No. 39 W.D. Appeal Docket, 1983, Appeal from the Order and Judgments of Sentence entered by the Court of Common Pleas of Erie County, Pennsylvania, Criminal Division at Nos. 815-A, 815-B and 816 of 1981.
Elliot J. Segel, Court-appointed, Erie, for appellant.
Michael J. Veshecco, Dist. Atty., Erie, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., concurred in the result. Nix, C.j., filed a dissenting opinion.
On October 23, 1981, appellant Joseph Thomas Szuchon was found guilty by a jury of murder of the first degree, three counts of kidnapping, two counts of terroristic threats and two counts of recklessly endangering another person. In the penalty phase of the bifurcated proceeding conducted pursuant to the Sentencing Code, 42 Pa.C.S.A. § 9711, the same jury sentenced appellant to death for the murder of Judy Lynn Snyder.*fn1 Post-verdict motions were filed and denied by the Court of Common Pleas of Erie County and this automatic appeal followed. 42 Pa.C.S.A. §§ 9711(h)(1) and 722(4) and Pa.R.A.P. Rule 702(b).
The events culminating in an evening of terror on April 14, 1981 for three young people in Erie County began with
the breakdown of appellant's relationship with Judy Lynn Snyder and his inability to deal with that breakdown. Appellant and Ms. Snyder had been involved in a stormy relationship over a period of several years, including periods of time in which they lived together in California and in Philadelphia. Toward the end of 1980, Ms. Snyder left appellant in Philadelphia and returned to her parents' home in Erie.
Refusing to accept that the relationship was over, appellant began to harass Ms. Snyder with telephone calls at her parents' home. Appellant's love for Judy Snyder progressively transformed to hatred and he began to tell various people how he was going to kill her with a Winchester rifle or cut her from ear to ear -- if he could not have her, no one would. Eventually, appellant returned to Erie to pursue Ms. Snyder.
In Erie, appellant continued to harass Judy Snyder at her parents' home, with Erie police being dispatched to the home on two occasions to remove appellant from the premises. Appellant also continued to tell others that he intended to kill Ms. Snyder as well as her "boyfriend". Finally, on April 14, 1981, appellant purchased a Winchester rifle from Gorenflo's Gunsmith in Erie, purchased bullets from the Erie Sport Store, loaded the rifle and drove to the Bottom Line, a restaurant/tavern where Judy Snyder was working.
Appellant parked in the lot of the Bottom Line and read a newspaper while he waited for Ms. Snyder to get off work. When her shift was finished, she and two friends, Aldo DeSanto and Mary Sadowski, left the Bottom Line to go to Judy's car, whereupon the three were confronted by appellant, holding the Winchester and stating "If you all don't get into the car, I'll blow your fucking heads off." Notes of Testimony (N.T.) October 16, 1981 at 70 (testimony of Aldo DeSanto) and at 154-55 (testimony of Mary Sadowski). All four then got in Ms. Snyder's car with Judy driving, Mary in the front passenger seat, and Aldo in the back seat with appellant.
Appellant then directed Ms. Snyder to drive to an isolated area, the state game lands. As they drove, appellant kept the gun pointed at them and, at one point, told the three to "make your act of contrition or say your confessions if you want to go to heaven because at the end of this night I'm surely going to hell". Id. at 75 and 158-59. Mary Sadowski, certain she was going to die at appellant's hands, jumped from the moving car (at 50 m.p.h.) and escaped. Id. at 160. Somehow she avoided serious injury, ran to a house and called the police.
Appellant ordered Ms. Snyder to continue to drive to the game lands. Upon arrival there (the drive took approximately 15-20 minutes), he ordered her and Mr. DeSanto to walk into a corn field. The latter took several steps into the field, but Ms. Snyder refused. When she persisted in refusing to go on, appellant aimed the gun at Ms. Snyder, she turned, and appellant shot her in the back. Mr. DeSanto jumped to the ground, rolled, then got up and ran. While running, he heard two more shots. He finally reached a farmhouse and the owners called the police.
Shortly thereafter, Pennsylvania State Troopers arrived at the scene and discovered Ms. Snyder's abandoned car, and then located her body. She had been killed by two bullets that had pierced her back from different angles. Appellant was nowhere to be found, and a police manhunt was initiated.
Later that evening, Frederick Pusch was driving his vehicle on an isolated road south of Erie when he encountered appellant who informed Mr. Pusch that his car had broken down and that he needed to use a phone. Mr. Pusch drove appellant to Pusch's cottage at Canadohta Lake. While at the cottage, appellant informed Mr. Pusch that he had just killed his girlfriend and that another girl and a guy had gotten away. The next morning (April 15th), appellant placed a message with the Erie Police Department requesting that an officer with whom he was acquainted, Detective Richard Runstedler, come to Canadohta Lake so that he could turn himself in. Detective Runstedler and another
officer drove to Canadohta Lake and took appellant into their custody at approximately 12:15 p.m. on April 15, 1981.
Appellant was taken to the Erie City Police Department where, at approximately 1:30 p.m., Pennsylvania State Trooper Michael Povlick arrested him for the murder of Judy Lynn Snyder. Appellant was taken to the state police barracks where he was given his Miranda warnings, which he waived. Appellant then confessed to kidnapping the three victims at gunpoint, intending to take them to the country to kill them. Appellant stated that he intended to kill them because Judy would not return to him as his girlfriend, and because he perceived Aldo as "cutting in on him" and felt that Mary was meddling and interfering with his relationship with Judy. Appellant's version of the events was essentially consistent with the testimony of the two kidnap victims. Appellant told Trooper Povlick that he told Ms. Snyder "how much he loved her, and at this point she laughed and turned her back and he shot her." N.T. October 21, 1981 at 160. Appellant also informed Trooper Povlick that he had, the day of the homicide/kidnapping, ingested a "couple lines" of cocaine and "five to six quaalude tablets". Id. at 172. No evidence of drugs or paraphenalia were found on appellant.*fn2
Appellant's defense was that he had been operating with a diminished capacity and/or had been in a drugged or intoxicated condition such that he was not able to form the
specific intent to commit murder. Thus the defense, for obvious reasons, did not deny that appellant committed the crimes, but attempted, rather, to reduce the degree of guilt on the homicide charge. The defense was unsuccessful.
The only evidence as to appellant's diminished capacity and his drugged or intoxicated condition came from appellant himself, through statements he had made to various people subsequent to the murder/kidnapping. This evidence was vague and equivocal and was overwhelmingly countered by the testimony of Aldo DeSanto, Mary Sadowski, Frederick Pusch (who was a teacher of the emotionally disturbed), the salesmen who sold appellant the rifle and bullets, the arresting officers and others, that on April 14 and 15, 1981, appellant was calm, deliberate and coherent and exhibited no signs of intoxication or drugged condition. Moreover, the Commonwealth introduced Dr. Walter Finken, a psychiatrist at Warren State Hospital who had examined appellant, discussed his participation in the crimes with him and testified that in his opinion, at the time of the incident appellant was able to comprehend the nature and the quality of his acts, knew right from wrong, and was capable of forming the specific intent to commit murder.
Based upon the foregoing discussion of the record evidence, we have no hesitation in finding that evidence sufficient beyond a reasonable doubt to sustain the jury's verdict of guilty of murder of the first degree, as well as the convictions for kidnapping, terroristic threats and reckless endangering.*fn3
Immediately following the guilt phase of the proceeding, the penalty phase was conducted. No evidence was introduced by either party at this stage of the proceedings. The Commonwealth sought the death penalty on the theory that two aggravating circumstances existed which outweighed
any mitigating. The aggravating circumstances were: 1) that the appellant committed a killing while in the perpetration of a felony (kidnapping), 42 Pa.C.S.A. § 9711(d)(6); and 2) that in the commission of the offense the appellant knowingly created a grave risk of death to another person in addition to the victim of the offense, 42 Pa.C.S.A. § 9711(d)(7). The defense argued the existence of four mitigating circumstances, namely: appellant had no significant history of prior criminal convictions;*fn4 appellant was under the influence of extreme mental or emotional disturbance; appellant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and the influence of drugs and alcohol upon appellant's behavior. 42 Pa.C.S.A. § 9711(e)(1), (2), (3) and (8) respectively.
After being instructed by the court in accordance with the Sentencing Code, 42 Pa.C.S.A. § 9711(c), the jury unanimously returned a verdict of death having found both aggravating circumstances present and having found that the aggravating circumstances outweighed any mitigating circumstances.
Our standard of review in cases of murder of the first degree in which a verdict of death has been rendered is established by the Sentencing Code, 42 Pa.C.S.A. § 9711(h), which provides:
(1) A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules.
(2) In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence.
(3) The Supreme Court shall affirm the sentence of death unless it determines that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of an aggravating circumstance specified in subsection (d); or
(iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
Before addressing appellant's specific challenges to the validity of his convictions and sentences, certain pre-trial events surrounding the court's appointment of counsel to represent appellant loom critical. Initially, appellant was represented by privately retained counsel who had entered his appearance on April 16, 1981. On September 24, 1981, a colloquy was held before the Honorable Richard L. Nygaard, the trial judge, at which private counsel, Jay Nedell, informed the court that his client had refused his advice to waive his right to a speedy trial (specifically embodied in the 180 day period of Rule 1100 of the Pennsylvania Rules of Criminal Procedure) in order to allow additional time to prepare the case. This colloquy originally had been scheduled with the understanding that appellant would execute such a waiver in writing, but he changed his mind based upon, as Mr. Nedell put it, "a little bit of a misconception of the law about the one hundred eighty day rule . . . ." N.T. Pre-trial colloquy September 24, 1981 at 2.
Several days later, another colloquy was held at which time the court granted Mr. Nedell's motion to withdraw as counsel because of a breakdown of the attorney-client relationship. Mr. Nedell indicated to the court that there was no communication between himself and his client, that his client had no trust in him and that his client was not cooperating with him in the preparation of the defense. Appellant stated he did not "give a damn" what attorney Nedell does, because Nedell did not see appellant as often as he had promised and because "He [Nedell] lied to me a few times." (There was no elaboration as to how counsel
"lied" to appellant.) When asked what plans he had regarding new counsel for his trial scheduled for October 12th, the final day of the 180 day period, appellant stated "I have to talk it over with my father. . . . That is all I have to say about it." N.T. Pre-trial colloquy September 28, 1981 at 4. The following exchange then took place:
BY THE COURT: Mr. Szuchon, how quickly do you expect to be talking with your father?
BY THE DEFENDANT: Well, I guess as soon as I can make a phone call.
BY THE COURT: Because as you are aware, with the one hundred eighty day rule, as we refer to it, the speedy trial rule not being waived by yourself, this will be going to trial beginning on October the 12th, and you must make your arrangements as quick as possible. I'm going to grant this motion to withdraw, and I will await hearing from you perhaps through Mr. Nedell, if possible, as to what is happening as far as the appointment of other counsel to replace him, and if I don't hear anything within a day, I will be back in touch with both of you at that point, I think, so we have some line of communication from Mr. Szuchon to the Court. The motion is granted.
A third colloquy was held on Friday, October 2, 1981, at which appellant indicated he had not "had a chance to get in touch with" his father regarding retaining private counsel. N.T. October 2, 1981 at 2. Nevertheless, appellant refused the court's offer of court appointed counsel to either represent appellant at trial or to assist appellant in preparing his defense until such time as he did retain private counsel. Id. at 3, 11. The court strongly advised appellant to execute a waiver of Rule 1100, whether appellant be represented by private or appointed counsel, and went to great lengths to impress upon appellant the gravity of his decisions not to accept court appointed counsel and not to waive the 180 day rule. Appellant obstinately maintained "I'm not signing no waiver". Id. at 7, 8. The court then instructed appellant to continue to make every effort to secure an attorney and to
notify the court should appellant decide to accept court appointed counsel. Finally, a hearing was scheduled for the following Monday to determine whether appellant had been successful in retaining private counsel.
On Monday, October 5th, appellant stated in court that prison officials had refused to allow him to use a telephone and, so, he had not been able to contact his father. The court sent a court order to the jail instructing officials to permit appellant to make telephone calls. However, the court again strongly advised appellant:
that you give serious thought, whoever your attorney is, whether privately employed or court appointed, additional opportunity to prepare himself for the case and make use of expert testimony in your defense. In your failure to waive that rule eleven hundred, timed deadline might hamper your attorney in preparing this defense. I realize the decision is yours, but the consequences are also yours should you fail to, and we are dealing here with a very serious charge and the consequences of which are all too serious as I'm sure you are aware. I sent a couple of attorneys up who talked to you on Friday, I believe -- Thursday or ...