No. 124 E.D. Appeal Docket 1983. Appeal from judgment of conviction on criminal information numbers 2271 and 2271-01 of 1980, and from judgment of sentence of death in the Bucks County Court of Common Pleas, October 27, 1983.
Mel D. Kardos, Newtown, for appellant.
Michael J. Kane, Dist. Atty., Robert E. Goldman, Chief/Deputy Dist. Atty., Stephen B. Harris, First Asst. Dist. Atty., Doylestown, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a dissenting opinion.
Appellant, Martin Colson, appeals a judgment of sentence of death for murder of the first degree imposed by the Court of Common Pleas of Bucks County.
The Commonwealth's evidence established that decedent, Thomas Livezey, resided in Fountainville, Bucks County, and was involved in various business enterprises. Among other things, he was a painting contractor. On November 15, 1976, decedent received a call at home from a woman who identified herself as Melinda Kelly. The caller said she wanted an estimate for a painting job at a house into which she was about to move. Decedent referred her to his wife, Barbara Livezey. She took directions from the caller to a purported job site in Upper Bucks County. It was agreed that decedent would go to the site the following Saturday morning, November 20.
Decedent left home in a van on the morning of November 20. He and the van were next seen by passing motorists on Keystone Road in Upper Bucks County. Two of the motorists who stopped at the scene were Donald Landis and Frank Smolinsky. They observed the van parked with the door open and decedent lying on the road near the van. Landis had heard gunshots shortly before. State Trooper Thomas Stotsenburgh arrived at the scene and found decedent dead of gunshot wounds. There were shotgun wadding and shells near the body. Stotsenburgh found a clipboard with directions to the purported job site. The street on which the job was to be done did not exist.
After the killing, it was learned through investigation that decedent was a partner in real estate ventures with his brother, William, and that each of them held large insurance policies on the life of the other. The business was in debt, which led to disputes between the brothers. Early in
, decedent offered his brother $4,000 for his interest, which was refused. Decedent initiated legal proceedings to dissolve the partnership, which were in progress at the time of his death. The homicide made William the sole owner of the business. The business received $237,000 in life insurance proceeds. Debts were paid, and William netted $100,000.
William Livezey and Appellant were linked to the homicide by Jerome Randis, who spoke to the State Police on March 22, 1979. Randis said that he was associated with Livezey and Appellant in the drug business. He was present at or party to conversations in which they spoke of their involvement in the killing. On one occasion after the killing, Livezey and Appellant discussed the killing and Appellant said he wanted money for it. During conversations between Appellant and Randis, Appellant said that he arranged to have decedent lured to the scene of the killing, that he shot decedent with a shotgun obtained from William Livezey, and that he then threw the shotgun into the Delaware river. Randis was present on another occasion when Appellant told a third person he did a "hit" for William Livezey. On still another occasion, Livezey told Randis he arranged to have Appellant kill decedent. A further link was provided by Daniel Thurber, another associate of Appellant. Thurber was with Appellant in Florida after the killing. He testified that Appellant told him he "shot a guy in Pennsylvania," was paid for it, and threw the weapon in a river.
After Randis revealed his information, Barbara Livezey participated in a telephone "lineup" under the supervision of the State Police. She heard eight women speak over the telephone and identified one of them as the caller who directed decedent to the scene of the homicide. The woman she identified was Eva Colson, the wife of Appellant. Shortly after the "lineup", Eva Colson left her residence, and according to the testimony of a state trooper at trial, she had not been located thereafter.
In December 1978, William Livezey went to the office of James Hansley, Police Chief of the Borough of Lansdale, Montgomery County to pay some traffic fines. Hansley had been acquainted with both Livezey and decedent. He told Livezey he was a suspect in the murder on the basis of what was then known about his business dealings. Livezey said he had discussed the matter with the State Police and had been advised by his attorney not to say anything. On February 20, 1979, Hansley learned that there were warrants outstanding for Livezey's arrest on drug charges. He attempted to locate Livezey and was not able to do so. Livezey's whereabouts were unknown until September 17, 1979, when police were called to a residence in Lansdale where a disturbance was going on. Livezey's girlfriend, Barbara Kelly came out of the residence. She said that Livezey was inside, had a gun, and was determined not to be taken alive. Hansley attempted to persuade Livezey to come out. When this failed, tear gas canisters were thrown into the residence. One canister came into contact with a curtain on a window and started a fire. Police entered the residence after the fire was put out and found Livezey dead of a self-inflicted bullet wound in the head.
Appellant claims to have been denied due process of law by delay in his arrest. Such claim, if accepted, would entitle him to a discharge. Appellant was arrested on February 20, 1980, which was more than three years after the crime. He argues that this was unfair because certain potential defense witnesses were dead or could not be located, those who could be located no longer had independent recollections of events, and Appellant himself no longer had a clear memory of events at the time of the murder. A state trooper gave reasons for the delay at a pre-trial hearing on this issue. The State Police did not believe they had probable cause to make any arrests until they spoke to Jerome Randis. After that, they determined that William Livezey and Martin and Eva Colson should be arrested. They desired to locate and arrest all three at the same time, fearing that if one were arrested, the other two would go
into hiding. They found that they were unable to locate any of the suspects in the Commonwealth. The State Police had information indicating that Appellant was in Wisconsin and Florida at different times. They followed leads in those states. Appellant was ultimately located and arrested in Tampa, Florida.
In United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), the Court addressed the question of delay in the filing of charges, which raises issues similar to those involved in a delayed arrest. The court held that proof of prejudice is a necessary, but not sufficient, condition for a finding of denial of due process. The prosecution is under no constitutional duty to file charges as soon as it obtains sufficient evidence to establish probable cause or prove guilt. It may delay doing so in order to continue its investigation. A delay for a reasonable investigation does not violate due process even if it adversely affects the defendant's case. Lovasco involved an eighteen month delay in the filing of federal firearms charges. The delay was due to an investigation conducted for the purpose of finding co-conspirators. The Court determined that the delay for such purpose was reasonable. Consequently there was no denial of due process.
Commonwealth v. Crawford, 468 Pa. 565, 364 A.2d 660 (1976), involved a murder prosecution. We found that a four year delay in the filing of charges did not deny due process where the police had difficulty putting together the facts and the defendant was put on notice at the time of the murder that he was a suspect. A seven month delay in the arrest of a rape defendant did not deny due process where the police made reasonable efforts to locate him at the residences of relatives and at various hangouts, Commonwealth v. Sanders, 260 Pa. Super. 358, 394 A.2d 591 (1978). In the instant case, although Appellant claims he was prejudiced, there is no evidence to support that contention. He appears to have had notice that he was a suspect, given his departure from the Commonwealth and the testimony of his statements that he committed the murder. The pre-arrest
delay was reasonable in view of the initial difficulty experienced by the police in ascertaining the facts, Appellant's absence from the Commonwealth, and the diligent efforts to locate all of the suspects. Therefore, we find no denial of due process.
Appellant asserts various grounds for a new trial. One of these is that the jury was improperly death qualified. Prospective jurors who stated that they would not under any circumstances vote for the death penalty were excluded. Appellant argues that this was improper because it resulted in a jury that was more conviction-prone and did not contain a representative cross-section of the community. The death qualification procedure followed here was approved in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Similarly, we have held that death qualification does not deprive the defendant of a fair determination of guilt or innocence, Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984); Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975). See also, Commonwealth v. Travaglia, 502 Pa. 474, 503 n. 2, 467 A.2d 288, 302-03 n. 2 (1983).
Appellant also argues that death qualification was improper because this should not have been treated as a capital case. The argument is based on the fact that he was accused of committing a murder prior to the enactment of the present death penalty statute, Act of September 13, 1978, P.L. 756, No. 141, effective immediately, 42 Pa.C.S. § 9711. We have held that this is not a ground for a new trial, Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981).
Appellant alleges several errors in the jury selection process. One of these is the refusal to excuse for cause Barbara Funk, a prospective juror who had ties to the victim's and prosecutor's families and prosecution witnesses. Funk knew decedent's mother, who had taught her son in school approximately four years before the trial, and was acquainted with Frank Smolinsky, one of the motorists who
had discovered the decedent's van, and with the wife of the state trooper who was the prosecuting officer. She did not have a close relationship with any of these people. Furthermore, Funk believed that her husband may have been employed by decedent as an electrical subcontractor prior to their marriage. Also, her mother's estate had been settled four years previously by an attorney who was associated with the prosecutor's father. She did not know the prosecutor. Funk testified that none of these relationships would influence her decision.
The test for determining whether a prospective juror should be disqualified is whether he or she is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor, Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). It must be determined whether any biases or prejudices can be put aside on proper instruction of the court, Commonwealth v. Drew, 500 Pa. 585, 459 A.2d 318 (1983). A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct and answers to questions, Commonwealth v. Colon, 223 Pa. Super. 202, 299 A.2d 326 (1972). The decision on whether to disqualify is within the sound discretion of the trial court and will not be reversed in the absence of a palpable abuse of discretion, Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977).
A remote relationship to an involved party is not a basis for disqualification where a prospective juror indicates during voir dire that he or she will not be prejudiced. This is illustrated by a number of cases. One of these is Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434 (1959). That case involved challenges to two prospective jurors in a murder trial. One of them was the son-in-law of a detective who investigated the crime. The
other was a second cousin once removed to the victim. She testified that she and the victim lived twenty-five miles apart and never visited each other. We found no error in not disqualifying these jurors. In Commonwealth v. Yohn, 271 Pa. Super. 537, 414 A.2d 383 (1979), the court upheld the refusal to disqualify two jurors in a burglary case. One of them had been employed by the victim three or four years before the crime. The other had gone on a fishing trip six to eight years before the trial with a police officer who was the superior of the prosecuting officer. No basis for a challenge for cause of a prospective juror was found in Commonwealth v. Bright, 279 Pa. Super. 1, 420 A.2d 714 (1980), a prosecution for assault and resisting arrest, where the juror lived in the same neighborhood as the prosecuting attorney and had known him since he was a child. There was likewise no ground for challenging a prospective juror in a theft and receiving stolen goods prosecution where she was somehow related to the police prosecutor (the record did not disclose how) and was the aunt of a member of the district attorney's staff who was not trying the case. Commonwealth v. Stamm, 286 Pa. Super. 409, 429 A.2d 4 (1981).
Cases involving issues of juror bias that arose during the trial are also relevant. We found no basis for disqualifying a juror who recognized the mother of a murder victim when she took the stand but said she did not know her and felt no more sympathy for her than she would for anyone else in the same situation, Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971). In Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980), another murder case, there was no need to disqualify a juror who recognized a police witness as someone she had seen at mass but said she did not know his name, had never spoken to him, and would not be influenced.
In the instant case, we find that Funk's relationship to persons involved in the case was remote. It did not create such a bias as to require her disqualification. Consequently, there was no error in refusing a challenge for cause.
Appellant next claims that it was error to refuse challenges to two prospective jurors who expressed a bias in favor of police witnesses. One of them testified as follows under voir dire questioning by the defense attorney:
Q. If two people testified in this matter and one happened to be a police officer and one happened to be a private citizen and they both had the same opportunity to observe the same event. In other words, they had the same amount of time to observe something from the same distance and one person testified one way and that was the civilian witness and the police officer testified a different way, would you tend to believe the police officer because he is a police officer as opposed to the civilian witness?
A. I would believe the police officer, yes.
Q. Simply because he is a police officer I assume?
The prosecutor questioned him further on the subject:
Q. If a civilian witness and a police officer both have the training and the same education and the same background they are identical in all those respects, would you be able to evaluate them in the same way and listen to what they base their opinion upon?
A. Yes, I would be able to evaluate.
THE COURT: You would be able to evaluate them?
Q. You would be able to then evaluate both according to -- what I'm saying is that the Commonwealth will tell you and the Judge will instruct you later that just because a person is a police officer, you listen to what he bases his observations upon, do you feel you would be able to evaluate his ...