, Marsella, Maranca, particularly Broceo and potential were of shooting spree. victims the Marsella, The testimony revealed that Broceo and Maran- ca each close enough were that missed shot or a bullet which passed through body the of D’Alfonso could also Smith, have struck of any these It people. supra. is also Broceo, worthy mention that who was familiar with guns, testified to six hearing Only fragments shots. from three bullets were just recovered and one of these came from the body defendants, D’Alfonso. The having targeted their victim, disregarded grave the risk of death they created to each one the bystanders in the vicinity. The Common- wealth could therefore reasonably have believed there were aggravating factors for death-qualifying jury.
369 Smith, Griffin, supra; supra; Morris, Logan, supra; not allow did sentencing court though Even supra. Commonwealth jury, issue to reach penalty death believed, the information upon based reasonably have could dire, potential existed a that there to voir prior knew they punishment. capital imposition death-qualifica that the contention The defendants’ conviction-prone seat a more in order to tion a sham has consid court supreme Our meritless. equally is raised appellants in cases where this issue rejected ered and cases. penalty in death conviction-prone juries issue of 479 Pa. 563 A.2d Strong, v. Commonwealth See 1536, 108 1060, 110 denied, S.Ct. (1989), 494 U.S. cert. 521 Pa. (1990); Hughes, L.Ed.2d 775 McCree, 476 (1989); Lockhart v. accord 555 A.2d (1986). According 1758, L.Ed.2d 137 162, 106 U.S. S.Ct. argument. reject must this ly, we
B. sever that there were also contend The defendants they because merely for cause were struck jurors al who they or did not feel penalty to the death opposition were argue that The defendants that sentence. impose could cause because these strikes for granting court erred in trial just As we have conviction-prone jury. the the result was a already court has IV(A), supreme our part determined supra; argument. Strong, this rejected addressed and trial court We, therefore, find that supra. Hughes, members excluding jury no error palpable committed penalty. Common disdain for the death who indicated (1989) 1246, 1249-50 A.2d Lane, 521 Pa. wealth v. persons rests (decisions striking of venire regarding the not be over and will judge sound discretion of trial error). a palpable *34 turned absent OF PRE-TRIAL CHANGE MILANO’S V. EUGENE PLEA concerning Eugene issues
The defendants raise various cooperate with change in and decision plea Milano’s immediately prior This occurred to the Commonwealth. “Gino”) or Eugene (Eugene Milano of trial. commencement change prior plea case to his and defendant this was a during dire and the defendants voir was seated with announced, in The a of the jury. selection intention public, Eugene’s jury courtroom cleared 15, 1989, morning of March after plea his on the change argu- on day opening selected and jury had been Christie, Barbara the Common- begin. ments were set to “Eu- “flip,” handled Milano’s stated prosecutor wealth who contacted law enforcement who gene very recently Milano me, recently, cooperate most of Milano’s wish to advised The court agents____” enforcement speak and to law a hour recess for the Commonwealth granted twenty-four Milano and for defense counsel to consider this to interview change circumstance. unexpected reconvened, 16, 1989, the defen- March when court On charges dismissal of the based on Eu- dants moved for a camp. Milano’s invasion of the defense Scarfo’s attor- gene Simone, argued on behalf of all defen- ney, Robert who dants, that the newspapers reporting stated that the were for “the negotiations on-going past with Milano had been indicated that Milano had access to de- two weeks.” He reports investigative reports. appeal, fense On allege that Milano had access to defense strate- defendants planning. gy motion, request hearing on this no for a argument
At and, upon give cautionary made the trial court’s offer to a de- jury regarding “flip,” instruction to the Simone clined, stating that he did not want to remind the Milano had been seated with the defendants earlier. prosecutors requested cautionary they instruction because court, that case as much. The trial suspected required law however, considered the concern addressed defendants’ might give and decided that it such an instruction waiver however, given, when Milano testified. No instruction was Furthermore, charge request until the to the no jury. hearing judge was ever made. The trial also warned *35 the that Milano was jury to remind not Commonwealth earlier. table at the defense seated regard- came in trial, testimony expected the During the open- circumstances. In the and its change plea in ing regarding the fact were made remarks ing no statements dire, during voir defendants was seated with that Milano change him about the question did but the Commonwealth he sat defendants earlier. that with plea in and mentioned of made mention this Again, the However, no point objection at was an closing arguments. the defense. made the trial court should have argue that
The defendants in plea the change to dismiss after granted their motion aligned camp, been with defense Eugene had because selection. strategies, participated jury had knew their not the trial court should have allowed They argue that also change in Eugene’s jury to remind the prosecutors trial. The trial court’s deci- the course plea during asking govern- about Eugene testify sion allow brother, his who still a make deal for ment a case, is the defendants as also raised defendant arguments these raises several of Ligambi trial error. claims. assistance of counsel alternatively as ineffective any specific prejudice they may Defendants have not listed defense privy than that Milano was have suffered other in general. strategies
A. First, trial erred in argue defendants that the court against Eugene them after failing charges to dismiss the plea argue his testified. defendants changed jury Eugene’s the Commonwealth reminded the when had plea sitting and that he been with change selection), couple ago” (during jury defendants “a of weeks they to the extent that dismissal was prejudiced were Had the trial not instructed the judge properly warranted. co-defendant cannot be used to jury guilty pleas trial, guilt of a on then the defen- defendant establish However, argument dants would have merit. the trial court appropriately legal instructed the on the correct stan- opinion, dards. section VII of this See infra. Geho,
In 302 A.2d Pa.Super. Commonwealth v. (1973) (en banc), defendants in a three defendant two *36 entered pleas guilty during case the trial and the plea After the the court cautioned the presence jury. jury change plea against that this could not be used the remaining guilt. defendant as evidence of his This court en deciding banc affirmed the conviction of the third defendant case, a appropriate that such where instructions are jury given, may Pa.Super. a conviction stand. 223 at A.2d at 466.
Here, Eugene Milano stood never trial before this jury, but the of the fact that jury well aware Gino was a co- prior defendant to his he sat the plea; with defendants selection, and, during the if that did not jury jury alert the status, to his former then defense counsels’ and the prose- prose- cutors’ reminders must have. We note that both the cution and the defense questioned Eugene length at about change that the defense did plea object not when reminded the prosecution jury Eugene had been a However, defendant two weeks earlier. the trial judge adequately and instructed accurately jury that the bur- den was still on the prove guilt beyond Commonwealth to a Eugene’s reasonable and that could plea doubt not be used against remaining court, defendants. The trial there- fore, correctly Geho, denied the motion to dismiss. supra.
B. Next, argue defendants that the trial court erred in allowing the prosecution jury to remind the about change plea Eugene and that had been a defendant. Appellate counsel relies on to support argument. Geho this mistrial, V(A), Our discussion of the denial of the at supra addresses this contention. Accordingly, this claim lacks merit. To the extent the defendants raise the claim as find that we must object, ineffectiveness failure Durst, supra. well. contention meritless as C. court of error trial allegation
A third his regarding discussions Eugene testify it allowed plea arrangement for Nicholas the authorities about with Milano, argue that this violates Defendants his brother. instruction is Geho, jury clear proper, which instructs that association. guilt by possibility meant avoid preceding to in instruction referred Again may defendants have any prejudice discussions cured which to his testimony relevant brother Nich by Eugene’s faced defendant be found charge required olas. The that each based on the evidence a reasonable doubt guilty beyond Therefore, this claim is meritless. presented against him.
D. raise related to Finally, among the issues defendants *37 plea, argue in defendants that his Eugene change Milano’s in the Commonwealth’s change plea may have resulted a strategies, constituting intrusion the viola- into defense’s Essentially, tion of sixth to counsel. right their amendment newspapers reporting the were argue defendants that since for Eugene plea bargain that had a two negotiating been weeks, him could have with the kept the Commonwealth purposes ascertaining of defense trial strat- defense for the Eu- egies and other information. The record reveals that of, in, nor gene’s participate did not was he aware attorney simply Defendants do not know the plea negotiations. if reason for the even there was a delay actually delay or They accepting negotiating change plea. and/or aver have a to determine hearing trial court should held ineffective for attorneys these issues and that their were failing to a request hearing. such allegations
This
of
to us. The
particular
issue is
concern
to the heart of due
fairness. At the outset
go
process and
cases,
that,
are mindful
in order
certain
prosecute
we
use
who
witnesses
for the Commonwealth
a need
there is
it is not
Secondly,
conspiracy.
a criminal
members
were
midway through
his
change
plea
a defendant
for
unusual
however,
defendant to then
usual,
for that
less
It is
a trial.
witness;
certainly
it is
not
though,
cooperating
a
become
remaining defendants
rights
illegal provided
infringe-
such
infringed. Unfortunately,
not
to be tried are
first
this is an issue of
case. Since
in this
ment occurred
Commonwealth,
non-binding
turn to
we
in our
impression
analysis.
in our
guide
us
decisions
federal
Cir.1972),
(3d
375 United, (5th Cir.1978) Kilrain, 566 cert. F.2d 979 States v. 819, 80, (1978). 109 In 439 99 S.Ct. 58 L.Ed.2d U.S. denied Kilrain, government a former informant after unsuccess agreement, pled guilty days two fully negotiating plea he He then into the trial in which was a co-defendant. trial, not of the information any at but did relate testified through the evidence his former regarding any of obtained The co-defen informant status. court affirmed the paid they prejudice to show any dants’ convictions because failed resulting testimony. from the informant’s also Supreme
The United States Court has considered right counsel in of intrusion into issue of the the context In in a civil context. camp the defense Weatherford (1977), 30 S.Ct. 51 L.Ed.2d Bursey, U.S. brought action Supreme rights Court considered civil 1983 for intrusion pursuant governmental U.S.C. § constitutional strategies affecting right into defense Weatherford, an counsel. undercover representation by detective, met his plaintiff Bursey attorney prior with Bursey’s criminal trial to discuss the trial. Weatherford arrested so as not to charged along Bursey with his cover. The trial that no time reveal court found “[a]t his superiors did Weatherford discuss with or on to or pass or staff prosecuting attorney any attorney’s to the plaintiff’s details or trial ‘any regarding information strategy, or to do with the criminal plans, anything having ” at at activity pending against plaintiff.’ Id. 97 S.Ct. (quoting the District Court Weatherford did opinion). against though testify Bursey proceeding, criminal day did not know this would until the Bursey happen trial. Supreme plaintiff’s decided constitu- Court However, rights it also
tional were not violated. stated case Bursey stronger would have had a much if: as to Weatherford testified at trial the conversa- Bursey’s [Bursey’s tion between and Wise Bursey attorney]; [] of the State’s evidence these conversa- any originated tions; those overheard conversations been used [] [had] *39 other any way the substantial detriment of Bursey;
or even
the prosecution
Weatherford,
learned from
an
[ ]
agent,
undercover
the details of the Bursey-Wise conver-
sations
preparations____
about trial
at
Although
Id.
In
361,101
United States v.
U.S.
S.Ct.
(1981),
Addressing
present case,
ourselves to the
we must
consider what standard to adopt for courts to
apply
this
Commonwealth when reviewing claims of violations of the
sixth
right
amendment
counsel
the context of an
“intrusion into the defense camp” argument. The Common
wealth insists that defendants have not been prejudiced by
any potential defense intrusion. They also assert that there
was no such intrusion. After much
adopt
consideration we
the “likelihood of prejudice”
set forth
Court
standard
of Appeals for the Third Circuit in
in order to
Rispo
address
here,
where, as
camp
intrusions
claims
defense
as
did in this case.
proceeds as far
it
intrusion
must start with an examination
analysis
Our
*40
right to counsel. Both the United States
amendment
sixth
guarantee
right of
Constitutions
the
Pennsylvania
and the
Const.
proceedings.
to the accused
criminal
U.S.
counsel
I,
amend.;
9. The
Pa. Const. Art. Section
United States
6th
has further stated that
order to realize
Court
Supreme
counsel, an
guarantee
of
of
constitutional
purposes
to
that coun
representation
is entitled
effective
accused
Alabama,
53 S.Ct.
sel. Powell v. State
U.S.
of
(1932);
ex
When the has access information counsel, accused and defense potential discussed for to the ac representation devastation the effective true in a case quite particularly cused becomes real. This is as involving many defendants such the case here. “[I]n trials complex, group may multi-defendant ... consultation key an effective preparing be the to defense.” Govern Intrusions, supra possibility ment at 1146. that intru may parties sions occur when are the heightens multiple In it subject group defense. such a case would be a defendant to the other defen reasonable for assume that dants are allied with him or her and that the confidentiality made of group preparation statements for benefit stay would group appropri confidential within the until the disclosure, ate time for trial. perhaps at “Defendants have right prepare group defense and the right both .counsel; privately communicate with constitutional princi- ples requiring a defendant one of forbid waive these rights in order to exercise the other.” at Id. 1147. Thus group preparations require defense do not special protec- tions aside from those in a necessary single defendant Rather, like they require, single situation. defendant situation, no government assurances that intrusions into the camp defense will occur. case,
Turning present to the whether the Common actually privy any strategies wealth became defense or secret information is inconsequential purposes of our The late change plea along review. notice of the with the suggestions by defense counsel reports plea indicated negotiations government agents between and Eugene Mila *41 no had on-going been for approximately two weeks raised a sufficient finding inference to warrant a that an intrusion may have occurred. Because Eugene had been seated with during dire, the defendants the voir jury exposed he was to the defense in strategies securing a desirable as well as to those regarding potential decisions positions defense on matters any discussed immediately prior to trial. Eu gene may had insight have information on—or into—who testify, scope would the of such any testimony, whether a defense presented would be and what that defense would entail, the evidence to be elicited from Commonwealth wit cross-examination, on nesses and any potential other issue may which have arisen during prosecution the of the action. or all of Any this information may not have been to known prosecution the prior change However, to the in plea. Commonwealth, failure of the any point, at to satisfactorily describe or aver they that had created some separa sort of tion between the agents prosecutors handling the change in plea and those trying the case indicates to us that a strong potential for exchange information possible, if probable. not Eugene After change Milano’s in plea and cooperation prosecution, however, with the potential remaining defendants peril direct to a disclosure became standing trial. defendants no to resolve whether simply way
There is camp. the defense by intrusions into prejudiced fact were proclamation the Third Circuit’s persuaded We are very there is a new trial is warranted where that a Rispo Recognizing to the defendant. prejudice likelihood real situation, it extreme court had before an Rispo that during prosecutors to the the informant known where during sat as a defendant and the informant prosecution a we nonetheless hold that there was prosecution, the entire since to the defendants prejudice very real likelihood up case to the important part an Eugene Milano was reiterate that the “elev- arguments. We point opening appearance caused the change plea hour” enth well have occurred. process may substantial due violations process whereby we must not delve into In this situation to the defendants attempt prejudice we balance against right intrusion effective assis- caused determi- agree Rispo court’s tance of counsel. We with nation that standard of necessary rigid it not down lay is
[w]hile
mind
se,
keep
is
in the
the view
it well to
prejudice per
U.S.,
315 U.S.
62 S.Ct.
expressed Glasser [v.
“the
the assistance of
right
L.Ed.
to have
680],
courts
is
and absolute to allow
counsel
too fundamental
indulge
preju-
in nice calculations as to the amount
its
arising
dice
from
denial.”
*42
States, 315
(quoting
at
U.S.
460 F.2d
Glasser United
(1942)). While it is
60, 76, 62
Having very likelihood of presumed created intrusion into the prejudice was must now fashion an reme camp,25 appropriate defense we dy. presuming
25. We note that we are not that there was a fraud on the Indeed, support not court. Rather, the evidence does such a conclusion. change plea, cooperation we that the in addition to find Milano, Eugene very prejudice of of an cerned, effected a real likelihood of because apparent camp. intrusion into the defense We are not con- case, purposes for the of this whether or not there was an change plea resulting .agreement actual intrusion. The cooperate any give occurred so late that other conclusion would rise very strong appearance justice to a handedly. was not administered even- anticipate majority presumption We that in the of cases a of intru- instance, camp sion into the defense will not have to be made. For many likely government intrusions will occur where a informant camp enters defense in effort to secure his or her clandestine intrusions, very cover. Where there are such actual real likelihood prejudice presumed. must be uncertainty Problems arise where there is as to whether an actual occurred, intrusion examine the as in this case. In such a situation a court must surrounding circumstances to determine whether an presumed. intrusion itself should be The court must look at the give factors and precisely the benefit of the doubt to the defendants. This is presumed what we have done this The intrusion case. is proximity change plea to the due the had been Eugene to the commencement of trial, evidentiary portions suggestion plea negotiations weeks, on-going approximately two and the fact that participate sat with and could with the defendants in voir prior suspicions regarding dire intrusion are raised to the to trial. Because of these facts our an point that to ensure fairness and due process, presume we must an intrusion. that, Finally, though adopt Rispo we note even we standard of a very prejudice, real presumption, likelihood of we hold that also this applicable, may if is not irrebuttable. The Commonwealth rebut the presumption convincing where it can show clear and evidence that providing any some method of a barrier between information ob- regarding posture tained prepara- the defense of the case and the trial *43 importance of from the fundamental detracting [Without cases, we have implicitly in criminal the to counsel right for interest preserving society’s necessity the recognized involving justice. of criminal Cases in the administration general the subject are deprivations Sixth Amendment injury be tailored to the suf- remedies should rule that should not violation and from the constitutional fered interests. infringe competing on necessarily at at 101 S.Ct. 667-68. Morrison, U.S. remand an evidentia that a Initially, appears it there was disclosure of any whether ry hearing identify However, strategies appropriate. be after defense would an endeavor we conclude such much consideration put in one can never the futility; an exercise would be As the back into Pandora’s box. neatly swarm of evils stated: Levy court can, hearing, that a court in such a highly unlikely is
[I]t government’s conclusion as to how the at a certain arrive of strategy might the defense knowledge any part of the government investigation its further benefit case, process pretrial in the discussions with subtle witnesses, in the or in the potential jurors, selection of trial itself. dynamics court also Levy
U.S. 577 F.2d at 208. Levy, generous it too to assume that may noted that be government will act with the forth- attorneys appropriate rightness Finally, such encounters.26 the federal court addressing prejudice Levy noted difficulties post-trial: the defendants prejudice
At court an actual point applying a trial face of reexam- impossible test would task virtually to determine whether the ining proceeding the entire Thus, prosecutor existed. no obtained from tions for information case, pass prosecutors trying to the the intrusion would prejudice therefore no has would arise. In this case the Commonwealth a barrier. not evinced such necessarily prosecutors. disparage 26. not seek to We do We do circumstances, prosecutors, not decide that ly under these necessari- derogation acted law. *44 disclosed information influenced the government’s investi- gation or of or presentation its case harmed the defense other any way. agree We with the sound reasoning court; Id. of the Levy however, unlike the court we choose Levy not to dismiss the charges.
Instead, think we the appropriate method to as suage prejudice the defendants in this case is to judgment reverse the of sentence and remand for a new trial. Any prejudice may which have been suffered defendants will have likely dissipated since the assistant large extent, district to a attorneys, disclosed much of their against evidence the defendants at the first trial. Further more, a new trial would require entirely process an new of selection presentation and of evidence. While arewe not of aware that all the prejudice might which have result ed from this case, situation may be removed from the we believe that the present disposition is much like any prose cution where an indicted co-defendant decides to cooperate with the Commonwealth. Such a circumstance does not ordinarily legal constitute to the prejudice defense.
A final process note on due Judge as related by James Rosen of the Third Circuit complete shall our analysis, as this passage eloquently reflects of fundamental notions due process and fairness which are at the core of the above analysis:
The concept basic of due process is fair play. test of system legal our jurisprudence should be measured by the interest we take safeguarding the fundamental rights of an A accused. defendant is entitled to a fair determination of guilt. his Fair trials insure our concern with due process and contribute to what we believe is the proper administration of justice. criminal It is only this way prevent that we the undermining and mockery of justice. “The most reviewing fundamental a court’s duties is to see to it both that the end result in a case is just correct and that the means utilized are fair and proper. Such is the essence of due process of law.” v. Newark at Lowenstein (quoting F.2d Rispo, 156, Education, 163 A.2d 33 N.J. Board of (1960)). very indicative under circumstances hold that
We camp, a court the defense of intrusion into strong possibility inured prejudice real likelihood very presume may way is the to ensure that only This to the defendants. We, is guaranteed. of counsel right to effective assistance this therefore, ground of sentence on the judgment vacate trial. remand for a new AND IN ADMISSION OF TESTIMONY ERRORS VI. EVIDENCE *45 during times allege that several defendants inadmissi
trial, testimony which was the trial court allowed of trial prejudicial. complain The defendants ble or of: court’s allowance beating a of the victim concerning prior testimony
A. mafia; of the to “made members” and references its wit- own impeachment B. the Commonwealth’s Jackson; ness, Margaret of an un- testimony grand jury the introduction of
C. witness; available prior admitted without co-conspirator’s a statement
D. establishing conspiracy; evidence article; a newspaper E. admission an expert interpreting as trooper’s testimony F. a state expert; an being qualified as conversations without although he con- testimony DelGiomo’s Thomas G. Code which involved of the Election victed a violation perjury. element of an is exclusion of evidence
A on the admission or decision and will not be discretion of the trial court within the sound an of that discretion. Common- absent abuse disturbed 564, 1212, 1218 552, A.2d Cohen, 529 Pa. 605 wealth v. 85, 81, A.2d (1992); Ford, 451 Pa. 301 Commonwealth v. Franklin, Pa.Su- 856, (1973); 397 858 (1990), denied, 527 265, 276, 25, 31 per. 580 A.2d allocatur 384 641, (1991); Meadows,
Pa.
A. allege The defendants first trial court error allowing related to references of testimony past criminal activity. the trial court Specifically, testimony concerning allowed beating of Prank D’Alfonso four years prior to his death. The court permitted also references made the prosecu- tion to all of the defendants’ status “made” as members of testimony requirement LCN when revealed that a to be- come a made participation member was a homicide. long
It has been the that evidence of prior law criminal activity against “is a defendant being inadmissible tried for another crime because the fact of the commission *46 of one proof offense is not of the commission of another.” Peterson, 187,197, 264, Commonwealth v. 453 Pa. 307 A.2d (1973). 269 sometimes exist special oper- circumstances which
[TJhere ate as to exceptions general bring the rule and the case within the equally principle well established that evidence (1) of other crimes is prove admissible when it tends to intent; motive; (2) (3) accident; (4) absence of mistake or scheme, a common plan design embracing or commission of two or more crimes so related to each other that proof of one prove others; (5) tends to the or the establish of identity person charged the with the commission of the crime on words, trial—in other where there is such a
385 proof that of one the crimes connection between logical is person the the tend show that accused naturally will other, omitted). (citation the When the committed who of one these five important and is relevant evidence prejudicial the effect issues, it conceded generally is value, (footnote the outweighed by probative be may omitted).
Id., the time our 197-98, By 307 at 269-70. Pa. A.2d 453 at Billa, 521 Pa. v. decided court supreme (1989), exceptions more to the 168, 835 three 555 A.2d testimony of crimes were prior of exclusion general rule admissi- Evidence of crimes became prior to the list. added who testifies credibility the of a defendant impeach ble “to trial; prior situations where defendant’s his own [in] or him to threaten criminal had been used history victim; the distinct intimidate the situations where in] [and of events which sequence were a chain or part crimes natural part the case and were its history formed the excep- (sometimes development called transaction”] [“same tion).” Id., Common- 177, (citing 555 at 840 521 Pa. at A.2d Lark, (1988)). wealth A.2d 491 518 Pa. appellant an gloss This has added a further court when In Com- testimony. challenges prior admission of crime Hude, (1978), monwealth v. A.2d 183 Pa.Super. test four factors suggested balancing we a which addressed admissibility it rules on the court should consider before of such evidence. The factors are: evidence in the need for the other crimes actual evidence available to the the issues and the other
light prosecution, that other crimes convincingness of the evidence actor, committed accused was
were
evi
strength
or
of their other crimes
weakness
issue,
[weighed against]
supporting
dence
will
be roused
degree
probably
which
over-mastering
hostility.
the evidence to
Hude,
Hude
Pa.Super.
at
(i) Prior Beating of D’Alfonso start of
We with testimonial evidence the beat ing of D’Alfonso 1981 where Gino Milano and Salvatore body Testa dealt several blows to the head and of D’Alfonso bat, for pipe leaving with a baseball him dead. The of beating history was introduced show the the relation Scarfo ship between and Bruno. revealed Testimony Angelo former boss' Bruno D’Alfonso had mob been together prior involved certain business ventures to Bru no’s Scarfo slaying. When became boss after Bruno’s death, he sent certain to question individuals D’Alfonso present dealings. D’Alfonso about his business D’Alfonso give refused or any Scarfo of his men the information requested. Scarfo was also aware that a had newspaper reported that D’Alfonso was the new boss of the LCN thus, Scarfo, Philadelphia family. directed that D’Alfonso beaten. be Thomas DelGiorno testified that Scarfo’s dislike prior beating D’Alfonso commenced to the and contin ued after it.
The evidence history animosity indicates and resentment for Scarfo based on D’Alfonso’s lack respect for position Scarfo’s and failure to accord the mafia regard the proper it deserved. Ill-will is relevant to show Chism, motive in a homicide. Commonwealth v. 480 Pa. 233, 247, (1978). 389 A.2d fact beating of D’Alfonso was remote time to his death is no consequence because remoteness in time affects the Id. weight evidence, Thus, not its admissibility. beating evidence of the certainly relevant Scarfo’s motive.
Moreover, the relationship it is of the other defen dants to Scarfo which makes this evidence relevant to them. defendants, All other killing, at the time of the were either *48 The members. mafia proposed or the mafia members of respect prestige and from it demands operates because it, and membership, those associated with its within those According it. to Thomas by who are victimized those power, the insolently attacks DelGiorno, someone where D’Alfonso, all mob, as had of the reputation prestige Therefore, of their ties to because suffer. mafia members Scarfo, a shared of the defendants had all the mafia and and cavalier attitude due to his brazen malice for the victim Thus, of the admission family.27 crime the Scarfo towards falls within beating of D’Alfonso concerning the evidence general prohibiting rule testimo- exception the to the motive not his did abuse judge and the trial ny prior of crimes Billa, Peterson, supra; supra; admitting it. discretion Franklin, supra. Ford, supra; beating the argue that evidence Defendants probative and that Hude requires more than prejudicial was re Hude the first reaching jury. them from prohibiting Hude, supra. quires an actual need for the evidence. this evidence Here, need because was there was actual had a motive necessary to that all of the defendants show prong of the Hude test requires killing. for the The second and that convincing prior that the evidence of the crime be and DelGiorno the the actor. While Milano accused was sources, deemed credible polluted testimony were their was prosecution the identification key the as were jury they beating evidence of the of the evidence witnesses and other Third, to the evidence helped corroborate their stories. strong prove motive since beating relatively the to beating on for D’Alfonso carried after the Scarfo’s disdain according we the above three Finally to DelGiorno. balance potential exception general rule 27. We see for an to the also the exception. It against prior evidence of crimes in the same transaction sequence. killing step have been a natural seems that could Billa, why supra. beating show D’Alfon- See was also relevant to target was a took to stalk. As a result of so difficult months stay beating, in the the victim became mobile and tended to less strategy neighborhood original D’Alfonso’s close to his house. The for away neighborhood was to while execution kill Mm he from likely so that others would be less hurt. be for potential considerations with the be “roused hostility.” Hude, over-mastering We find supra. tips of admission balance favor evidence that the beating strong evidence is a indication of motive which not, instances, would under these rouse the jury because they were told that these defendants repeatedly were not on their trial for with but any group association for the homi- cide D’Alfonso. The jurors were also instructed final jury charge testimony that the concerned here was limited, use, showing relationships their parties *49 and motive.
Ligambi argues also that the trial court erred by denying a defense requesting motion that all defendants’ trials be severed from Scarfo’s trial after Gino Milano beating testified about the 1981 of D’Alfonso. The decision grant a for whether to motion within severance is the sound of discretion the judge trial and will not be disturbed absent of a manifest abuse discretion. Commonwealth v. Patter son, 190, 197, 596, (1988). 519 Pa. 546 A.2d 599 “The potential defendant must show prejudice real and not mere speculation.” of Id. Since evidence the beating is against all defendants, admissible as just found, we have and the law favors offenses joining judicial when economy achieved, can be Ligambi’s we conclude that contention is Id., devoid of merit. 197, 519 Pa. at at 546 A.2d 600. (ii) to “Made” Membership in the References Mafia
(a) Scarfo, Merlino, Nicodemo Salvatore Lawrence
Merlino, Iannarella, Francis Frank
Narducci Defendants28 argue that the court committed preju dicial by error allowing repeated referring comments to them as “made” members of the mafia. The Common wealth counters that testimony regarding made mem bership fell properly within the exception motive rule purposes 28. For part VI(A)(ii)(a) of the discussion in of this opinion Scarfo, the term only “defendants" shall refer the Merlino brothers, Iannarella, Francis and Frank Narducci.
389
in
When considered
prior
crimes.
admission
against
killing
in a
participate
that one had
testimony
of the
light
mafia,
are
of the
we
a “made” member
to become
in order
so
killings
prior
the references to
no
with
doubt
left
facts
analyze
ability
objectively
jury’s
tainted
fair
incapable
rendering
they were
case that
Roman, 465
515,
v.
351
Pa.
Commonwealth
verdict. See
determine
(defendant
jury
is entitled to have
(1976)
A.2d 214
manner).
Since
objective
innocence
an
guilt or
his
far
these statements
defendants caused
to the
prejudice
value,
reverse the judg-
we must
probative
their
exceeds
Scarfo,
Merli-
Lawrence and Salvatore
sentence
ments of
Iannarella,
on this issue.
Frank Narducci
no,
Francis
long agreed
have
of this Commonwealth
courts
activity
part
criminal
on the
prior
“evidence of
as
upon
effect
so
its
highly prejudicial
is
accused
impact
on
confession
its
only
an actual
equalled
to be
v.
Bryant,
process.” Commonwealth
the deliberative
v.
(1987);
Commonwealth
476,
83, 85
530 A.2d
Pa.
(1978);
601, 606, 391 A.2d
Spruill,
480 Pa.
Frank,
Peterson,
This court supra.
denied,
allocatur
(1990),
A.2d 609
Pa.Super.
*50
629,
(1990), stated:
One of our most fundamental crime, of law that a distinct administration criminal is circumstances, given cannot be except special under is tried being evidence a defendant who against has person This is because the fact that a another crime. is he committed proof committed offense not that has one the testimony of the on another and because the effect to and an prejudice is bound create jury nevertheless part against the defendant. emotional reaction on their Id., (quoting at 612 395 Ct. at 577 A.2d Pa.Superior Burdell, 43, 47, 110 A.2d Pa. to (1955)). exception the plan In the of common context Frank crimes, the court prior admission of against the rule weigh a trial court must when deter- addressed that which is more than mining prejudicial certain evidence whether potential court must balance the probative. prejudi- “[T]he of such impact cial the evidence with factors as the degree similarity of established between the of incidents criminal conduct, to present Commonwealth’s need evidence un- plan exception, der the common and the of ability the trial to the jury concerning proper court caution use of such Id., evidence them in their deliberations.” 395 Pa.Supe- rior Ct. at We A.2d at 614. believe this is that test appropriate considering also when the motive to exception general rule of and find inadmissibility the balance weighs heavily prejudicial towards harmful impact.
First, testimony Eugene Milano and Thomas DelGiomo reveals that in order to become a made member mafia a to proposed participate member had in a killing.29 Upon record, close a examination of the it is clear repeated heard to references made member ship “making” involving ceremonies the defendants. The testimony establishes similarity the criminal conduct, homicide, and begins to the prejudice establish the defendants. Where defendant has been shown act, have prior committed a it juror becomes easier for a believe that person committed a similar act.
Second, and most Commonwealth, detrimental is that the Commonwealth had no to present need the evidence membership. made The five defendants charged were murder; murder with and conspiracy to were not they charged Organizations with violations of the Corrupt Act. Their prior essence, crimes were not simply relevant. In could, should, this case perhaps have been tried as a where conspiracy dominating “ring-leader” Scarfo was the underlings whose conspiracy wrath, feared his thus causing them to buckle to Scarfo’s commands. The Com- monwealth’s strategy could also have shown the incentive to follow Scarfo’s commands would greater lead to rewards for the underlings. Such strategy would have enabled the *51 prosecution The proof ways 29. made an offer of that there were other person thorough which a could become a A member of the maña. review of the testimony record that indicates no such other ever was elicited. of the crime same elements prove the to Commonwealth in a non- motive from witnesses testimony of and elicit Instead, chose the Commonwealth manner. prejudieial the activities mafia not on the activities focus employ a strat- elected prosecution The conspiracy.30 activi- prior criminal defendants’ whereby it could elicit egy nomen- The Commonwealth’s “through the backdoor.” ties pur- membership,” totally circumvents clature, “made regarding admission of evidence against rule pose of the prior crimes. the Cor- violations of charged with
Had defendants been Act, prior of the then the evidence rupt Organizations predi- proper establish have been may criminal activities impeachment the door to opened acts. Had defendants cate of prior evidence perhaps then credibility, of their In this case admissible. may criminal conduct have been testified; indeed, pres- defense of the defendants none of the Commonwealth’s testimony ented no at the close was, therefore, impeach reason to case. There no defendants. non-testifying of the credibility membership Moreover, made testimony The of hearsay. inadmissible amounts to for its membership truth —that testimony fered the of made “made,” participate a had to proposed to become member for that convictions underlying support murder —with no proof crimes ever occurred. Without any prerequisite occur, did, fact, the use of the underlying homicides than a trial nothing more term “made member” created allow. a trial. This we will not within no need to compelling prosecution has demonstrated mafia. to the defendants as made members refer other means. Even been established Motive could have presenting a relevant be one method though may there membership eliciting and its evidence of the mafia We note that 30. However, relation- may prejudicial. the evidence the mafia not be requirement provide that as a ships in is so detailed as to this case member, killing. participate in becoming one had to an initiated evidence, testimony made along defendants were with the This prejudice. members causes the *52 matter, there are less prejudicial where alternatives avail- able to introduce the same evidence to the jury, prosecu- tor should utilize the method provides which the least potential objective disturb the decision-making of the therefore, find, jury. We that the Commonwealth’s need to this present slight. evidence was
Third, we fail to see how a cautionary instruction prejudice. would have cured the The trial court instructed charge in the main jury that the other testimony crimes for the purpose introduced limited of establishing motive and of relationship parties; the trial court also instruct the jury only ed to consider whether these were defendants of guilty the crime of killing conspiring and to kill D’Alfon so. this Though instruction is an accurate reflection of the law, its effect on the truth process determining must have minimal. been The given instruction was as one of many read to the jury charge. in the final heard this instruction after numerous references to the defendants as made members of LCN during the of the course trial. Even if the trial court had cautioned the jury about the limited purpose of admission, the evidence at the time of such cautionary instructions still would not have cured the preju dice because the testimony was irrelevant and unnecessary, and the proof of motive could suggested have been in other ways.
After addressing factors, the relevant we conclude that balancing when the prejudicial against impact probative of value indicating evidence that defendants were made members, the prejudicial effect of these admissions al- leged prior murders, particularly without proof convic- sentence, tion and far outweighs probative their value. There is no cure for this prejudice permeated which so trial that the jury was incapable rendering a fair and Frank, objective supra. Thus we must reverse verdict. judgments Scarfo, sentence of Merlino, Salvatore Merlino, Lawrence Francis Iannarella and Frank Narducci a new trial.31 and remand Nicholas Milano Narducci, Ligambi, Joseph (b) Philip [43] Philip Narducci, Ligambi Nicholas Milano also made members them as references to claim Refer- disagree. error. reversible We constituted mafia as made members was three defendants to these ences *53 for the their motive testimony to show directly relevant is not evidence testimony D’Alfonso. The of Prank killing three defendants. respect to these crime with past of a performed they Instead, why of the reason is indicative it that member” indicates “made terminology killing. fully “made”—a to become killing for the the motive three Thus, these distinguish of LCN. we initiated member these following basis: rest on the from the defendants killing for the “made” as a reward defendants were three made D’Alfonso, whereas, that the other five were evidence is of D’Alfonso and killing probative is not members We, prior killings. evidence eliciting tantamount membership with therefore, of made find that evidence Philip Nar- Milano, Joseph Ligambi to Nicholas regard for the as evidence of motive admissible properly ducci was not trial court did Thus the killing of Frank D’Alfonso. Ford, su- this evidence. admitting its discretion abuse Meadows, Franklin, supra. pra; supra; all of colleague in dissent that agree cannot with our We conspiracy adopted somehow remaining members of the and Nicholas Philip Narducci Joseph Ligambi, the motive five argue that other credulity Milano. It strains mem- some motive become defendants had transferred Further, were members. they already of the mafia as bers the crime argument participation adoption an in some constituted way other five defendants is also the mafia join of these three defendants’ motives to already initiated mem- similarly Again, strained. the five defendants, not we need we resolve this issue in favor the 31. Because contempora- arguments the trial court should have address their neously purpose of jury the made instructed the on the limited testimony for not trial counsel was ineffective member and that requesting such an instruction. no join bers had motive to the organization. Even if motive adopted manner, could in this be the prejudice caused by- alluding to the fact that the remaining five members had killed before would outweigh any probative value the evi- Hude, supra. may dence have.
B. Defendants next aver that the Commonwealth im impeached properly Margaret Commonwealth witness Jack son with her prior inconsistent statement regarding the evening D’Alfonso prior was shot. The inconsistent state grand ment at issue her At jury testimony. trial Miss stated, Jackson when asked whether she remembered testi grand before a fying jury, that she “could have” but that did not she back “remember that far.” When the prosecu tor attempted to refresh her grand recollection of the he hearing, read her the questions and answers from the grand which, believed, jury transcript if impeached her in *54 court testimony that she not talking could remember to police officers about the circumstances to related the flee ing suspects. There contemporaneous was no objection by defense is, counsel. The therefore, issue waived. See 302(a). Pa.R.A.P.
However, the Narducci brothers claim their that trial counselors failing were ineffective for to timely object to this questioning. Brown, In Commonwealth v. 302 391, Pa.Super. 448 (1982), A.2d 1097 we stated that where a witness does not making admit the inconsistent state- ment, it may proved be evidence, extrinsic such as the testimony of the person whom the statement was It made. does not matter whether the witness denies statement, the making inconsistent or says whether he he does not recall it.
Id., 302
403,
Pa.Superior Ct. at
395 evidence, of ineffective assistance the for the dent source Durst, supra. merit. arguable claim lacks counsel fundamental argue also basic Defendants impeached improperly prosecutor when the error occurred gist The jury. statement opening in his Miss Jackson that some witness remarks was prosecutor’s opening of the memory, selective would claim who presented es would be events, of the or certain events had no recollection they did prosecutor nothing. and/or heard they or that saw he did that some were people say of but identify any not shooting. Miss Jackson day children on the Next, killing. on of the day old years seventeen jury: told the prosecutor carefully you closely, scrutinize them at them
to look brings forgetfulness which define the source their will defendants, the evidence used these us to the people show, in murder of Frank D’Alfonso. their will A prosecutor’s error in the comments. We find no such “ be in his must ‘opening remarks statement prosecutor’s deductions from evidence Commonwealth fair intend- develop, merely not assertions good expects faith ” Commonwealth jury.’ passions ed inflame (1981) Stetler, 494 Pa. 551, 562, 992, 997 A.2d 180, 187, v. Hughes, 477 Pa. (quoting (1978)). Miss The record A.2d establishes It known to witness. was not Jackson was be reluctant direct the attention of improper the Commonwealth to perceptions to bear mind their the members Brady, Commonwealth v. See witnesses.32 reluctant (1986) *55 may sensory 507 A.2d 69 use (juror Pa. observations, common to assess experience, logic sense and see also truth); credibility witnesses determine Graham, A.2d 129 Commonwealth v. 522 Pa. Blount, (1989); Commonwealth Pa.Super. (1989). A.2d 952 merit, underlying claim for
32. Since the claim lacks defendants’ Durst, supra. also ineffective assistance lacks merit. C. grand (a/k/a jury testimony
At trial the of Sam Barber) Sam the LaRussa was read to the jury. LaRussa an unavailable due to health was witness concerns. The agreed defense and attorneys Commonwealth read grand jury transcript version which the trial court testimony large part allowed. concerned a gathering twenty thirty Italian males at LaRussa’s home. Scar fo, among house, the men arranged who was at the for a meeting there if he bring along and asked could some After men house, friends. arrived at the LaRussa left and did not return until after Scarfo had left. What tran interim, spired argued, awas “making” ceremony.
Ligambi now raises the issue relating that the testimony to Italian males impermissible attempt was an prose- to prove guilt cution by association. The testimony LaRussa incorrectly admitted the trial judge be- cause it Eugene was irrelevant. The Honorable Clarke in his opinion: stated
This testimony corroborated the testimony of Thomas Eugene DelGiomó and concerning Milano a mafia-making home____ at ceremony held LaRussa’s probative [T]he value outweighed any perceived prejudice to the defen- dants.
As we VI(A)(ii)(a) determined in section opinion, of this and, evidence of made membership consequently, “making ceremonies” was highly prejudicial and probative lacked Frank, We, therefore, supra. value. decide that the testi- mony of the making ceremony at the home of LaRussa was impermissible evidence for which required. reversal is
D. Ligambi and Lawrence Merlino allege error in allowing testimony of extra-judicial statements of a co-conspirator when there no independent evidence of conspiracy. The trial court correctly decided that this issue was waived since defense counsel object failed to to the admission of the
397 444, Berrios, Pa. 495 v. at trial. Commonwealth evidence raise 1173, (1981). Defendants this 453-54, 1178 434 A.2d of counsel as ineffective assistance in the alternative issue shall, therefore, address whether object. to We for failure to this claim. arguable is merit there statements are co-conspirators In Pennsylvania, if are made accused the statements “against an admissible thereof, and where furtherance during conspiracy, the conspiracy.” of a other evidence of the existence there is 466, 475, 426 Dreibelbis, Pa. A.2d v. 493 Commonwealth 1111, (1981) Garcia, 478 Pa. (citing Commonwealth v. 1115 406, (1978)). court also stated A.2d 46 The Dreibelbis 387 exception of the purposes co-conspirators that rule, inferentially be established conspiracy may hearsay of “relation, circumstances through the conduct or Roux, 482, Pa. (citing Id. v. 465 Commonwealth parties.” is (1976)). The in these matters proof A.2d 867 order 350 may of the trial court which admit within the discretion upon conspiracy, sub only slight proof such statements v. proof conspiracy. later Commonwealth ject 600, (1984); Kersten, A.2d 603 Pa.Super. 482 1, 8, 449 A.2d Pa.Super. Plusquellic, (1982). First, Ligambi argue and Lawrence Merlino that meeting Merlino at at the Wok statement made suggesting Ligambi Restaurant that be used Scarfo commenced killing conspiracy was made before the it testimony, that should have been excluded. DelGiorno’s Merlino, regarding the statements was sufficient slight proof conspiracy. testimony create That indi at he present meeting cated that Merlino was and that plan a subordinate of Scarfo announced the Scarfo’s. D’Alfonso, to kill that the Milanos and Narduccis killing do the DelGiorno and Iannarella super would with suggested then vising the execution. Merlino Lawrence Ligambi help. testimony also This indicates conspiracy statement was made after the commenced. argues Eugene also that the Ligambi testimony Milano, that DelGiomo which indicated told Milano that *57 Ligambi part of the assassination group was and that car, a Ligambi to obtain was also This was inadmissible. claim, too, is meritless. had already DelGiomo testified that he discussed the killing Ligambi, given money had with to him procure an untraceable car for use the stalking and discussed killing, potential escape a route if an on attempt Thus, earlier D’Alfonso Ligam was successful. Merlino’s bi Lawrence claims have no merit as there a slight prior was at least conspiracy evidence to the co-conspirator testimony Dreibelbis, statements. Kersten, supra; supra. Since the claim underlying lacks merit, so too does the ineffective assistance of counsel Durst, claim. supra. asserts,
Ligambi
in an
also
claim
fail
ineffectiveness
for
ure to object, that Lawrence Merlino’s
statement at
Wok Restaurant was
because
inadmissible
under the Penn
sylvania
prosecution
Constitution the
failed to establish the
unavailability of the
Ligambi recognizes
declarant.
issue he raises was
adversely
resolved
to him the United
Supreme
Inadi,
States
Court United States v.
475 U.S.
387,
1121,
106
(1986).
S.Ct.
Ligambi’s trial counsel did not render ineffective
assistance. Trial counsel is not
for failing
ineffective
or
predict
anticipate a change in law. Commonwealth v.
Davis,
77,
518 Pa.
(1988);
E. erred argue next that the trial court Defendants This jury. article to be read allowing newspaper *58 Ligambi and briefs of Lawrence issue is raised the News article Philadelphia Daily Merlino and concerns had the mob boss. D’Alfonso became new which stated that at occurred when Commonwealth following The discussion to the court: newspaper the article Grant introduced torney stipu has point there another MR. GRANT: At this been to a respect with lation entered into between Counsel printed a newspaper of article photocopy enlargement like 27th, Daily News. I would May the 1984 issue the the Manford read that into Ridgeway to have Detective record, Honor. Your 27th,
THE 1984? May COURT: Yes; for the benefit of the jury. MR. GRANT: following ensued: was sworn and the Ridgeway Detective to read those Q. you proceed Detective would Ridgeway, sir, article, the titled portions beginning of the with caption? Dated Philly
A. Yes. “A Don takes over mob.” New 27th, Daily News. Philadelphia 1981. May it is a Judge, Excuse me. I think —since MR. SIMONE: told article, it should be newspaper jury should be—the of this and the of this evidence purpose evidence use article accepting newspaper rather than as evi- just dence. I
THE COURT: will— that to —explain
MR. SIMONE: them? Yes.
THE COURT: Thank you. MR. SIMONE: then the article to the after Ridgeway Detective read reach attorneys which trial court called the sidebar to acceptable limiting Judge an instruction. Clarke ended the following upon gave agreed sidebar and instruction: Gentlemen, THE COURT: Ladies and Counsel have purpose having you that the that article read agreed publicity fact that there was concern- establish boss, however, Mr. made the it was ing being D’Alfonso or not offered to show truth fact he was boss, not made that the article read as it was just supposed to read. Ligambi argues
First the date of the confusion about D’Al- beating article served to muddle the issues of the with murder. Ligambi fonso his and Lawrence Merlino May their briefs state that the date the article was However, it is testimony 1984. of the officer which is the evidence and not the statements of attorneys the trial court. The jury heard this instruction numerous throughout the as in opening charge times trial as well Thus, jury. to the the confusion be must resolved 27,1981. accordance with the evidence of May record— *59 was, therefore, evidence relevant to corroborate DelGior- Milano’s, no’s and Eugene statements that Scarfo knew was publicity there related to D’Alfonso and his reputation as a mob leader. This evidence was offered to show the state of mind of Scarfo. v. 455 Wright, Commonwealth 480, 486, 271, (1974) (out-of-court Pa. 317 A.2d 274 state- mind); are ments admissible to show state of Common- v. Pa.Super. 230, wealth 369 n. A.2d Blough, 237 535 (1987) (“statement 138 n. 11 offered may be to show on effect the listener and the produced, state of mind motive”). including
401 argue limiting defendants Secondly, that the instruc They suggest that inadequate. instruction motive. information related to have contained tion should entitled to correctly they assert were Defendants Pa., Covil, 474 instruction. limiting See trial (1977). instruction given 841 375, 378 A.2d however, counsel upon by was agreed judge, defense to show that article was offered stated clearly article stated was and not that what the publicity there was limiting A word a instruction judge may trial the truth. long expression he or chooses so as the manner she any con the limited use of the evidence. We indicates clearly adequately clearly, fully the trial judge clude that newspaper limited use on the instructed article.33
F. inef- Merlino that his trial counsel was Lawrence claims decision to failing to to the trial court’s object fective for expert as an Trooper testify State Edward Johnson allow having quali- first conversations without been interpreting merit assuming arguable a claim of expert. fied as an Even not Merlino has charge, in this ineffectiveness Lawrence object preju- failure to how trial counsel’s demonstrated Pierce, A.2d Pa. diced him. Commonwealth v. (1987). claim ineffective assis- Lawrence Merlino’s counsel, therefore, must fail. tance of Id.
G. Next, assis Merlino claims ineffective Lawrence object competency counsel for to the tance of failure Disqualification under the Thomas DelGiorno as a witness incom Act, alleges Merlino Pa.C.S. DelGiorno’s § 5912. under petence previous due DelGiorno’s conviction object argues to the Lawrence Merlino also that counsel's failure to 33. of the We note that the indicates that the admission reading article. record stipulated article As decided the defense. claim, therefore, lacks above the article was admissible and Merlino's arguable Durst, supra. merit. *60 402
Election
in
he lied
age,
Code which
about his
and admitted
having
Pennsylvania
lied to the
Liquor Control Board.
This
fails
arguable
claim also
because it lacks
merit.
(“Act”)
Disqualification
Act
provides
a criminal
“[i]n
proceeding,
person who has been
convicted
a court of
this Commonwealth of perjury ... shall not
competent
be
as
for any purpose____”
a witness
42 Pa.C.S.
5912. In
§
order to
an incompetent
Act,
be
witness under the
one must
have been convicted of
In
perjury.
Commonwealth v.
Trudell,
353,
Pa.Super.
(1988),
371
VII. THE ERRORS IN JURY CHARGE
Defendants raise four arguments related to the trial
court’s charge to the jury. They argue that the trial court
erred
failing
explain
in the charge that circumstantial
evidence could
used
acquit
convict,
be
as well as to
there was error in the charge related to
conspiracy
accomplice
testimony,
that the
failed
judge
to instruct
Eugene Milano's guilty plea could not be used
against
the other defendants with whom he sat at the
commencement of trial. “The guiding
principle
review
an
ing
allegedly erroneous jury instruction is that
charge is to
read in
be
its entirety.” Commonwealth v.
16, 46,
500 Pa.
Zettlemoyer,
937,
(1982)
454 A.2d
953
cert.
970,
461
2444,
denied
U.S.
S.Ct.
(1983)
L.Ed.2d 1327
(citing
Woodward,
Commonwealth v.
483 Pa.
394 A.2d
(1978));
Edwards,
521 Pa.
(1989).
trial agreed charge to the when trial counsel charge Durst, supra. See gave. court charge the trial argues judge’s Scarfo use of circumstantial characterized the insufficiently its use to framing the instruction terms of evidence may circumstantial evidence also He contends that convict. on circumstantial charge acquit. judge’s be used to was as follows: evidence
In in most cases the evidence was two this case as the one hand there is direct evidence types. different On *62 a witness from his or her own testimony by is which something he or she saw or knowledge such as personal is The other is circumstantial evidence which type heard. of point to the existence about facts which testimony in question. other facts which are evidence, of circumstan- example A classic of this kind evidence, night and suppose is retired on a winter you tial on clear. awakened snow was you the streets were When in footsteps you the street and sidewalk and saw conclude that snow had fallen properly snow. You would snow, see it and during night, although you didn’t snow, in although you had somebody walked or not circumstantial anybody didn’t see ... Whether depends in in proof question is of the other facts evidence human on the of common sense and part application If into the and and the streets experience. you go movies rain and the you are come out there is dry when in you you streets are wet then know it rained while were sense and human experi- the movies. That is common recognize You should that it is sometimes neces- ence. cases, on circumstantial evidence criminal sary rely In the crime committed secret. particularly where accept or not to circumstantial evidence deciding whether question, of the facts in must be satisfied proof you as is testimony first that the of the witness truthful second, of the facts the accurate and that the existence to lead to the conclusion that the witness testifies facts happened. also question evidence alone be may
Circumstantial sufficient guilt. a defendant’s If there are several prove separate is pieces of circumstantial evidence it not necessary piece standing you each alone convinces of a defendant’s Instead, guilt beyond you reasonable doubt. before may any guilty, pieces find of the defendants all of the evidence, circumstantial considered together, when must reasonably and lead to the conclusion naturally that a defendant is and must guilty you convince that defen- dant’s In guilt beyond words, reasonable doubt. other you may any find of the defendants guilty based on alone, circumstantial evidence if only but the total amount and quality that evidence convinces you of the guilt beyond defendant’s a reasonable doubt.
This instruction is almost identical to Pennsylvania Suggest- (Crim.). ed Standard Jury Instruction 7.02A We think that suggestion apprise Scarfo’s the jury that circumstantial evidence may acquit be used to would only serve to confuse rather than aid the their jury delibera- tion of the truth. The danger of informing jury that such may evidence be proof acquittal as as guilt well could potentially serve to confuse the on the appropri- *63 ate standard of proof guilt. this, of In a such case as where the defense presented witnesses, no Scarfo’s instruction may have prejudiced defendants by suggesting that defen- dants had evidence, some burden to show perhaps circum- evidence, stantial of acquittal. This is clearly not the law. Indeed, the given instruction was intended to aid the jury and reflect the clearest instruction on the law circum- stantial evidence. Dykes, supra. It is clear that the court informed the jury repeatedly guilt that must be found a beyond reasonable doubt. The could jury thus use cir- cumstantial evidence as evidence for in acquittal its search doubt; for reasonable the court instructed the jury to consider the totality of the circumstantial evidence. We conclude, therefore, that the on charge circumstantial evi- sufficient aid with the law comports
dence fact-finding supra; mission. resolving Dykes, their jury supra. Zettlemoyer, challenge pertains defendants charge
The final from “the can be inferred conspiracy the instruction circumstances, conduct and relations evidence, surrounding argue Merlino and Lawrence Ligambi the parties.” Franklin, 471 U.S. 105 S.Ct. the case of Francis v. (1985), charged that a be requires jury 1965, 85 L.Ed.2d drawn, the inferred fact may inference be any that before fact. The proven not flow from the likely must more than jury The conspiracy. did not relate to charge Francis person that a presumption concerned a charge Francis probable intends the natural and and discretion sound mind 311,105 The at S.Ct. at 1969. of his acts. Id. consequences quite case is different. instruction this jury as follows: judge charged jury In case the this is fre- conspiracy the crime of very it’s nature By [sic] except by circumstantial susceptible proof not quently upon although conspiracy a cannot be based evidence infer- may be conjecture, conspiracy or suspicion mere conduct showing relationship, entially established or circumstances parties, of the conduct of circumstances alleged of the co- and the overt action parties of the conspirators.
[******] conspiracy Now, guilty to find the defendants order that the initially murder must be satisfied you to commit proven conspiracy elements of have been following two doubt. beyond reasonable elements of charged court then on the trial conspiracy. case law charge on is consistent with the conspiracy
This “A infer- conspiracy may proven of our be Commonwealth. relation, conduct, or circumstances showing the entially by co-conspirators parties, alleged and the overt acts of *64 confederation has competent proof are as that a criminal 407 Kennedy, 499 Pa. v. formed.” Commonwealth fact been v. (citing Commonwealth (1982) 927, 389, 395, A.2d 930 453 Com- 651, (1973)); 570, Eiland, 450 Pa. 566, 301 A.2d Carter, 490, 499, 478 A.2d 329 Pa.Super. v. monwealth accurately adequately and 1286, (1984). Judge Clarke supra. of conspiracy. Dykes, on the crime charged MISCON- PROSECUTORIAL OF VIII. ALLEGATIONS DUCT prosecutori allegations raise several
Defendants course during the related to statements made misconduct al are as allegations of misconduct closing arguments. follows: criminals; group a to defendants as referring
A. wolves, pack, a wolf defendants as referring B. the pack; vouching of and Common- bolstering improper
C. witnesses;34 wealth record; and outside of the arguing
D. facts de- against prejudicial inferences creating negative E. no defense fact that calling attention to the fendants cross-examina- Milano a liar on ever called Gino attorney tion. our capsulated court supreme recently court has
Our standard of review as follows: made in the course of or irrelevant remark
“Every unwise witness, compel counsel does not a trial a or by judge, Goosby, trial.” granting of new Rather, 673, (1973). 301 A.2d 450 Pa. had on the what, if effects the comments any, focus is on effect of the required A trial is when the jury. new prejudice be to Attorney’s District comments “would hostility forming their minds fixed bias jury, weigh so that could not they toward the defendant Com- true and render a verdict.” objectively evidence 576, 582, A.2d Cliff, monwealth v. Van 483 Pa. prosecutorial during allegation conduct 34. This also concerns testimony. taking of *65 408 denied, 441 964, 2412, 99 60 cert. (1979), U.S. S.Ct.
1776
McNeal,
Commonwealth v.
(1979),
quoting
L.Ed.2d 1070
669,
(1974). Further,
394, 400,
A.2d
673
this
456 Pa.
319
to make. Our role is to
is for the trial court
decision
the trial court abused its discre
solely whether
determine
582,
Commonwealth v. Pa.Super. (1987). standard, Bearing mind this we now misconduct levied allegations prosecutorial address the McMonigle, and Brian the assistant against Charles Grant prosecuted district who this case. attorneys
A. defendants were allegation The first is that in the minds of were called stigmatized jury they when during of criminals” summa “group Commonwealth’s jury, tion. Simone closed to the he addressed When Robert argues certain historical events he were familiar to which legal to illustrate that sometimes decisions are in the name of public outcry justice. made due and not union-busting, argues specter Simone he raised dur- camps interment concentration Japanese-American era, Rights the Civil II, McCarthy World War ing impress upon War to the Vietnam movements law, and not follow the rules responsibility their jurors public pressure. bow simply followed stat- arguments, prosecution closing In ing: you that it’s true don’t at the outset say
I like to would Philadelphia. persecuted to be South to be Italian have gain a life were better *66 trying In the 1930’s unionists for their own and working hours wage for a decent and attempt. and meritorious that is a laudable trying were to be In 1940’s Oriental-Americans soil, in citizens, just till the work factories American good else, country their former and because everybody like in put were concentra- aggressive they in action engaged camps. tion mind, frame of thought
In if had a a you the 1950’s mind, dignities if had certain civil thought people that you if don’t thought you protected, you that were to be hounded, in put people a certain were way have to think forth. blackballed and so prison, during striving rights in of the civil And the 1960’s of human were goals justice era those laudable when front, people there were who being challenged every at that. willing were to die for killed in a being In were people the 1970’s because here disagreement was a foreign country and there in the 1860’s. it no better than the civil war at home was divided, fighting were brothers. Families were brothers Simone, his pomp for Mr. to stand here all And these and to liken what the evidence shows arrogance that— group equate of criminals are and me, Your I have to MR. Excuse Honor. SIMONE: mistrial, calling the defendants move for a reluctantly criminals.
A then held. After the sidebar sidebar discussion was jury: cautioned the judge have Jury, you as been told
Ladies and Gentlemen or the issue in this case is whether beginning, from the kill kill conspired to and did Mr. not these defendants to determine from the evidence you D’Alfonso. It is for committed those crimes. or not these defendants whether be, histories, are not at past they may Their whatever determining guilt non-guilt may their or issue whatever charged are they as far as these crimes with be is. today
Mr. Simone? Thank honor. you, your MR. SIMONE: argument that its argues closing The Commonwealth closing Regardless address. fair rebuttal to Simone’s this, contends that the in- cautionary the Commonwealth prejudice may struction cured which have resulted from any the remark. argue to the that the prosecutor may always
“The guilt, the defendant’s evidence establishes [citation omitted] although prosecutor may personal opinion not offer his as guilt argument to the of the accused either or testimo- stand, Common- from the witness ny [citations omitted]” 'Amato, wealth v. D 471, 489, 300, 309 514 Pa. 526 A.2d *67 (1987). Calling closing argu- defendants “criminals” a opinion ment is a serious and statement of prejudicial by particular It is not the facts of a case prosecution. simply a criminal. The is support calling key which a defendant stigmatized that a person may before be label “criminal,” there must a or a guilty plea guilt. be verdict Indeed, concept this is the most basic in our system law; criminal one is innocent until otherwise. In proven this case there no of any prior was evidence criminal nor does the context in the statement adjudications, which made that the defen- support prosecution’s was label dants criminals. are thus to find were We constrained the comment inappropriate. was
However, the is polestar of this matter whether the prejudiced point prosecution’s to the where the com- ments instilled a fixed defen- hostility bias toward the Faulkner, In our estimation the trial supra. dants. relieved, minds, in the jury’s instruction cautionary court’s too, note, that the We defen- hostility. or any fixed bias instruction, cautionary “ju- and that agreed with dants trial to court’s instructions.” ries can be trusted follow 2132, n. Randolph, 442 U.S. S.Ct. Parker v. (1979). an Having given adequate 2140 n. 60 L.Ed.2d instruction, the trial court not we conclude did cautionary for its motion mistrial. denying abuse discretion Faulkner, supra.
B. the trial com next contend that court Defendants allowing prosecution error to refer mitted reversible “wolves,” pack,” “a and “the to the as wolf defendants Marino, Donald argues The pack.” Narducci, the door to the attorney Philip opened defense witnesses imagery by calling prosecution animal “vicious closing argument. “ravenging his vermin” and wolves” paraphrased In response, attorney the assistant district comments: attorney’s defense Well, to lied us Thomas DelGiorno. You are you
... wolf. raven[]ing then prosecutor continued: it, “raven,” me I help
I that word strikes couldn’t but It to really think is a French or word. means it German rush, rush, somebody,” rush they say like “to bum greedily. devour And these witnesses were called raven- Mr. Marino ing wolves. It’s reference likes Biblical make. very kingdom
That is much like the animal be- story run in And this is a cause see. case packs, you wolves attacking of an animal of who are story prey, predators old, an a little too animal who a little bit too bit himself his weary, a little bit too beaten defend *68 all these younger predator, knowing more vicious affirmi- ties, hunted him like in a pack. down wolves Wolves [sic] are That is very very why they their nature cowardly. 412 and attack from they you
seek the of numbers security and wherever turn are you they and the side back see. You seldom find going get you, you very try in called the lone wolf who exception nature would willing from the who are to fend for away pack, break of and don’t use the bonds others to do what themselves in you to do in life. Well had two lone wolves they have sitting over this case. One of them was there with booked, got he and he over there pack and he bolted ravenous, vermin, he’s a vicious (indicating). So he’s now guy, Gino. But now we have all the wolves and the leader of the pack cowardly killing in this room here on trial for the old, beaten, prey of the infirmed of Frank D’Alfonso. principles And of human or you’re analyzing while of conspiracy, principle animal law or the law one is you to hold true. always going When hunt with the you kill, pack in And if share in the you share the kill. pack. in share It’s you liability. Conspiracy. Wolf the basic law. Basic.
These comments “exceeded the of and propriety bounds constituted an to the appeal passions prejudices Lipscombe, Commonwealth v. 525, 528, 455 Pa. 317 jury.” Lipscombe, A.2d.205, (1974). In court supreme our reversed a of sentence and trial judgment ordered new in where summation called defendants prosecutor “hoodlums” and “animals.” The court stated:
In referring Lipscombe and his associates “animals”, of “hoodlums” epithets the assistant dis- trict his attorney interjected personal guilt belief the accused. expressions personal Such belief ... legitimate place argument. have no a district attorney’s Id. Commonwealth v. Capalla, 200, 206, (quoting Pa. (1936)). 185 A. Brown, Commonwealth v.
Later,
Pa.Super.
(1980),
There no strong on case as as this one. rely a tor when he can a first argument attorney defense Commonwealth’s is no merit. It is one imagery of animal of raised issue certain to attack a witness with thing attorney for a defense claims, prosecutor it is error for the with debasing but standing person of to attack a authority the Commonwealth are A can sort out the truth when witnesses jury accused. epithets are debasing by such remarks. Where assailed accused, however, indelibly becomes at the hurled search objective its point marked or where prejudiced difficult, if impossible. not for truth becomes differ- treating us from defendants Justice forbids these of a crime. person from other who stands accused ently any Indeed, if a clear-cut violation citizen stood accused of any these degraded of retail and were and dehumanized as theft were, of pang regret no would feel a judge defendants as reversing such a conviction. Where the defendants are these, however, such a notorious as we become troubled Nonetheless, sense of does not war- decision. this concern ideals, the shirking duty justice. rant our to do These meaningless are justice system, foundation of our criminal applied if not evenhandedly.
It is the of to do every onus court this Commonwealth painful how justice legally is correct—no matter —what That, essence, court may be. is the nature what a does. Justice in this new trial requires case reversal not with properly because the defendants were treated This fairness fundamental fairness. fundamental as stated heart infra, Rispo, process. is the the notion due Moreover, compelled it is prosecu- we are to note that court, public, tor is the servant who indeed prosecutor’s itself. It is axiomatic to justice say that job merely gain is not convictions. Most importantly, the justice. must serve He or wields the prosecutor power she *70 in to do public of the state order for the and those victim- time, ized is fair and At the right. evil that which same prosecutor weigh right must what is for fair the person accused. who stands We understand that a Com- monwealth embroiled in the heat of a attorney, trial of compelled feels notorious defendants to attain especially not, conviction. Still a the prosecutor may at same time he represents interest, or she so the dutifully public’s fracture right infractions, the to a fair trial for the Such accused. unintentional though they may prompted by be and case, stress of a high-profile are nonetheless. prejudicial We are concerned especially prosecutorial that miscon- duct seems to in Philadelphia County arise more so than in any other in this county merely Commonwealth. We state this order Attorney to alert District that a more thoughtful approach prosecutor’s to the role in our society may be in order. That is not the public’s legal to that say counsel fight against crime, should not determined in be its emphasize but we a prosecutor always must be aware unique perhaps conflicting role he or she plays in our society. judges Trial should also be aware that it is their to control the responsibility heat and battle of trial. Where the trial court senses that a summation may have strayed course, off it behooves the to set counsel court back path Thus, on the of argument. justice may be served. hold, therefore, We that the trial court abused its discre- tion refusing defense counsels’ for a request mistrial.35 Faulkner, supra; Van Cliff, supra. urges
35. timely objection The Commonwealth that no was filed re- garding the pack.” labels of “wolves” and This "wolf is inaccurate. Pinsky Attorney lodged objection Defense just an after the Common-
C.
remaining
for
no
us
address
There is
reason
disposi
misconduct
to our
prosecutorial
due
allegations
However,
given
do note that
previous claim.
we
tion of the
there
the trial and the fact that
atmosphere of
the fervid
merit
defendants’ other contentions
arguable
was
misconduct,
we believe that
prosecutorial
also
an
The defendants
objective
to render
verdict.
unable
he
misconducted himself when
argued
prosecutor
that the
call the
attorney
failure of
defense
referred
said in
on the stand. Mr. Grant
liars
cooperating witnesses
him a liar.
one of those
ever called
closing
lawyers
“Not
caution
Think about it.” There was a
Did
notice that?
you
an
ary
given
objection.
instruction
after
improp-
also assert
the Commonwealth’s
Defendants
vouching
witnesses constituted re-
cooperating
er
prosecuto-
As we
found that
error.
have
there
versible
closing
a reversal of
requires
rial misconduct
which
sentence,
not
this.
we need
address
How-
judgment
*71
ever,
pack,” “group
combined with the “wolf
when
criminals,”
remarks, we
and “made members”
believe that
conclude that
reasonably
reversible error occurred. We can
the
re-
prejudiced by
prosecution’s
defendants were
the
Bricker,
See Commonwealth v.
in
aggregate.
marks
(1985).
in
506 Pa.
On should be cautious in remand the Commonwealth issues, them, presenting their conduct presenting where might come in issue. A case can be on the evidence won needed, with for witnesses when consider- proper support point, attorneys his went on to next that the defense never wealth objection Gino when was on the stand. The called Milano liar he pack. lodged wolf a mere six sentences after the discussion court, ruling Pinsky’s objection, Although the on Mr. stated the trial earlier, see how references made five to ten minutes we fail to it were five for six short sentences to delivered to would take even minutes be timely. jury. objection that the We conclude ation of one’s choice of language, general and a propensity to understand that the Commonwealth’s client is justice. judgment
This of sentence is therefore reversed as to all defendants.36
CONCLUSION For all of the foregoing reasons the judgments of sen- tence are reversed. case is remanded for a new trial. Jurisdiction is relinquished. ELLIOTT, J.,
FORD files a dissenting statement. ELLIOTT, Judge, dissenting. FORD I must dissent. respectfully As to the majority’s first reversal, ground agree while I that there must be a extent, further inquiry determine the if any, of the strategies intrusion into the of the defense caused by the Milano, testimony Eugene I would limit relief at time this to a hearing whether, fact, to determine any strategic or defense information was relayed.
As to the majority’s determination that error prejudicial was committed admitted references to “Made” Mem- Mafia, bership I agree cannot that such evidence was nonprobative. inadmissible and As set out majority, evidence of other crimes is admissible when it tends to establish motive or is so intertwined or interrelated to the present offense such as to show common plan, scheme or I design. accept explanation Commonwealth’s for both the relevancy and the admissibility challenged evi- dence and adopt from the Commonwealth’s brief as follows:
Similarly, evidence that under Scarfo participation in a *72 killing a prerequisite was to Mafia membership was also admissible provided because it strong motive, evidence of incentive and defendants, reward. For three Philip Nar- 36. Various defendants raise other issues of counsels’ ineffectiveness. Because reversing of our prosecutorial decision this case on the allegation suggestions misconduct prior activity, criminal we have no reason to address these claims. murder Milano, the D’Alfonso and Nicolos ducci, Ligambi Scarfo into Mafia. ticket induction was their killing accom- to initiate them when the promised formally promise by later fulfilled that and he plished, death. ceremonies after D’Alfonso’s them at inducting Merlino, although already Moreover, Larry co-defendant Mafia, initiation shared this specifically in capo for the Ligambi his friend he nominated motive when induc- Ligambi’s insure Mafia killers in order to team of Mafia already who were other defendants tion. While initiation members, shared this personally not have may killing, in D’Alfonso participation for their incentive the others adopted goal this on behalf of implicitly they in the of defen- plan, the murder as cases by supervising Iannarella, Merlino wit- dants underboss Salvatore Giorno, stalking by assisting Thomas Del or ness inducted, their be as and murder so that brothers would Narducci, cases defendant Frank brother Milano, Narducci, Philip defendant and witness Gino brother of defendant Nicolos Milano. contrary, to the
Finally, despite defense assertions result of evidence there was no undue as a prejudice member- referring participation in murder as a Scarfo from Gino only rule. there ship testimony Not consistent Milano that mob rules often but were broken jury his final request, with the defense the trial judge, as the limited charge, explicitly jurors instructed organi- evidence of offenses and purpose which other could be zational affiliation had been introduced and instruction, considered. Defendants did not to this object adequately comported applicable which with the law and evaluating as this instructed the to their duty Billa, evidence. Commonwealth v. supra. Accordingly, wrong- defendants’ claim that ‘other crimes’ evidence was ly trial introduced at must be denied. (Notes omit-
Appellee’s testimony brief at 54-56 citations ted).
418
Likewise, I must disagree
the majority’s grant
with
prosecutorial
relief based on
argu-
misconduct. At oral
ment, I, too, expressed
serious
my
concerns
I
about what
considered to be the District Attorney’s
con-
unnecessary
duct
allegations
which allowed for
of misconduct to be
raised with ease and
I
numerosity. was challenged
by
very
appellate
able
advocate representing the Common-
wealth, to
carefully review
entire context of
closing
arguments
coming
before
to any conclusions on the merits
I
allegations. This have done and
conclude
now
while
references made by the
upon
which
reverses
majority
may have
unnecessary
been
I
risky,
cannot find them to be wholly inappropriate
upon
based
presented
evidence
at trial and the closing
arguments of defense counsel. Commonwealth v. Bad-
man,
315,
398 Pa.Super.
(1990);
The prejudice attending the District Attorney’s remarks
must weighed
be
within the context of a given case. While
I find the metaphoric “wolfpack” references utilized
district attorney to be hard hitting
rhetoric,
and compelling
I must also find it to be within the
responsive
bounds of
comment to the biblical references
utilized
defense in
closing argument. Additionally, the context of the district
attorney’s remarks, albeit very graphic,
directly
were
relat-
ed to the Commonwealth’s
theory
conspiratorial
nature of the murder
In
involved.
the recent case of
Jones,
Commonwealth v.
530 Pa.
(1992),
A.2d 931
our supreme court had occasion to review a claim prose-
cutorial misconduct which involved the prosecutor’s refer-
ences to defendants in closing argument as “murdering,
child-killing, backshooting trio” likening them also to
“slaughterers” or “executioners.” Therein the supreme
court stated: “We have reviewed all nineteen of the ex-
war-
find none which would
by appellant
cited
cerpts
justified
comments
as
all of the
were
Nearly
rant relief.
being
in the record and as
within
basis
having a reasonable
prosecutor
oratory permitted
vigorous
the bounds
*74
Id.,
Pa. at
610 A.2d at 943.
closing argument.”
of sentence.
judgments
I
affirm the
would
Filed 1992.