OPINION
The appellant, after a trial by jury, was found guilty of first degree murder,
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criminal conspiracy,
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and robbery.
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In the penalty stage of the trial, the same jury found two
The facts underlying appellant’s convictions are as follows. 6 In the late afternoon on Monday, June 11, 1984, appellant and Marc Draper, both eighteen years old at the time, were gambling with a few other unidentified persons on the corner of Mount Pleasant Avenue and Lincoln Drive in Philadelphia. The two, who had been close friends since third grade, both lost all their money while gambling. After conferring as to potential sources of additional funds, appellant advised Draper that he knew a man, Amos Nor-wood, who lived nearby from whom they could extort money. Unfortunately for Mr. Norwood, age 56, extortion was merely the opening scene in his personal tragedy.
After discussing the proposed extortion, appellant and Draper then proceeded to the Norwood residence. While Draper waited at a nearby corner, appellant spent fifteen
After securing the ten dollars from Norwood, appellant and Draper returned to the scene of the gambling but the participants had taken a break and were merely “rapping” i.e. talking. The pair remained, talking with the others. As misfortune would have it, Mr. Norwood, two or three hours later while on his way to his church to do some volunteer work, was driving by the intersection where the “rapping” was occurring. Appellant, upon seeing Norwood, flagged his car down, got in the car and drove away. A few minutes later, he returned with Norwood to the intersection, got out of the car and said to Draper “play it off like you going home, like you want to ride home, and we gonna take some money.” Draper, grasping appellant’s plan, got in the car with appellant and Norwood, and proceeded to give Norwood false directions home, leading Norwood instead to a dark secluded area adjacent to a cemetery.
At that point, Draper, who was in the rear driver’s side seat, grabbed Norwood from behind and appellant, in the front passenger seat, ordered Norwood to “be quiet and get out of the car.” Appellant, Draper and Norwood exited the car, climbed over a small fence and proceeded into the cemetery. Upon arriving at some tombstones, Norwood was ordered to lie face down. Appellant and Draper searched Norwood and found twenty dollars hidden in his sock. While Norwood was begging for his life, the assailants tied his hands behind his back with his shirt, tied his legs together with his pants and stuffed his socks in his mouth.
Appellant then told Draper, “Wait, I’m going to the car ... We’re getting ready to do something.” He then went to the car and returned with a socket wrench, which he
Finally, when they perceived the victim was dead, the beating stopped and the body was hidden behind two tombstones and covered with some loose brush. The pair then returned to the victim’s car, emptied the contents of the glove compartment into a trash bag and dumped the bag into a nearby trash bin. They then drove to Draper’s house, where he got ready for work. 8 After making arrangements to meet the next morning, Draper went to work and appellant drove the victim’s car to downtown Philadelphia to meet Ronald Rucker, a friend of some two months.
Rucker testified at trial that upon meeting appellant that night, appellant called him aside and confided to him that he had just “offed” a guy named Amos. Rucker testified that although he did not believe appellant at first, he came to believe him when he noticed blood spots on appellant’s shoes and when he accompanied appellant for a drive shortly thereafter in the victim’s car. After dropping Rucker off very late in the evening, appellant returned to the cemetery, soaked the victim’s body in gasoline and set it on fire.
The next day, appellant picked up Draper in the victim’s car and together they returned to the trash bin near the cemetery. Their purpose was to retrieve the contents of the glove compartment and determine if there was anything of valué to them. In the victim’s wallet, they found a Mastercard and an AT & T telephone card, both in the victim’s name. Appellant advised Draper that he knew a
Upon arriving in Atlantic City, the three attempted, without success, to secure cash advances with the Mastercard at various casinos. Later in the evening, appellant slipped away from his companions and, unbeknownst to them, secured two (2) one hundred dollar cash advances on the card. While at the casinos, Ronald Rucker used the AT & T telephone card to make various telephone calls. The next day, June 13, 1984, appellant used the Mastercard, by signing Norwood’s name, to purchase two gold chains at a jewelry store in downtown Philadelphia.
The charred remains of Amos Norwood’s body were found by a passerby on June 15, 1984. Despite the burning and extensive decomposition, it was possible to identify his body through his dental records. Because of incautious use of the AT & T telephone card, the ensuing investigation led police to Ronald Rucker and his sister, Renee. On July 18th and 19th, 1984, Ronald Rucker gave two statements to police implicating appellant and Marc Draper. Although Rucker told appellant he was interviewed by the police, he did not tell appellant how deeply he had implicated him during the police interviews.
In any event, on July 19, 1984, shortly after Rucker’s second interview with the police, appellant and Rucker took a train to New York and from there they took a cross country bus, with California as their intended destination. Throughout the journey, the two made frequent phone calls home to determine the status of the ongoing investigation.
On July 20, 1984, Marc Draper, based on Ronald Rucker’s statement to the police, was arrested and charged with homicide. Draper, the son of a Philadelphia policeman,
On July 21, 1984, after failing to locate appellant in Philadelphia, the police, through the National Crime Information Center, issued a “wanted message” regarding appellant to all police departments throughout the country. The next day, through a telephone conversation with his girlfriend, appellant discovered that there was an outstanding warrant for his arrest. On July 23, 1984, appellant returned to Philadelphia and surrendered himself to police at the office of an attorney.
Although Marc Draper was held in protective custody, appellant was able to speak with him and forward to him a series of four letters suggesting that Draper retract his prior statement and instead study and adopt the “story” contained in the letters, which “story” would exonerate appellant. Draper instead turned over the letters to the Commonwealth and they were introduced into evidence against appellant.
On appeal to this Court, appellant raises five issues with respect to the guilt stage of his trial and nine issues with respect to the penalty stage. Preliminarily, however, it is required of this Court in cases in which the death penalty has been imposed to independently review the sufficiency of the evidence supporting an appellant’s conviction.
See Commonwealth v. Zettlemoyer,
The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to
Countervailing the overwhelming evidence of the Commonwealth was appellant’s unsubstantiated testimony that Marc Draper and Michael Hopkins actually committed the murder and that appellant used the victim’s car and Master-card only because he thought they were the by-products of a robbery and not a murder. Also, the credibility of each of the witnesses testifying on appellant’s behalf was seriously undermined on their respective cross-examinations. Especially damaging was the credibility gap created by appellant’s testimony with regard to the four letters to Draper delineating the “story” to be used in Draper’s proposed retraction. Appellant, after hearing testimony from a handwriting expert, admitted writing the letters but claimed that he was merely the stenographer for a story actually concocted by Draper. However, since the primary beneficiary of the “story” was appellant and his role as stenographer
After reviewing the entire trial transcript, including the synopsis set forth above, it is clear that there was sufficient evidence presented for the jury to have determined that all elements of the crimes for which appellant was convicted were established beyond a reasonable doubt. See Commonwealth v. Syre, id.
Appellant’s initial averment of error is that the trial court erred when it permitted the prosecution, on cross-examination of defense witness Porttie Robinson, to explore two homicides for which Robinson stood convicted but not yet sentenced. Robinson’s testimony was to the effect that Draper, a prison mate of Robinson’s, had told him that “another guy”, other than appellant, had committed the murder with Draper. The prosecution brought out Robinson’s homicides to establish that Robinson was biased against Draper because Draper’s father, a police officer, had participated in the investigation leading to Robinson’s homicide convictions. Testimony was adduced from the former prosecutor who handled the Robinson case that during discovery Draper’s father’s name was given to Robinson’s attorney, as part of a list of officers involved in the investigation. Robinson denied knowing that Draper’s father was involved in his case.
As a general rule, unsentenced convictions may not be used to impeach a witness.
See Commonwealth v. Zapata,
Next, appellant contends that reversible error occurred when the prosecutor asked appellant, on cross-examination, whether he was a suspect in the death of one Donna Freedman, a case entirely unrelated to the Norwood murder. Appellant frames this issue by suggesting that “the prosecutor
informed
the jury that appellant was a suspect in the notorious slaying of Donna Freedman” (emphasis added). The reality, however, is that the death of Donna Freedman was first raised by appellant, in his direct testimony, by way of explaining why Draper could not tell the real story of the Norwood murder. In the scenario testified to by appellant on direct examination, since Michael Hopkins, appellant’s deceased purported murderer of Norwood, and Draper murdered Donna Freedman, Draper could not implicate Hopkins in the Norwood murder for fear Hopkins would implicate him in the Freedman murder. On cross-examination, the prosecution was permitted, to a limited extent, to explore the Freedman murder to impeach appellant’s scenario. When the prosecution asked appellant whether he-was a suspect in the Freedman case, objection was promptly made and sustained and the question was stricken. Accordingly, in no way whatsoever was the jury “informed” that appellant was a suspect in the Freedman murder. Indeed, the Freedman murder would never have been mentioned in the trial if not for appellant’s own testimony. Moreover, the trial court, on numerous occasions throughout the trial and in its instructions, advised the jury that the questions asked by the respective attorneys were not testimony, only the answers adduced. Since there was no answer adduced with respect to whether appellant was a suspect in the Freedman murder and the
Appellant’s remaining three averments of error in the guilt stage of his trial involve claims of ineffectiveness of his trial counsel. As a general principle, trial counsel is presumed to be effective and a defendant has the burden of proving otherwise.
See Commonwealth v. McNeil,
Firstly, appellant claims his counsel was ineffective for failing to seek a jury instruction as to the possible effect any deals between Marc Draper and the Commonwealth may have had on Draper’s credibility. Appellant, however, again misstates the record. The record shows that counsel, as part of his requested charges, sought cautionary instructions as to the reliability of the testimony of (1) an “informer-interested witness”, (2) an “immunized witness” and (3) an “accomplice.” Indeed, the trial court’s instructions included the following, “In view of the evidence of Marc Draper’s criminal involvement, you must regard him as an accomplice ... you should view the testimony of an accomplice with disfavor because it comes from a corrupt and polluted source.” Moreover, from his opening statement throughout his cross examination of Draper to the closing argument, defense counsel consistently emphasized the benefits arising to Draper from cutting a “deal” with the Commonwealth, i.e. he was permitted to plead guilty to second degree murder and receive a sentence of life imprisonment rather than face a first degree murder charge and the possibility of the death penalty. Accordingly, counsel was not ineffective with respect to the impact of Draper’s deal on his credibility.
Furthermore, the charge of the trial court and defense counsel’s analogy of the purchase of the home are, in appellant’s own words, “standard” and “garden variety” examples given to juries throughout the Commonwealth. Therefore, a failure to object to such a charge or the use of such an example can hardly be considered prejudicially ineffective.
See Commonwealth v. Pierce, id
and
Commonwealth v. Lawson,
Appellant’s remaining averments of error concern the penalty stage of his trial, during which the jury found no mitigating circumstances and two aggravating circumstances, namely, that the murder occurred during the commission of a felony (the robbery) and a prior significant history of violent crimes.
Three of appellant’s averments of error in the penalty stage relate to appellant’s age at the time he murdered Amos Norwood. Appellant’s basic contention is that being only eighteen years and four months of age at the time of the murder is a
per se
mitigating circumstance. Appellant provides no legal authority for this proposition and this Court is not aware of any. In this Commonwealth, for
Two other averments of error relate to the recent United States Supreme Court case of
Mills v. Maryland,
Next, appellant urges that his judgment of sentence should be overturned because the prosecutor asked appellant on cross-examination whether he was a suspect in the murder of Donna Freedman. This issue was fully addressed previously in reference to the guilt stage of appellant. That discussion is equally applicable with respect to the penalty stage.
The three remaining averments of error are claims of ineffectiveness of trial counsel. The first claim is that trial counsel was ineffective for failing to object to the introduction by the Commonwealth of several misdemeanors in attempting to demonstrate appellant’s prior significant history of violent felonies.
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Factually, the prosecution introduced evidence, without objection, as to the facts surrounding appellant’s convictions with regard to two prior violent episodes, namely, convictions relating to his invasion
The relevant statute is 42 Pa.C.S. 9711(a)(2) which provides, inter alia, as follows:
In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e).
Pursuant to 42 Pa.C.S. § 9711(d)(9), the prosecutrix in the instant case revealed to the jury the violent felonies for which appellant had been convicted previously and as part of that description listed the misdemeanor convictions arising out of the same events, e.g. in connection with appellant’s third degree murder charge he was also convicted of theft and possessing an instrument of crime. The Commonwealth, in presenting its argument for the death penalty, is permitted to examine the facts surrounding the convictions of the violent felonies.
Commonwealth v. Beasley,
Appellant also claims trial counsel was ineffective for failing to argue to the jury that the Commonwealth did not present evidence that appellant “committed a killing while in the perpetration of a felony,”
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because there was no proof presented that appellant, rather than his co-brutalizer, Draper, landed the fatal blow. This argument, when
Appellant’s final averment of error is that trial counsel was ineffective for failing to investigate and present appellant’s “good prison record” as a potential mitigating circumstance. While it is true that
any
fact or circumstance about the defendant may be presented to a jury as a potential mitigating factor, it is not the duty of a trial attorney to list for the defendant an exhaustive list of potential areas of mitigation; such a list would go on forever. The record in the instant case reveals that trial counsel, on a number of occasions, advised appellant that he should be prepared, in the event of his conviction, to supply counsel with factors about his life that could be seen as mitigating. Appellant failed to provide such information. Moreover, the alleged “good” record appellant now asserts is grounded in a letter dated April 13, 1987 from a corrections counselor at Huntingdon prison to appellant’s appellate counsel. The letter, which addressed appellant’s fourteen month stay at Huntingdon, can best be described as a lukewarm endorsement. While it notes that appellant exhibited a “cooperative attitude” in counselling sessions, it also reveals that his prior facility characterized his adjustment as “not being satisfactory at all times” and during his stay at Huntingdon, he received two conduct violations. Furthermore, if evidence of appellant’s “good” prison record was introduced by trial counsel, the Commonwealth, in rebuttal, could have emphasized that during his stay at Huntingdon, appellant was passing notes to Marc Draper
Finally, we address the proportionality of appellant’s sentence. Based on our review of the statistical data provided by our administrative offices and because of the jury’s finding of two aggravating circumstances and no mitigating circumstances, we conclude that the sentence of death was not disproportionate to the penalty imposed in similar cases.
See
42 Pa.C.S. § 9711(h) and
Commonwealth v. Frey,
Notes
. 18 Pa.C.S. §§ 2501; 2502(a).
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 3921.
. 42 Pa.C.S. § 9711.
. 42 Pa.C.S. § 722(4) and 42 Pa.C.S. § 9711(h).
. The activities of appellant prior to and at the time of the murder are based primarily on the testimony of appellant’s co-murderer, Marc Draper.
. According to Draper, this discussion included the following, "I’m already in a lot of trouble. I don’t need no more trouble.” Upon appropriate objection, this remark was stricken from the record.
. Draper worked the midnight to 8:00 A.M. shift.
. Rucker was employed by a restaurant and was familiar with the procedure utilized to detect stolen credit cards.
. The day after the murder, appellant confided to Draper that he had returned to the scene of the murder and set the victim’s body ablaze.
. 42 Pa.C.S. § 6302.
. 42 Pa.C.S. § 9711(d)(9).
. 42 Pa.C.S. § 9711(d)(6).