OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Three consecutive sentences of death were imposed upon Ralph Trent Stokes on June 9, 1987. Further cumulative consecutive sentences of ten to twenty years for robbery,
Appellant's convictions resulted from his participation, along with Donald Jackson, in the robbery of Smokin' Joe's Korner on March 12, 1982. Smokin' Joe's is a restaurant and bar, where the appellant had been previously employed, located at 5100 City Line Avenue in the city of Philadelphia. At trial Mr. Jackson testified that he and appellant had donned
The two men entered the restaurant through the unlocked rear kitchen door with their guns drawn. They confronted two restaurant employees in the kitchen, Renard Mills and Pierre Blassingame. A third restaurant employee, Eugene Jefferson, entered the kitchen from another part of the building about the same time. Appellant locked the three employees into a walk-in refrigerator, then proceeded into the restaurant office where he encountered Mary Figueroa, the restaurant manager and wife of one of the owners of Smokin' Joe's. Jackson joined appellant and Mrs. Figueroa in the office as appellant was forcing Mrs. Figueroa to open the safe. At that point Jackson noticed appellant's ski mask was pulled up off his face. Jackson told appellant to cover his face, to which appellant replied that he had already been recognized by Mrs. Figueroa. After Mrs. Figueroa opened the safe she was placed in the walk-in refrigerator with the other three employees. Mrs. Figueroa told the others that she had recognized "Trent." She then attempted to exert a calming influence upon the others in the refrigerator.
With everyone in the refrigerator, Jackson and appellant proceeded with their looting of the restaurant. Unfortunately, while these activities were in progress, Peter Santangelo, a mailman, happened upon the scene. Jackson opened the kitchen door a fraction sufficient enough to accept delivery of the mail, and then closed the door. Appellant, afraid of being discovered, chased after the mailman, bringing him into the restaurant and ordering him, at gun point, to lie on the kitchen floor. With Mr. Santangelo on the floor, appellant placed his ear against the refrigerator door in an effort to overhear the conversation among the persons therein.
Appellant then announced to Jackson that he had been identified and would have to "off" the witnesses. Whereupon, appellant opened the refrigerator and fired three shots, killing Eugene Jefferson and Mary Figueroa. Upon witnessing this
Jackson, upon witnessing the murders, ran out the rear door and started the car. The vehicle was difficult to start, leaving sufficient time for appellant to join Jackson in the car. The two men then fled the scene. Appellant and Jackson went to the home of Jackson's friend, Eric Burley, where they divided the proceeds of the robbery and directed Burley to dispose of appellant's gun, the jumpsuits, and the ski masks worn during the commission of the crimes.
Viewed in the light most favorable to the Commonwealth, the evidence adduced at trial was sufficient to establish appellant's guilt beyond a reasonable doubt of each element on all three charges of murder in the first degree, robbery, possessing instruments of crime and criminal conspiracy. Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990). We shall address the issues as raised by appellant in two sections, first those pertaining to the guilt phase, and then those issues raised in the penalty phase.
The Guilt Phase
Appellant was afforded new counsel during the post-trial proceedings. Counsel for appellant raises six issues in the guilt phase, five of which are framed as ineffectiveness of trial counsel. This Court originally established a three prong standard for reviewing claims of ineffective assistance of counsel in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Recently, that standard was succinctly delineated in Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991), cert. denied, ___ U.S. ___, 112 S.Ct. 422, 116 L.Ed.2d 442 (1991): "1) is the issue underlying the claim of ineffectiveness of arguable merit; 2) does the course chosen by counsel have a reasonable basis designed to serve appellant's interest; and 3) has the appellant suffered prejudice as a result of counsel's ineffectiveness." Id. 526 Pa. at 609, 587 A.2d at 1382. With this standard in mind we begin our review of the allegations of trial counsel's ineffectiveness.
Id. at 150, 578 A.2d at 1274.
In the instant case the trial court expanded on the standard jury instructions by using its own words to set forth further illustrations of the legal points to be considered. First, we will address the objections to the charge on the presumption of innocence and the right of a defendant in a criminal case to remain silent.
The court repeated the language at issue in the opening instructions to the jury and in the final instructions before deliberation. The relevant section of the charge as fully given at the close of trial is as follows, with the portion complained of underlined.
Appellant asserts that the word incriminate creates the impression in the minds of the jurors that had appellant taken the stand his own testimony would have proven his involvement in the crimes charged. Unfortunately, the words chosen by the trial judge were not the best that could have been used to proclaim the rights at issue. We take this opportunity to caution trial judges that this phrasing is inappropriate.
However, we will not review a charge to the jury by focusing on one or two words taken out of the context within which they were spoken. Clearly, the charge as a whole reflects the emphasis upon a defendant's right to remain silent and the sincere efforts by the trial court to convey to this jury that no adverse inference must be drawn from the fact that a person charged with a crime exercises his constitutional right not to speak in his own defense.
The second objection to the trial court's charge to the jury focuses on the use of the word substantial in defining
Appellant argues that the use of the word substantial in one place in a charge on reasonable doubt, that exceeded three pages of transcript, and that in all other aspects perfectly followed the legal definition of this concept as set forth in Commonwealth v. Drum, 58 Pa. 9, 22 (1868), is per se reversible error. In support of this argument appellant relies on the recent United States Supreme Court per curiam decision in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). Appellant's reliance upon the decision in Cage dilutes the significance of the opinion in that case.
The charge found to be reversible error in Cage was as follows:
498 U.S. 39, 40, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990).
In reversing and remanding Cage on the basis of the above charge the Supreme Court made it clear that it was because of
The next question of ineffectiveness raised by appellant is that trial counsel was inadequate for failing to impeach Donald Jackson with his entire criminal record of both arrests and convictions. Only Jackson's prior convictions for crimes of a crimen falsi nature were used by counsel in an attempt to impeach his credibility.
Donald Jackson, according to his own testimony, conspired with appellant to rob Smokin' Joe's Korner. Jackson pled guilty to the charges of robbery, conspiracy and murder in the second degree, resulting from his involvement in the heinous events at Smokin' Joe's. In exchange for his plea to those crimes, Jackson was offered a life sentence, conditioned upon his testimony against appellant in the instant trial. During the course of his testimony the arrangement concerning Jackson's plea was revealed to the jury. In addition, Jackson was thoroughly cross-examined regarding his lengthy list of prior convictions. Appellant now argues that the impeachment of Jackson should have included the prior crimes for which he was arrested but not convicted, and all convictions, regardless of their lack of relevancy to the issue of Jackson's credibility.
In support of this argument appellant asserts that under 42 Pa.C.S. § 5918, Jackson was a "defendant," and thus no limitations should apply to impeachment of him as a defendant/witness.
Second, the law regarding impeachment of a witness and impeachment of a defendant is consistent in prohibiting impeachment regarding prior arrests and prior convictions for crimes not involving crimen falsi. See, Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154 (1982), cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982), (impeachment of witness limited to prior convictions of a crimen falsi nature); Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987), (impeachment of a defendant limited to prior convictions of crimen falsi nature).
Accordingly, regardless of what designation Jackson was referred to in the proceedings at bar, witness, defendant or co-defendant, the use of his prior arrests and prior convictions for non crimen falsi crimes was not an appropriate line of questioning for trial counsel. Trial counsel was thus not ineffective in failing to proceed with a line of inquiry which is prohibited.
In a related issue, appellant asserts that trial counsel was ineffective in not requesting that appellant be tried before another jurist, as the trial judge herein had also accepted the plea agreement under which Jackson was testifying. Appellant
Appellant's speculative assertions are not supported by the record. The specifics of Jackson's plea agreement, as outlined for the jury by the testimony of a clerk of the quarter sessions and Jackson himself, were that Jackson was to "testify" in appellant's trial. There was never any reference during the exchanges among any of the witnesses regarding this agreement, that Jackson's plea was contingent upon his "telling the truth." Cf. Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990). Further, in his final charge to the jury, the judge reiterated the circumstances of Jackson's plea agreement and cautioned the jurors that "the testimony of Donald Jackson as an accomplice should be looked upon with disfavor since — because it comes from a corrupt and polluted source."
The record fails to disclose any reason for trial counsel to have requested appellant's case be heard by a different jurist. Again, trial counsel cannot be found ineffective for failing to pursue a meritless course of conduct.
The remaining issue raised in the guilt phase refers to error by the trial court. Appellant maintains that it was error for the trial court to allow the introduction of a hearsay statement uttered by the deceased victim Mary Figueroa, shortly before her death. The statement was uttered by Figueroa upon her being placed in the meat locker with the other employees. As testified to by one of the surviving victims, Renard Mills, Mary stated, "That was Trent. I don't believe it was him. I don't believe that he would do anything like this."
At the time the statement was uttered by Mary Figueroa she was caught in the midst of an armed robbery, during which she had been coerced at gunpoint to open the restaurant safe, and then forcibly ordered into a locked refrigerator. The circumstances clearly establish that a startling occurrence was in progress, one in which Mary Figueroa was forced to participate. Her statement that she recognized "Trent," and couldn't believe it was him, more accurately reflects her excited condition, than any deliberative thought process on her part.
Appellant's argument that Mary was not emotionally overcharged is premised upon the fact that she attempted to calm down the others within the refrigerator. This activity, although consistent with a passive reaction to the events surrounding Mary at the time, is equally consistent with an attempt to control her own overwhelming fear under the circumstances. Thus, we find no error on the part of the trial court in admitting this statement under the excited utterance
The Penalty Phase
The jury found two aggravating circumstances and no mitigating circumstances as to each of the three indictments. Thus, a sentence of death was imposed for the murder of Peter Santangelo, a sentence of death was imposed for the murder of Mary Louise Figueroa, and a sentence of death was imposed for the murder of Eugene Jefferson. The same two aggravating circumstances were found as to each indictment; the defendant committed the killing while in the perpetration of a felony, and in the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.
The appellant now raises seven allegations of error as to the imposition of the three consecutive sentences of death. The first allegation is that the trial court erred in its charge to the jury regarding the conditions under which they could find aggravating circumstance (d)(7) (grave risk of death to others). For the reasons that follow we find that the trial court did in fact err in the manner in which it charged the jury as to this particular aggravating circumstance. The charge as given reads:
Appellant correctly asserts that the trial court misstated the intent of this particular aggravating circumstance and compounded that error by essentially directing the jury that this aggravating circumstance must "as a matter of logic" be found in each information. The aggravating circumstance at issue applies to situations where the defendant in the course of killing his particular victim acts in a manner which endangers the lives of others close in proximity to the intended or actual victim. See, Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990) (defendant created a grave risk of harm to the sister and nephew of his intended victim who were in the same room when the defendant, firing wildly, shot the decedent, a stereo speaker and a lamp).
The way the trial court explained the application of this particular aggravating circumstance to the case left the jurors with no discretion. The trial court precluded the jury from properly executing their function to determine if under the facts of this particular case, the appellant "knowingly created a grave risk of death to another person in addition to the victim of the offense" when each of the decedents was killed. Although, on the facts of the instant case it would have been possible for the jury to find that the appellant created a grave risk of death to Renard Mill and Pierre Blassingame, who
Regardless of what would have been reasonable on the facts of this case, the manner in which the trial court charged the jury on the aggravated circumstance of creating a grave risk of death to others precluded the jury from properly analyzing the applicability of that circumstance to the facts of this case. For that reason, the jury's finding of aggravating circumstance (d)(7) as to each information against appellant must be stricken. However, as the jury found one other aggravating circumstance, "the defendant committed a killing while in the perpetration of a felony" 42 Pa.C.S. § 9711(d)(6), as to each information, and no mitigating circumstances as to any of the three informations, all three sentences of death must be affirmed. Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2202, 95 L.Ed.2d 857 (1987); 42 Pa.C.S. § 9711(c)(iv).
Appellant next contends that trial counsel was ineffective for not arguing at the penalty phase that mitigating circumstance (e)(1), "The defendant has no significant history of prior criminal convictions," should have been considered by the jury. Appellant had a lengthy record of juvenile adjudications, however, at the time of the instant murders he was 19 years of age and had no record of adult convictions. Appellant reasons that juvenile adjudications would not be admissible as prior convictions, as they were "adjudications of delinquency" and not "convictions" thus; he had the right to argue (e)(1) as a mitigating factor before the jury. Appellant asserts that he was prejudiced by trial counsel's failure to offer this argument at the penalty phase.
Appellant also charges trial counsel was ineffective in the failure to present a "relevant" summation to the jury at the penalty phase. Admittedly, the summation proffered was brief and limited to an appeal for mercy. However, the jury had just, in a very brief deliberation, found the appellant guilty of three counts of first degree murder. Trial counsel explained during the post-trial hearing that he felt a further recital of the evidence would not benefit his client and thus tailored his summation to reach the jury on an emotional level.
Appellant argues that counsel should have offered more in an attempt to have the jury see the appellant in a more favorable light. He asserts that the lack of a prior adult record should have been pursued and that appellant's family should have testified to garner sympathy. As previously discussed, the lack of an adult record would have been an argument unavailable to appellant in light of our recent opinion in Baker. Further, use of appellant's family members would have permitted the prosecution an opportunity to question them on more unsavory aspects of appellant's character, such as his juvenile record.
The right to present a summation is clearly a component of the right to representation by counsel. Stewart v. Commonwealth, 117 Pa. 378, 11 A. 370 (1887). However, the
Appellant next asserts that the trial court erred in limiting his testimony at the penalty phase. Appellant did not testify in his own behalf at the guilt phase. After lengthy discussions with trial counsel, appellant agreed to testify at the penalty phase to assert his innocence. During the guilt phase, trial counsel's strategy had been to cast doubt on the identifications made of appellant as the shooter, and instead create the inference that the co-defendant, Donald Jackson, was the actual shooter. Attempts were also made at the guilt phase, through the testimony of various family members, to construct an alibi for appellant.
In the penalty phase, appellant took the stand to convince the jury that he did not kill Mary Figueroa, Eugene Jefferson or Peter Santangelo. During his testimony, appellant also attempted to persuade the jury that he had not even been present at Smokin' Joe's at the time the murders occurred. The prosecutor objected to any testimony as to appellant's alibi, as the jury had already determined that question contra to appellant. The trial court properly sustained the objection, as testimony regarding appellants's guilt was no longer relevant at the sentencing phase. The appellant's testimony was properly limited to a consideration of the appropriate aggravating and mitigating circumstances at the penalty phase. Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 215, 112 L.Ed.2d 175 (1990).
In his final two arguments, appellant asserts that the verdict slip sent with the jury in the instant case violated the principles of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860,
In Mills the verdict slip, along with the instructions to the jury, created a substantial risk that the jurors would be misled into thinking that any mitigating circumstance must be found unanimously. The verdict slip in the instant case does not contain any language which would so mislead the jury. Further, the instructions given to the jurors were in compliance with the penalty statute and the decision of this Court in Commonwealth v. Frey, 520 Pa. 338, 554 A.2d 27 (1989), cert. denied, 494 U.S. 1038, 110 S.Ct. 1500, 108 L.Ed.2d 635 (1990). Therefore, as the verdict slip did not violate the teachings of Mills, we need not discuss the question of whether or not Mills should be applied retroactively to the instant case.
Finally, in compliance with our statutory duty pursuant to 42 Pa.C.S. § 9711(h)(3) we must affirm the sentence of death unless we determine that the sentence was the product of passion, prejudice or any other arbitrary factor; the evidence fails to support the finding of at least one aggravating factor; or the sentence is excessive or disproportionate to the penalty imposed in similar cases. Upon such review we find that the sentences of death imposed in this case comply with the concerns set forth in the statute. The sentences were not arbitrarily arrived at; nor were they the product of passion or prejudice; the evidence supports the aggravating factor of death occurring in the course of a felony and we find no excessiveness or disproportionality when compared to the sentences imposed in similar cases.
Accordingly we affirm the judgment of the sentence of death in all three informations.
McDERMOTT, J., did not participate in the decision of this case.
NIX, C.J., and LARSEN and PAPADAKOS, JJ., concur in the result.
No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation unless: