No. 663 Philadelphia 1981, Appeal from the Judgment of Sentence of February 9, 1981, Court of Common Pleas, Criminal Division, Montgomery County at No. 35-80.
Neil E. Jokelson, Philadelphia, for appellant.
David M. McGlaughlin, Henry J. Schireson, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.
Johnson, Montemuro and Montgomery, JJ.
[ 312 Pa. Super. Page 209]
Appellant was convicted by a jury on two counts of second degree murder.*fn1 Post verdict motions were denied and Appellant was sentenced to two consecutive terms of life imprisonment. This appeal followed.*fn2
Viewing the evidence in the light most favorable to the verdict winner, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), the evidence reveals that Appellant and two others, Vicki Schmidt and Debbie Von Gober, plotted to rob a certain tavern on March 28, 1974. That night, the three women proceeded to the tavern and remained there until all
[ 312 Pa. Super. Page 210]
other patrons had left. Appellant and Schmidt, armed with hand guns, then opened fire on the owner and barmaid. The three then emptied the cash register, took the owner's wallet and proceeded to their car. Schmidt then informed the other two women that it was necessary to re-enter the tavern to retrieve an empty gun cartridge. Appellant refused, and after Schmidt and Von Gober were unsuccessful in reentering the tavern, the parties fled. Both victims died of the gunshot wounds.
The three perpetrators were subsequently identified by the tavern's patrons as the last customers in the tavern on the night of the killings. Von Gober and Schmidt were traced by police to the home of a Warlock Motorcycle Club (hereinafter the Club) member in Windgap, Pennsylvania. They had gone to Windgap the same morning the murder victims were discovered. They were interrogated by police and denied involvement in the slayings. Appellant was located at her home with her husband, a former Club member. She too denied any involvement.
Police investigation also produced the empty gun cartridge which was found in the tavern. The police traced the marks on the empty cartridge and identified the gun which had been used to fire the cartridge. This trace indicated that Walter Rodriguez, a Club member, had purchased the gun. During questioning, Rodriguez told police he gave the gun to Thomas Schmidt, Vickie Schmidt's husband, in December of 1973. A search of the Schmidt residence uncovered the box to this gun, and a full clip of ammunition; however the weapon was never located.
On December 12, 1979, Von Gober voluntarily went to the police and confessed to the murders. Her first confession implicated herself and Appellant. Her second confession also implicated Vickie Schmidt, attributing the delay in implicating Schmidt to a recent death threat made to her by Schmidt.
In her second account, Von Gober described the conspiracy to rob the tavern, which occurred at the home of Club President Jay Centurione. She further described both the
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crime and the cover-up which was subsequently organized over the next five and a half years by the Club community, most notably by Vickie and Thomas Schmidt, Jay Centurione and Appellant's husband, Harpo Basile.
Appellant raises three issues on appeal, namely: (1) whether the trial court erred in admitting evidence of allegedly prejudicial hearsay statements of Vickie Schmidt, which statements occurred after the commission of the crimes and inculpated Appellant, (2) whether comments made by the prosecution, in its opening and closing statements, concerning the role of the Club, the honesty and motivation of defense counsel, and the veracity of Appellant, amounted to prosecutorial misconduct, and (3) whether the trial court erred in instructing the jury not to consider the penalties attending a verdict of guilty to the murder charges.
As we find these arguments either to be meritless or to have been waived, we affirm.
Appellant alleges in her first argument that the trial court improperly permitted evidence of the out-of-court statements of Schmidt*fn3 to be introduced through the direct examination of the Commonwealth's witness Von Gober over defense counsel objection. The statements, according to Appellant, were hearsay, did not properly fall under any exception to the hearsay rule, and violated her rights under the Sixth Amendment to the United States Constitution.
The statements involved evidence that (1) Schmidt was in constant contact with Jay Centurione, who was coordinating the cover-up of the crimes,*fn4 (2) that Schmidt had given a gun used in the crimes to one Ron Foster to be melted down,*fn5 (3) that Schmidt had attended a ...