No. 20 W.D. Appeal Docket 1982 and No. 50 W.D. Appeal Docket 1982, Appeal from the Judgments of the Court of Common Pleas of Washington County, Pennsylvania, denying Post Trial Relief and Arrest of Judgment entered February 25, 1982 at No. 921 of 1979 and No. 944 of 1979
Thomas O. Vreeland, Washington (court-appointed), for appellant.
Herman J. Bigi, Dist. Atty., Daniel L. Chunko, First Asst. Dist. Atty., Washington, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Former C.j. O'Brien did not participate in the decision of this case. Nix, J., filed a concurring opinion. McDermott, J., concurred in the result.
In this appeal, we must determine whether the district attorney's failure to correct certain false testimony rendered by the chief witness for the Commonwealth and failure to provide defense counsel with that witness' complete criminal background and record upon request has deprived appellant of his right to a fair trial. We answer in the affirmative and grant appellant a new trial.
On August 17, 1979, at approximately 5:20 p.m., two men were seen running from Carl's Cleaners in Canonsburg, Washington County, holding handguns. Moments later, Carl Luisi, Sr., the owner of Carl's Cleaners, and fifteen year old Tina Spalla, an employee of Mr. Luisi, were found lying on the floor of the store. Each had been shot. Carl Luisi was pronounced dead at the scene. Tina Spalla, unconscious but still alive, was fatally wounded and died a short while later. The cash register was ajar, and, it was later determined, $227.00 had been taken from it. Appellant was apprehended on August 20, 1979, in Wheeling, West Virginia, by members of that city's police department. Appellant's co-defendant Henry Brown was subsequently arrested.
A jury trial commenced on December 3, 1980, before the Honorable John F. Bell in the Court of Common Pleas of
Washington County, but resulted in a mistrial due to the inability of the jury to reach a verdict. Because of the extensive publicity which was generated by this trial, a jury was selected in Erie County by order of this Court and brought to Washington County for the second trial which began on February 2, 1981.
Appellant was convicted of murder of the first degree for the death of Tina Spalla, murder of the second degree for the death of Carl Luisi, Sr., robbery and criminal conspiracy. The Commonwealth sought the death penalty and a sentencing proceeding was held before the same jury on February 7, pursuant to the procedures established by section 9711 of the Sentencing Code, 42 Pa.C.S.A. § 9711. The jury found that the aggravating circumstance -- the killing was committed while in the perpetration of a felony, 42 Pa.C.S.A. § 9711(d)(6) -- outweighed any mitigating circumstances, and returned a sentencing verdict of death, as mandated, upon such a finding, by the Sentencing Code. 42 Pa.C.S.A. § 9711(c)(1)(iv).
On September 13, 1981, a motion for an evidentiary hearing and a new trial based upon after discovered evidence was filed. Following an evidentiary hearing, Judge Bell denied the motion. On February 11, 1982, a court en banc issued an opinion and order, per Judge Bell, denying appellant's post-verdict motions. On February 25, appellant was sentenced to death. This appeal was then automatically docketed in this Court pursuant to JARA, 42 Pa.C.S.A. § 722, and the Sentencing Code, § 9711(h).
While appellant does not specifically raise the issue of sufficiency of the evidence to sustain the convictions, this Court will conduct an independent review of the record for sufficiency in capital punishment cases. Commonwealth v. Zettlemoyer, 500 Pa. 16, at 26, n. 3, 454 A.2d 937 at 942, n. 3 (1982). The evidence adduced at appellant's second trial, together with all reasonable inferences in the Commonwealth's ...