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Appeal In The Case of Fred Thomas
ARGUMENT
I. THE JURY VERDICT FINDING THE APPELLANT GUILTY OF FIRST DEGREE
MURDER IS NOT SUPPORTED BY THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
In undertaking a review of the weight and sufficiency of the evidence, the Court is required to examine all of the evidence, and all the reasonable inferences therefrom, in the light most favourable to the Commonwealth, the verdict winner, and to determine whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. Commonwealth v. Bryant, 524 Pa. 564, 567, 574 A. 2d 590, 592 (1990). A mere conflict in the testimony does not render the evidence insufficient, because it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence. Commonwealth v. Moore, 436 Pa. Super. 495, 648 A 2d 331 (1994). When reviewing a weight of the evidence claim, the Superior Court looks at all the evidence. Commonwealth v. Sullivan, 372 Pa. Super. 88, 538 A. 2d 1363 (1988). In reviewing such a claim, a new trial will not be warranted unless the verdict was so contrary as to shock one's sense of justice. Moore, supra. Only in this situation is the award of a new trial imperative, so that right may be given an opportunity to prevail. Id. However, it is not the function of the court to substitute its judgement for that of the jury on issues of credibility and weight of the evidence. The weight to be accorded conflicting evidence is exclusively for the fact finder and such determinations will not be disturbed if they are supported by the record. Id. Only if the evidence is so unreliable or contradictory as to make any verdict based thereon pure conjecture is appellant entitled to a new trial on that basis. Id.
Constitutional due process requires that the government prove every fact necessary to constitute the crime beyond a reasonable doubt. Commonwealth v. Wagaman, 426 Pa. Super. 396, 627 A. 2d 735 (1993). The burden of proof never shifts but rests with the prosecution throughout. Commonwealth v. Turner, 86 Pa. 54,74 (1878). Guilt must be based on more than mere suspicion or conjecture. Commonwealth v. Bailey, 448 Pa. 224, 227, 292 A. 2d 345, 346 (1972). It is the continuing presumption of innocence which is the basis for the requirement that the state has a never shifting burden to prove guilt beyond a reasonable doubt. Commonwealth v. Bonomo, 396 Pa. 222,229, 151 A. 2d 441, 445 (1959). The never shifting burden on the Commonwealth is to prove every essential element of the charge. Id. at 230, 151 A. 2d at 445-46.
One of the elements of the crime which the Commonwealth must prove is intent. Commonwealth v. Graves, 461 Pa. 118, 126, 334 A. 2d 661, 665 (1975). The due process burden of proof applies to all criminal charges. Commonwealth v. Karl, 340 Pa. Super. 493, 490 A. 2d 887 (1985).
Guilt must be proved and may not be based on mere conjecture. Commonwealth v. Bausewine, 354 Pa. 35, 41, 46 A. 2d 491, 493. The evidence of guilt must be of such quantity and quality to overcome the presumption of innocence beyond a reasonable doubt. Id. at 41, 46 A. 2d at 493. Thus mere presence at the scene of a crime is insufficient to establish guilt. Commonwealth v. Garrett, 423 Pa. 8, 222 A. 2d 902 (1996.) In Garrett, the defendant's conviction of robbery was overturned because the Commonwealth had proved only his presence at the scene of a robbery but had no evidence of his participation in the robbery.
Thus, courts have held that while circumstantial evidence may be sufficient to convict the defendant, it cannot be read as placing the burden on the defendant to prove that he did not commit the crime. Commonwealth v Dalahan, 262 Pa. Super. 615, 396 A. 2d 1340 (1979).
Appellant contends that the verdict set forth by the jury is against the weight and sufficiency of the evidence because inconsistencies exist between the evidence presented at trial by the defense and the Commonwealth. Appellant put on an alibi defense that was supported by two witnesses Mr Carl Fook and Mr Odell Reid who both gave credible testimony that the trier of fact could and should have believed. (N.T 2/23/95 pg. 42-58.) Furthermore, the appellant testified that he was around the area where the incident occurred but had nothing to do with the killing of the Federal Express Driver. Appellant argues that the evidence presented by the defense relating to the facts surrounding the killing was more credible than that presented by the Commonwealth. Additionally, the appellant was unable to put on the testimony of two eyewitnesses to the killing, Ms. Martha Fielding and Ms. Brenda Gregory , one of whom, Ms Fielding gave a statement the next day about the incident saying there were three men involved in the killing, not one.
Specifically, the defense contends that there is insufficient evidence relating to the murder of the Federal Express Driver to warrant a verdict of first degree murder and a death sentence.
A new trial is therefore warranted on this issue.
II. THE TRIAL COURT ERRED WHEN IT FAILED TO STRIKE
THE JURY PANEL BECAUSE THE PROSECUTION SELECTIVELY EXCLUDED MEMBERS OF
THE AFRO AMERICAN RACE FROM THE JURY, THROUGH THE USE OF ITS PEREMPTORY
CHALLENGES.
Appellant alleges first, that the trial court erred for failing to strike the jury panel because the prosecution selectively excluded members of the Afro- American race from service, through the use of its preemptory challenges.
Therefore, appellant is entitled to a new trial as a result of the denial of state and federal constitutional rights of equal protection under the law resulting from prosecutors use of his peremptory challenges in a racially discriminatory manner to eliminate blacks from the jury in violation of the United States Supreme Court's mandate in Batson v. Kentucky 476 US 79, 106 S. Ct. 1712 (1986).
For the first two hundred and fifty years of our colonial and national existence, black persons, as United States Supreme Court Chief Justice Taney confessed in Dred Scott decision, were, "regarded as being of an inferior order; altogether unfit to associate with the white race, either in social or political reactions; and so far inferior, that they had no rights which the white man was bound to respect..." Scott v. Sandford, 60 U.S (19 How) 393 (1857) cited In the Matter of Color, Race, and the American Legal Process, The Colonial Period, A Leon Higginbotham, Jr. p6, Oxford University Press 1978.
The belief concerning the relative worth of black and white lives found its way deep into the fabric of the national mind, and wove itself into our criminal law. In fact, in Commonwealth v Henderson, 497 Pa. 23, 438 A. 2d 951 (1981,) our Supreme Court stated, "Put another way, it is not unconstitutional error for a prosecutor to challenge a black juror for the reason that the prosecutor believes - validly or invalidly - that a black venireman because of the facts of the case, is less likely to be impartial than a white venireman. Put still more deductively, the race, creed, national origin, sex, or other similar characteristics of a venireman may be proper consideration in exercising peremptory challenges when issues relevant to these qualities are present in the case."
The Batson decision changed the manner in which the defendant was required to prove that a prosecutor was discriminatorily exercising his/her peremptory challenges in relating to black venireman. The Court in Batson held that a black defendant "may make out a prima facie case of purposeful discrimination by showing that the totality of relevant facts gives rise to an inference of discriminatory purpose." Statistical analysis can "for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds."
The Court in Batson, supra , established the prosecution's burden of proof concerning its rebuttal of a prima facie case of racially discriminatory use of peremptory challenge. "But the prosecutor may not rebut the defendants prima facie case of discrimination by stating merely that he challenged jurors of the defendants race on the assumption - or his intuitive judgment - that they would be partial to the defendant because of their shared race. Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case because the defendant is black. The core guarantee of equal protection, ensuring citizens that their state will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors race."
Thus, race may no longer be a factor in the prosecutor's
use of peremptory challenges so as to subject a black defendant to trial
by an all white jury. The Supreme Court's mandate in Batson
was clear. Based on this standard, the defendant submits that he
was denied a fair trial when the prosecutor intentionally and discriminatorily
used his peremptory challenges to strike blacks from the jury resulting
in the defendant being tried by an all white jury.
Thus the trial court erred when it failed to strike the
jury panel because the prosecution selectively excluded members of the
Afro - American race from service, through the use of its peremptory challenges.
During the voir dire process, the Commonwealth struck six prospective black veniremen in this case. The appellant contends that this, in itself, established a prohibited pattern of racial exclusion from the jury. Also the trial court ruled a prima facie case of racial exclusion has been established but did not strike the panel.
Since Batson v Kentucky, 476 US 79, 90 L.Ed.2d
69, 106 S. Ct. 1712 (1986), a criminal defendant has been allowed to raise
an equal protection challenge to the use of peremptories, solely based
on evidence at his own trial, by showing that the prosecutor used them
for the purpose of excluding members of the defendant's race. Id.
at 96, 90 L.Ed 2d 69, 106 S. Ct. 1712. The Batson Court identified
the following factors as relevant to establish a prima facie case of purposeful
discrimination:
"To establish such a case, a defendant must first show
that he is of a cognizable racial group, and that the prosecution has exercised
peremptory challenges to remove from the venire members of the defendants
race. Second, the defendant is entitled to rely on fact, as to which
there can be no dispute, that peremptory challenges constitute a jury selection
practice that permits those to discriminate who are of a mind to discriminate.
Finally, the defendant must show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice
to exclude the veniremen from the petit jury on account of their race.
This combination of factors in the empanneling of the petit jury, as in
the selection of the venire, raises the necessary inference of purposeful
discrimination. Id. at ___, 601 A2d at 1218 citing Batson
476 US at 96, 106 S Ct. cit. 1723 (citations omitted.)
In Powers v. Ohio, 499 U.S. 113 L.Ed.2d. 411, 111 S.Ct. 1364(1991), the Court expanded the Batson test and held that a white defendant has standing to challenge the prosecutor's use of improper peremptory challenges exercised in violation of the Equal Protection Clause of the Fourteenth Amendment to strike members of a cognizable group. The Court held that the defendant has the right to be tried by a jury whose members are selected by nondiscriminatory criteria. The rationale behind Batson is that a member of the community may not be excluded from jury service on account of his or her race for "Batson recognized that a prosecutor's discriminatory use of peremptory challenges harm the excluded jurors and the community at large." Powers, 113 L.Ed.2d at 422 citing Batson, 476 U.S. at 87, 90 L.Ed.2d 69, 106 S.Ct. 1712. Accordingly, the Powers Court held "That the Equal Protection Clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race...." Id. 113 L.Ed.2d at 424.
The Powers Court decision was bottomed upon the premise where there appears to be unfairness in the jury selection process, the jurors will disregard the law to the detriment of the defendant. The Court stated as follows:
"A prosecutor's wrongful exclusion of a juror by a race
based peremptory challenge is a constitutional violation committed in open
court at the outset of the proceedings. The overt wrong, often apparent
to the entire jury panel, casts doubt over the obligation of the parties,
the jury, and indeed the Court to adhere to the law throughout the trial
of the case. The voir dire phase of the trial represents the "jurors' first
introduction to the substantive factual and legal issues in a case." Gomez,
supra, at 874, 104 L.Ed.2d 923, 109 S.Ct. 2237. The influence of the voir
dire process may persist through the whole course of the trial proceedings.
Ibid. If the defendant has no right to object to the prosecutor's improper
exclusion of jurors, and if the trial court has no duty to make a prompt
inquiry when the defendant shows, by inadequate grounds, a likelihood of
impropriety in the exercise of a challenge, there arises legitimate doubts
that the jury has been chosen by proper means. The composition of the trier
of fact itself is called in question, and the irregularity may pervade
all proceedings that follow. The purpose of the jury system is to impress
upon the criminal defendant and the community as a whole that a verdict
of conviction or acquittal is given in accordance with the law by persons
who are fair. The verdict will not be accepted or understood in these terms
if the jury is chosen by unlawful means at the outset. Upon these considerations,
we find that a criminal defendant suffers a real injury when the prosecutor
excludes jurors at his or her own trial on account of race. 13 L.Fd.2d.
at
426.
In Commonwealth V. Dinwiddie, 429 Pa. 66, 601 A2d 1216
(1992), the Supreme
Court of Pennsylvania ruled that it was reversible error to strike black veniremen from a panel without giving neutral racially reasons for such strikes.
In the instant case, the appellant contends that the reasons put forth by the Commonwealth were not racially neutral. The following jurors were struck, appellant argues based upon their race. First, juror number 241, Ms. Louise Martin ~.T. 2/~5/95 pg. 29-36). This black female indicated her daughter worked for an attorney, her niece was a Philadelphia police officer, she was selected as a juror before, but never served, and said she could Sit on a death qualified jury. The prosecutor used a peremptorily challenge, never stated a reason why, and was struck exclusively because of her race.
Second, juror number 655, Ms. Linda Watson (~'.T. 2115/95 pg.63-72). This black female indicated that she had sat before on a criminal jury, and would be able to render a fair and impartial verdict. The prosecutor, Mr.. Roger King again used a peremptorily challenge, never stated a reason why, and struck a black female exclusively because of her race.
Third, juror number 251, Mr. Henry E. McCowin CN.T. 2/15/95 pg.72-77). This was the third black individual stricken within a 20 minute period. In fact, Mr. King outlines the reasons he struck these last three jurors ~.T. 2/15/95 pg.77-78). He struck one because he was wearing dark glasses, one because of her level of intelligence, and the third one because he felt she couldn't grasp the Cornmonwealth's case. Appellant maintains that the Commonwealth struck these three individuals because they were black, thereby prejudicing Mr. Thomas's right to a fair trial of a jury of his peers.
Additionally, the Commonwealth used peremptory challenges on perspective juror number 21 Lawrence McDonnell, perspective juror number 2l Marilyn White, and perspective juror number 40 Patricia Smith all from panel number four on February 17, 1995, and failed to give its reasons on the record. Thus, it was reversible error to strike black veniremen from a panel without giving neutral racially reasons for such strikes.
Perhaps even more striking is the fact that the Dinwiddie court citing Powers V Ohio, 499 US ___. ___ 111 S.Ct. 1364, 1371, 113 L.Ed.2d. at 411,426(1991) noted that "the improper exclusion of a single juror based upon race, is insufficient to "taint" the prosecution and the number of members of his race that remain on the jury is irrelevant for purposes of legitimizing the selection process and the ultimate empanelment ' Jd at ____ n. 10, 601 A2d 1219 n. 10. See also U.S. v. David. 803 F.2d 1567 (11th Cir. 1986); U.S. v. Battle, 836 F.2d 1084 (8th Cir. 1987); Rarrison v. Ryan, 909 F.2d 84 (3d Cirri. 1990)
Accordingly a new trial should be granted on this issue.
III.THE TRIAL JUDGE ABUSED HER DISCRETION BY FAILING TO GRANT A CONTINUANCE REQUESTED BY DEFENSE COUNSEL IN RELATION TO THE LOCATION OF A MISSING WITNESS, MS. MARIA FIELDING, WHO WOULD HAVE BEEN AN ESSENTIAL WITNESS TO THE DEFENSE CASE, THEREBY PREJUDICING THE APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL.
The United States and Pennsylvania Constitutions gaurantees each Defendant in a criminal trial the right to confront adverse witnesses. ~.S. Constitution 6th. Amendment; Pa. Constitution Article I. Section 9). An exception to this right, and an exception to the Hearsay Rule of Evidence, permits use at trial of prior sworn testimony of a witness unavailable at trial providing that the Defendant at the prior proceeding was represented by counsel who was afforded the opportunity to adequately cross-examine the witness. Commonwealth V. Jones, 344 Pa. Super. 420,496 A. 2d 1177(1985). This rule is codified in 42 Pa. C.S.A. Section 5917 which provides in pertinent part.
Whenever any person has been examined as a witness, either for the Commonwealth or for the defense, in any criminal proceeding conducted in or before a court of record, and the defendant has been present and has had an Opportunity to examine or cross-examine, if such witness afterwards dies, or is out of the jurisdiction so that he cannot be effectively served with a subpoena, or if he cannot be found, or if he becomes incompetent to testify for any legally sufficient reason properly proven, notes of his examination shall be competent evidence upon a subsequent trial of the same criminal issue. For the purpose of contradicting a witness the testimony given by him in another or a former proceeding may be orally proved.
Although a literal reading of the constitutional provisions would prohibit all hearsay statements, the Supreme Court of the United States has rejected that view as "unintended and too extreme," Idalio v. Wrioht, 497 U.S. 805,814, 110 S.Ct. 3139,3145, 11 L.Ed.2d 638, 651 (1990), Commonwealth. Hanawalt, 615 A. 2d 432,434(1992). The Confrontation Clause, however, does operate to bar the admission of some evidence that would otherwise be admissible under the exception to the hearsay rule. Id. However, the right of confrontation entitles a criminal defendant to physically face and cross-examine those who testify against him at his trial.
Commonwealth v. Melson. Pa. Super. 637 A. 2d 633 (1994); Commonwealth V. Crosland. 397 Pa. Super. 622, 580 A. 2d 804 (1990). The purpose behind the rule is to ensure the integrity of the fact-finding process. Melson supra at 636. Cross-examination offers a defendant a tool to sift the conscience of the witness and test the accuracy of his recollection. Mattox V United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 340, 39 L.Bd. 409 (1895); Melson; supra The presence of the witness at trial allows the jury to look at the witness during cross-examination and judge by his demeanor whether he is worthy of belief. Id. The witness's presence also ensures reliability in other ways: one the witness will have more difficulty lying against someone if the witness is required to physically face the persona at trial; and two, the witness will be required to take the oath - "thus impressing him with the seriousness of the matter and guarding against the lie by the penalty of perjury". Id.
In Ohio V. Roberts 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1990), the Supreme Court framed a general rule to determine whether hearsay statements, admissible under an exception to the hearsay rule, also satisfy the requirements of the Confrontation Clause. The Supreme Court subsequently summarized the rule in Idaho V. Wright ; supra, and the Pennsylvania Courts have stated the rule in Hanawalt, which provides that first the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, his statement is admissible only if it bears adequate "indicia of reliability." Hanawalt; supra. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. Id. In other cases, the evidence must be excluded, at least absence a showing of particularized guarantees of trustworthiness. Id.
Thus, when a witness is unavailable, in order for the evidence to be in accord with the Confrontation Clause and meet the "indicia of reliability standard, the hearsay statement must either fall within a firmly rooted hearsay exception or it must be supported by a showing of particularized guarantees of trustworthiness. Id.
Criminal defendants have the right under compulsory process clause to the government's assistance in compelling attendance of favorable witnesses at trial and the right ot put before the jury evidence that might influence detennination of guilt. Pennsylvania v. Ritchie, 480 U.S. 9, ~07 S.Ct. 989, 94 L.Ed.2d 40. The Sixth Amendment compulsory process provides no greater protection in areas governing defendant's right to discover identity of witnesses, or to require The government to produce exculpatory evidence, than protections afforded by due process. Id
To establish that the criminal defendant was denied compulsory process, the defendant must show he was deprived of the opportunity to present evidence in his favor; and that excluded testimony would have been material favorable to the defense; and deprivation was arbitrary or disproportionate to any legitimate evidentiary or procedural purposes. U.S. V Cruz-Jiminez, 977 F.2d 95 (C.A. 3 1992). In Pennsylvania, the right to compulsorY process prints the defendant to compel attendance at trial of only those witnesses who have information which is material and relevant, i.e. capable of affecting the outcome of trial, and favorable to the defense. Commonwealth V. McKenzie, 399 Pa. Super. 22, 581 A. 2d 655 (1990). The grant or denial of the motion to secure a witnesses within the sould discretion of the trial judge. Commonwealth V. Bruner 388 Pa. Super. 82, 564 A. 2d 1277 (1989).
In addition, Rule 301(b) of the Rules of Criminal Procedure states ' a later motion (for continuance) shall be entertained only when the opporrunity therefore did not previously exist, or the defendant was not aware of the grounds for the motion, or the interests of justice require it."
Although it is within the discretion of the trial court to grant a request for a continuance, or a short delay, the grant of such a short delay was necessary here and would have been, under the circumstances, required by the interests of justice. In the instant case, appellant relies heavily on its pretrial motions (NT. 2/13/95 pg.l-13, attached as Exhibit A, and made a part of the record hereto). The issue of the outstanding bench warrant of Ms. Maria Fielding who was an eyewitness to the killing of the victim places a crucial role in this case. She was the flrst eyewitness interviewed by the police, and gave a statement with information in it indicating there was more than one individual involved in the alleged killing of the victim. She names the shooter, names someone who was with the shooter, and who was the nephew of one of the two eyewitnesses either \Villie Green or Charles Rowe, and also names a third party who is not the defendant either. (N.T. 2/13/95 pg.4-5). Appellants counsel subsequently asks for a continuance to serve another subpoena, or even to have the District Attorneys ofilce serve it, since it was their oflice who provided the name of this witness to the defense through discovery. This request is deried by the trial judge.
An additional request is made to locate this witness by defense counsel on February 23, 1995,QN.T. pg.19-37) at the close of the Commonwealth's case. (Attached as Exhibit B and made a part of the record hereto.) Thus, appellant maintians that it had a right to be granted a continaunce to located this missing witness Ms. Martha Fielding through compulsory process, knowing of the statement this eyewitness gave directly after the incident. Thus, the trial judge abused her discretion by failing to grant this motion before the commencement of this second trial of appelant having known the results of locating this witness from the first trial, and from what was included in the statement of Ms. Fielding.
A new trial is therefore warranted on this issue.
V. THE TRIAL JUDGE ABUSED HER DISCRETION BY ALLOWING A COMMONWEALTH WITNESS MR HOWSER TO TESTIFY ABOUT PRIOR CONTACT WITH THE DEFENDANT THEREBY PREJUDICING THE DEFENDANTS RIGHT TO A FAIR TRIAL.
Appellant contends that the Commonwealth should not have been permitted to call The United Postal Service driver Mr. James Howser for purposes of showing the appellant's prior contact with delivery drivers such as on Chelten avenue on a completely different occassion. (N.T. 2/22/95 pg. 3-9 attached as Exhibit C, and made a part of the recored hereto.) Appellant maintains that this is irrelevant testimony was more prejudicial than probative in its effect on the jury, by clothing the defendant in some sort of habit of harrassing delivery drivers while intoxicated. There is absolutely no relevance between the homicide accused here involving a Federal Express driver, and a UPS driver. The denial of appellant's objection to this line of questioning (page 6), prejudiced the appellant with irrelevant information that should have been stricken from the record but was not, and consituted an abuse of discretion by tbe trial judge.
A new trial is therefore warranted on this issue.
V. THE COURT ERRED IN REFUSING TO CHARGE ON DEFENDANT'S REQUESTED POINT FOR CHARGE WHERIN IT WAS ASKED THAT THE JURY BE INSTRUCTED AS TO "VOLUNTARY MANSLAUGHTER" AS A POSSIBLE DEGREE OF GUILT
Appellant's counsel asked the trial judge for a charge on voluntary manslaugher at the close of the trial (N..T. 2/24/95 pg. 55-59 see Exhibit D attached and made a part of the record hereto.) This request is denied by the trial judge despite the overwhelming evidence in this trial warranting such a charge.
The law surrounding the issue of a Court erring in refusing to charge on defendant's Requested Point for Charge, wherein it was asked that the jury be instructed as to "Voluntary Manslaughter" as a possible degree of guilt, has become sketchy what with the recent Pennsylvania Superior Court decision of Comrnonwealth v. Browdie, ______ Pa. Super. ______ 654 A.2d 1159(1995). In Browdie, defense counsel requested that a charge on voluntary manslaughter be given to the jury. The trial judge refused to give the "heat of passion" manslaughter charge which provides:
(a) General Rule - A person who kills an individual without lawful justification committs voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) the individual killed; or (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed. 18 Pa.C.S.A. sec. 2503(a).
Serious provocation is defined at 18 Pa.C.S.A. sec. 2301 as "conduct sufficient to excite an intense passion in a reasonable person."
Appellant argues that the trial judge was required to charge the jury on "heat of passion" voluntary manslaughter if requested to do so. In Matthews v. Johnson 503 F.2d 339 (3rd Cir. 1974), the Court held that the Due Process Clause of the United States Constitution entitles a murder defendant in Pennsylvania to have the trial court, upon defendant's request, charge the jury on voluntary manslaughter. Matthews was subsequently followed in Pennsylvania by Commonwealth v. Jones ,457 Pa. 563, 319 X2d 142, (1974), which stands for the same principal.
The Jones line of cases was subsequently eroded by Commonwealth V. Carter 502 Pa. 433, 466 A.2d 1328 (1978) which held that the rule in Jones had no application to unreasonable belief voluntary manslaughter. Carter, however, did not decide the propriety of charging the jury on "heat of passion" voluntary manslaughter in the absence of evidence of such passion.
Both Browdie and Willianis, are easily distinguishable from the facts in this case. In Browdie, the defendant was convicted of third-degree murder in the killing of a nine-month old child. The child died as a result of the shaking and squeezing of the baby. There was no gun involved in that case nor was there any evidence of a need for the "heat of passion" charge, because the victim didn't cause the defendant to act under intense passion. In Williarns, a truck driver was found shot to death at a truck stop from a single bullet to the back. Unlike, the instant case, there were no eyewitnesses , nor was the date of death even certain. 640 A.2d 1251, 1257 (1994).
In the instant cases there were two Commonwealth witnesses, and an alibi defense was presented. Both Commonwealth eyewitnesses failed to actually see the kiling of the victim. They both testified they heard gunshots, saw an individual run away from the other side of the Federal Express truck, and attempt to stick an item in his pocket as he ran. These two eyewitnesses did not actually see the driver get shot, nor do they know if any words were even said to the driver. The Federal Express driver was delivering drugs. It is possible that words were exchanged between the driver and the appellant, or that the driver may have even threatened the appellant. Thus, it is conceivable, that the victim could have been shot in the "heat of passion" thereby warranting a voluntary manslaughter instruction to the jury.
The Jones case is still the law in this Commonwealth and the undersigned was correct in requesting that the subject charge be given. His thinking being that the jury has mercy dispensing power. The court's refusal to give the jury the Requested Point for Charge was obvious error. It is submitted that the defendant has been severely prejudiced by this omission thus a new trial is warranted.
VI. The trial court erred by refusing to give a Pounds charge to the jury based upon appellant's counsel's request in his points for charge.
Appellant's counsel requested that the trial judge give a Pounds charge, that even if the jury does not believe all the evidence of alibi, if it in any way creates a reasonable doubt in their minds, then they must acquit. (N..T. 2/24/95 pg.78). In fact, the trial judge in her alibi charge does not use that language. C\£.T. 2/24/95 pg.75-76). She states, I charge you now on alibi. Even though there is no burden whatsoever on the defendant to offer or prove a defense, the defendant has offered a defense of alibi. Alibi is a defense that places a defendant, at the relevant time, in a different place from the scene involved, and so removed therefrom as to render it impossible for him to be the guilty party. Obviously the defendant cannot be guilty unless he was at the scene of the crime. The defendant has offered evidence to show that he was not present at the scene, but that he was at a relative's house in the vicinity at the time the crime was committed. If you beleive that testimony, obviously the defendant is not guilty, because the Commonwealth must prove, beyond a reasonabl doubt, all of the elements of the crirne and, in addition, it must prove, beyond a reasonable doubt, that the defendant was present and did, in fact, do the acts charged in the complaint. The defendants evidence that he was not present, either by itself or together with other evidence, may be sufficient to raise a reasonable doubt of his guilt in your minds. The credibility of the witnesses and the weight to be given their identification is exclusively for you, the jury. Now, even though the defense has presented witnesses who testified as to alibi, you may choose to disbelieve or disregard the testimony concerning alibi, and you may accept as true the testimony that the defendant was present and did commit the cnin'e. For the law states that a positive, unqualified identification by one witness is sufficient for conviction, even though other witnesses testifed as to alibi. (N..T. pg.75-76)
It is respectfiilly submitted that the court's proposed holding that no other legal clarification was necessary is in error.
In a series of cases commencing with Commonwealth v Brunner, 341 Pa.Super. 64, 491A.2d 150 (1985), and more recently deterrnined by the Supreme Court in Commonwealth V. Roxberrv, 529 Pa. 160, 602 A.2d 826 (1992), our appellate Courts have held that where an alibi defense has been raised, it is virtually per se error for the Court not to give an alibi instruction and for Counsel not to raise an objection in the absence of such instruction. See also, Commonwealth v Gainer, 397 Pa. Super. 348, 580 A.2d 333 (1990); Commonwealth V. Naumart, 345 PA. Super. 457, 498 A.2d 913(1985); Commonwealth v. Thuvu, 424 Pa. Super. 482, 623 A.2d 327 (1993).
In Brunner, the Court stated the following in circumstance similar to the those in the case at bar;
Where alibi evidence is presented, the trial court must instruct the jury that it shoud acquit if the alibi defense, even if not wholly believed, raised a reasonable doubt as to the presence of the defendant at the scene of the crime at the time when the offense was committed. "An instruction is necessary due to the danger that the failure to prove the defense will be taken by the jury as a sign of the defendant's guilt." Commonwealth V. Pounds, 490 Pa. 621, 633-34, 417 A.2d 597, 603
(1980). A failure to give a specific alibi where warranted is error requiring a new trial.
Commonealth v Pounds, supra; Commonwealth V. Van Wright 249 Pa. Super. 451, 378 A.2d 382 (1977). General instructions on the Commonwealth's burden beyond a reasonable doubt is not an adequate substitute for a specific alibi instruction. Van wright, supra
In the instant case, appellant's only witnesses were the appellant and two alibi witnesses who testifed credibly. The alibi defense was strong, and solid. Legal clarification was indeed necessary since the Court did not tell the jury that if it disbelieved the alibi, it should still find the appellant not guilty unless the Commonwealth proved every element of its case beyond a reasonable doubt. Moreover, general credibility instructions were insufficient, and the trial court abused its discretion by failing to give a Pounds charge as requested by appellant's counsel. A new trial is therefore warranted on this issue.
VII. The trial court committed reversible error in failing to charge that Third Degree Murder requires an intent to cause serious bodily injury , which results in death.
The leading case in Pennsylvania supporting this proposition is Commonwealth V. Austin. 394 Pa. Super. 146, 575 A.2d 141(1989). In this case, the appellant was charged with murder, voluntary, manslaughter, and possessing an instrument of crime after he stabbed the victim causing the victims death during an altercation outside a bar. The Superior court held that there was insufficient evidence of intent to kill or of malice to support a murder charge. The Commonwealth had to prove in Austin, that the accused specificaily intended to kill, which in turn was proved by evidence of premeditation and deliberation, in order to establish a prima facie case of murder in the first degree.
Third degree murder does not require a specific intent
to kill although it does require malice. Austin; supra. Mailce is an essential
element of murder in the third degree and is the distinguishing factor
between manslaughter and murder. Id. Malice in its legal definition exists
only where there is a particular ill wlll, but also whenever there is a
wickedness of disposition, hardness of heart, wanton conduct, cruelty,
recklessness of consequences and mindless regard of social duty. Malice
may be inferred from the attending circumstances. In this case,
there is no evidence to show that the elements of malice are present here,
and that the appeflant clearly acted in self defense.
The task of the appellate court in reviewing the sufficiency
claim is to determine whether, accepting as true all the evidence and all
reasonable inferences therefrom, upon which, if believed, the jury could
probably have based its verdict, it is sufficient in law to prove beyond
a reasonable doubt that the defendant is guiltv of the crime or crimes
of which he has been convicted. Commonwealth v. Williams, 455 Pa. 539,
547, 316 A.2d 888, 892(1974).
The law in Pennsylvania is clear that the deliberate use of a deadly weapon upon a vital area of the body of the victim is sufficient to allow the jury to infer a specific intent to take life, absent any circumstances that might negate such an intention. See Commonwealth v O'Searo, 466 Pa. 224 352 A.2d 30 (1976) and cases cited therein; Commonwealth V. Gibbs, 366 Pa. 182, 76 A.2d 608(1950); Commonwealth v. Drum 58 Pa. 9(1868), in Commonwealth V. Crowson, 488 Pa. 537, 543, 412 A.2d 1363, 1365(1979). This presumption was developed in recognition of the impossibility for the Commonwealth to meet its burden of establishing a requisite frarne of mind without resort to circumstantial proof. Because a state of mind by its very nature is subjective, absent a declaration by the actor himself; we can only look to the conduct and the circumstances surrounding it to determine the mental state which occasioned it. O'Searo 466 Pa. at 236, 352 A.2d at 27.
While it is true that almost every other case in which specific intent was inferred from the use of deadly weapons upon the vital area of the bodies of victims contains other circumstances corroborative of such intent, in this case, the jury could not reasonably conclude from the facts presented that appellant possessed the specific intent to kill. This is so, especially in light of the principle that no specific length of time is necessary before premeditation was found to have entered into a defendants act of killing. Commonwealth V. Thornton. sup ra.
The appellant argues that the mere fact that he used a gun and shot the victim on a VITAL part of the victim's BODY is not enough to show that it is more likely than not that appellant specifically intended to kill the victim. Specifically, the appellant alleges that there were no eyewitnesses who actually saw the appellant shoot the victim in the head.. There is testimony that shots are heard, and a man is seen running form behind the Federal Express Van, but that nobody knows if the appellant committed a deliberate and dangerous act which alone does not establish his malice, nor his specific intent to kill.", and that he, the appellant, could have been threatened either verbally or physically and acted in self defense. Thus, the judge in his closing charge to the jury never instructed them on this topic.
Based on the foregoing, a new trial is warranted on this
issue.
VIII. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO CHARGE THE JURY, IN THE PENALTY PHASE, THAT LIFE IMPRISONMENT MEANS LIFE IMPRISONMENT WITH NO POSSIBILITY OF PAROLE.
During the proceedings, the Court "death qualified" the jury; however, it did not life qualify it. While the defense "life qualified' some of the prospective venire persons, the trial judge did not ensure that defense counsel did so for all of the venireman in the second trial. This failure of the court to charge the jury in the penalty phase that life imprisonment means life imprisonment without the possibility of parole denied the appellant the right to an unbiased jury.
The appellant had a right to be tried by jurors who would not be so biased as to return a death penalty verdict in the event the appellant was found guilty of murder in the first degree. Morgan V. Illinois, 504 U.S. 345 (992). Indeed, he had a right to be tried by a jury free of any bias. Irwin v. Dowd. 366 U.S. 717(1961). Similarly, the Commonwealth had the right to be free of any jurors who could not impose the death penalty. Witherspoon V. Illinois, 392 U.S 510 (1968).
In Morgan V. Illinois, the trial Court was requested to ask potential jurors on voir dire in a capital case, whether they would automatically impose the death penalty if the defendant was convicted. The trial court refused, and on a Writ of Certiorari, the United States Supreme Court reversed and remanded the case. The Supreme Court held that the trial court's refusal to inquire whether potential jurors would automatically vote to impose the death penalty if the defendant were convicted violated the due process clause of the Fourteenth Amendment.
Therefore, the Supreme Court that the defendant's sentence could not stand because: (1) a juror who will automatically vote for the death penalty in every case will fail to consider in good faith the aggravating and mitigating circumstances and to deterrnine whether there is a sufficient basis to preclude imposition of the death penalty as required by state statute and by the Court's instructions; (2) if voir dire were not available to expose the foundation of the defendant's challenges for cause against "automatic-death jurors", the defendant's right not to be tried by such jurors would be negatory and meaningless; and (3) neither general fairness and "follow the law" questions, nor the juror's oath, were sufficient to satisfy the defendant's right to make such inquiry.
Nor is this new principal the law. Death penaly jurisprudence has previously dealt with such lack of impartiality injury selection. The Morgan court stated the following;
"Thus it is that our decisions dealing with capital sentencing jurors and presenting issues most analogous to that we decide hear today. e.g. Withersnoon v. llllinois 391 U.S. 318, 88 S.Ct.
S.Ct. 1770, 20 L.Bd.2d 776 (1968); Adams V. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Wainwright V. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); and Ross V. Oklahoma. 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), have relied on the structures dictated by the Sixth and Fourteenth Amendements to ensure the impartiality of any jury that will undertake capital sentencing." 119 L.Ed.2d at 502.
Particularly under Witt and Ross, the court noted that it was error not to remove for cause, jurors who would either vote automatically for the death penalty or who could not vote for the death penalty under any circumstances. Thus, the Morgan court noted, that over the years, the Supreme Court has "not hesitated, particularly in capital cases, to find that certain inquiries must be made to effectuate consitutional protection." Id. at 503. Finally, the court held, "If even one such juror is empanelled and the death sentence is imposed, the state is disentitled to execute the sentence. Id.
In Simmons v. South Carolina, 512 U.S. ___ 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), the defendant was tried for the murder of an elderly woman. During closing arguments at the penalty phase, the prosecution argued that in fixing Simmons punishthent, the jury should consider his future dangerousness. Simmons' counsel sought to rebut the prosecution's future dangerous contentions by presenting evidence that due to Simmons' particular psychological problems, he wad dangerous to only elderly women who would not be found in the prison setting. Counsel asked the court to instruct the jury that, under South Carolina law, a sentence of life imprisionment did not carry any possibility of parole. The trial court refused to grant the requested instruction, and Simmons was sentenced to death.
The Supreme Court of the United States reversed ruling that Simmons had been denied due process. The Court reasoned that the jury reasonably may have believed that petitioner could be released on parole if he were not executed and, to the extent that this misunderstanding pervaded the jury's deliberations, it had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration. Thus, Simmons mandates that where future dangerousness is at issue and a specitic request is made by a capital defendant, it is a denial of due process to refuse to tell a jury what the term "life sentence" means. See also Commonwealth V. Christy, Pa. 6 56A.2d877(1995),.
This failure of the court to charge the jury in the penalty
phase that life imprisonment means life imprisonment without the possibility
of parole denied the appellant the right to an unbiased jury.
A new trial is therefore warranted on this issue.
IX. THE TRIAL JUDGE ERRED BY ALLOWING THE PROSECUTOR TO MAKE
PREJUDICIAL REMARKS TO THE JURY DURING ITS OPENING, CLOSING, AND
PENALTY PHASE STATEMENTS, THEREBY PREJUDICING THE DEFENDANTS
RIGHT TO A FAIR TRIAL.
It is well settled that a prosecutors remarks fall within the ambit of fair comment if they are supported by evidence and contain inferences which are reasonably derived from that evidence. Commonwealth V. Hardcastle. 519 Pa. 236, 254, 546 A.2d 1101, 1109 (1988). A new trial is not mandated every time a prosecutor makes an intemperate or improper remark; To constitute reversible error, the language must be such that its unavoidable effect would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict. Id.
Comments by the Commonwealth's attorney do not constitute reversible error unless the unavoidable effect of such comment would be to prejudice the jury. Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984). Whether a reversal of judgment is required depends on whether the remarks made by the prosecutor are of such a nature that they would seriously threaten the jurys objectivity and deprive the accused of a fair trial. Commonwealth V. Brown, 489 Pa. 285, 414 A.2d 70 (1980).
The decision to grant or deny a mistrial is within the sound discretion of the trial court and will not be disturbed absent a flagrant abuse of discretion. Commonwealth v. Gonzales, 415 Pa. Super. 564, 609 A.2d 1368 (1992). A mistrial is required only where an incident is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial. Id. Prosecutorial comments, therefore, constitute reversible error only where the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that the jury is unable to weigh the evidence objectively and render a true verdict.
In the instant case, many comments were made by the prosecution that were clearly prejudicial and had the effect of biasing the jury against the appellant. The trial judge should have never permitted such comments to reach the ears of the jury. The trial judge additionally erred in permitting certain powerful and prejudicial words and expressions to be used by the prosecution in its closing statements to the jury. Appellant's counsel strongly urges this Court to thoroughly review the closing remarks of the District Attorney Mr. Roger King .T. 2/24/95 pg. 38-55), and his comments during the Penalty Phase(N.T. 2/28/95 pg. 47-57).
In his closing remarks, the District Attorney mentions frogs and scorpions (pg.42), the innocence of life and the badlands (p43), blessings and curses, drinking establishments in Arizona( pg.46), a banquet of the defendants consequences (g.49), the fate of the world and religous people (pg.49-SO). a hardness of heart and a special cruelty (pg. 51), sending your kid to school on a playground in the badlands (pg 53) and Christmas and death in the badlands. (pg.55).Furthermore, Mr. King during the penalty phase walks around the jury box, gets in the face of each juror and puts fear into their eyes by characterising the defendant as a runaway locomotive with a kill switch. (pg 50-51 form 2/28/95).
The Assistant District Attorneys barrage of improper, spiteful, and unethical statements that confound and bewilder the bonds of decency go well beyond the standard of oratorical flair. All of the above statements made by the Assistant District Attorney individually and collectively indicate his attempt to deliver a religious sermon to play on the sympathies ofthe jury. His constant references to God, ancient law, and religion have no place in the Closing or Penalty Phase arguments, His fire and brimstone speech inflamed the minds of the jurors, severely prejudicing the appellants: constitutional rights to a fair trial. The Assistant District Attorney expounds language thatgoesbeyond the oratorical flair standard. Therefore, a new trial is warranted on this issue.
CONCLUSION
For the foregoing reasons, counsel for the Appellant respectfully
requests that judgement of sentence on all counts should be vacated.
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