No. 42 E.D. Appeal Dkt. 1982, Appeal from the Judgment of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section Imposed on Information No. 1442, November Term, 1980
James S. Bruno, Norristown (Court-appointed), for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Philadelphia, Marion E. MacIntyre, Deputy Atty. Gen., for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, C.j., files a dissenting opinion. Former C.j. Roberts did not participate in the decision of this matter.
The appellant here appeals from a sentence of death.*fn1 If the facts alleged and resolved by the jury are legally predicated, they depict a "wickedness of disposition, a hardness of heart and recklessness of consequence," that are the very name and nature of murder. With the announced intention of robbery and "killing if necessary," appellant lured an encyclopedia salesman to his home. The victim came, hoping to show his books to a concerned and loving father. As he sat in appellant's home, he knew not the frigid cruelty that was to engulf him. He knew not that on the morrow his own son would find him, thrown into the cellar in a trash bag.
Appellant challenges the verdict below on numerous grounds.*fn2 These challenges center around violation of Pennsylvania Rules of Criminal Procedure Rule 1100, a warrantless search, marital privilege, prosecutorial remarks, and infliction of cruel and unusual punishment due to the imposition of the death penalty. We reject these challenges and affirm.*fn3
The pertinent facts are summarized as follows: In May of 1979, appellant sent a card to Encyclopedia Britannica requesting a salesman to call regarding the purchase of a set of the encyclopedias. Paul Kent visited the appellant and his live-in paramour, Ann Gasper, at appellant's house, but no encyclopedias were purchased because neither of them had any funds.
On the morning of June 5, 1979, appellant instructed Ann Gasper to telephone Mr. Kent's office and ask Mr. Kent to return to appellant's household since they now had the necessary funds to buy the books. According to Ann Gasper's testimony, appellant told her and co-defendant Gary Mobley, who had been present in appellant's house that day, that he was going to rob the salesman and kill him if necessary. At appellant's request Gary Mobley went to a nearby store to buy some trashbags. Appellant told Ms. Gasper to go upstairs and get the children ready as they were going to the store. In the meantime, Mr. Kent arrived at appellant's house and for a brief while they discussed the books.
Upstairs Ann Gasper heard two gunshots. When she descended Ms. Gasper observed Paul Kent's body slumped in a dining room chair, dead. He had been shot twice in the head at close range. Appellant told Ms. Gasper to wash Mr. Kent's blood from the wall, carpet and chair while he and Gary Mobley stuffed the lifeless victim in trash bags and carried it to the cellar, where they removed the victim's wallet. Taking Mr. Kent's car the trio drove to Wanamaker's Department Store in Philadelphia, where they purchased a purse and two television sets with the victim's credit card, being the exchange for Paul Kent's life. The television sets were never claimed at the pick-up department
because the Wanamaker's salesman became suspicious of appellant's purchase and had the sets returned to his department.
The threesome then returned to appellant's house. Gary Mobley promised appellant that he would dispose of the corpse the next night when he would be least visible. The following morning, appellant broke the basement door to prevent his teenage girls from entering the basement. Ms. Gasper wrote a note to the children informing them of the basement door and that she and appellant were out shopping and would return later that evening.
Instead, appellant and Ms. Gasper drove the victim's car to New York City. Later that same afternoon the victim's son went to appellant's home to ask the whereabouts of his father. Appellant's daughters searched the house and discovered the victim's body in the trashbags. The girls went outside to a pay booth to telephone their grandmother. En route they approached two police officers who were observing the house from a car across the street and informed them of what they had seen. The police had been waiting for the arrival of a search warrant for appellant's house. The police officers requested permission to enter the house and the daughters granted it.
The fugitives never returned from New York since they were aware from appellant's mother that the police were looking for them. Fourteen months later appellant was apprehended by New York Police.
Appellant initially alleges that the trial court erred in denying his motion to dismiss the charges because he was denied his right to a speedy trial. Appellant claims that a complaint was filed against him on June 6, 1979, and that his trial did not commence until April 24, 1981.
Pennsylvania Rule of Criminal Procedure 1100 specifically provides that a defendant must be brought to trial within one hundred eighty days from the date on which the complaint is filed. Commonwealth v. Sanford, 497 Pa. 442, 441 A.2d 1220 (1982). Subsection (c)(1), (2) and (3) of Rule
permits the Commonwealth to apply to the court for an order extending the time for commencement of trial upon a showing that the trial could not commence within the prescribed time period despite the "due diligence" of the Commonwealth.*fn4 Although this Court has yet to precisely define "due diligence" we have on past occasions concluded that such a showing depends on the circumstances of each particular case. See Commonwealth v. Roman, 494 Pa. 440, 431 A.2d 936 (1981); Commonwealth v. Romberger,
Pa. 258, 416 A.2d 458 (1980); Commonwealth v. Ehredt, 485 Pa. 191, 401 A.2d 358 (1979); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976). Moreover, this Court has held that Rule 1100 requires that the Commonwealth prove by a preponderance of evidence that it acted with due diligence in bringing a case to trial. Commonwealth v. Ehredt, supra.
In this case appellant argues that the Commonwealth failed to establish its due diligence since it never communicated to him through the public, by advertisements or legal notices, a warrant for his arrest, and that because of such lack of notice he did not know that he was ...